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Agnani (W. M.) Vs. Badri Das and Others | to glance at the twenty categories of misconduct specified by Para. 10 of the standing orders to realize that a private quarrel between an employee of the respondents and another citizen cannot fall within any of those categories. It is true that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct. It would be difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; misbehaviour committed even outside working hours but within the precincts of the concern and directed towards the employees of the said concern may, in some cases, constitute misconduct; if the conduct proved against the employee is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of each case. It may, however, be relevant to observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction. As we have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. When standing orders were framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question will have to be dealt with reasonably and in accordance with commonsense.In the present case, what is the conduct proved against the appellant ? The appellant does not dispute the fact that he spoke sharp words to Om Parkash; but the quarrel was purely a private quarrel between Chakerpani and Om Parkash, and the appellant intervened and wanted Om Parkash to return the pawned articles to Chakerpani on his paying the amount borrowed by him. This incident has, no doubt, taken place in the colony built by the respondents for their employees, but outside the premises of the paper and it has taken place between one of the employees and a shop-keeper. When we bear in mind the background of the dispute, the nature of the quarrel, the time and place where it took place and its essential features, it is difficult to accept the High Courts conclusion that the tribunal committed an error apparent on the face of the record when it held that the acts proved against the appellant did not constitute misconduct. In this connexion, it is necessary to emphasize that the tribunal was entitled to consider the legality of the action taken by the respondents, because it held that the respondents had misdirected themselves in law in coming to the conclusion that the incident in question amounted to misconduct at all. This aspect of the matter cannot be said to be outside the jurisdiction of the tribunal when it was dealing with the industrial dispute referred to it.13. It is true that a large number of employees complained to the respondents on 18 November 1959, and that in fact was the justification for the resolution passed by the respondents; but it is remarkable that these persons who complained were not present at the scene when the incident took place and their complaint is obviously based on information received by them later. One has merely to read the language of this complaint to appreciate the comment made by the appellant that this complaint is inspired. It would be idle to contend that the incident which took place between appellant and the shop-keeper could have hurt the feelings of the ladies living in the colony and could have constituted "a challenge to the self-respect of those who lived in the colony." The extravagant language used in this complaint tends to defeat rather than help the purpose which it was intended to serve. It is also significant that though the incident took place on 16 November, 1959, and a complaint about it was received on 18 November, 1959, no action was taken until 2 January, 1960; and that prima facie lends some support to the appellants case that what really annoyed the respondents was the fact that the appellant had started another union and got it registered in December 1959. As we have already observed, tribunal has not considered the appellants case about his victimization because it allowed his prayer for reinstatement on grounds of law raised by him, but since Mr. Setalvad has referred to the complaint, we thought it necessary to point out that the complaint on which the respondents rely and the manner in which they passed the resolution prima facie are indicative of their indignation which cannot be said to be justified merely by the incident which took place on 16 November, 1959. We have carefully considered the points raised by Mr. Setalvad before us, but we do not think it is possible to hold that on the facts held proved by the tribunal in this case it was open to the High Court to exercise its jurisdiction under Art. 226. If the respondents had come to this Court in appeal under Art. 136 against the award made by the tribunal, it might perhaps have been open to them to challenge some of the findings of the tribunal, because, theoretically, the scope of our jurisdiction under Art. 136 in dealing with awards is wider than the scope of the High Courts in dealing with the awards under Art. 226 of the Constitution. It appears to us that in allowing the writ petition filed before it by the respondents, the High Court has, in substance, purported to act as an appellate Court and that is a very serious infirmity in the order. | 1[ds]In dealing with this appeal, it is necessary at the outset to emphasize the limits of the jurisdiction of the High Court in entertaining a plea for a writ of certiorari under Art. 226. This question has been theof several decisions of this Court, and the law in relation to it is no longer in doubt. In order to justify the issue of a writ of certiorari, it must be shown that the impugned order suffers from an error apparent on the face of the record. It is clear that the error must be an error of law, not an error of fact, because an error of fact, though serious, and though it may be apparent on the face of the record, cannot sustain a claim for the writ of certiorari : It is only errors of law that justify the issue of the end writ, provided, of course, they are of such a character as would reasonably be treated as errors apparent on the face of the record.The tribunal took the view that this resolution clearly showed that the enquiry had to be held about the incident which took place on 16 November, 1959 and it thought that the reference to his previous conduct was in incidental and may have been necessary for determining the question of sentence, but it was not intended to be theof the enquiry. The High Court has taken a different view. Apart from the correctness of one view or another, it seems to us plain that in a matter of this is kind, if the tribunal put one interpretation upon the resolution and the High Court thought it better to put another, that cannot be said to introduce an error apparent on the face of the record in the order of the tribunal. If it can be said that the view taken by the tribunal is not even reasonably possible, perhaps an argument may be urged that the error is apparent on the face of the record; but, in our opinion, it would not be possible to accept Mr. Setalvads argument that the construction placed by the tribunal is an impossible construction. On the other hand, while conceding that the view taken by the High Court may be reasonably possible, we are inclined to think that the construction put upon the resolution by the tribunal is also reasonably possible; if we had to deal with the matter ourselves, we would have preferred the view of the tribunal to the view of the High Court. The enquiry contemplated by Para. 2 is an enquiry into the conduct specifically mentioned in Para. 1, and so the tribunal was justified in holding that charges 1 to 8 which had nothing to do with the incident of 16 November, 1959, were not entrusted to the enquiry committee. Apart from this aspect of the matter, we are satisfied that the High Court should not have entertained this argument under Art. 226 of the Constitution.Mr.Setalvad then attempted to argue that charges 1 to 8 had been subsequently adopted by the respondents and in that sense, It may be assumed that the respondents wanted to have the said charges tried.We do not think it necessary to examine this argument, because on the record it does not appear that the respondents had formally affirmed these charges before they were sent to the enquiry committee. In any event, is no doubt that the tribunal was entitled to consider this point and if it came to the conclusion that the enquiry contemplated by the resolution of 2 January, 1960 was confined only to the incident of 16 November, 1959, it would not be open to the respondents to contend under Art. 226 that view is erroneous and that the error should be corrected by the issue of a writ of certiorari.11.Then as to the second point about the misconduct alleged to have been committed by the appellant on 16 November, 1959, Mr. Setalvad has very strenuously contended before us that it was for the domestic enquiry to consider this matter and since an enquiry has been properly held and the conclusion of the enquiry committee has been accepted by the respondents, the tribunal had no authority to consider the propriety or the correctness of the findings, or even the propriety of the ultimate action taken by the respondents against the appellant.It is true that if a domestic enquiry held and the employer terminates the services of his employee, the industrial tribunal dealing with industrial disputes arising out of such dismissals is not authorized to sit in appeal over the findings of the enquiry committee, or to examine the propriety of the ultimate order of dismissal passed by the employer. This position is, of course, subject to the qualification that if it appears to the tribunal that the ultimate order is so disproportionately severe in relation to the misconduct proved that it may lead to an inference of victimization, the tribunal would be justified in interfering with that order. In that present case, the tribunal did not think it necessary to decide the point of victimization, because it held that the other points of law raised by the appellant before it werein dealing with the merits of the conclusion reached by the tribunal and the High Court on this part of the case, it may be relevant to refer to standing order 10, Cl. (9). At the time when the enquiry was held, no standing orders had been framed, but apparently they have been framed subsequently, and as we have already indicated, the respondents relied upon standing order 10(9) before the tribunal. Standing order 10, inter alia, provides for the classification and description of misconduct. Clause (9) of the standing order says that it would be misconduct which would entail dismissal if alone or in combination with orders, anywhere within the trusts estate, an employee causes or threatens to cause mental and/or physical pain or injury to other employees. It is plain that the conduct proved against the appellant does not fall under this clause. The quarrel was between the appellant who espoused the cause of Chakerpani, another employee of the respondents, and the shopkeeper Om Parkash. Om Parkash is not an employee of the respondents, though he had been allowed to run the shop for the benefit of the respondents employees. The tribunal was, therefore, clearly right in rejecting the respondents case that the misconduct proved against the appellant was of a character which would fall under standing order 10(9).12. The standing orders, which have been subsequently adopted by the respondents, however help us in determining what the respondents treat as misconduct. One has merely to glance at the twenty categories of misconduct specified by Para. 10 of the standing orders to realize that a private quarrel between an employee of the respondents and another citizen cannot fall within any of those categories. It is true that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct. It would be difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; misbehaviour committed even outside working hours but within the precincts of the concern and directed towards the employees of the said concern may, in some cases, constitute misconduct; if the conduct proved against the employee is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of each case. It may, however, be relevant to observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction. As we have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. When standing orders were framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question will have to be dealt with reasonably and in accordance withappellant does not dispute the fact that he spoke sharp words to Om Parkash; but the quarrel was purely a private quarrel between Chakerpani and Om Parkash, and the appellant intervened and wanted Om Parkash to return the pawned articles to Chakerpani on his paying the amount borrowed by him. This incident has, no doubt, taken place in the colony built by the respondents for their employees, but outside the premises of the paper and it has taken place between one of the employees and aWhen we bear in mind the background of the dispute, the nature of the quarrel, the time and place where it took place and its essential features, it is difficult to accept the High Courts conclusion that the tribunal committed an error apparent on the face of the record when it held that the acts proved against the appellant did not constitute misconduct. In this connexion, it is necessary to emphasize that the tribunal was entitled to consider the legality of the action taken by the respondents, because it held that the respondents had misdirected themselves in law in coming to the conclusion that the incident in question amounted to misconduct at all. This aspect of the matter cannot be said to be outside the jurisdiction of the tribunal when it was dealing with the industrial dispute referred to it.13. It is true that a large number of employees complained to the respondents on 18 November 1959, and that in fact was the justification for the resolution passed by the respondents; but it is remarkable that these persons who complained were not present at the scene when the incident took place and their complaint is obviously based on information received by them later. One has merely to read the language of this complaint to appreciate the comment made by the appellant that this complaint is inspired. It would be idle to contend that the incident which took place between appellant and thecould have hurt the feelings of the ladies living in the colony and could have constituted "a challenge to theof those who lived in the colony." The extravagant language used in this complaint tends to defeat rather than help the purpose which it was intended to serve. It is also significant that though the incident took place on 16 November, 1959, and a complaint about it was received on 18 November, 1959, no action was taken until 2 January, 1960; and that prima facie lends some support to the appellants case that what really annoyed the respondents was the fact that the appellant had started another union and got it registered in December 1959. As we have already observed, tribunal has not considered the appellants case about his victimization because it allowed his prayer for reinstatement on grounds of law raised by him, but since Mr. Setalvad has referred to the complaint, we thought it necessary to point out that the complaint on which the respondents rely and the manner in which they passed the resolution prima facie are indicative of their indignation which cannot be said to be justified merely by the incident which took place on 16 November, 1959. We have carefully considered the points raised by Mr. Setalvad before us, but we do not think it is possible to hold that on the facts held proved by the tribunal in this case it was open to the High Court to exercise its jurisdiction under Art. 226. If the respondents had come to this Court in appeal under Art. 136 against the award made by the tribunal, it might perhaps have been open to them to challenge some of the findings of the tribunal, because, theoretically, the scope of our jurisdiction under Art. 136 in dealing with awards is wider than the scope of the High Courts in dealing with the awards under Art. 226 of the Constitution. It appears to us that in allowing the writ petition filed before it by the respondents, the High Court has, in substance, purported to act as an appellate Court and that is a very serious infirmity in the | 1 | 4,386 | 2,270 | ### Instruction:
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to glance at the twenty categories of misconduct specified by Para. 10 of the standing orders to realize that a private quarrel between an employee of the respondents and another citizen cannot fall within any of those categories. It is true that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct. It would be difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; misbehaviour committed even outside working hours but within the precincts of the concern and directed towards the employees of the said concern may, in some cases, constitute misconduct; if the conduct proved against the employee is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of each case. It may, however, be relevant to observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction. As we have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. When standing orders were framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question will have to be dealt with reasonably and in accordance with commonsense.In the present case, what is the conduct proved against the appellant ? The appellant does not dispute the fact that he spoke sharp words to Om Parkash; but the quarrel was purely a private quarrel between Chakerpani and Om Parkash, and the appellant intervened and wanted Om Parkash to return the pawned articles to Chakerpani on his paying the amount borrowed by him. This incident has, no doubt, taken place in the colony built by the respondents for their employees, but outside the premises of the paper and it has taken place between one of the employees and a shop-keeper. When we bear in mind the background of the dispute, the nature of the quarrel, the time and place where it took place and its essential features, it is difficult to accept the High Courts conclusion that the tribunal committed an error apparent on the face of the record when it held that the acts proved against the appellant did not constitute misconduct. In this connexion, it is necessary to emphasize that the tribunal was entitled to consider the legality of the action taken by the respondents, because it held that the respondents had misdirected themselves in law in coming to the conclusion that the incident in question amounted to misconduct at all. This aspect of the matter cannot be said to be outside the jurisdiction of the tribunal when it was dealing with the industrial dispute referred to it.13. It is true that a large number of employees complained to the respondents on 18 November 1959, and that in fact was the justification for the resolution passed by the respondents; but it is remarkable that these persons who complained were not present at the scene when the incident took place and their complaint is obviously based on information received by them later. One has merely to read the language of this complaint to appreciate the comment made by the appellant that this complaint is inspired. It would be idle to contend that the incident which took place between appellant and the shop-keeper could have hurt the feelings of the ladies living in the colony and could have constituted "a challenge to the self-respect of those who lived in the colony." The extravagant language used in this complaint tends to defeat rather than help the purpose which it was intended to serve. It is also significant that though the incident took place on 16 November, 1959, and a complaint about it was received on 18 November, 1959, no action was taken until 2 January, 1960; and that prima facie lends some support to the appellants case that what really annoyed the respondents was the fact that the appellant had started another union and got it registered in December 1959. As we have already observed, tribunal has not considered the appellants case about his victimization because it allowed his prayer for reinstatement on grounds of law raised by him, but since Mr. Setalvad has referred to the complaint, we thought it necessary to point out that the complaint on which the respondents rely and the manner in which they passed the resolution prima facie are indicative of their indignation which cannot be said to be justified merely by the incident which took place on 16 November, 1959. We have carefully considered the points raised by Mr. Setalvad before us, but we do not think it is possible to hold that on the facts held proved by the tribunal in this case it was open to the High Court to exercise its jurisdiction under Art. 226. If the respondents had come to this Court in appeal under Art. 136 against the award made by the tribunal, it might perhaps have been open to them to challenge some of the findings of the tribunal, because, theoretically, the scope of our jurisdiction under Art. 136 in dealing with awards is wider than the scope of the High Courts in dealing with the awards under Art. 226 of the Constitution. It appears to us that in allowing the writ petition filed before it by the respondents, the High Court has, in substance, purported to act as an appellate Court and that is a very serious infirmity in the order.
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which have been subsequently adopted by the respondents, however help us in determining what the respondents treat as misconduct. One has merely to glance at the twenty categories of misconduct specified by Para. 10 of the standing orders to realize that a private quarrel between an employee of the respondents and another citizen cannot fall within any of those categories. It is true that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct. It would be difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; misbehaviour committed even outside working hours but within the precincts of the concern and directed towards the employees of the said concern may, in some cases, constitute misconduct; if the conduct proved against the employee is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of each case. It may, however, be relevant to observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction. As we have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. When standing orders were framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question will have to be dealt with reasonably and in accordance withappellant does not dispute the fact that he spoke sharp words to Om Parkash; but the quarrel was purely a private quarrel between Chakerpani and Om Parkash, and the appellant intervened and wanted Om Parkash to return the pawned articles to Chakerpani on his paying the amount borrowed by him. This incident has, no doubt, taken place in the colony built by the respondents for their employees, but outside the premises of the paper and it has taken place between one of the employees and aWhen we bear in mind the background of the dispute, the nature of the quarrel, the time and place where it took place and its essential features, it is difficult to accept the High Courts conclusion that the tribunal committed an error apparent on the face of the record when it held that the acts proved against the appellant did not constitute misconduct. In this connexion, it is necessary to emphasize that the tribunal was entitled to consider the legality of the action taken by the respondents, because it held that the respondents had misdirected themselves in law in coming to the conclusion that the incident in question amounted to misconduct at all. This aspect of the matter cannot be said to be outside the jurisdiction of the tribunal when it was dealing with the industrial dispute referred to it.13. It is true that a large number of employees complained to the respondents on 18 November 1959, and that in fact was the justification for the resolution passed by the respondents; but it is remarkable that these persons who complained were not present at the scene when the incident took place and their complaint is obviously based on information received by them later. One has merely to read the language of this complaint to appreciate the comment made by the appellant that this complaint is inspired. It would be idle to contend that the incident which took place between appellant and thecould have hurt the feelings of the ladies living in the colony and could have constituted "a challenge to theof those who lived in the colony." The extravagant language used in this complaint tends to defeat rather than help the purpose which it was intended to serve. It is also significant that though the incident took place on 16 November, 1959, and a complaint about it was received on 18 November, 1959, no action was taken until 2 January, 1960; and that prima facie lends some support to the appellants case that what really annoyed the respondents was the fact that the appellant had started another union and got it registered in December 1959. As we have already observed, tribunal has not considered the appellants case about his victimization because it allowed his prayer for reinstatement on grounds of law raised by him, but since Mr. Setalvad has referred to the complaint, we thought it necessary to point out that the complaint on which the respondents rely and the manner in which they passed the resolution prima facie are indicative of their indignation which cannot be said to be justified merely by the incident which took place on 16 November, 1959. We have carefully considered the points raised by Mr. Setalvad before us, but we do not think it is possible to hold that on the facts held proved by the tribunal in this case it was open to the High Court to exercise its jurisdiction under Art. 226. If the respondents had come to this Court in appeal under Art. 136 against the award made by the tribunal, it might perhaps have been open to them to challenge some of the findings of the tribunal, because, theoretically, the scope of our jurisdiction under Art. 136 in dealing with awards is wider than the scope of the High Courts in dealing with the awards under Art. 226 of the Constitution. It appears to us that in allowing the writ petition filed before it by the respondents, the High Court has, in substance, purported to act as an appellate Court and that is a very serious infirmity in the
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Padma Uppal Etc Vs. State of Punjab and Others | in this view by a decision of this Court in Mirza Nausherw an Khan &Anr. v. The Collector (Land Acquisition) Hyderabad([19751 1 S.C.C. 238.) where Krishna Iyer, J who spoke for the Bench said:--"It is true that the Court has adopted a higher value for a strip 50 feet wide adjoining 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."4. We cannot also accede to the contention of counsel for the appellants in appeals Nos. 2402 and 2403 of 1972 that they should have at least been granted compensation for the potential buildings area at Rs. 4/12/- the rate fixed by the Collector, Amritsar for 28.75 acres in Amritsar (Urban) and 32.04 acres in village Tungbala, Amritsar sought to be acquired by the State in February, 1947 as the proceedings for acquisition of the said area were dropped and the proximity in point of time to the notification under section 4 (1 ) of the Act which is a material factor is lacking.5. The contention advanced on behalf of the appellants in the aforesaid two appeals that the compensation awarded to them could not be fixed below the price paid by them for some of the plots in question in 1943, 1946 and 1947 has also no force. It cannot be ignored that .Amritsar having come near the border as a result of the partition of the sub-continent, the prices of land situate therein fell considerably soon after the partition and kept on maintaining a low level for more than a decade .6. The contention of counsel for the appellants in the aforesaid two appeals that they should have at least been awarded compensation for the potential building area at the rate prevalent in Gopalnagar in 195859 cannot also be acceded to. A glance at the chart of the acquisitions which appears at page 85 of the Paper Book shows that the sales were of very small plots of land. In seven transactions out of eight to which our attention has been invited, the land acquired was below 200 sq. yds. and in the eighth transaction, it was 250 sq. yds. It is also well settled that in determining compensation the value fetched for small plots of land cannot be applied to the lands covering a very large extent and that the large area of land cannot possibly fetch a price at the same rate at which small plots are sold. (See Collector of Lakhimpur v. Bhuban Chandra Dutta(A.I.R. 1971 S.C. 2015). All the three contentions advanced on behalf of the claimants of compensation, therefore, fail.Let us now deal with the second set of the aforesaid eight appeals preferred by the State of Punjab. While doing so, it would be well to recall that it is well established that in an appeal from an award granting compensation, this Court should not interfere unless there is a wrong application of any well settled principle or unless there is something to show not merely that on the balance of evidence it is possible to reach a different conclusion but that the judgment cannot be supported by reason of a wrong application of a principle or because some important point affecting valuation has been overlooked or misapplied. Moreover, there is a prudent condition to which the appellate power, generally speaking, is subject. A court of appeal interferes not when the judgment under attack is not right but only when it is shown to be wrong. (See The Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty([1959] Supp. 1 S.C.R. 404.) Dattatrayaya Shankarbhat Ambalgi &Ors. v. The Collector of Sholapur &Anr.([1971] 3 S.C.C. 43) and The Dollar Company, Madras v. Collector of Madras([1975] 2 S.C.C. 730.).7. The first contention advanced on behalf of the State that the erstwhile owners of the land in question could not be given compensation higher than that assessed for the acquisition made by the State for the construction of Hygiene and Vaccine Institute is devoid of force.8. Whereas the notification under section 4(1) of the Act with regard to that acquisition was published on May 17, 1956, the notification under the said provision or the Act in respect of the instant acquisition was published on March 18, 1959 when the market value of the land in the locality had risen very high. The ratio of compensation assessed for the former acquisition cannot, therefore, serve as a safe guide for determination of compensation for the acquisition in question. Similarly, the consideration paid by Smt. Balwant Kaur to Shri Girdbari Lal in March, 19 57 for the purchase of land cannot also serve as a safe guide as this transaction also took place in March, 1957 i.e., nearly two years before the publication of the aforesaid notification in respect of the present acquisition. The High Court was, in our opinion, perfectly justified on the basis of the material before it in fixing compensation at Rs. 4.50 per sq. yd. for the potential building area and Rs. 3.00 for the agricultural area in respect of the plots of land involved in appeals Nos. 2402 and 2403 of 1972. The High Court, however, was wrong in overlooking an important point affecting compensation payable to the erstwhile owners of the potential building area involved in appeals Nos. 2694, 2695 and 2697 to 2700 of 1972. The said claimants having claimed compensation only at the rate of Rs. 4.00 per sq. yd. in the first appeals filed by them in the High Court, they could not have been awarded compensation exceeding that rate. Thus the said appeals filed by the State cannot but be allowed to the extent to which the compensation awarded to the claimants in respect of the potential building area acquired exceeds Rs. 4.00 per sq. yd. | 0[ds]Whereas the notification under section 4(1) of the Act with regard to that acquisition was published on May 17, 1956, the notification under the said provision or the Act in respect of the instant acquisition was published on March 18, 1959 when the market value of the land in the locality had risen very high. The ratio of compensation assessed for the former acquisition cannot, therefore, serve as a safe guide for determination of compensation for the acquisition in question. Similarly, the consideration paid by Smt. Balwant Kaur to Shri Girdbari Lal in March, 19 57 for the purchase of land cannot also serve as a safe guide as this transaction also took place in March, 1957 i.e., nearly two years before the publication of the aforesaid notification in respect of the present acquisition. The High Court was, in our opinion, perfectly justified on the basis of the material before it in fixing compensation at Rs. 4.50 per sq. yd. for the potential building area and Rs. 3.00 for the agricultural area in respect of the plots of land involved in appeals Nos. 2402 and 2403 of 1972. The High Court, however, was wrong in overlooking an important point affecting compensation payable to the erstwhile owners of the potential building area involved in appeals Nos. 2694, 2695 and 2697 to 2700 of 1972. The said claimants having claimed compensation only at the rate of Rs. 4.00 per sq. yd. in the first appeals filed by them in the High Court, they could not have been awarded compensation exceeding that rate. Thus the said appeals filed by the State cannot but be allowed to the extent to which the compensation awarded to the claimants in respect of the potential building area acquired exceeds Rs. 4.00 per sq. yd. | 0 | 2,742 | 341 | ### Instruction:
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in this view by a decision of this Court in Mirza Nausherw an Khan &Anr. v. The Collector (Land Acquisition) Hyderabad([19751 1 S.C.C. 238.) where Krishna Iyer, J who spoke for the Bench said:--"It is true that the Court has adopted a higher value for a strip 50 feet wide adjoining 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."4. We cannot also accede to the contention of counsel for the appellants in appeals Nos. 2402 and 2403 of 1972 that they should have at least been granted compensation for the potential buildings area at Rs. 4/12/- the rate fixed by the Collector, Amritsar for 28.75 acres in Amritsar (Urban) and 32.04 acres in village Tungbala, Amritsar sought to be acquired by the State in February, 1947 as the proceedings for acquisition of the said area were dropped and the proximity in point of time to the notification under section 4 (1 ) of the Act which is a material factor is lacking.5. The contention advanced on behalf of the appellants in the aforesaid two appeals that the compensation awarded to them could not be fixed below the price paid by them for some of the plots in question in 1943, 1946 and 1947 has also no force. It cannot be ignored that .Amritsar having come near the border as a result of the partition of the sub-continent, the prices of land situate therein fell considerably soon after the partition and kept on maintaining a low level for more than a decade .6. The contention of counsel for the appellants in the aforesaid two appeals that they should have at least been awarded compensation for the potential building area at the rate prevalent in Gopalnagar in 195859 cannot also be acceded to. A glance at the chart of the acquisitions which appears at page 85 of the Paper Book shows that the sales were of very small plots of land. In seven transactions out of eight to which our attention has been invited, the land acquired was below 200 sq. yds. and in the eighth transaction, it was 250 sq. yds. It is also well settled that in determining compensation the value fetched for small plots of land cannot be applied to the lands covering a very large extent and that the large area of land cannot possibly fetch a price at the same rate at which small plots are sold. (See Collector of Lakhimpur v. Bhuban Chandra Dutta(A.I.R. 1971 S.C. 2015). All the three contentions advanced on behalf of the claimants of compensation, therefore, fail.Let us now deal with the second set of the aforesaid eight appeals preferred by the State of Punjab. While doing so, it would be well to recall that it is well established that in an appeal from an award granting compensation, this Court should not interfere unless there is a wrong application of any well settled principle or unless there is something to show not merely that on the balance of evidence it is possible to reach a different conclusion but that the judgment cannot be supported by reason of a wrong application of a principle or because some important point affecting valuation has been overlooked or misapplied. Moreover, there is a prudent condition to which the appellate power, generally speaking, is subject. A court of appeal interferes not when the judgment under attack is not right but only when it is shown to be wrong. (See The Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty([1959] Supp. 1 S.C.R. 404.) Dattatrayaya Shankarbhat Ambalgi &Ors. v. The Collector of Sholapur &Anr.([1971] 3 S.C.C. 43) and The Dollar Company, Madras v. Collector of Madras([1975] 2 S.C.C. 730.).7. The first contention advanced on behalf of the State that the erstwhile owners of the land in question could not be given compensation higher than that assessed for the acquisition made by the State for the construction of Hygiene and Vaccine Institute is devoid of force.8. Whereas the notification under section 4(1) of the Act with regard to that acquisition was published on May 17, 1956, the notification under the said provision or the Act in respect of the instant acquisition was published on March 18, 1959 when the market value of the land in the locality had risen very high. The ratio of compensation assessed for the former acquisition cannot, therefore, serve as a safe guide for determination of compensation for the acquisition in question. Similarly, the consideration paid by Smt. Balwant Kaur to Shri Girdbari Lal in March, 19 57 for the purchase of land cannot also serve as a safe guide as this transaction also took place in March, 1957 i.e., nearly two years before the publication of the aforesaid notification in respect of the present acquisition. The High Court was, in our opinion, perfectly justified on the basis of the material before it in fixing compensation at Rs. 4.50 per sq. yd. for the potential building area and Rs. 3.00 for the agricultural area in respect of the plots of land involved in appeals Nos. 2402 and 2403 of 1972. The High Court, however, was wrong in overlooking an important point affecting compensation payable to the erstwhile owners of the potential building area involved in appeals Nos. 2694, 2695 and 2697 to 2700 of 1972. The said claimants having claimed compensation only at the rate of Rs. 4.00 per sq. yd. in the first appeals filed by them in the High Court, they could not have been awarded compensation exceeding that rate. Thus the said appeals filed by the State cannot but be allowed to the extent to which the compensation awarded to the claimants in respect of the potential building area acquired exceeds Rs. 4.00 per sq. yd.
### Response:
0
### Explanation:
Whereas the notification under section 4(1) of the Act with regard to that acquisition was published on May 17, 1956, the notification under the said provision or the Act in respect of the instant acquisition was published on March 18, 1959 when the market value of the land in the locality had risen very high. The ratio of compensation assessed for the former acquisition cannot, therefore, serve as a safe guide for determination of compensation for the acquisition in question. Similarly, the consideration paid by Smt. Balwant Kaur to Shri Girdbari Lal in March, 19 57 for the purchase of land cannot also serve as a safe guide as this transaction also took place in March, 1957 i.e., nearly two years before the publication of the aforesaid notification in respect of the present acquisition. The High Court was, in our opinion, perfectly justified on the basis of the material before it in fixing compensation at Rs. 4.50 per sq. yd. for the potential building area and Rs. 3.00 for the agricultural area in respect of the plots of land involved in appeals Nos. 2402 and 2403 of 1972. The High Court, however, was wrong in overlooking an important point affecting compensation payable to the erstwhile owners of the potential building area involved in appeals Nos. 2694, 2695 and 2697 to 2700 of 1972. The said claimants having claimed compensation only at the rate of Rs. 4.00 per sq. yd. in the first appeals filed by them in the High Court, they could not have been awarded compensation exceeding that rate. Thus the said appeals filed by the State cannot but be allowed to the extent to which the compensation awarded to the claimants in respect of the potential building area acquired exceeds Rs. 4.00 per sq. yd.
|
M/S Super Poly Fabriks Ltd Vs. Commnr. Of Central Excise, Punjab | submitting a half-yearly return by the assessee in the prescribed form. Section 77 provides for penalty for contravention of any provision for which no other penalty is provided. 14. Unfortunately, the appellant did not appear before the assessing authority. He also did not appear before the appellate authority. The appellate authority in its order dated 15.2.2005, inter alia, noticed: "During the appeal no one appeared for personal hearing fixed on 12.7.2004 and 20.7.2004. Therefore, I am going to decide the case on the basis of evidence available on records. I have carefully gone through the facts and records of the case and observe that the issue involved is non-payment of Service Tax by the appellant. The appellant has contended that levying of Service Tax on amount received as commission for procuring orders for another person is not legal.Under Section 65(25) "C&F Agent" has been defined as any person who is engaged in the providing any service, directly or indirectly connected with clearing and forwarding operation in any manner to any other person and "C&F agent" includes consignment agent. The appellant has themselves admitted that they were procuring orders for M/s. GAIL. Since during the relevant period appellant was providing services to M/s. GAIL so service tax has been correctly demanded from them." 15. The High Court, however, relying on clauses 4, 5, 11, 14 and 15 of the Agreement opined: "The agent were not at all concerned with the handling or movement of goods unlike in the present case where the consignment agent is required to lift the goods from the factory of the principal and distribute the same either directly to the buyers or bring them to his godown for future sale and delivery. From the agreement under our scanner, it also appears that the liability for delays in delivery in transit through the air, road or water ways solely rested on the appellant. There is a more explicit indication of the fact that the appellant was required by his agency terms to lift the goods for delivery and arrange for distributing them to the buyers, by making necessary transit arrangements. Therefore, the activities of lifting, receiving, stocking and delivering the goods to the buyers, clearly make a clear chain of activities, involving clearing and forwarding operations." 16. The High Court also, while distinguishing the judgment of the larger Bench of the Tribunal, in Larsen & Tourbo Ltd. v. Commissioner of Central Excise, Chennai [(2006) 3 STR 321 (T-LB)] and Medpro Pharma Pvt. Ltd. v. CCE, Chennai [(2006) 3 STR 355 (T-LB), opined: "In this context, a plain reading of Section 65(105)(j), would reveal that Taxable Service should mean any service provided to a client by a clearing and forwarding agent including a consignment agent (Emphasis supplied) in relation to clearing and forwarding operations, in any manner. In the present case, the appellant is admittedly a consignment stockist, who is actively involved in "Clearing & Forwarding Operation" by taking responsibilities for the movement of goods right from the factory/warehouse of the principal upto the stage of delivery to the buyers in one or many ways. There is, therefore, no doubt, that the appellant is fully covered within the tax framework, being a "Clearing & Forwarding Agent" engaged in relation to Clearing & Forwarding Operations." 17. The agreement is titled as "Consignment Stockistship Agreement". Appellant has various jobs to perform thereunder. It does not arrange for any transport. It, however, provides for godowns. It gets the insurance company to conduct a survey. It has to furnish dates as regards stock in its custody. It has to furnish guarantee to recover full value of the stocks which it holds for the company or sell on behalf of the company or for such a sum as would be determined by the company in its discretion. The company, however, has to indicate the recommended list prices for the sale of the product whereto the appellant is entitled to at octroi duty, terminal tax, sales tax or other local taxes or levies in forced in the local area and recover the same from their customers and maintain proper accounts for the same. Clauses 13 and 14 of the said agreement empower to sell the goods as also to issue Form F to the Company. It is also responsible for collection of tax. 18. What is necessary for determining the question is as to whether the purported job of the appellant as a clearing and forwarding agent was incidental to its main activity, namely, getting orders from the clients and selling the products to various customers of the company or not. The notice to show cause contained the following elements: "(i) Service charges of Rs.500/- PMT shall be paid by M/s GAIL to the consignment stockist (i.e. noticee) for the quantity sold by them.(ii) Rs.400/- PMT shall be paid to the consignment stockist for getting/booking orders for the product of M/s. GAIL.(iii) Rs.100/- PMT shall be paid to the consignment stockist for release/clearance of product locally from their stock on the orders booked by M/s. GAIL directly." 19. The period in question is from 1.9.1999 to 31.7.2002. The notice to show cause had referred only to paragraph 20.1 and 20.3 of the agreement. Its activities are said to be sale and/or getting booking orders for the product.20. Whether in the aforementioned situation, the appellant has incurred any liability to pay service tax or not has not been determined. Its principal activities, as indicated hereinbefore, have not been determined.21. It is true that the appellant has not appeared before the assessing authority or the appellate authority.However, keeping this in view, we are of the opinion, that the interest of justice would be subserved if the matter is remitted to the assessing authority with liberty to the parties to adduce such evidence as may be found necessary for determining the issue(s). Appellant, however, shall not take any adjournment before the assessing authority and shall render all cooperation with it in the matter of determination of the question. | 1[ds]8. There cannot be any doubt whatsoever that a document has to be read as a whole. The purport and object with which the parties thereto entered into a contract ought to be ascertained only from the terms and conditions thereof. Neither the nomenclature of the document nor any particular activity undertaken by the parties to the contract would be decisive.For the purpose of ascertaining as to whetherthe appellant in effect and substance was a clearing and forwarding agent or it was merely accepting orders for and on behalf ofGAIL, the same must be ascertained from the terms of the agreement itself.What is necessary for determining the question is as to whether the purported job of the appellant as a clearing and forwarding agent was incidental to its main activity, namely, getting orders from the clients and selling the products to various customers of the company or not. The notice to show cause contained the followingService charges of Rs.500/- PMT shall be paid by M/s GAIL to the consignment stockist (i.e. noticee) for the quantity sold by them.(ii) Rs.400/- PMT shall be paid to the consignment stockist for getting/booking orders for the product of M/s. GAIL.(iii) Rs.100/- PMT shall be paid to the consignment stockist for release/clearance of product locally from their stock on the orders booked by M/s. GAIL directly.The period in question is from 1.9.1999 to 31.7.2002. The notice to show cause had referred only to paragraph 20.1 and 20.3 of the agreement. Its activities are said to be sale and/or getting booking orders for the product.20.Whether in theaforementioned situation, the appellant has incurred any liability to pay service tax or not has not been determined. Its principal activities, as indicated hereinbefore, have not been determined.21. It is true that the appellant has not appeared before the assessing authority or the appellate authority.However, keeping this in view, we are of the opinion, that the interest of justice would be subserved if the matter is remitted to the assessing authority with liberty to the parties to adduce such evidence as may be found necessary for determining the issue(s). Appellant, however, shall not take any adjournment before the assessing authority and shall render all cooperation with it in the matter of determination of the question. | 1 | 2,336 | 417 | ### 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:
submitting a half-yearly return by the assessee in the prescribed form. Section 77 provides for penalty for contravention of any provision for which no other penalty is provided. 14. Unfortunately, the appellant did not appear before the assessing authority. He also did not appear before the appellate authority. The appellate authority in its order dated 15.2.2005, inter alia, noticed: "During the appeal no one appeared for personal hearing fixed on 12.7.2004 and 20.7.2004. Therefore, I am going to decide the case on the basis of evidence available on records. I have carefully gone through the facts and records of the case and observe that the issue involved is non-payment of Service Tax by the appellant. The appellant has contended that levying of Service Tax on amount received as commission for procuring orders for another person is not legal.Under Section 65(25) "C&F Agent" has been defined as any person who is engaged in the providing any service, directly or indirectly connected with clearing and forwarding operation in any manner to any other person and "C&F agent" includes consignment agent. The appellant has themselves admitted that they were procuring orders for M/s. GAIL. Since during the relevant period appellant was providing services to M/s. GAIL so service tax has been correctly demanded from them." 15. The High Court, however, relying on clauses 4, 5, 11, 14 and 15 of the Agreement opined: "The agent were not at all concerned with the handling or movement of goods unlike in the present case where the consignment agent is required to lift the goods from the factory of the principal and distribute the same either directly to the buyers or bring them to his godown for future sale and delivery. From the agreement under our scanner, it also appears that the liability for delays in delivery in transit through the air, road or water ways solely rested on the appellant. There is a more explicit indication of the fact that the appellant was required by his agency terms to lift the goods for delivery and arrange for distributing them to the buyers, by making necessary transit arrangements. Therefore, the activities of lifting, receiving, stocking and delivering the goods to the buyers, clearly make a clear chain of activities, involving clearing and forwarding operations." 16. The High Court also, while distinguishing the judgment of the larger Bench of the Tribunal, in Larsen & Tourbo Ltd. v. Commissioner of Central Excise, Chennai [(2006) 3 STR 321 (T-LB)] and Medpro Pharma Pvt. Ltd. v. CCE, Chennai [(2006) 3 STR 355 (T-LB), opined: "In this context, a plain reading of Section 65(105)(j), would reveal that Taxable Service should mean any service provided to a client by a clearing and forwarding agent including a consignment agent (Emphasis supplied) in relation to clearing and forwarding operations, in any manner. In the present case, the appellant is admittedly a consignment stockist, who is actively involved in "Clearing & Forwarding Operation" by taking responsibilities for the movement of goods right from the factory/warehouse of the principal upto the stage of delivery to the buyers in one or many ways. There is, therefore, no doubt, that the appellant is fully covered within the tax framework, being a "Clearing & Forwarding Agent" engaged in relation to Clearing & Forwarding Operations." 17. The agreement is titled as "Consignment Stockistship Agreement". Appellant has various jobs to perform thereunder. It does not arrange for any transport. It, however, provides for godowns. It gets the insurance company to conduct a survey. It has to furnish dates as regards stock in its custody. It has to furnish guarantee to recover full value of the stocks which it holds for the company or sell on behalf of the company or for such a sum as would be determined by the company in its discretion. The company, however, has to indicate the recommended list prices for the sale of the product whereto the appellant is entitled to at octroi duty, terminal tax, sales tax or other local taxes or levies in forced in the local area and recover the same from their customers and maintain proper accounts for the same. Clauses 13 and 14 of the said agreement empower to sell the goods as also to issue Form F to the Company. It is also responsible for collection of tax. 18. What is necessary for determining the question is as to whether the purported job of the appellant as a clearing and forwarding agent was incidental to its main activity, namely, getting orders from the clients and selling the products to various customers of the company or not. The notice to show cause contained the following elements: "(i) Service charges of Rs.500/- PMT shall be paid by M/s GAIL to the consignment stockist (i.e. noticee) for the quantity sold by them.(ii) Rs.400/- PMT shall be paid to the consignment stockist for getting/booking orders for the product of M/s. GAIL.(iii) Rs.100/- PMT shall be paid to the consignment stockist for release/clearance of product locally from their stock on the orders booked by M/s. GAIL directly." 19. The period in question is from 1.9.1999 to 31.7.2002. The notice to show cause had referred only to paragraph 20.1 and 20.3 of the agreement. Its activities are said to be sale and/or getting booking orders for the product.20. Whether in the aforementioned situation, the appellant has incurred any liability to pay service tax or not has not been determined. Its principal activities, as indicated hereinbefore, have not been determined.21. It is true that the appellant has not appeared before the assessing authority or the appellate authority.However, keeping this in view, we are of the opinion, that the interest of justice would be subserved if the matter is remitted to the assessing authority with liberty to the parties to adduce such evidence as may be found necessary for determining the issue(s). Appellant, however, shall not take any adjournment before the assessing authority and shall render all cooperation with it in the matter of determination of the question.
### Response:
1
### Explanation:
8. There cannot be any doubt whatsoever that a document has to be read as a whole. The purport and object with which the parties thereto entered into a contract ought to be ascertained only from the terms and conditions thereof. Neither the nomenclature of the document nor any particular activity undertaken by the parties to the contract would be decisive.For the purpose of ascertaining as to whetherthe appellant in effect and substance was a clearing and forwarding agent or it was merely accepting orders for and on behalf ofGAIL, the same must be ascertained from the terms of the agreement itself.What is necessary for determining the question is as to whether the purported job of the appellant as a clearing and forwarding agent was incidental to its main activity, namely, getting orders from the clients and selling the products to various customers of the company or not. The notice to show cause contained the followingService charges of Rs.500/- PMT shall be paid by M/s GAIL to the consignment stockist (i.e. noticee) for the quantity sold by them.(ii) Rs.400/- PMT shall be paid to the consignment stockist for getting/booking orders for the product of M/s. GAIL.(iii) Rs.100/- PMT shall be paid to the consignment stockist for release/clearance of product locally from their stock on the orders booked by M/s. GAIL directly.The period in question is from 1.9.1999 to 31.7.2002. The notice to show cause had referred only to paragraph 20.1 and 20.3 of the agreement. Its activities are said to be sale and/or getting booking orders for the product.20.Whether in theaforementioned situation, the appellant has incurred any liability to pay service tax or not has not been determined. Its principal activities, as indicated hereinbefore, have not been determined.21. It is true that the appellant has not appeared before the assessing authority or the appellate authority.However, keeping this in view, we are of the opinion, that the interest of justice would be subserved if the matter is remitted to the assessing authority with liberty to the parties to adduce such evidence as may be found necessary for determining the issue(s). Appellant, however, shall not take any adjournment before the assessing authority and shall render all cooperation with it in the matter of determination of the question.
|
Messrs Indian Maize and Chemicals Limited Vs. State of Uttar Pradesh & Others | 1. Delay condoned. The petitioner is, through this petition, assailing the correctness of the order of the Allahabad High Court, Lucknow Bench, made on July 26, 1996 in Writ Petition No. 2109 of 1996. The petitioner- U.P. State Electricity Board on February 6, 1990 for the supply of electric energy of 1650 KVA. The petitioner had executed an agreement and also complied with the formalities for the supply of electricity in terms of Indian Electricity Act, 1910. The petitioner claimed the rebate on the basis that he had established the industry in an undeveloped area but we are not concerned with that controversy. Admittedly, a sum of Rs. 49395 lacs was due from the petitioner. On a demand raised by the Board on June 4, 1996 in that behalf, the petitioner approached the High Court. The petitioner, with a view to avoid disconnection had agreed with the Board on June 10, 1996 for payment of above outstanding amount in 12 monthly instalments and the Board had agreed for the same and given re-connection subject to the petitioner paying the amount as agreed. The petitioner after depositing one instalment, committed default in the payment. Since the petitioner anticipated disconnection, it approached the High court for the direction not to recover the amount putting forth the plea that the petitioner is a sick industry and his claim for rehabilitation was pending before B.I.F.R and, therefore, no action could be taken in that behalf. The High Court has refused to grant the relief by the impugned order dated June 26, 1996. Thus, this special leave petition. 2. Learned counsel for the petitioner has contended that the controversy is covered by the judgment of this Court in C.E.S.C. Ltd. &Ors. vs. Bowrech Cotton mills Co. Ltd &Ors. Therefore, the high Court was not right in relying upon that courts earlier judgment in Modi spinning &Weaving Mills Co. Ltd. vs. U.P.S.E.B &Ors. We find that the contention raised by the leaned counsel is not correct in law. It is seen that in CESC Ltd. case, this Court had expressly left open the question of the undertaking given and the default committed and fulfilment thereof since that question was not raised in the High Court as expressly mentioned in paragraph 3 thereof. With regard to the delayed payment, surcharge etc. the direction issued by the High Court was modified in paragraph 4 and direction was given to pay the amount in instalments as envisaged in paragraph 4 of the judgment. as far as the arrears are concerned, since the first question was not considered, this Court had held that since the matter was pending before the BIFR itself.It is seen that Section 22(1) of the sick Industrial Companies (Special provisions ) Act, 1985 envisages as under: "22. Suspension of legal proceedings, contract, etc.--(1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relation to an industrial company is pending, then, notwithstanding anything contained in the companies Act, 1956 (q of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said act or other law, no proceedings for the winding up of the industrial company o r for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof (and on suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company) shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate authority." A reading of the above section would indicate that when the proceedings are pending before the BIFR in respect of any matter referred to therein for inquiry by the Board, the proceedings or order of execution, distress or the like would be stayed until the proceedings get concluded before the BIFR or would not be proceeded without the leave of the Board or appellate authority. It is seen that under the Indian Electricity supply Act, one of the conditions is that continued payment of the price of electrical energy supplied by the Board is a condition for the condition for the continued supply and the default committed in the payment thereof entails disconnection of the supply of electrical energy, except in accordance with the procedure prescribed under the contract or the regulation issued under the Indian Electricity supply Act. Execution connotes pre-existing decree. It is true that any action for realisation etc. Pending decision by BIFR or without its permission is prohibited. Enforcement or compliance of the obligation under the contract or regulation for supply of electrical energy by ordering payment of electrical energy is not and cannot be considered to be execution of decree. Execution of the decree presupposes existence of a decree of a competent Court and the decree- holder should take steps to have it executed pending proceeding before or leaf BIFR. There is no decree of court. since the petitioner had committed default and as a condition for re-connection, agreed to pay the amount in instalments, he is liable to comply with the undertaking given for supply of electrical energy. the petitioner committed default in that behalf. so, it is not entitled to seek any declaration or direction from the Court that since the matter is pending before the BIFR, he would be untitled to the supply of electrical energy without the compliance of the corresponding obligation of payment under regulations or of the contract under the Indian Electricity supply Act. | 1[ds]when the proceedings are pending before the BIFR in respect of any matter referred to therein for inquiry by the Board, the proceedings or order of execution, distress or the like would be stayed until the proceedings get concluded before the BIFR or would not be proceeded without the leave of the Board or appellate authority. It is seen that under the Indian Electricity supply Act, one of the conditions is that continued payment of the price of electrical energy supplied by the Board is a condition for the condition for the continued supply and the default committed in the payment thereof entails disconnection of the supply of electrical energy, except in accordance with the procedure prescribed under the contract or the regulation issued under the Indian Electricity supply Act. Execution connotes pre-existing decree. It is true that any action for realisation etc. Pending decision by BIFR or without its permission is prohibited. Enforcement or compliance of the obligation under the contract or regulation for supply of electrical energy by ordering payment of electrical energy is not and cannot be considered to be execution of decree. Execution of the decree presupposes existence of a decree of a competent Court and the decree- holder should take steps to have it executed pending proceeding before or leaf BIFR. There is no decree of court. since the petitioner had committed default and as a condition for re-connection, agreed to pay the amount in instalments, he is liable to comply with the undertaking given for supply of electrical energy. the petitioner committed default in that behalf. so, it is not entitled to seek any declaration or direction from the Court that since the matter is pending before the BIFR, he would be untitled to the supply of electrical energy without the compliance of the corresponding obligation of payment under regulations or of the contract under the Indian Electricity supply Act. | 1 | 1,073 | 340 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
1. Delay condoned. The petitioner is, through this petition, assailing the correctness of the order of the Allahabad High Court, Lucknow Bench, made on July 26, 1996 in Writ Petition No. 2109 of 1996. The petitioner- U.P. State Electricity Board on February 6, 1990 for the supply of electric energy of 1650 KVA. The petitioner had executed an agreement and also complied with the formalities for the supply of electricity in terms of Indian Electricity Act, 1910. The petitioner claimed the rebate on the basis that he had established the industry in an undeveloped area but we are not concerned with that controversy. Admittedly, a sum of Rs. 49395 lacs was due from the petitioner. On a demand raised by the Board on June 4, 1996 in that behalf, the petitioner approached the High Court. The petitioner, with a view to avoid disconnection had agreed with the Board on June 10, 1996 for payment of above outstanding amount in 12 monthly instalments and the Board had agreed for the same and given re-connection subject to the petitioner paying the amount as agreed. The petitioner after depositing one instalment, committed default in the payment. Since the petitioner anticipated disconnection, it approached the High court for the direction not to recover the amount putting forth the plea that the petitioner is a sick industry and his claim for rehabilitation was pending before B.I.F.R and, therefore, no action could be taken in that behalf. The High Court has refused to grant the relief by the impugned order dated June 26, 1996. Thus, this special leave petition. 2. Learned counsel for the petitioner has contended that the controversy is covered by the judgment of this Court in C.E.S.C. Ltd. &Ors. vs. Bowrech Cotton mills Co. Ltd &Ors. Therefore, the high Court was not right in relying upon that courts earlier judgment in Modi spinning &Weaving Mills Co. Ltd. vs. U.P.S.E.B &Ors. We find that the contention raised by the leaned counsel is not correct in law. It is seen that in CESC Ltd. case, this Court had expressly left open the question of the undertaking given and the default committed and fulfilment thereof since that question was not raised in the High Court as expressly mentioned in paragraph 3 thereof. With regard to the delayed payment, surcharge etc. the direction issued by the High Court was modified in paragraph 4 and direction was given to pay the amount in instalments as envisaged in paragraph 4 of the judgment. as far as the arrears are concerned, since the first question was not considered, this Court had held that since the matter was pending before the BIFR itself.It is seen that Section 22(1) of the sick Industrial Companies (Special provisions ) Act, 1985 envisages as under: "22. Suspension of legal proceedings, contract, etc.--(1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relation to an industrial company is pending, then, notwithstanding anything contained in the companies Act, 1956 (q of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said act or other law, no proceedings for the winding up of the industrial company o r for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof (and on suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company) shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate authority." A reading of the above section would indicate that when the proceedings are pending before the BIFR in respect of any matter referred to therein for inquiry by the Board, the proceedings or order of execution, distress or the like would be stayed until the proceedings get concluded before the BIFR or would not be proceeded without the leave of the Board or appellate authority. It is seen that under the Indian Electricity supply Act, one of the conditions is that continued payment of the price of electrical energy supplied by the Board is a condition for the condition for the continued supply and the default committed in the payment thereof entails disconnection of the supply of electrical energy, except in accordance with the procedure prescribed under the contract or the regulation issued under the Indian Electricity supply Act. Execution connotes pre-existing decree. It is true that any action for realisation etc. Pending decision by BIFR or without its permission is prohibited. Enforcement or compliance of the obligation under the contract or regulation for supply of electrical energy by ordering payment of electrical energy is not and cannot be considered to be execution of decree. Execution of the decree presupposes existence of a decree of a competent Court and the decree- holder should take steps to have it executed pending proceeding before or leaf BIFR. There is no decree of court. since the petitioner had committed default and as a condition for re-connection, agreed to pay the amount in instalments, he is liable to comply with the undertaking given for supply of electrical energy. the petitioner committed default in that behalf. so, it is not entitled to seek any declaration or direction from the Court that since the matter is pending before the BIFR, he would be untitled to the supply of electrical energy without the compliance of the corresponding obligation of payment under regulations or of the contract under the Indian Electricity supply Act.
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when the proceedings are pending before the BIFR in respect of any matter referred to therein for inquiry by the Board, the proceedings or order of execution, distress or the like would be stayed until the proceedings get concluded before the BIFR or would not be proceeded without the leave of the Board or appellate authority. It is seen that under the Indian Electricity supply Act, one of the conditions is that continued payment of the price of electrical energy supplied by the Board is a condition for the condition for the continued supply and the default committed in the payment thereof entails disconnection of the supply of electrical energy, except in accordance with the procedure prescribed under the contract or the regulation issued under the Indian Electricity supply Act. Execution connotes pre-existing decree. It is true that any action for realisation etc. Pending decision by BIFR or without its permission is prohibited. Enforcement or compliance of the obligation under the contract or regulation for supply of electrical energy by ordering payment of electrical energy is not and cannot be considered to be execution of decree. Execution of the decree presupposes existence of a decree of a competent Court and the decree- holder should take steps to have it executed pending proceeding before or leaf BIFR. There is no decree of court. since the petitioner had committed default and as a condition for re-connection, agreed to pay the amount in instalments, he is liable to comply with the undertaking given for supply of electrical energy. the petitioner committed default in that behalf. so, it is not entitled to seek any declaration or direction from the Court that since the matter is pending before the BIFR, he would be untitled to the supply of electrical energy without the compliance of the corresponding obligation of payment under regulations or of the contract under the Indian Electricity supply Act.
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Sital Parshad Vs. Kishorilal | may arise whether the period for redemption can be said to have been extended for six months or such other time as may be provided in or such other time as may be provided in the preliminary decree under appeal but beginning from the date of the decree in appeal. In such a case we are of opinion that it is the duty of the appellate Court when it is reducing the amount payable for redemption to fix some time for the purpose in the interest of justice. But it is not bound to do so and if it does not do so, the original time fixed in the preliminary decree stands even though the amount for redemption may have been reduced: [See Rukhmabais case, ILR (1952) Nag 243: (AIR 1952 Nag 145 FB). Nor do we think that any serious harm is done to the defendant-mortgagor in such a case for under O. XXXIV, R. 5 (1), even though no fresh time may have been fixed by the appellate Court where the amount for redemption is reduced, the mortgagor-defendant would have time upto the date of the confirmation of sale to deposit the amount and save the property. In these circumstances, we see no reason to distinguish even this case where variation results in reduction of the amount of redemption from the case where the decree of the appellate Court affirms the preliminary decree in appeal in toto. 16. We are further of opinion that even where there has been a variation in the decree, the final decree if passed in the meantime, requires no formal amendment in view of the form in which a final decree for sale is prepared. All that happens is that where the preliminary decree is varied one way or the other the final decree which is entirely depending on the preliminary decree stands varied by its own terms in accordance with the terms of the preliminary decree passed in appeal. It is the duty of the executing Court when it is executing the final decree passed in the meantime to see that the execution is in accordance with the preliminary decree passed in appeal which is the support of the final decree. Of course, if the appellate Court when deciding the appeal gives any particular direction with respect to the preparation of a fresh preliminary decree that direction has to be carried out. Ramnaths case. ILR (1947) All 40 : (AIR 1947 All 83), was of this latter kind. There the appellate Court directed the preparation of fresh preliminary decree in accordance with its judgment. In such a case it may be said that as there had to be a new preliminary decree in accordance with the direction of the appellate Court a new final decree in accordance with the new preliminary decree might have to be prepared. But where there are no specific directions of the appellate Court with respect to the preparation of a new preliminary decree, and all that the appellate Court orders is merely a variation in the amount for redemption - be it more or less than that provided in the preliminary decree - it is in our opinion the duty of the executing Court to see when it is asked to execute a final decree prepared in the meantime that the modifications made by the appellate Court in the appeal from the preliminary decree are given effect to during the execution proceedings. As we have said already, the language of the final decree in Form 6 is such that it requires no modification even though there might be modifications in the preliminary decree by the appellate Court, and all that is required is that the executing Court should in executing the final decree prepared in the meantime give effect to the decree in appeal from the preliminary decree, if it is a case of variation one way or the other. The only exception to this principle is a case where the appellate Court gives specific direction for the preparation of a fresh preliminary decree or gives further time after the decree in appeal from the preliminary decree. In such a case a fresh preliminary decree may have to be drawn up to be followed by a fresh final decree. The present, however, is not a case of this kind as already indicated, and in the circumstances it was the duty of the executing Court, when variations made by the appellate Court in appeal from the preliminary decree were brought to its notice, to take them into account in executing the final decree, which had been prepared in the meantime. The final decree in terms required no change in view of Form 6 already referred to and all that the executing Court had to do was to take note of the fact that the supporting preliminary decree had been varied and to execute the final decree in accordance therewith. In this view of the matter we are of opinion that the view taken in Periakaruppan Chettiars case, ILR (1947) Mad 132: (AIR l946 Mad 383), is correct subject to what we have said with respect to the case where there are specific directions by the appellate Court in an appeal from the preliminary decree for preparation of a fresh preliminary decree or for fixing a fresh time for payment. 17. We do not think it necessary to refer in detail to other cases cited before us. It is enough to say that the Andhra Pradesh High Court has followed the Madras High Court : (see Venkata Subba Rao v. Kesavayya, AIR 1955 Andhra 254, while the Calcutta High Court in Abdul Jalil v. Amar Chand Paul, (1913) 18 Cal LJ 223, and the Lahore High Court in Mewa Singh v. Tara Singh, AIR 1933 Lah 859 (2), seem to take the view that a fresh final decree is necessary within three years of the appellate decree in an appeal from the preliminary decree in a case of modification. | 0[ds]7. There can in opinion be no doubt that if in appeal the preliminary decree is reversed, the final decree must fall to the ground for there is no preliminary decree thereafter in support of it. It is not necessary in such a case for the defendant to go to the Court passing the final decree and ask it to set aside the final decree. Even if the defendant does not make an application to the Court for setting aside the final decree within three years because the preliminary decree has been reversed, the decree-holder cannot get the right to execute the final decree which has no preliminary decree in support of it. If an execution petition is made on such a final decree even though more than three years after the decree in appeal has been reversed, the defendant has simply to ask the Court where the execution petition is made to refuse to execute the decree on the ground that the preliminary decree in support of it has been set aside. It seems to us that in such a case it is the duty of the executing Court to take note of the fact that the preliminary decree in support of the final decree has been reversed and it should refuse to execute the final decree even through the fact is brought to its notice more than three years after the decree in appeal reversing the preliminary decree. In such a case in our opinion no question of limitation arisesIn that case the preliminary decree had given six months time for payment and this observation seems to suggest that where the preliminary decree is confirmed six months given therein begin from the date of the confirmation of the preliminary decree in appeal. With respect, the observation seems to be obiter for the point really in dispute in that case was whether a final decree could be asked for within three years of the judgment of the appellate Court confirming the preliminary decree and it was held that it could be so asked for, even through the time fixed in the preliminary decree for redemption had not been extended. In that case no final decree had been passed in-between and no question arose as to what would be the effect of the decree passed in appeal from the preliminary decree on a final decree passed in the meantime. This observation in that case is, therefore, in our opinion of no help to the appellants in determining the question before us10. It will thus be seen that the preliminary decree in a suit for sale determines the amount due on the date thereof after accounting if necessary and directs the defendant to pay that amount together with interest and subsequent costs, charges and expenses as provided in Rr.10 and 11. Thus the preliminary decree is complete in itself and the amount due to the decree-holder right upto the time that the execution is complete is either provided therein or worked out from the directions contained therein12. It will been seen from these provisions that a final decree does not mention any amount and is merely based on the preliminary decree and in a sense carries out that decree.13. It will be seen from this from of the final decree that it is entirely dependent upon the preliminary decree. Therefore, where the preliminary decree has been confirmed in toto and the appeal thereform has been dismissed, there is no change whatever to be made in the final decree, for that decree already provides for subsequent interest after the date of the preliminary decree and for subsequent costs, charges and expenses. Therefore, in such circumstances if the final decree has already been prepared before the judgment in appeal from the preliminary decree, there is nothing more to be done and the final decree as it stands needs no amendment. It is true that there is a general principle that a decree passed in appeal even where it confirms the trial Courts decree supersedes that decree. But where we are dealing with a decree passed in appeal from a preliminary decree and the final decree has already been passed in the meantime, the decree of the appellate Court on appeal from the preliminary decree only supersedes the preliminary decree; it cannot and does not supersede the final decree which was not taken in appeal. Therefore, if the decree in appeal from the preliminary decree confirms it in toto, the final decree already passed needs no change and must continue to stand. It is true that if no final decree has been passed before the appeal from the preliminary decree is decided, the decree holder gets three years from the date of the decree in appeal from the preliminary decree to apply for a final decree. That, however, is a question of limitation and Courts have held that in such a case three years run from the date of the decree in appeal from the preliminary decree in order apparently not to compel the decree-holder to apply for a final decree if he does not wish to do so and wants to await the result of the appeal from the preliminary decree. But if the decree-holder does not wish to await the result of the appeal from the preliminary decree he can ask for a final decree in the meantime, and if the preliminary decree is confirmed in toto the final decree will need no change and can be executed as it stands. The decree-holder in such a case need not apply for a fresh final decree and can execute the final decree already passed in the meantime. In such cases where a final decree has been passed in the meantime while an appeal from the preliminary decree is pending, it is well to remember the observation of Rankin, C.J. in Talebaslis case, ILR 57 Cal 1013 : (AIR 1929 Cal 689 FB), that the existence of the final decree ought to be brought to the notice of the appellate Court in all cases and that it is the duty of the appellate Court to give directions with respect to the final decree if it considers necessary14. Further we are of opinion that in a case where an appeal from the preliminary decree is dismissed and the preliminary decree is confirmed in toto, it does not follow that the period of payment allowed in the trial Courts decree is extended automatically even though a final decree has been passed in the meantime. It seems to us that it is the duty of the appellate Court to indicate when dismissing the appeal from a preliminary decree in toto whether the time for payment is to be extended and if it does not do so, the original time granted for the purpose must stand. In the present case the decree passed in appeal form preliminary decree shows that after setting out the decree of the trial Court, all that the appellate Court did was to say that the preliminary decree passed by the trial Court was amended to this extent that the plaintiff would also be entitled to interest at Rs. 6 per cent on the principal amount form the date of the suit till the date of the decree and also gave the plaintiff costs of the appeal. There was no direction for preparation of any fresh preliminary decree, nor was there any direction for changing the period fixed in the preliminary decree for payment of the amount. Where, therefore, the appellate Court in an appeal from a preliminary decree says nothing about the time fixed for payment and confirms the preliminary decree into that time in our opinion stands and does not automatically get extended for six months or such other period as might have been fixed in the preliminary decree form the date of the decree in appeal from the preliminary decree. We agree with the view taken in Rukhmabai v. Krishnarao, ILR (1952) Nag 243: (AIR1952 Nag 145 FB), that it is not obligatory on a Court of appeal to fix a fresh date for redemption in a mortgagors appeal form a mortgage decree for sale even where there is some variation in the amount payable under the preliminary decree15. Then we come to the third class of cases where there has been variation by the appellate Court in appeal from the preliminary decree. This variation can be of two kinds : firstly, the amount fixed for redemption may be increased as happened in the present case, or secondly, it may be reduced. In the first case we are of opinion that the matter stands on exactly the same footing as in the case where the appeal from the preliminary decree by the defendant is dismissed in toto. However, in the second case, where variation is in favour of the defendant and the amount fixed for redemption is reduced, a question may arise whether the period for redemption can be said to have been extended for six months or such other time as may be provided in or such other time as may be provided in the preliminary decree under appeal but beginning from the date of the decree in appeal. In such a case we are of opinion that it is the duty of the appellate Court when it is reducing the amount payable for redemption to fix some time for the purpose in the interest of justice. But it is not bound to do so and if it does not do so, the original time fixed in the preliminary decree stands even though the amount for redemption may have beenreduced.Nor do we think that any serious harm is done to the defendant-mortgagor in such a case for under O. XXXIV, R. 5 (1), even though no fresh time may have been fixed by the appellate Court where the amount for redemption is reduced, the mortgagor-defendant would have time upto the date of the confirmation of sale to deposit the amount and save the property. In these circumstances, we see no reason to distinguish even this case where variation results in reduction of the amount of redemption from the case where the decree of the appellate Court affirms the preliminary decree in appeal in toto16. We are further of opinion that even where there has been a variation in the decree, the final decree if passed in the meantime, requires no formal amendment in view of the form in which a final decree for sale is prepared. All that happens is that where the preliminary decree is varied one way or the other the final decree which is entirely depending on the preliminary decree stands varied by its own terms in accordance with the terms of the preliminary decree passed in appeal. It is the duty of the executing Court when it is executing the final decree passed in the meantime to see that the execution is in accordance with the preliminary decree passed in appeal which is the support of the final decree. Of course, if the appellate Court when deciding the appeal gives any particular direction with respect to the preparation of a fresh preliminary decree that direction has to be carried out. Ramnaths case. ILR (1947) All 40 : (AIR 1947 All 83), was of this latter kind. There the appellate Court directed the preparation of fresh preliminary decree in accordance with its judgment. In such a case it may be said that as there had to be a new preliminary decree in accordance with the direction of the appellate Court a new final decree in accordance with the new preliminary decree might have to be prepared. But where there are no specific directions of the appellate Court with respect to the preparation of a new preliminary decree, and all that the appellate Court orders is merely a variation in the amount for redemption - be it more or less than that provided in the preliminary decree - it is in our opinion the duty of the executing Court to see when it is asked to execute a final decree prepared in the meantime that the modifications made by the appellate Court in the appeal from the preliminary decree are given effect to during the execution proceedings. As we have said already, the language of the final decree in Form 6 is such that it requires no modification even though there might be modifications in the preliminary decree by the appellate Court, and all that is required is that the executing Court should in executing the final decree prepared in the meantime give effect to the decree in appeal from the preliminary decree, if it is a case of variation one way or the other. The only exception to this principle is a case where the appellate Court gives specific direction for the preparation of a fresh preliminary decree or gives further time after the decree in appeal from the preliminary decree. In such a case a fresh preliminary decree may have to be drawn up to be followed by a fresh final decree. The present, however, is not a case of this kind as already indicated, and in the circumstances it was the duty of the executing Court, when variations made by the appellate Court in appeal from the preliminary decree were brought to its notice, to take them into account in executing the final decree, which had been prepared in the meantime. The final decree in terms required no change in view of Form 6 already referred to and all that the executing Court had to do was to take note of the fact that the supporting preliminary decree had been varied and to execute the final decree in accordance therewith. In this view of the matter we are of opinion that the view taken in Periakaruppan Chettiars case, ILR (1947) Mad 132: (AIR l946 Mad 383), is correct subject to what we have said with respect to the case where there are specific directions by the appellate Court in an appeal from the preliminary decree for preparation of a fresh preliminary decree or for fixing a fresh time for payment17. We do not think it necessary to refer in detail to other cases cited before us. It is enough to say that the Andhra Pradesh High Court has followed the Madras High Court : (see Venkata Subba Rao v. Kesavayya, AIR 1955 Andhra 254, while the Calcutta High Court in Abdul Jalil v. Amar Chand Paul, (1913) 18 Cal LJ 223, and the Lahore High Court in Mewa Singh v. Tara Singh, AIR 1933 Lah 859 (2), seem to take the view that a fresh final decree is necessary within three years of the appellate decree in an appeal from the preliminary decree in a case of modificationBefore we consider this question we may state certain well settled propositions with respect to preliminary and final decrees in mortgage suits and the effect of an appellate decree in general on the decree of the trial Court. Generally speaking the decree of the appellate Court supersedes the decree of the trial Court even when it confirms that decree and therefore it is well settled that only the appellate Court can amend the decree thereafter : (see Muhammad Sulaiman Khan v. Muhammad Yar Khan, (1888) ILR 11 All 267 (FB) ). It is equally well settled that where an appeal as been taken from a preliminary mortgage decree and is decided, the time for preparation of final decree is three years from the date of the appellate decree even though the appellate Court may not have extended the time for payment provided in the preliminary decree where no final decree has been prepared in between : see Jowad Hussain v. Gendan Singh, 53 Ind App 197: (AIR 1926 PC 93). This applies even to a case where the decree of the appellate Court is made more than three years after the time fixed for payment in the preliminary decree : (see Fitzholmes v. Bank of Upper India, 54 Ind App 52 : (AIR 1927 PC 25 ) ). Further it is well settled that the mere fact that there is an appeal from a preliminary decree does not oust the jurisdiction of the trial Court to prepare a final decree even while the appeal is pending unless there is a stay order: see Sat Prakash v. Bahal Rai, ILR 53 All 283 : (AIR 1931 All 386 FB). Even if a final decree has been passed an appeal from a preliminary decree is not incompetent and it is not necessary for a party to appeal both from the preliminary decree and the final decree in order to maintain his appeal against the preliminary decree. In such a case where the preliminary decree is set aside the final decree is superseded whether the appeal is brought before or after the passing of the final decree: see Talebali v. Ahdul Aziz, ILR 57 Cal 1013 : (AIR l929 Cal 689 FB). Further it was observed in the last case that where an appellate Court sets aside or varies a preliminary decree it can and indeed should, give direction for the setting aside or varying of the final decree, if the existence of the final decree is brought to its notice as in all cases it ought to beThus the preliminary decree is complete in itself and the amount due to ther right upto the time that the execution is complete is either provided therein or worked out from the directions contained | 0 | 5,441 | 3,113 | ### 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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may arise whether the period for redemption can be said to have been extended for six months or such other time as may be provided in or such other time as may be provided in the preliminary decree under appeal but beginning from the date of the decree in appeal. In such a case we are of opinion that it is the duty of the appellate Court when it is reducing the amount payable for redemption to fix some time for the purpose in the interest of justice. But it is not bound to do so and if it does not do so, the original time fixed in the preliminary decree stands even though the amount for redemption may have been reduced: [See Rukhmabais case, ILR (1952) Nag 243: (AIR 1952 Nag 145 FB). Nor do we think that any serious harm is done to the defendant-mortgagor in such a case for under O. XXXIV, R. 5 (1), even though no fresh time may have been fixed by the appellate Court where the amount for redemption is reduced, the mortgagor-defendant would have time upto the date of the confirmation of sale to deposit the amount and save the property. In these circumstances, we see no reason to distinguish even this case where variation results in reduction of the amount of redemption from the case where the decree of the appellate Court affirms the preliminary decree in appeal in toto. 16. We are further of opinion that even where there has been a variation in the decree, the final decree if passed in the meantime, requires no formal amendment in view of the form in which a final decree for sale is prepared. All that happens is that where the preliminary decree is varied one way or the other the final decree which is entirely depending on the preliminary decree stands varied by its own terms in accordance with the terms of the preliminary decree passed in appeal. It is the duty of the executing Court when it is executing the final decree passed in the meantime to see that the execution is in accordance with the preliminary decree passed in appeal which is the support of the final decree. Of course, if the appellate Court when deciding the appeal gives any particular direction with respect to the preparation of a fresh preliminary decree that direction has to be carried out. Ramnaths case. ILR (1947) All 40 : (AIR 1947 All 83), was of this latter kind. There the appellate Court directed the preparation of fresh preliminary decree in accordance with its judgment. In such a case it may be said that as there had to be a new preliminary decree in accordance with the direction of the appellate Court a new final decree in accordance with the new preliminary decree might have to be prepared. But where there are no specific directions of the appellate Court with respect to the preparation of a new preliminary decree, and all that the appellate Court orders is merely a variation in the amount for redemption - be it more or less than that provided in the preliminary decree - it is in our opinion the duty of the executing Court to see when it is asked to execute a final decree prepared in the meantime that the modifications made by the appellate Court in the appeal from the preliminary decree are given effect to during the execution proceedings. As we have said already, the language of the final decree in Form 6 is such that it requires no modification even though there might be modifications in the preliminary decree by the appellate Court, and all that is required is that the executing Court should in executing the final decree prepared in the meantime give effect to the decree in appeal from the preliminary decree, if it is a case of variation one way or the other. The only exception to this principle is a case where the appellate Court gives specific direction for the preparation of a fresh preliminary decree or gives further time after the decree in appeal from the preliminary decree. In such a case a fresh preliminary decree may have to be drawn up to be followed by a fresh final decree. The present, however, is not a case of this kind as already indicated, and in the circumstances it was the duty of the executing Court, when variations made by the appellate Court in appeal from the preliminary decree were brought to its notice, to take them into account in executing the final decree, which had been prepared in the meantime. The final decree in terms required no change in view of Form 6 already referred to and all that the executing Court had to do was to take note of the fact that the supporting preliminary decree had been varied and to execute the final decree in accordance therewith. In this view of the matter we are of opinion that the view taken in Periakaruppan Chettiars case, ILR (1947) Mad 132: (AIR l946 Mad 383), is correct subject to what we have said with respect to the case where there are specific directions by the appellate Court in an appeal from the preliminary decree for preparation of a fresh preliminary decree or for fixing a fresh time for payment. 17. We do not think it necessary to refer in detail to other cases cited before us. It is enough to say that the Andhra Pradesh High Court has followed the Madras High Court : (see Venkata Subba Rao v. Kesavayya, AIR 1955 Andhra 254, while the Calcutta High Court in Abdul Jalil v. Amar Chand Paul, (1913) 18 Cal LJ 223, and the Lahore High Court in Mewa Singh v. Tara Singh, AIR 1933 Lah 859 (2), seem to take the view that a fresh final decree is necessary within three years of the appellate decree in an appeal from the preliminary decree in a case of modification.
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a new final decree in accordance with the new preliminary decree might have to be prepared. But where there are no specific directions of the appellate Court with respect to the preparation of a new preliminary decree, and all that the appellate Court orders is merely a variation in the amount for redemption - be it more or less than that provided in the preliminary decree - it is in our opinion the duty of the executing Court to see when it is asked to execute a final decree prepared in the meantime that the modifications made by the appellate Court in the appeal from the preliminary decree are given effect to during the execution proceedings. As we have said already, the language of the final decree in Form 6 is such that it requires no modification even though there might be modifications in the preliminary decree by the appellate Court, and all that is required is that the executing Court should in executing the final decree prepared in the meantime give effect to the decree in appeal from the preliminary decree, if it is a case of variation one way or the other. The only exception to this principle is a case where the appellate Court gives specific direction for the preparation of a fresh preliminary decree or gives further time after the decree in appeal from the preliminary decree. In such a case a fresh preliminary decree may have to be drawn up to be followed by a fresh final decree. The present, however, is not a case of this kind as already indicated, and in the circumstances it was the duty of the executing Court, when variations made by the appellate Court in appeal from the preliminary decree were brought to its notice, to take them into account in executing the final decree, which had been prepared in the meantime. The final decree in terms required no change in view of Form 6 already referred to and all that the executing Court had to do was to take note of the fact that the supporting preliminary decree had been varied and to execute the final decree in accordance therewith. In this view of the matter we are of opinion that the view taken in Periakaruppan Chettiars case, ILR (1947) Mad 132: (AIR l946 Mad 383), is correct subject to what we have said with respect to the case where there are specific directions by the appellate Court in an appeal from the preliminary decree for preparation of a fresh preliminary decree or for fixing a fresh time for payment17. We do not think it necessary to refer in detail to other cases cited before us. It is enough to say that the Andhra Pradesh High Court has followed the Madras High Court : (see Venkata Subba Rao v. Kesavayya, AIR 1955 Andhra 254, while the Calcutta High Court in Abdul Jalil v. Amar Chand Paul, (1913) 18 Cal LJ 223, and the Lahore High Court in Mewa Singh v. Tara Singh, AIR 1933 Lah 859 (2), seem to take the view that a fresh final decree is necessary within three years of the appellate decree in an appeal from the preliminary decree in a case of modificationBefore we consider this question we may state certain well settled propositions with respect to preliminary and final decrees in mortgage suits and the effect of an appellate decree in general on the decree of the trial Court. Generally speaking the decree of the appellate Court supersedes the decree of the trial Court even when it confirms that decree and therefore it is well settled that only the appellate Court can amend the decree thereafter : (see Muhammad Sulaiman Khan v. Muhammad Yar Khan, (1888) ILR 11 All 267 (FB) ). It is equally well settled that where an appeal as been taken from a preliminary mortgage decree and is decided, the time for preparation of final decree is three years from the date of the appellate decree even though the appellate Court may not have extended the time for payment provided in the preliminary decree where no final decree has been prepared in between : see Jowad Hussain v. Gendan Singh, 53 Ind App 197: (AIR 1926 PC 93). This applies even to a case where the decree of the appellate Court is made more than three years after the time fixed for payment in the preliminary decree : (see Fitzholmes v. Bank of Upper India, 54 Ind App 52 : (AIR 1927 PC 25 ) ). Further it is well settled that the mere fact that there is an appeal from a preliminary decree does not oust the jurisdiction of the trial Court to prepare a final decree even while the appeal is pending unless there is a stay order: see Sat Prakash v. Bahal Rai, ILR 53 All 283 : (AIR 1931 All 386 FB). Even if a final decree has been passed an appeal from a preliminary decree is not incompetent and it is not necessary for a party to appeal both from the preliminary decree and the final decree in order to maintain his appeal against the preliminary decree. In such a case where the preliminary decree is set aside the final decree is superseded whether the appeal is brought before or after the passing of the final decree: see Talebali v. Ahdul Aziz, ILR 57 Cal 1013 : (AIR l929 Cal 689 FB). Further it was observed in the last case that where an appellate Court sets aside or varies a preliminary decree it can and indeed should, give direction for the setting aside or varying of the final decree, if the existence of the final decree is brought to its notice as in all cases it ought to beThus the preliminary decree is complete in itself and the amount due to ther right upto the time that the execution is complete is either provided therein or worked out from the directions contained
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Talati Kantilal Bhumabai and Another Vs. Lalitaben | CHANDRACHUD, J. 1. This is an appeal from a judgment of the Gujarat High Court dated March 5, 1973 on a preliminary point, holding that the Civil Judge (Senior Division), Godhra has jurisdiction to entertain and decide the suit filed by the respondent. Setting aside the finding of the learned Civil Judge that he had no jurisdiction to entertain the suit and therefore the plaint must be returned for presentation to the property Court, the High Court has remanded the suit to the trial Court with a direction to determine the "other issues" raised in the suit in the light of the evidence on record and in accordance with law. 2. In view of the fact that the entire evidence in the case has been recorded by the trial Court and considering that nine years have already passed over the decision of a preliminary point, we are of the opinion that it is undesirable to dispose of this matter piecemeal. The interests of justice require temporarily that the trial Court should proceed to dispose of the suit on the issues which it has not yet decided. | 0[ds]2. In view of the fact that the entire evidence in the case has been recorded by the trial Court and considering that nine years have already passed over the decision of a preliminary point, we are of the opinion that it is undesirable to dispose of this matter piecemeal. The interests of justice require temporarily that the trial Court should proceed to dispose of the suit on the issues which it has not yet decided4. We must, however, clarify that the dismissal of this appeal will not preclude the appellants from raising the question of jurisdiction or any other question which has been concluded by the judgment of the High Court, in any appeal which the appellants may file in this Court hereafter. If the suit is dismissed, there will be no occasion for the appellants to challenge the finding on the question whether the amount had been kept by the respondent with the appellants by way of deposit or was in the nature of a loan or on the question of jurisdiction. On the other hand, if the suit is decreed, appellants have a statutory right to challenge the decree of the trial Court by filing an appeal in the High Court. But since the High Court has already decided the preliminary question of jurisdiction, the appellants cannot be allowed to reopen that question in the appeal before the High Court. The question of jurisdiction must be treated as finally concluded so far a the trial Court and the High Court are concerned. If, however the appellants fail in the High Court, it would be open to them, by filing an appeal in this Court, to challenge the decree of the High Court on all points decided against them including the points decided by the High Court by its judgment dated March 5, 1973.In other words, so far as this Court is concerned, the question of jurisdiction must be treated as open, despite the dismissal of this appeal. | 0 | 203 | 360 | ### 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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CHANDRACHUD, J. 1. This is an appeal from a judgment of the Gujarat High Court dated March 5, 1973 on a preliminary point, holding that the Civil Judge (Senior Division), Godhra has jurisdiction to entertain and decide the suit filed by the respondent. Setting aside the finding of the learned Civil Judge that he had no jurisdiction to entertain the suit and therefore the plaint must be returned for presentation to the property Court, the High Court has remanded the suit to the trial Court with a direction to determine the "other issues" raised in the suit in the light of the evidence on record and in accordance with law. 2. In view of the fact that the entire evidence in the case has been recorded by the trial Court and considering that nine years have already passed over the decision of a preliminary point, we are of the opinion that it is undesirable to dispose of this matter piecemeal. The interests of justice require temporarily that the trial Court should proceed to dispose of the suit on the issues which it has not yet decided.
### Response:
0
### Explanation:
2. In view of the fact that the entire evidence in the case has been recorded by the trial Court and considering that nine years have already passed over the decision of a preliminary point, we are of the opinion that it is undesirable to dispose of this matter piecemeal. The interests of justice require temporarily that the trial Court should proceed to dispose of the suit on the issues which it has not yet decided4. We must, however, clarify that the dismissal of this appeal will not preclude the appellants from raising the question of jurisdiction or any other question which has been concluded by the judgment of the High Court, in any appeal which the appellants may file in this Court hereafter. If the suit is dismissed, there will be no occasion for the appellants to challenge the finding on the question whether the amount had been kept by the respondent with the appellants by way of deposit or was in the nature of a loan or on the question of jurisdiction. On the other hand, if the suit is decreed, appellants have a statutory right to challenge the decree of the trial Court by filing an appeal in the High Court. But since the High Court has already decided the preliminary question of jurisdiction, the appellants cannot be allowed to reopen that question in the appeal before the High Court. The question of jurisdiction must be treated as finally concluded so far a the trial Court and the High Court are concerned. If, however the appellants fail in the High Court, it would be open to them, by filing an appeal in this Court, to challenge the decree of the High Court on all points decided against them including the points decided by the High Court by its judgment dated March 5, 1973.In other words, so far as this Court is concerned, the question of jurisdiction must be treated as open, despite the dismissal of this appeal.
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Deedar Singh Vs. State of Uttar Pradesh | and the others under Section 323, read with Section 34, I.P.C. Jagat Singh and Bhagat Singh were real brothers, being sons of Charan Singh. The three other co-accused of Deedar Singh are stated to be the latters friends and neighbours. On June 1, 1963, at about noon there was a quarrel between Kashmera Singh, deceased, and Smt. Mahendro, daughter of Deedar Singh in their village, Jamanwala. The trouble arose out of a dispute in regard to the right of passage from Kashmera Singhs house to the public road through a piece of land stated to be in Deedar Singhs possession. Kashmera Singh claimed the right of way through this passage to which Deedar Singh and his family members objected. During the quarrel on June 1, 1963, Kashmera Singh is said to have used filthy language towards Smt. Mahendro and abused her. Smt. Mahendros mother later approached Gurdip Singh (P.W. 3), brother-in-law of Kashmera Singh and, appraising him of the incident, asked him to restrain Kashmera Singh from behaving in this manner. Gurdip Singh went to Kashmera Singhs house but finding him absent told Kashmera Singhs mother Smt. Bal Kaur to ask her son not to behave in such manner. Jagat Singh and Bhagat Singh were also against Kashmera Singh because of some other dispute with him. According to the prosecution on the night of June 1, at about 8 or 9 p.m. when Kashmera Singh was lying on a cot in front of his chhapper the four accused persons went there with the common intention of murdering him. Deedar Singh, Dhanna Singh and Bhagat Singh, accused, were armed with lathis while Jagat Singh was armed with a ballam. They beat Kashmera Singh as a result of which he fell down on the ground. Smt. Bal Kaur, mother of Kashmera Singh, Smt. Amar Kaur, his wife and Amrik Singh, a 12 year old son of Kashmera Singhs sister saw the incident and raised an alarm. Smt. Bal Kaur intervening tried to save Kashmera Singh but she was also given a beating by Deedar Singh. Gurdip Singh (P.W. 3) and another Gurdip Singh, son of Prem Singh, who was produced as court witness (C.W. 2) and who was in the house of Gurdip Singh (P.W. 3) on hearing the cries also reached the place of occurrence; so also did Ranjeet Singh (P.W. 6) and Ratan Singh (C.W. 3) who were at that time in the house of Har Charan Singh at a distance of about 50 or 60 yards. The Trial Court, believing the prosecution version, sentenced all the four accused persons to imprisonment for life under Section 302, read with Section 34, I.P.C. Deedar Singh was in addition sentenced to six months rigorous imprisonment for life under Section 323, I.P.C. and the other three accused persons were sentenced to similar sentences under Section 323, read with Section 34, I.P.C. The sentences under the different counts were to run concurrently.2. On appeal, the Allahabad High Court, giving benefit of doubt to Jagat Singh, Dhanna Singh and Bhagat Singh acquitted them but altered Deedar Singhs conviction from Section 302, read with Section 34 to one under Section 302, I.P.C. According to the High Court there was greater probability that Deedar Singh alone was responsible for causing all the injuries to Kashmera Singh as deposed by Gurdip Singh, son of Prem Singh (C.W. 2) and Ratan Singh, (C.W. 3). Jagat Singh, Bhagat Singh and Dhanna Singh were also acquitted of the offence under Section 323, read with Section 34, I.P.C. The High Court, however, said nothing about Deedar Singhs conviction under Section 323, I.P.C. for causing injuries to Smt. Bal Kaur.3. In this Court Shri Hardev Singh, learned counsel for the appellant, strongly argued that it was not possible on the record to fix blame for the injuries caused to the deceased solely on the appellant and in the absence of trustworthy evidence showing that Deedar Singh alone was responsible for causing the fatal injuries to the deceased his conviction alone, in face of the acquittal of the other three co-accused persons, in unsustainable in law.4. The submission is unacceptable. The other co-accused were given the benefit of doubt by the High Court as the court witnesses supported the prosecution case only in respect of Deedar Singh, about whose complicity in the assault on Kashmera Singh resulting in his death, all the prosecution witnesses were agreed. The number and nature of injuries caused in the course of the occurrence were also considered by the High Court to be not inconsistent with the assailant being only one person. On this view the High Court felt that there was a greater probability that Deedar Singh alone was responsible for causing Kashmera Singhs death and giving injuries to Smt. Bal Kaur. This does not mean that the prosecution story is false; nor does in mean that Deedar Singhs conviction is based on mere probabilities and not on evidence which establishes his guilt beyond reasonable doubt. The greater probability, according to the High Court, lies in the other co-accused not being responsible for the death of Kashmera Singh and not in regard to Deedar Singhs guilt about which there is not the least doubt on the evidence led in the case. Even otherwise, the suggestion by the counsel that the mere probability of Deedar Singh alone being the murderer does not exclude the likelihood of his companions also being the participants in the crime cannot help him as Deedar Singh was by all accounts the prominent assailant. In any event, the High Court having on appreciation of evidence came to a positive conclusion that Deedar Singh is responsible for causing injuries to the deceased and to Bal Kaur it is not open to this Court in the present appeal to weigh the evidence over again to see for itself if Deedar Singh has committed the offence. The appellants learned counsel tried essentially to re-agitate the question of appreciation of evidence for which no justification has been made out.5. | 0[ds]3. In this Court Shri Hardev Singh, learned counsel for the appellant, strongly argued that it was not possible on the record to fix blame for the injuries caused to the deceased solely on the appellant and in the absence of trustworthy evidence showing that Deedar Singh alone was responsible for causing the fatal injuries to the deceased his conviction alone, in face of the acquittal of the other three, in unsustainable in law.The submission is unacceptable. The otherwere given the benefit of doubt by the High Court as the court witnesses supported the prosecution case only in respect of Deedar Singh, about whose complicity in the assault on Kashmera Singh resulting in his death, all the prosecution witnesses were agreed. The number and nature of injuries caused in the course of the occurrence were also considered by the High Court to be not inconsistent with the assailant being only one person. On this view the High Court felt that there was a greater probability that Deedar Singh alone was responsible for causing Kashmera Singhs death and giving injuries to Smt. Bal Kaur. This does not mean that the prosecution story is false; nor does in mean that Deedar Singhs conviction is based on mere probabilities and not on evidence which establishes his guilt beyond reasonable doubt. The greater probability, according to the High Court, lies in the othernot being responsible for the death of Kashmera Singh and not in regard to Deedar Singhs guilt about which there is not the least doubt on the evidence led in the case. Even otherwise, the suggestion by the counsel that the mere probability of Deedar Singh alone being the murderer does not exclude the likelihood of his companions also being the participants in the crime cannot help him as Deedar Singh was by all accounts the prominent assailant. In any event, the High Court having on appreciation of evidence came to a positive conclusion that Deedar Singh is responsible for causing injuries to the deceased and to Bal Kaur it is not open to this Court in the present appeal to weigh the evidence over again to see for itself if Deedar Singh has committed the offence. The appellants learned counsel tried essentially tothe question of appreciation of evidence for which no justification has been made out. | 0 | 1,214 | 412 | ### 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:
and the others under Section 323, read with Section 34, I.P.C. Jagat Singh and Bhagat Singh were real brothers, being sons of Charan Singh. The three other co-accused of Deedar Singh are stated to be the latters friends and neighbours. On June 1, 1963, at about noon there was a quarrel between Kashmera Singh, deceased, and Smt. Mahendro, daughter of Deedar Singh in their village, Jamanwala. The trouble arose out of a dispute in regard to the right of passage from Kashmera Singhs house to the public road through a piece of land stated to be in Deedar Singhs possession. Kashmera Singh claimed the right of way through this passage to which Deedar Singh and his family members objected. During the quarrel on June 1, 1963, Kashmera Singh is said to have used filthy language towards Smt. Mahendro and abused her. Smt. Mahendros mother later approached Gurdip Singh (P.W. 3), brother-in-law of Kashmera Singh and, appraising him of the incident, asked him to restrain Kashmera Singh from behaving in this manner. Gurdip Singh went to Kashmera Singhs house but finding him absent told Kashmera Singhs mother Smt. Bal Kaur to ask her son not to behave in such manner. Jagat Singh and Bhagat Singh were also against Kashmera Singh because of some other dispute with him. According to the prosecution on the night of June 1, at about 8 or 9 p.m. when Kashmera Singh was lying on a cot in front of his chhapper the four accused persons went there with the common intention of murdering him. Deedar Singh, Dhanna Singh and Bhagat Singh, accused, were armed with lathis while Jagat Singh was armed with a ballam. They beat Kashmera Singh as a result of which he fell down on the ground. Smt. Bal Kaur, mother of Kashmera Singh, Smt. Amar Kaur, his wife and Amrik Singh, a 12 year old son of Kashmera Singhs sister saw the incident and raised an alarm. Smt. Bal Kaur intervening tried to save Kashmera Singh but she was also given a beating by Deedar Singh. Gurdip Singh (P.W. 3) and another Gurdip Singh, son of Prem Singh, who was produced as court witness (C.W. 2) and who was in the house of Gurdip Singh (P.W. 3) on hearing the cries also reached the place of occurrence; so also did Ranjeet Singh (P.W. 6) and Ratan Singh (C.W. 3) who were at that time in the house of Har Charan Singh at a distance of about 50 or 60 yards. The Trial Court, believing the prosecution version, sentenced all the four accused persons to imprisonment for life under Section 302, read with Section 34, I.P.C. Deedar Singh was in addition sentenced to six months rigorous imprisonment for life under Section 323, I.P.C. and the other three accused persons were sentenced to similar sentences under Section 323, read with Section 34, I.P.C. The sentences under the different counts were to run concurrently.2. On appeal, the Allahabad High Court, giving benefit of doubt to Jagat Singh, Dhanna Singh and Bhagat Singh acquitted them but altered Deedar Singhs conviction from Section 302, read with Section 34 to one under Section 302, I.P.C. According to the High Court there was greater probability that Deedar Singh alone was responsible for causing all the injuries to Kashmera Singh as deposed by Gurdip Singh, son of Prem Singh (C.W. 2) and Ratan Singh, (C.W. 3). Jagat Singh, Bhagat Singh and Dhanna Singh were also acquitted of the offence under Section 323, read with Section 34, I.P.C. The High Court, however, said nothing about Deedar Singhs conviction under Section 323, I.P.C. for causing injuries to Smt. Bal Kaur.3. In this Court Shri Hardev Singh, learned counsel for the appellant, strongly argued that it was not possible on the record to fix blame for the injuries caused to the deceased solely on the appellant and in the absence of trustworthy evidence showing that Deedar Singh alone was responsible for causing the fatal injuries to the deceased his conviction alone, in face of the acquittal of the other three co-accused persons, in unsustainable in law.4. The submission is unacceptable. The other co-accused were given the benefit of doubt by the High Court as the court witnesses supported the prosecution case only in respect of Deedar Singh, about whose complicity in the assault on Kashmera Singh resulting in his death, all the prosecution witnesses were agreed. The number and nature of injuries caused in the course of the occurrence were also considered by the High Court to be not inconsistent with the assailant being only one person. On this view the High Court felt that there was a greater probability that Deedar Singh alone was responsible for causing Kashmera Singhs death and giving injuries to Smt. Bal Kaur. This does not mean that the prosecution story is false; nor does in mean that Deedar Singhs conviction is based on mere probabilities and not on evidence which establishes his guilt beyond reasonable doubt. The greater probability, according to the High Court, lies in the other co-accused not being responsible for the death of Kashmera Singh and not in regard to Deedar Singhs guilt about which there is not the least doubt on the evidence led in the case. Even otherwise, the suggestion by the counsel that the mere probability of Deedar Singh alone being the murderer does not exclude the likelihood of his companions also being the participants in the crime cannot help him as Deedar Singh was by all accounts the prominent assailant. In any event, the High Court having on appreciation of evidence came to a positive conclusion that Deedar Singh is responsible for causing injuries to the deceased and to Bal Kaur it is not open to this Court in the present appeal to weigh the evidence over again to see for itself if Deedar Singh has committed the offence. The appellants learned counsel tried essentially to re-agitate the question of appreciation of evidence for which no justification has been made out.5.
### Response:
0
### Explanation:
3. In this Court Shri Hardev Singh, learned counsel for the appellant, strongly argued that it was not possible on the record to fix blame for the injuries caused to the deceased solely on the appellant and in the absence of trustworthy evidence showing that Deedar Singh alone was responsible for causing the fatal injuries to the deceased his conviction alone, in face of the acquittal of the other three, in unsustainable in law.The submission is unacceptable. The otherwere given the benefit of doubt by the High Court as the court witnesses supported the prosecution case only in respect of Deedar Singh, about whose complicity in the assault on Kashmera Singh resulting in his death, all the prosecution witnesses were agreed. The number and nature of injuries caused in the course of the occurrence were also considered by the High Court to be not inconsistent with the assailant being only one person. On this view the High Court felt that there was a greater probability that Deedar Singh alone was responsible for causing Kashmera Singhs death and giving injuries to Smt. Bal Kaur. This does not mean that the prosecution story is false; nor does in mean that Deedar Singhs conviction is based on mere probabilities and not on evidence which establishes his guilt beyond reasonable doubt. The greater probability, according to the High Court, lies in the othernot being responsible for the death of Kashmera Singh and not in regard to Deedar Singhs guilt about which there is not the least doubt on the evidence led in the case. Even otherwise, the suggestion by the counsel that the mere probability of Deedar Singh alone being the murderer does not exclude the likelihood of his companions also being the participants in the crime cannot help him as Deedar Singh was by all accounts the prominent assailant. In any event, the High Court having on appreciation of evidence came to a positive conclusion that Deedar Singh is responsible for causing injuries to the deceased and to Bal Kaur it is not open to this Court in the present appeal to weigh the evidence over again to see for itself if Deedar Singh has committed the offence. The appellants learned counsel tried essentially tothe question of appreciation of evidence for which no justification has been made out.
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Tara Masih (Dead) Thru Lrs. & Others Vs. Samuel (Dead) Through Lrs. & Others | 1. We have heard the learned counsel for the appellants - plaintiffs. None has appeared on behalf of the respondents - defendants in spite of due service of notice. 2. The plaintiffs suit for declaration of title on the basis that the defendants who had mortgaged the suit land had failed to redeem the same was dismissed by the learned trial Court. To dismiss the claim of the plaintiffs the learned trial Court relied upon the Mutation Entry No.1280 dated 8th August, 1964 and a receipt dated 11th April, 1963 showing payment of the mortgage amount by which the name of the defendants were entered in the revenue records. The learned trial Court accepted the authenticity of the said Mutation Entry notwithstanding the objections of the plaintiffs that the correct mutation entry indicated that only one-sixth (?th) of the mortgaged property was redeemed. However, no material was laid in this regard by the plaintiffs. 3. The first appellate court permitted additional evidence to be brought on record and on consideration of such additional evidence came to the conclusion that the redemption of the mortgaged property was only to the extent of one-sixth (?th) and such partial redemptionwould not operate as a redemption of the entire property. Accordingly, the suit of the plaintiffs was decreed. 4. In Second Appeal the High Court did not go into the aforesaid issue at all. Neither any substantial question of law was framed as mandatorily required under Section 100 of the Code of Civil Procedure, 1908. Taking note of the mutation entry of 1963-1964 in favour of the defendants and that there was a subsequent mutation entry of 1973-1974 in favour of the plaintiffs, which had not been explained in any manner, the High Court thought it proper to reverse the finding of the first appellate Court and dismiss the suit. 5. Having considered the matter we are of the view that the contentious issues particularly with regard to the authenticity of Exhibit D.2 (Mutation Entry No.1280 dated 8th August, 1964) and the question as to whether there was a complete or partial redemption of the mortgaged property did raise substantial questions of law which required the High Court to frame appropriate question/questions. Thereafter, it was incumbent on the High Court to decide on the issues thrown up for consideration by the additional evidence adduced by the plaintiffs before the first appellate Court and the authenticity and genuineness of Exhibit D.2 i.e. Mutation Entry No.1280 dated 8th August, 1964 as claimed by both sides. In the absence of the necessary exercise in this regard by the High Court we are inclined to take the view that the order of the High Court is legally untenable. We, therefore, set aside the same and request the High Court to reconsider the matter in the light of the observations recorded by us in the present order. | 1[ds]5. Having considered the matter we are of the view that the contentious issues particularly with regard to the authenticity of Exhibit D.2 (Mutation Entry No.1280 dated 8th August, 1964) and the question as to whether there was a complete or partial redemption of the mortgaged property did raise substantial questions of law which required the High Court to frame appropriate question/questions. Thereafter, it was incumbent on the High Court to decide on the issues thrown up for consideration by the additional evidence adduced by the plaintiffs before the first appellate Court and the authenticity and genuineness of Exhibit D.2 i.e. Mutation Entry No.1280 dated 8th August, 1964 as claimed by both sides. In the absence of the necessary exercise in this regard by the High Court we are inclined to take the view that the order of the High Court is legally untenable. We, therefore, set aside the same and request the High Court to reconsider the matter in the light of the observations recorded by us in the present order. | 1 | 519 | 189 | ### 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:
1. We have heard the learned counsel for the appellants - plaintiffs. None has appeared on behalf of the respondents - defendants in spite of due service of notice. 2. The plaintiffs suit for declaration of title on the basis that the defendants who had mortgaged the suit land had failed to redeem the same was dismissed by the learned trial Court. To dismiss the claim of the plaintiffs the learned trial Court relied upon the Mutation Entry No.1280 dated 8th August, 1964 and a receipt dated 11th April, 1963 showing payment of the mortgage amount by which the name of the defendants were entered in the revenue records. The learned trial Court accepted the authenticity of the said Mutation Entry notwithstanding the objections of the plaintiffs that the correct mutation entry indicated that only one-sixth (?th) of the mortgaged property was redeemed. However, no material was laid in this regard by the plaintiffs. 3. The first appellate court permitted additional evidence to be brought on record and on consideration of such additional evidence came to the conclusion that the redemption of the mortgaged property was only to the extent of one-sixth (?th) and such partial redemptionwould not operate as a redemption of the entire property. Accordingly, the suit of the plaintiffs was decreed. 4. In Second Appeal the High Court did not go into the aforesaid issue at all. Neither any substantial question of law was framed as mandatorily required under Section 100 of the Code of Civil Procedure, 1908. Taking note of the mutation entry of 1963-1964 in favour of the defendants and that there was a subsequent mutation entry of 1973-1974 in favour of the plaintiffs, which had not been explained in any manner, the High Court thought it proper to reverse the finding of the first appellate Court and dismiss the suit. 5. Having considered the matter we are of the view that the contentious issues particularly with regard to the authenticity of Exhibit D.2 (Mutation Entry No.1280 dated 8th August, 1964) and the question as to whether there was a complete or partial redemption of the mortgaged property did raise substantial questions of law which required the High Court to frame appropriate question/questions. Thereafter, it was incumbent on the High Court to decide on the issues thrown up for consideration by the additional evidence adduced by the plaintiffs before the first appellate Court and the authenticity and genuineness of Exhibit D.2 i.e. Mutation Entry No.1280 dated 8th August, 1964 as claimed by both sides. In the absence of the necessary exercise in this regard by the High Court we are inclined to take the view that the order of the High Court is legally untenable. We, therefore, set aside the same and request the High Court to reconsider the matter in the light of the observations recorded by us in the present order.
### Response:
1
### Explanation:
5. Having considered the matter we are of the view that the contentious issues particularly with regard to the authenticity of Exhibit D.2 (Mutation Entry No.1280 dated 8th August, 1964) and the question as to whether there was a complete or partial redemption of the mortgaged property did raise substantial questions of law which required the High Court to frame appropriate question/questions. Thereafter, it was incumbent on the High Court to decide on the issues thrown up for consideration by the additional evidence adduced by the plaintiffs before the first appellate Court and the authenticity and genuineness of Exhibit D.2 i.e. Mutation Entry No.1280 dated 8th August, 1964 as claimed by both sides. In the absence of the necessary exercise in this regard by the High Court we are inclined to take the view that the order of the High Court is legally untenable. We, therefore, set aside the same and request the High Court to reconsider the matter in the light of the observations recorded by us in the present order.
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SAVITHA Vs. M/S CHODAMANDALAM M.S. GENERAL INSURNACE COMPANY | NAVIN SINHA, J. 1. Leave granted. 2. The appellant, a housewife, is in appeal against inadequacy of compensation granted to her in a motor accident case. 3. The appellant while travelling in a bus belonging to respondent no.3 on 25.12.2008 met with an accident when a lorry rashly and negligently dashed against the bus. The appellant suffered nine injuries out of which seven were grievous in nature. P.W.4, the Orthopedic Surgeon who operated upon the appellant, deposed that she had suffered 32 per cent total body disability and was not capable of doing household work. The Tribunal awarded a total compensation of Rs.5,82,500/- with interest at the rate of 6%, redetermined by the High Court in appeal at Rs.6,50,350/-. 4. Learned counsel for the appellant submits that the assessment of income at Rs.4,250/- per month was inadequate. The appellant had claimed an income of Rs.6,000/- p.m. from a tailoring business which should have been the basis for assessment of loss of income. The medical opinion of P.W.4 with regard to extent of whole body disability has been arbitrarily reduced to 20%. 5. Learned counsel for respondent no.1 submitted that the High Court has adequately enhanced the compensation which calls for no further interference. 6. We have considered the submissions on behalf of the parties. The appellant failed to lead any evidence in support of her claimed profession as a tailor earning approximately Rs.6,000/- p.m. and therefore it has rightly been rejected. 7. The Tribunal assessed the notional income of the appellant as a housewife at Rs.3,000/- p.m., which has been enhanced by the High Court to Rs.4,250/- and we find no reason to interfere with the same. The appellant has been awarded Rs.3,00,000/- towards medical expenses as she failed to lead acceptable evidence in support of her claim for Rs.4,00,000/-. We find no reason to interfere with the same also. However, we are of the considered opinion that considering the nature of injuries and age of the appellant the award of Rs.25,000/- only towards loss of amenities and future happiness is inadequate and is enhanced to Rs.50,000/-. 8. P.W.4, the Orthopedic Surgeon, deposed that the appellant had suffered nine injuries, of which seven were grievous in nature and she had to undergo two surgeries which left her disabled from doing house work and unable to walk without the aid of crutches. Her whole body disability was medically assessed at 32%. The Tribunal, by hairsplitting the expert evidence assessed the whole body disability at 15%. The High Court for inexplicable reasons opined that it would be reasonable to determine the whole body disability at 20%. 9. The appellant is entitled to loss of future earning on basis of the whole body disability of 32% as opined by P.W.4. The compensation under that head is therefore redrawn awarding Rs.2,12,160/- (Rs.4250 x 12 x 13 x 32%). | 1[ds]6. We have considered the submissions on behalf of the parties. The appellant failed to lead any evidence in support of her claimed profession as a tailor earning approximately Rs.6,000/- p.m. and therefore it has rightly been rejected.7. The Tribunal assessed the notional income of the appellant as a housewife at Rs.3,000/- p.m., which has been enhanced by the High Court to Rs.4,250/- and we find no reason to interfere with the same. The appellant has been awarded Rs.3,00,000/- towards medical expenses as she failed to lead acceptable evidence in support of her claim for Rs.4,00,000/-. We find no reason to interfere with the same also. However, we are of the considered opinion that considering the nature of injuries and age of the appellant the award of Rs.25,000/- only towards loss of amenities and future happiness is inadequate and is enhanced to Rs.50,000/-.8. P.W.4, the Orthopedic Surgeon, deposed that the appellant had suffered nine injuries, of which seven were grievous in nature and she had to undergo two surgeries which left her disabled from doing house work and unable to walk without the aid of crutches. Her whole body disability was medically assessed at 32%. The Tribunal, by hairsplitting the expert evidence assessed the whole body disability at 15%. The High Court for inexplicable reasons opined that it would be reasonable to determine the whole body disability at 20%.9. The appellant is entitled to loss of future earning on basis of the whole body disability of 32% as opined by P.W.4. The compensation under that head is therefore redrawn awarding Rs.2,12,160/- (Rs.4250 x 12 x 13 x 32%). | 1 | 527 | 299 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
NAVIN SINHA, J. 1. Leave granted. 2. The appellant, a housewife, is in appeal against inadequacy of compensation granted to her in a motor accident case. 3. The appellant while travelling in a bus belonging to respondent no.3 on 25.12.2008 met with an accident when a lorry rashly and negligently dashed against the bus. The appellant suffered nine injuries out of which seven were grievous in nature. P.W.4, the Orthopedic Surgeon who operated upon the appellant, deposed that she had suffered 32 per cent total body disability and was not capable of doing household work. The Tribunal awarded a total compensation of Rs.5,82,500/- with interest at the rate of 6%, redetermined by the High Court in appeal at Rs.6,50,350/-. 4. Learned counsel for the appellant submits that the assessment of income at Rs.4,250/- per month was inadequate. The appellant had claimed an income of Rs.6,000/- p.m. from a tailoring business which should have been the basis for assessment of loss of income. The medical opinion of P.W.4 with regard to extent of whole body disability has been arbitrarily reduced to 20%. 5. Learned counsel for respondent no.1 submitted that the High Court has adequately enhanced the compensation which calls for no further interference. 6. We have considered the submissions on behalf of the parties. The appellant failed to lead any evidence in support of her claimed profession as a tailor earning approximately Rs.6,000/- p.m. and therefore it has rightly been rejected. 7. The Tribunal assessed the notional income of the appellant as a housewife at Rs.3,000/- p.m., which has been enhanced by the High Court to Rs.4,250/- and we find no reason to interfere with the same. The appellant has been awarded Rs.3,00,000/- towards medical expenses as she failed to lead acceptable evidence in support of her claim for Rs.4,00,000/-. We find no reason to interfere with the same also. However, we are of the considered opinion that considering the nature of injuries and age of the appellant the award of Rs.25,000/- only towards loss of amenities and future happiness is inadequate and is enhanced to Rs.50,000/-. 8. P.W.4, the Orthopedic Surgeon, deposed that the appellant had suffered nine injuries, of which seven were grievous in nature and she had to undergo two surgeries which left her disabled from doing house work and unable to walk without the aid of crutches. Her whole body disability was medically assessed at 32%. The Tribunal, by hairsplitting the expert evidence assessed the whole body disability at 15%. The High Court for inexplicable reasons opined that it would be reasonable to determine the whole body disability at 20%. 9. The appellant is entitled to loss of future earning on basis of the whole body disability of 32% as opined by P.W.4. The compensation under that head is therefore redrawn awarding Rs.2,12,160/- (Rs.4250 x 12 x 13 x 32%).
### Response:
1
### Explanation:
6. We have considered the submissions on behalf of the parties. The appellant failed to lead any evidence in support of her claimed profession as a tailor earning approximately Rs.6,000/- p.m. and therefore it has rightly been rejected.7. The Tribunal assessed the notional income of the appellant as a housewife at Rs.3,000/- p.m., which has been enhanced by the High Court to Rs.4,250/- and we find no reason to interfere with the same. The appellant has been awarded Rs.3,00,000/- towards medical expenses as she failed to lead acceptable evidence in support of her claim for Rs.4,00,000/-. We find no reason to interfere with the same also. However, we are of the considered opinion that considering the nature of injuries and age of the appellant the award of Rs.25,000/- only towards loss of amenities and future happiness is inadequate and is enhanced to Rs.50,000/-.8. P.W.4, the Orthopedic Surgeon, deposed that the appellant had suffered nine injuries, of which seven were grievous in nature and she had to undergo two surgeries which left her disabled from doing house work and unable to walk without the aid of crutches. Her whole body disability was medically assessed at 32%. The Tribunal, by hairsplitting the expert evidence assessed the whole body disability at 15%. The High Court for inexplicable reasons opined that it would be reasonable to determine the whole body disability at 20%.9. The appellant is entitled to loss of future earning on basis of the whole body disability of 32% as opined by P.W.4. The compensation under that head is therefore redrawn awarding Rs.2,12,160/- (Rs.4250 x 12 x 13 x 32%).
|
J. S. Bajaj & Ors Vs. Arjandas Dayaram Vachhani & Ors | the sons under Rule 19 (3) Rule 19 may here be read:"Special provision for payment of compensation to joint families;(1) Where a claim relates to properties left by the members of an undivided Hindu family in West Pakistan (hereafter referred to as the joint family) compensation shall be computed in the manner hereinafter provided in this Rule.(2) Where on the 26th September, 1955 hereinafter referred to as the relevant date the joint family consisted of:(a) two or three members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into two equal shares and calculating the compensation separately on each such share.(b) four or more members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into three equal shares and calculating the compensation separately on each such share.(3) For the purpose of calculating the number of the members of a joint family under sub-rule (2), person who on the relevant date:-(a) was less than 18 years of age,(b) was a lineal descendant in the main line of another living members of joint Hindu family entitled to claim partition shall be excluded:Provided that where a member of a joint family has died during the period commencing on the 14th August, 1947 and ending on the relevant date leaving behind on the relevant date all or any of the following heirs namely:-(a) a widow or widows,(b) a son or sons whatever the age of such son or sons but no lineal ascendant in the main line, then all such heirs shall, notwithstanding anything contained in this rule, be reckoned as one member of the joint Hindu family.Explanation:- For the purpose of this rule, the question whether a family is joint or separate shall be determined with reference to the status of the family on the 14th day of August, 1947 and every member of a joint family shall be deemed to be joint notwithstanding the fact that he had separated from the family after that date.4. According to the High Court the other living member of the joint Hindu family whose lineal descendants are to be excluded under sub-rule (3) (b) must be a person other than their own father. This view, in our opinion, is contrary to the plain words used in this sub-rule. The High Court expressed its opinion in these words:"It is clear that this condition is intended to apply to a case where a joint family consists of more than two person where each one of them is entitled to claim partition and the members sought to be excluded are lineal descendants of one of such members. It is only in such cases that it could be said that they were lineal descendants of a member who was entitled to claim partition against another. In the present case the father and each of the sons is entitled to claim partition against each other. If the lineal descendants are to be excluded even in a case like the present it only means that all the descendants of the father must be excluded even though there is no other member against whom the father can seek to enforce partition. Having regard to the words used the only interpretation which can be placed on Cl. (b) of sub-rule (3) of Rule 19, is the one adopted by us."The error into which the High Court seems to have fallen is that it has assumed that a person against whom partition can be claimed by the father of the lineal descendants constituting the joint Hindu family must be some member of that family other than his lineal descendants and that it excludes his right to claim partition when the only other members of the joint family are his own lineal descendants.For this assumption there does not seem to us to be any justification either in the language or in the scheme of the Act and the rules or in any other provision of law applicable to the parties before us and governing the present controversy.5. According to the general provisions of Hindu Law the father in a joint Hindu family has the power to partition the joint family property and indeed in the present case the High Court has accepted the legal position that the father and each of his sons are entitled to claim partition against each other. It is only on the language of Rule 19 (3) and as the judgment under appeal suggests, on that Courts disinclination to accept as proper, the exclusion of the sons when the joint family consists only of the father and his sons that the High Court construed Rule 19 (3) in the manner stated above. We are unable to find any warrant for this view. The plain reading of Rule 19 (3) is against it.The language is not susceptible of the meaning that there should be in existence some member of the joint family other than the sons, against whom the father should be entitled to claim partition. The words of the sub-rule being plain and unambiguous they have, in our view, to be construed in the natural and ordinary sense.No cogent reason has been suggested for departing from the rule of literal construction in this case. The consequence flowing from this construction is quite intelligible and seems to us to be rational and logical.The special provision embodied in Rule 19 for paying compensation to joint Hindu families is, in our view, intended to treat a joint Hindu family consisting only of a father and his sons as one unit for the purpose of payment of compensation for the joint family property left in Pakistan. Such a joint family is not intended to be broken up by the statutory scheme of the Act and the Rules.Sub-rule (3)(b) of Rule 19 was, in our opinion, correctly construed by the Chief Settlement Commissioner and the High Court was wrong in disagreeing with it and in allowing the writ petition. | 1[ds]The error into which the High Court seems to have fallen is that it has assumed that a person against whom partition can be claimed by the father of the lineal descendants constituting the joint Hindu family must be some member of that family other than his lineal descendants and that it excludes his right to claim partition when the only other members of the joint family are his own lineal descendants.For this assumption there does not seem to us to be any justification either in the language or in the scheme of the Act and the rules or in any other provision of law applicable to the parties before us and governing the present controversy.5. According to the general provisions of Hindu Law the father in a joint Hindu family has the power to partition the joint family property and indeed in the present case the High Court has accepted the legal position that the father and each of his sons are entitled to claim partition against each other. It is only on the language of Rule 19 (3) and as the judgment under appeal suggests, on that Courts disinclination to accept as proper, the exclusion of the sons when the joint family consists only of the father and his sons that the High Court construed Rule 19 (3) in the manner stated above. We are unable to find any warrant for this view. The plain reading of Rule 19 (3) is against it.The language is not susceptible of the meaning that there should be in existence some member of the joint family other than the sons, against whom the father should be entitled to claim partition. The words of the sub-rule being plain and unambiguous they have, in our view, to be construed in the natural and ordinary sense.No cogent reason has been suggested for departing from the rule of literal construction in this case. The consequence flowing from this construction is quite intelligible and seems to us to be rational and logical.The special provision embodied in Rule 19 for paying compensation to joint Hindu families is, in our view, intended to treat a joint Hindu family consisting only of a father and his sons as one unit for the purpose of payment of compensation for the joint family property left in Pakistan. Such a joint family is not intended to be broken up by the statutory scheme of the Act and the Rules.Sub-rule (3)(b) of Rule 19 was, in our opinion, correctly construed by the Chief Settlement Commissioner and the High Court was wrong in disagreeing with it and in allowing the writ petition. | 1 | 1,859 | 469 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
the sons under Rule 19 (3) Rule 19 may here be read:"Special provision for payment of compensation to joint families;(1) Where a claim relates to properties left by the members of an undivided Hindu family in West Pakistan (hereafter referred to as the joint family) compensation shall be computed in the manner hereinafter provided in this Rule.(2) Where on the 26th September, 1955 hereinafter referred to as the relevant date the joint family consisted of:(a) two or three members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into two equal shares and calculating the compensation separately on each such share.(b) four or more members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into three equal shares and calculating the compensation separately on each such share.(3) For the purpose of calculating the number of the members of a joint family under sub-rule (2), person who on the relevant date:-(a) was less than 18 years of age,(b) was a lineal descendant in the main line of another living members of joint Hindu family entitled to claim partition shall be excluded:Provided that where a member of a joint family has died during the period commencing on the 14th August, 1947 and ending on the relevant date leaving behind on the relevant date all or any of the following heirs namely:-(a) a widow or widows,(b) a son or sons whatever the age of such son or sons but no lineal ascendant in the main line, then all such heirs shall, notwithstanding anything contained in this rule, be reckoned as one member of the joint Hindu family.Explanation:- For the purpose of this rule, the question whether a family is joint or separate shall be determined with reference to the status of the family on the 14th day of August, 1947 and every member of a joint family shall be deemed to be joint notwithstanding the fact that he had separated from the family after that date.4. According to the High Court the other living member of the joint Hindu family whose lineal descendants are to be excluded under sub-rule (3) (b) must be a person other than their own father. This view, in our opinion, is contrary to the plain words used in this sub-rule. The High Court expressed its opinion in these words:"It is clear that this condition is intended to apply to a case where a joint family consists of more than two person where each one of them is entitled to claim partition and the members sought to be excluded are lineal descendants of one of such members. It is only in such cases that it could be said that they were lineal descendants of a member who was entitled to claim partition against another. In the present case the father and each of the sons is entitled to claim partition against each other. If the lineal descendants are to be excluded even in a case like the present it only means that all the descendants of the father must be excluded even though there is no other member against whom the father can seek to enforce partition. Having regard to the words used the only interpretation which can be placed on Cl. (b) of sub-rule (3) of Rule 19, is the one adopted by us."The error into which the High Court seems to have fallen is that it has assumed that a person against whom partition can be claimed by the father of the lineal descendants constituting the joint Hindu family must be some member of that family other than his lineal descendants and that it excludes his right to claim partition when the only other members of the joint family are his own lineal descendants.For this assumption there does not seem to us to be any justification either in the language or in the scheme of the Act and the rules or in any other provision of law applicable to the parties before us and governing the present controversy.5. According to the general provisions of Hindu Law the father in a joint Hindu family has the power to partition the joint family property and indeed in the present case the High Court has accepted the legal position that the father and each of his sons are entitled to claim partition against each other. It is only on the language of Rule 19 (3) and as the judgment under appeal suggests, on that Courts disinclination to accept as proper, the exclusion of the sons when the joint family consists only of the father and his sons that the High Court construed Rule 19 (3) in the manner stated above. We are unable to find any warrant for this view. The plain reading of Rule 19 (3) is against it.The language is not susceptible of the meaning that there should be in existence some member of the joint family other than the sons, against whom the father should be entitled to claim partition. The words of the sub-rule being plain and unambiguous they have, in our view, to be construed in the natural and ordinary sense.No cogent reason has been suggested for departing from the rule of literal construction in this case. The consequence flowing from this construction is quite intelligible and seems to us to be rational and logical.The special provision embodied in Rule 19 for paying compensation to joint Hindu families is, in our view, intended to treat a joint Hindu family consisting only of a father and his sons as one unit for the purpose of payment of compensation for the joint family property left in Pakistan. Such a joint family is not intended to be broken up by the statutory scheme of the Act and the Rules.Sub-rule (3)(b) of Rule 19 was, in our opinion, correctly construed by the Chief Settlement Commissioner and the High Court was wrong in disagreeing with it and in allowing the writ petition.
### Response:
1
### Explanation:
The error into which the High Court seems to have fallen is that it has assumed that a person against whom partition can be claimed by the father of the lineal descendants constituting the joint Hindu family must be some member of that family other than his lineal descendants and that it excludes his right to claim partition when the only other members of the joint family are his own lineal descendants.For this assumption there does not seem to us to be any justification either in the language or in the scheme of the Act and the rules or in any other provision of law applicable to the parties before us and governing the present controversy.5. According to the general provisions of Hindu Law the father in a joint Hindu family has the power to partition the joint family property and indeed in the present case the High Court has accepted the legal position that the father and each of his sons are entitled to claim partition against each other. It is only on the language of Rule 19 (3) and as the judgment under appeal suggests, on that Courts disinclination to accept as proper, the exclusion of the sons when the joint family consists only of the father and his sons that the High Court construed Rule 19 (3) in the manner stated above. We are unable to find any warrant for this view. The plain reading of Rule 19 (3) is against it.The language is not susceptible of the meaning that there should be in existence some member of the joint family other than the sons, against whom the father should be entitled to claim partition. The words of the sub-rule being plain and unambiguous they have, in our view, to be construed in the natural and ordinary sense.No cogent reason has been suggested for departing from the rule of literal construction in this case. The consequence flowing from this construction is quite intelligible and seems to us to be rational and logical.The special provision embodied in Rule 19 for paying compensation to joint Hindu families is, in our view, intended to treat a joint Hindu family consisting only of a father and his sons as one unit for the purpose of payment of compensation for the joint family property left in Pakistan. Such a joint family is not intended to be broken up by the statutory scheme of the Act and the Rules.Sub-rule (3)(b) of Rule 19 was, in our opinion, correctly construed by the Chief Settlement Commissioner and the High Court was wrong in disagreeing with it and in allowing the writ petition.
|
Jamnadas Harakhchand & Others Vs. Narayanlal Bansilal & Others | Hegde, J. 1. These are two connected appeals. They arise from a suit which originated in the Court of Small Causes, Bombay. Civil Appeal No. 1872 of 1968 is filed by some of the defendants in that suit and Civil Appeal No. 1873 of 1968 is brought by the plaintiff in that suit. The suit was filed to recover possession of the suit premises, rent thereof with interest, municipal taxes, insurance premia and damages. It was resisted on various grounds. In these appeals we are not concerned with the various controversies that engaged the attention of the High Court and the lower Court. The only point arising for decision in civil appeal No. 1872 of 1968, the appeal brought by the defendants is as to the scope of Section 20 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act). The solitary contention advanced in Civil Appeal No. 1873 of 1968 is that the appellate Court as well as the High Court erred in determining the standard rent.2. The trial Court upheld the plaintiffs claim that the rent fixed under the two eases on the basis of which the suit was brought was the standard rent. A decree on that basis was granted in favour of the plaintiff. The appellate Court differed from the trial Court on that question. It came to the conclusion that the standard rent of the suit premises must be fixed by apportioning the rent of Rs. 1700 per month paid by the National Studios to the suit premises and the other premises on 1st September, 1940. To that it added an increase of 121/2 per cent and thus determined the standard rent for the entire suit premises at Rs. 1162 per month. After so determining the standard rent it came to the conclusion that the excess rent paid by the tenants could be appropriated under Section 20 of the Bombay Rent Act towards the rents due. In the result it gave a decree for the plaintiff for a sum of Rs. 4864.94 P. 3. On the question of standard rent, the High Court agreed with the trial Court but as regards the appropriation it came to the conclusion that the defendants right to appropriate the excess payments towards the arrears was barred under the second part of section 20 of the Act. In the result it substantially altered the decree of the appellate Court. Aggrieved by this decision, the plaintiff and some of the defendants have come up in appeal after obtaining certificates under Article 133 (1) (a) of the Constitution. 4. So far as the question of fixing the standard rent is concerned, the finding is essentially a finding of fact. Both the appellate Court as well as the High Court have agreed on that question. It is true that the appellate Court thought that the a standard rent could be fixed by apportioning the rent fixed for the suit premises and other premises in 1940, on the basis of the plinth area. It failed to give due regard to Section 11 of the Rent Act. The High Court noticed this error. It went into the question of standard rent afresh having regard to the provisions of Section 11 of the Rent Act. In arriving at the standard rent, the High Court took into consideration the nature of the premises, their location, the amount of rent that it could have fetched in 1940 and other relevant circumstances. Under these circumstances we see no reason to interfere with the findings of the High Court. 5. Now coming to the scope of Section 20 of the Rent Act, the matter is concluded by the decision of this Court in Maganlal Chhotabhai Desai v. Chandrakant Motilal, AIR 1969 SC 37 .In that decision it was held that Section 20 gives the tenant a general right of recovery of the over-paid rent within six months of the date of payment. Without prejudice to any other mode of recovery, the tenant may deduct the over-payment from any rent payable by him to the landlord. The deduction provided is one mode of recovery. If the amount is incapable of recovery, because of the bar of limitation, it cannot be recovered by deduction. In other words the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months.This decision accords with the view taken by the High Court. Mr. S. V. Gupta, learned Counsel for the appellants in Civil Appeal 1872/68 sought to challenge the correctness of that decision. That decision is binding on us and we do not feel called upon to refer the question to a larger bench for reconsideration of that decision. 6. The first defendant who appeared in person contested the validity of the decree given by the trial Court, appellate Court as well as the High Court on the ground that the judgment of the trial Court had not been signed by the judge who decided the case.It may be noted that he did not appeal against the judgment of the trial Court. At one stage he filed an appeal in forma pauperis but the court refused to allow him to appeal as a pauper. Thereafter he did not pay the court-fee and hence his appeal was dismissed. He did not appeal against the decision of the appellate court nor has he brought any appeal to this Court. Therefore he cannot be permitted to take the contention that the decree of the trial Court is void.That apart, we had called for and examined ourselves the judgment of the trial court. It has been signed by the trial judge. Hence there is no substance in the allegation of the 1st defendant that the judgment in question had not been signed by the trial court judge. | 0[ds]4. So far as the question of fixing the standard rent is concerned, the finding is essentially a finding of fact. Both the appellate Court as well as the High Court have agreed on that question. It is true that the appellate Court thought that the a standard rent could be fixed by apportioning the rent fixed for the suit premises and other premises in 1940, on the basis of the plinth area. It failed to give due regard to Section 11 of the Rent Act. The High Court noticed this error. It went into the question of standard rent afresh having regard to the provisions of Section 11 of the Rent Act. In arriving at the standard rent, the High Court took into consideration the nature of the premises, their location, the amount of rent that it could have fetched in 1940 and other relevant circumstances. Under these circumstances we see no reason to interfere with the findings of the High Court5. Now coming to the scope of Section 20 of the Rent Act, the matter is concluded by the decision of this Court in Maganlal Chhotabhai Desai v. Chandrakant Motilal, AIR 1969 SC 37 .In that decision it was held that Section 20 gives the tenant a general right of recovery of theoverpaidrent within six months of the date of payment. Without prejudice to any other mode of recovery, the tenant may deduct thet from any rent payable by him to the landlord. The deduction provided is one mode of recovery. If the amount is incapable of recovery, because of the bar of limitation, it cannot be recovered by deduction. In other words the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of theoverpaidamount he must bring the suit or make the deduction within six months.This decision accords with the view taken by the High Court. Mr. S. V. Gupta, learned Counsel for the appellants in Civil Appeal 1872/68 sought to challenge the correctness of that decision. That decision is binding on us and we do not feel called upon to refer the question to a larger bench for reconsideration of that decision6. The first defendant who appeared in person contested the validity of the decree given by the trial Court, appellate Court as well as the High Court on the ground that the judgment of the trial Court had not been signed by the judge who decided the case.It may be noted that he did not appeal against the judgment of the trial Court. At one stage he filed an appeal in forma pauperis but the court refused to allow him to appeal as a pauper. Thereafter he did not pay thee and hence his appeal was dismissed. He did not appeal against the decision of the appellate court nor has he brought any appeal to this Court. Therefore he cannot be permitted to take the contention that the decree of the trial Court is void.That apart, we had called for and examined ourselves the judgment of the trial court. It has been signed by the trial judge. Hence there is no substance in the allegation of the 1st defendant that the judgment in question had not been signed by the trial court judge. | 0 | 1,081 | 595 | ### Instruction:
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Hegde, J. 1. These are two connected appeals. They arise from a suit which originated in the Court of Small Causes, Bombay. Civil Appeal No. 1872 of 1968 is filed by some of the defendants in that suit and Civil Appeal No. 1873 of 1968 is brought by the plaintiff in that suit. The suit was filed to recover possession of the suit premises, rent thereof with interest, municipal taxes, insurance premia and damages. It was resisted on various grounds. In these appeals we are not concerned with the various controversies that engaged the attention of the High Court and the lower Court. The only point arising for decision in civil appeal No. 1872 of 1968, the appeal brought by the defendants is as to the scope of Section 20 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act). The solitary contention advanced in Civil Appeal No. 1873 of 1968 is that the appellate Court as well as the High Court erred in determining the standard rent.2. The trial Court upheld the plaintiffs claim that the rent fixed under the two eases on the basis of which the suit was brought was the standard rent. A decree on that basis was granted in favour of the plaintiff. The appellate Court differed from the trial Court on that question. It came to the conclusion that the standard rent of the suit premises must be fixed by apportioning the rent of Rs. 1700 per month paid by the National Studios to the suit premises and the other premises on 1st September, 1940. To that it added an increase of 121/2 per cent and thus determined the standard rent for the entire suit premises at Rs. 1162 per month. After so determining the standard rent it came to the conclusion that the excess rent paid by the tenants could be appropriated under Section 20 of the Bombay Rent Act towards the rents due. In the result it gave a decree for the plaintiff for a sum of Rs. 4864.94 P. 3. On the question of standard rent, the High Court agreed with the trial Court but as regards the appropriation it came to the conclusion that the defendants right to appropriate the excess payments towards the arrears was barred under the second part of section 20 of the Act. In the result it substantially altered the decree of the appellate Court. Aggrieved by this decision, the plaintiff and some of the defendants have come up in appeal after obtaining certificates under Article 133 (1) (a) of the Constitution. 4. So far as the question of fixing the standard rent is concerned, the finding is essentially a finding of fact. Both the appellate Court as well as the High Court have agreed on that question. It is true that the appellate Court thought that the a standard rent could be fixed by apportioning the rent fixed for the suit premises and other premises in 1940, on the basis of the plinth area. It failed to give due regard to Section 11 of the Rent Act. The High Court noticed this error. It went into the question of standard rent afresh having regard to the provisions of Section 11 of the Rent Act. In arriving at the standard rent, the High Court took into consideration the nature of the premises, their location, the amount of rent that it could have fetched in 1940 and other relevant circumstances. Under these circumstances we see no reason to interfere with the findings of the High Court. 5. Now coming to the scope of Section 20 of the Rent Act, the matter is concluded by the decision of this Court in Maganlal Chhotabhai Desai v. Chandrakant Motilal, AIR 1969 SC 37 .In that decision it was held that Section 20 gives the tenant a general right of recovery of the over-paid rent within six months of the date of payment. Without prejudice to any other mode of recovery, the tenant may deduct the over-payment from any rent payable by him to the landlord. The deduction provided is one mode of recovery. If the amount is incapable of recovery, because of the bar of limitation, it cannot be recovered by deduction. In other words the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months.This decision accords with the view taken by the High Court. Mr. S. V. Gupta, learned Counsel for the appellants in Civil Appeal 1872/68 sought to challenge the correctness of that decision. That decision is binding on us and we do not feel called upon to refer the question to a larger bench for reconsideration of that decision. 6. The first defendant who appeared in person contested the validity of the decree given by the trial Court, appellate Court as well as the High Court on the ground that the judgment of the trial Court had not been signed by the judge who decided the case.It may be noted that he did not appeal against the judgment of the trial Court. At one stage he filed an appeal in forma pauperis but the court refused to allow him to appeal as a pauper. Thereafter he did not pay the court-fee and hence his appeal was dismissed. He did not appeal against the decision of the appellate court nor has he brought any appeal to this Court. Therefore he cannot be permitted to take the contention that the decree of the trial Court is void.That apart, we had called for and examined ourselves the judgment of the trial court. It has been signed by the trial judge. Hence there is no substance in the allegation of the 1st defendant that the judgment in question had not been signed by the trial court judge.
### Response:
0
### Explanation:
4. So far as the question of fixing the standard rent is concerned, the finding is essentially a finding of fact. Both the appellate Court as well as the High Court have agreed on that question. It is true that the appellate Court thought that the a standard rent could be fixed by apportioning the rent fixed for the suit premises and other premises in 1940, on the basis of the plinth area. It failed to give due regard to Section 11 of the Rent Act. The High Court noticed this error. It went into the question of standard rent afresh having regard to the provisions of Section 11 of the Rent Act. In arriving at the standard rent, the High Court took into consideration the nature of the premises, their location, the amount of rent that it could have fetched in 1940 and other relevant circumstances. Under these circumstances we see no reason to interfere with the findings of the High Court5. Now coming to the scope of Section 20 of the Rent Act, the matter is concluded by the decision of this Court in Maganlal Chhotabhai Desai v. Chandrakant Motilal, AIR 1969 SC 37 .In that decision it was held that Section 20 gives the tenant a general right of recovery of theoverpaidrent within six months of the date of payment. Without prejudice to any other mode of recovery, the tenant may deduct thet from any rent payable by him to the landlord. The deduction provided is one mode of recovery. If the amount is incapable of recovery, because of the bar of limitation, it cannot be recovered by deduction. In other words the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of theoverpaidamount he must bring the suit or make the deduction within six months.This decision accords with the view taken by the High Court. Mr. S. V. Gupta, learned Counsel for the appellants in Civil Appeal 1872/68 sought to challenge the correctness of that decision. That decision is binding on us and we do not feel called upon to refer the question to a larger bench for reconsideration of that decision6. The first defendant who appeared in person contested the validity of the decree given by the trial Court, appellate Court as well as the High Court on the ground that the judgment of the trial Court had not been signed by the judge who decided the case.It may be noted that he did not appeal against the judgment of the trial Court. At one stage he filed an appeal in forma pauperis but the court refused to allow him to appeal as a pauper. Thereafter he did not pay thee and hence his appeal was dismissed. He did not appeal against the decision of the appellate court nor has he brought any appeal to this Court. Therefore he cannot be permitted to take the contention that the decree of the trial Court is void.That apart, we had called for and examined ourselves the judgment of the trial court. It has been signed by the trial judge. Hence there is no substance in the allegation of the 1st defendant that the judgment in question had not been signed by the trial court judge.
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Atul Singh Vs. Sunil Kumar Singh | The application referred to in subsection (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub- section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. Sub-section (1) of Section 8 of the 1996 Act says that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. Therefore, for application of Section 8, it is absolutely essential that there should be an arbitration agreement between the parties. It is an admitted fact that neither Shri Rajendra Prasad Singh nor the plaintiffs are parties to the partnership deed dated 17.2.1992. There is no document as defined in Section 7 of 1996 Act which may contain the signature of either Shri Rajendra Prasad Singh or the plaintiffs. Similarly, there is no document as contemplated by clauses (b) or (c) of Sub-section (4) of Section 7 of 1996 Act from which it may be spelled out that either Rajendra Prasad Singh or the plaintiffs were parties to clause relating to arbitration contained in the partnership deed dated 17.2.1992. It is also an admitted fact that Shri Rajendra Prasad Singh was alive when the said partnership deed dated 17.2.1992 was executed. Therefore, on the face of it Section 8 of 1996 Act would not apply to any dispute concerning the said partnership deed dated 17.2.1992 and the matter cannot be referred to arbitration. 9. The first relief claimed by the plaintiffs in the suit is a decree for declaration that the reconstituted partnership deed dated 17.2.1992 was illegal and void and there was no intention or desire of Shri Rajendra Prasad Singh to retire from the partnership and further that the plaintiffs being heirs of Shri Rajendra Prasad Singh will be deemed to be continuing as partners to the extent of his share. It is true that the plaintiffs have also sought rendition of accounts and their share of profits from the partnership as well as interest over the unsecured loan and the principal amount of unsecured loan on rendition of accounts. For getting this relief, the plaintiffs undoubtedly rely upon the partnership deed dated 13.1.1989. However, this deed of 1989 could be relied upon and form the basis of the claim of the plaintiffs only if the partnership deed dated 17.2.1992 was declared as void. If the deed dated 17.2.1992 was not declared as void and remained valid and operative, the plaintiffs could not fall back upon the earlier partnership deed dated 13.1.1989 to claim rendition of accounts and their share of profits. Therefore, in order to get their share of profits from the partnership business, it was absolutely essential for the plaintiff appellants to have the partnership deed dated 17.2.1992 declared as illegal, void and inoperative. The relief for such a declaration could only be granted by the civil Court and not by an arbitrator as they or Shri Rajendra Prasad Singh through whom the plaintiffs derive title, are not party to the said deed. The trial Court had, therefore, rightly held that the matter could not be referred to arbitration and the view to the contrary taken by the High Court is clearly illegal. 10. Sub-section (2) of Section 8 of the 1996 Act says that the application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. As already stated in the earlier part of the judgment, defendant no.3 had moved an application on 25.11.2004 under Section 34 of the Arbitration Act, 1940 for staying the proceedings of the title suit and for referring the matter to arbitration. He filed a supplementary petition to the aforesaid application on 16.12.2004. Herein also reference was made to Section 34 of Arbitration Act, 1940. Thereafter, he filed an application on 28.2.2005 praying that as the Arbitration Act, 1940 had been repealed and the suit is of 1998, to avoid any confusion, his earlier petitions may be treated to have been filed under Section 8 of the Arbitration Act, 1996. None of these petitions were accompanied by the original arbitration agreement dated 17.2.1992 or a duly certified copy thereof. In fact, there is no requirement of filing the original arbitration agreement or a duly certified copy thereof under Section 34 of Arbitration Act, 1940 and as such there was no occasion for defendant no.3 to file the aforesaid document. The third petition filed on 28.2.2005 contained the following prayer: “It is, therefore, prayed that your honour may graciously be pleased to treat the petitions dated 25.11.04, 16.12.04 and the present petition as supplement and part of each other for deciding the prayer with regard to stay of the proceedings of the aforesaid suit and/or to refer to arbitration in view of the arbitration agreement covering the subject matter of this suit.” There is no whisper in the petition dated 28.2.2005 that the original arbitration agreement or a duly certified copy thereof is being filed along with the application. Therefore, there was a clear non-compliance of sub-section (2) of Section 8 of 1996 Act which is a mandatory provision and the dispute could not have been referred to arbitration. Learned counsel for the respondent has submitted that a copy of the partnership deed was on the record of the case. However, in order to satisfy the requirement of sub-section (2) of Section 8 of the Act, defendant no.3 should have filed the original arbitration agreement or a duly certified copy thereof along with the petition filed by him on 28.2.2005, which he did not do. Therefore, no order for referring the dispute to arbitration could have been passed in the suit. 11. | 1[ds]There is no whisper in the petition dated 28.2.2005 that the original arbitration agreement or a duly certified copy thereof is being filed along with the application. Therefore, there was a clear non-compliance of sub-section (2) of Section 8 of 1996 Act which is a mandatory provision and the dispute could not have been referred to arbitration. Learned counsel for the respondent has submitted that a copy of the partnership deed was on the record of the case. However, in order to satisfy the requirement of sub-section (2) of Section 8 of the Act, defendant no.3 should have filed the original arbitration agreement or a duly certified copy thereof along with the petition filed by him on 28.2.2005, which he did not do. Therefore, no order for referring the dispute to arbitration could have been passed in the suit. | 1 | 3,437 | 157 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
The application referred to in subsection (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub- section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. Sub-section (1) of Section 8 of the 1996 Act says that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. Therefore, for application of Section 8, it is absolutely essential that there should be an arbitration agreement between the parties. It is an admitted fact that neither Shri Rajendra Prasad Singh nor the plaintiffs are parties to the partnership deed dated 17.2.1992. There is no document as defined in Section 7 of 1996 Act which may contain the signature of either Shri Rajendra Prasad Singh or the plaintiffs. Similarly, there is no document as contemplated by clauses (b) or (c) of Sub-section (4) of Section 7 of 1996 Act from which it may be spelled out that either Rajendra Prasad Singh or the plaintiffs were parties to clause relating to arbitration contained in the partnership deed dated 17.2.1992. It is also an admitted fact that Shri Rajendra Prasad Singh was alive when the said partnership deed dated 17.2.1992 was executed. Therefore, on the face of it Section 8 of 1996 Act would not apply to any dispute concerning the said partnership deed dated 17.2.1992 and the matter cannot be referred to arbitration. 9. The first relief claimed by the plaintiffs in the suit is a decree for declaration that the reconstituted partnership deed dated 17.2.1992 was illegal and void and there was no intention or desire of Shri Rajendra Prasad Singh to retire from the partnership and further that the plaintiffs being heirs of Shri Rajendra Prasad Singh will be deemed to be continuing as partners to the extent of his share. It is true that the plaintiffs have also sought rendition of accounts and their share of profits from the partnership as well as interest over the unsecured loan and the principal amount of unsecured loan on rendition of accounts. For getting this relief, the plaintiffs undoubtedly rely upon the partnership deed dated 13.1.1989. However, this deed of 1989 could be relied upon and form the basis of the claim of the plaintiffs only if the partnership deed dated 17.2.1992 was declared as void. If the deed dated 17.2.1992 was not declared as void and remained valid and operative, the plaintiffs could not fall back upon the earlier partnership deed dated 13.1.1989 to claim rendition of accounts and their share of profits. Therefore, in order to get their share of profits from the partnership business, it was absolutely essential for the plaintiff appellants to have the partnership deed dated 17.2.1992 declared as illegal, void and inoperative. The relief for such a declaration could only be granted by the civil Court and not by an arbitrator as they or Shri Rajendra Prasad Singh through whom the plaintiffs derive title, are not party to the said deed. The trial Court had, therefore, rightly held that the matter could not be referred to arbitration and the view to the contrary taken by the High Court is clearly illegal. 10. Sub-section (2) of Section 8 of the 1996 Act says that the application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. As already stated in the earlier part of the judgment, defendant no.3 had moved an application on 25.11.2004 under Section 34 of the Arbitration Act, 1940 for staying the proceedings of the title suit and for referring the matter to arbitration. He filed a supplementary petition to the aforesaid application on 16.12.2004. Herein also reference was made to Section 34 of Arbitration Act, 1940. Thereafter, he filed an application on 28.2.2005 praying that as the Arbitration Act, 1940 had been repealed and the suit is of 1998, to avoid any confusion, his earlier petitions may be treated to have been filed under Section 8 of the Arbitration Act, 1996. None of these petitions were accompanied by the original arbitration agreement dated 17.2.1992 or a duly certified copy thereof. In fact, there is no requirement of filing the original arbitration agreement or a duly certified copy thereof under Section 34 of Arbitration Act, 1940 and as such there was no occasion for defendant no.3 to file the aforesaid document. The third petition filed on 28.2.2005 contained the following prayer: “It is, therefore, prayed that your honour may graciously be pleased to treat the petitions dated 25.11.04, 16.12.04 and the present petition as supplement and part of each other for deciding the prayer with regard to stay of the proceedings of the aforesaid suit and/or to refer to arbitration in view of the arbitration agreement covering the subject matter of this suit.” There is no whisper in the petition dated 28.2.2005 that the original arbitration agreement or a duly certified copy thereof is being filed along with the application. Therefore, there was a clear non-compliance of sub-section (2) of Section 8 of 1996 Act which is a mandatory provision and the dispute could not have been referred to arbitration. Learned counsel for the respondent has submitted that a copy of the partnership deed was on the record of the case. However, in order to satisfy the requirement of sub-section (2) of Section 8 of the Act, defendant no.3 should have filed the original arbitration agreement or a duly certified copy thereof along with the petition filed by him on 28.2.2005, which he did not do. Therefore, no order for referring the dispute to arbitration could have been passed in the suit. 11.
### Response:
1
### Explanation:
There is no whisper in the petition dated 28.2.2005 that the original arbitration agreement or a duly certified copy thereof is being filed along with the application. Therefore, there was a clear non-compliance of sub-section (2) of Section 8 of 1996 Act which is a mandatory provision and the dispute could not have been referred to arbitration. Learned counsel for the respondent has submitted that a copy of the partnership deed was on the record of the case. However, in order to satisfy the requirement of sub-section (2) of Section 8 of the Act, defendant no.3 should have filed the original arbitration agreement or a duly certified copy thereof along with the petition filed by him on 28.2.2005, which he did not do. Therefore, no order for referring the dispute to arbitration could have been passed in the suit.
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M/s Aravali Power Co Pvt Ltd Vs. Vedprakash and Another | orders had found fault with the TPPs due to their failure to comply with the notification dated 25 January 2016 and the extended deadline which was fixed for the utilization of fly ash. In view of the subsequent development which has taken place, the basis of the order of the NGT would be fundamentally altered by the modalities and time-lines which are prescribed by the notification dated 31 December 2021. In view of the latest notification, the orders of the NGT would have to be set aside together with the imposition of the measure of compensation as directed in the impugned orders. 7. During the course of the hearing, counsel appearing on behalf of some of the contesting parties have fairly alluded to certain deficiencies in the notification dated 31 December 2021, particularly in the context of the loading, unloading, transport, storage and disposal of fly ash in an environmentally sound manner to ensure that it does not cause air and water pollution. Mr Tapesh Kumar Singh, learned AAG who appears for the State of Jharkand submitted a note of submissions to assist the court, in his personal capacity as an officer of the court. In this context, reliance has been placed on an order dated 24 September 2013 of a two-Judge Bench of this Court in SLP(C) No 30381 of 2011 when the Court was seized of a tender dispute relating to transportation of fly ash. While dealing with the dispute, the following directions were issued by the Court: Allotment of the contract and transportation work shall, however, be subject to the following further conditions: 1. The contractor shall abide by the directions issued by the Government of India, if any, under Section 5 of the Act, or the requirement of any Rules that may be framed by the Government of India under Section 6 of the Act, or instructions/circulars, if any, issued by the Central Pollution Control Board as to nuisance free transportation of ash, including Pond Ash from the Thermal Power Stations to abandoned mines and to other destinations, as the case may be; 2. Pending issue of any directions or framing of any Rules by the Government of India or issuance of any instructions/circulars by the Central Pollution Control Board, the transportation work shall be undertaken by the contractors who emerge successful only by using mechanized steel covered container trucks which would ensure that after the Pond Ash is loaded into the truck, it has no opportunity to fly out of the container to cause any kind of environmental hazard. We leave the details of specifications, if any, of such trucks to the Corporation and its Engineers to be specified in the course of negotiations to be conducted with the bidders. 8. By an earlier order dated 13 August 2013 in the above proceedings, this Court had impleaded CPCB in order to ascertain whether it had prescribed any standards or framed any rules regarding the loading, unloading, utilization and nuisance free transportation of all types of ash including fly ash, bottom ash and pond ash generated by TPPs. During the pendency of those proceedings, certain steps were taken by this Court to scrutinize whether any standards or measures have been prescribed by the CPCB. However, on 22 January 2016, SLP(C) No 30381 of 2011 and the connected matters were dismissed on the ground that they had been rendered infructuous. 9. Apart from the above proceedings, during the course of the hearing, this Court has been apprised of the regulatory provisions contained in the Hazardous and Other Wastes (Management and Transboundary Movement) Rules 2016 (Rules of 2016) including rules 3(17), 3(23), 3(33) and 3(34) of the Rules. In this context, it has been submitted that the Union Government is duty bound to formulate rules to guarantee that the loading, unloading, utilization and transportation of fly ash takes place in a manner to prevent environmental hazards. 10. At this stage, it would be material to note the provisions of paragraph A(7) of the notification dated 31 December 2021 which reads as follows: (7) Every coal or lignite based thermal power plant shall ensure that loading, unloading, transport, storage and disposal of ash is done in an environmentally sound manner and that all precautions to prevent air and water pollution are taken and status in this regard shall be reported to the concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) in Annexure attached to this notification. 11. Paragraph E of the notification deals with enforcement, monitoring, audit and reporting. Paragraphs (3) and (5) of paragraph E are extracted below: (3) For the purpose of monitoring the implementation of the provisions of this notification, a committee shall be constituted under the Chairperson, Central Pollution Control Board (CPCB) with members from Ministry of Power, Ministry of Coal, Ministry of Mines, Ministry of Environment, Forest and Climate Change, Ministry of Road Transportation and Highways, Department of Heavy Industry as well as any concerned stakeholder(s), to be nominated by the Chairman of the committee. The committee may make recommendations for effective and efficient implementation of the provisions of the notification. The committee shall meet at least once in six months and review annual implementation reports and the committee shall also hold stakeholder consultations for monitoring of ash utilisation as mandated by this notification by inviting relevant stakeholder(s) at least once in six months. The committee shall submit the six monthly report to Ministry of Environment, Forest and Climate Change (MoEFCC). (5) The compliance audit for ash disposal by the thermal power plants and the user agency shall be conducted by auditors, authorised by Central Pollution Control Board (CPCB) and audit report shall be submitted to Central Pollution Control Board (CBCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) by 30th November every year. Central Pollution Control Board (CPCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) shall initiate action against noncompliant thermal power plants within fifteen days of receipt of audit report. | 1[ds]11. Paragraph E of the notification deals with enforcement, monitoring, audit and reporting. Paragraphs (3) and (5) of paragraph E are extracted below:(3) For the purpose of monitoring the implementation of the provisions of this notification, a committee shall be constituted under the Chairperson, Central Pollution Control Board (CPCB) with members from Ministry of Power, Ministry of Coal, Ministry of Mines, Ministry of Environment, Forest and Climate Change, Ministry of Road Transportation and Highways, Department of Heavy Industry as well as any concerned stakeholder(s), to be nominated by the Chairman of the committee. The committee may make recommendations for effective and efficient implementation of the provisions of the notification. The committee shall meet at least once in six months and review annual implementation reports and the committee shall also hold stakeholder consultations for monitoring of ash utilisation as mandated by this notification by inviting relevant stakeholder(s) at least once in six months. The committee shall submit the six monthly report to Ministry of Environment, Forest and Climate Change (MoEFCC).(5) The compliance audit for ash disposal by the thermal power plants and the user agency shall be conducted by auditors, authorised by Central Pollution Control Board (CPCB) and audit report shall be submitted to Central Pollution Control Board (CBCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) by 30th November every year. Central Pollution Control Board (CPCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) shall initiate action against noncompliant thermal power plants within fifteen days of receipt of audit report. | 1 | 2,958 | 318 | ### 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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orders had found fault with the TPPs due to their failure to comply with the notification dated 25 January 2016 and the extended deadline which was fixed for the utilization of fly ash. In view of the subsequent development which has taken place, the basis of the order of the NGT would be fundamentally altered by the modalities and time-lines which are prescribed by the notification dated 31 December 2021. In view of the latest notification, the orders of the NGT would have to be set aside together with the imposition of the measure of compensation as directed in the impugned orders. 7. During the course of the hearing, counsel appearing on behalf of some of the contesting parties have fairly alluded to certain deficiencies in the notification dated 31 December 2021, particularly in the context of the loading, unloading, transport, storage and disposal of fly ash in an environmentally sound manner to ensure that it does not cause air and water pollution. Mr Tapesh Kumar Singh, learned AAG who appears for the State of Jharkand submitted a note of submissions to assist the court, in his personal capacity as an officer of the court. In this context, reliance has been placed on an order dated 24 September 2013 of a two-Judge Bench of this Court in SLP(C) No 30381 of 2011 when the Court was seized of a tender dispute relating to transportation of fly ash. While dealing with the dispute, the following directions were issued by the Court: Allotment of the contract and transportation work shall, however, be subject to the following further conditions: 1. The contractor shall abide by the directions issued by the Government of India, if any, under Section 5 of the Act, or the requirement of any Rules that may be framed by the Government of India under Section 6 of the Act, or instructions/circulars, if any, issued by the Central Pollution Control Board as to nuisance free transportation of ash, including Pond Ash from the Thermal Power Stations to abandoned mines and to other destinations, as the case may be; 2. Pending issue of any directions or framing of any Rules by the Government of India or issuance of any instructions/circulars by the Central Pollution Control Board, the transportation work shall be undertaken by the contractors who emerge successful only by using mechanized steel covered container trucks which would ensure that after the Pond Ash is loaded into the truck, it has no opportunity to fly out of the container to cause any kind of environmental hazard. We leave the details of specifications, if any, of such trucks to the Corporation and its Engineers to be specified in the course of negotiations to be conducted with the bidders. 8. By an earlier order dated 13 August 2013 in the above proceedings, this Court had impleaded CPCB in order to ascertain whether it had prescribed any standards or framed any rules regarding the loading, unloading, utilization and nuisance free transportation of all types of ash including fly ash, bottom ash and pond ash generated by TPPs. During the pendency of those proceedings, certain steps were taken by this Court to scrutinize whether any standards or measures have been prescribed by the CPCB. However, on 22 January 2016, SLP(C) No 30381 of 2011 and the connected matters were dismissed on the ground that they had been rendered infructuous. 9. Apart from the above proceedings, during the course of the hearing, this Court has been apprised of the regulatory provisions contained in the Hazardous and Other Wastes (Management and Transboundary Movement) Rules 2016 (Rules of 2016) including rules 3(17), 3(23), 3(33) and 3(34) of the Rules. In this context, it has been submitted that the Union Government is duty bound to formulate rules to guarantee that the loading, unloading, utilization and transportation of fly ash takes place in a manner to prevent environmental hazards. 10. At this stage, it would be material to note the provisions of paragraph A(7) of the notification dated 31 December 2021 which reads as follows: (7) Every coal or lignite based thermal power plant shall ensure that loading, unloading, transport, storage and disposal of ash is done in an environmentally sound manner and that all precautions to prevent air and water pollution are taken and status in this regard shall be reported to the concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) in Annexure attached to this notification. 11. Paragraph E of the notification deals with enforcement, monitoring, audit and reporting. Paragraphs (3) and (5) of paragraph E are extracted below: (3) For the purpose of monitoring the implementation of the provisions of this notification, a committee shall be constituted under the Chairperson, Central Pollution Control Board (CPCB) with members from Ministry of Power, Ministry of Coal, Ministry of Mines, Ministry of Environment, Forest and Climate Change, Ministry of Road Transportation and Highways, Department of Heavy Industry as well as any concerned stakeholder(s), to be nominated by the Chairman of the committee. The committee may make recommendations for effective and efficient implementation of the provisions of the notification. The committee shall meet at least once in six months and review annual implementation reports and the committee shall also hold stakeholder consultations for monitoring of ash utilisation as mandated by this notification by inviting relevant stakeholder(s) at least once in six months. The committee shall submit the six monthly report to Ministry of Environment, Forest and Climate Change (MoEFCC). (5) The compliance audit for ash disposal by the thermal power plants and the user agency shall be conducted by auditors, authorised by Central Pollution Control Board (CPCB) and audit report shall be submitted to Central Pollution Control Board (CBCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) by 30th November every year. Central Pollution Control Board (CPCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) shall initiate action against noncompliant thermal power plants within fifteen days of receipt of audit report.
### Response:
1
### Explanation:
11. Paragraph E of the notification deals with enforcement, monitoring, audit and reporting. Paragraphs (3) and (5) of paragraph E are extracted below:(3) For the purpose of monitoring the implementation of the provisions of this notification, a committee shall be constituted under the Chairperson, Central Pollution Control Board (CPCB) with members from Ministry of Power, Ministry of Coal, Ministry of Mines, Ministry of Environment, Forest and Climate Change, Ministry of Road Transportation and Highways, Department of Heavy Industry as well as any concerned stakeholder(s), to be nominated by the Chairman of the committee. The committee may make recommendations for effective and efficient implementation of the provisions of the notification. The committee shall meet at least once in six months and review annual implementation reports and the committee shall also hold stakeholder consultations for monitoring of ash utilisation as mandated by this notification by inviting relevant stakeholder(s) at least once in six months. The committee shall submit the six monthly report to Ministry of Environment, Forest and Climate Change (MoEFCC).(5) The compliance audit for ash disposal by the thermal power plants and the user agency shall be conducted by auditors, authorised by Central Pollution Control Board (CPCB) and audit report shall be submitted to Central Pollution Control Board (CBCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) by 30th November every year. Central Pollution Control Board (CPCB) and concerned State Pollution Control Board (SPCB) or Pollution Control Committee (PCC) shall initiate action against noncompliant thermal power plants within fifteen days of receipt of audit report.
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T.N.Generation & Distbn. Corpn Ltd Vs. Ppn Power Gen.Co.Pvt.Ltd | to the issue raised about the interest on late payment, APTEL has considered the entire matter and come to the conclusion that interest is payable on compound rate basis in terms of Article 10.6 of the PPA. In coming to the aforesaid conclusion, APTEL has relied on a judgment of this Court in Central Bank of India vs. Ravindra & Ors. [2002 (1) SCC 367 ]. In this judgment it has been held as follows: “………The essence of interest in the opinion of Lord Wright, in Riches v. Westminster Bank Ltd.All ER at p. 472 is that it is a payment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had had the use of the money, or, conversely, the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation; the money due to the creditor was not paid, or, in other words, was withheld from him by the debtor after the time when payment should have been made, in breach of his legal rights, and interest was a compensation whether the compensation was liquidated under an agreement or statute. A Division Bench of the High Court of Punjab speaking through Tek Chand, J. in CIT v. Dr Sham Lal Narula thus articulated the concept of interest the words ‘interest’ and ‘compensation’ are sometimes used interchangeably and on other occasions they have distinct connotation. ‘Interest’ in general terms is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. In its narrow sense, ‘interest’ is understood to mean the amount which one has contracted to pay for use of borrowed money. … In whatever category ‘interest’ in a particular case may be put, it is a consideration paid either for the use of money or for forbearance in demanding it, after it has fallen due, and thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable.” 56. Similar observations have been made by this Court in Indian Council of Enviro-Legal Action vs. Union of India & Ors. [2011 (8) SCC 161 ] wherein it has been held as follows: “178. To do complete justice, prevent wrongs, remove incentive for wrongdoing or delay, and to implement in practical terms the concepts of time value of money, restitution and unjust enrichment noted above—or to simply levelise—a convenient approach is calculating interest. But here interest has to be calculated on compound basis—and not simple—for the latter leaves much uncalled for benefits in the hands of the wrongdoer.179. Further, a related concept of inflation is also to be kept in mind and the concept of compound interest takes into account, by reason of prevailing rates, both these factors i.e. use of the money and the inflationary trends, as the market forces and predictions work out.180. Some of our statute law provide only for simple interest and not compound interest. In those situations, the courts are helpless and it is a matter of law reform which the Law Commission must take note and more so, because the serious effect it has on the administration of justice. However, [pic]the power of the Court to order compound interest by way of restitution is not fettered in any way. We request the Law Commission to consider and recommend necessary amendments in relevant laws.” 57. The late payment clause only captures the principle that a person denied the benefit of money, that ought to have been paid on due dates should get compensated on the same basis as his bank would charge him for funds lent together with a deterrent of 0.5% in order to prevent delays. It is submitted by Mr. Salve and Mr. Bhushan that bankers of the respondents have applied quarterly compounding or monthly compounding for cash credits during different periods on the basis of RBI norms. Article 10.6 of the PPA has followed the norms of the bank. This can not be said to be unfair as the same principle would also apply to the appellants.58. This now bring us to applications for impleadment of IOCL and for direction. I.A.No.6 of 2013 is for the impleadment of IOCL. It is submitted that during the pendency of these proceedings, the respondents have received rebates, discounts, credits, refunds in the fuel price being extended by fuel supplier i.e. Indian Oil Corporation Ltd. (IOCL). Such benefits have been received by the respondent from January 2001 till date It is pleaded that the respondents have failed to give details about the discounts and credits received the benefit of which ought to have been passed on to the appellant. Therefore, IOCL be made parties to respondent No.2 to the present appeal. I.A.No.5 of 2013 seeks direction to IOCL to furnish details of all the documents of the matter. Further directions are also sought on the respondent to refund a sum of Rs.240 crores paid by the appellant under the order passed by the State Commission along with interest at the rate as mentioned in PPA.59. The respondents in a common counter statement to the applications have submitted that the applications are not maintainable. The applications have been evidently preferred purely as dilatory tactics, to delay and deny substantial payments that are due and payable to the respondent pursuant to the orders passed by the State Commission which have been upheld by APTEL. We are not inclined to entertain either of the applications at this stage. The issue sought to be raised in both the applications ought to have been raised by the appellant at the relevant time. The applications are, therefore, accordingly dismissed. | 0[ds]34. We have considered the submissions made by the learned counsel for the parties. In our opinion, the issues raised by the appellant with regard to the constitution of the State Commission and its discretion to either adjudicate or refer a particular dispute to arbitration is no longer res integra. Therefore, even though, Mr. Nariman has very forcefully contended that the issue ought to be reconsidered, we are not inclined to adopt such a course. In our opinion, this Court has comprehensively addressed all the issues, on the scope and ambit of Section 86 in general and Section 86(1)(f) in particular of the Act. We are also not inclined to accept the submission that since the appellant had made a request for a reference of the dispute to arbitration, the State Commission ought to have made the reference. We are also not able to accept the submission of Mr. Nariman that the State Commission was dealing with only a pure and simple money claim. We also do not find much substance in the submission that the issues having been raised being complex and intricate ought to have been left to be decided either by the Arbitral Tribunal or by the Civil Court. APTEL in the impugned order, in our opinion, has correctly culled out the ratio of the judgment of this Court in Gujarat Urja (supra). It is also correctly held that the appellant can not dictate that the State Commission ought to have referred the dispute to arbitration.arbitration.39. Section 86(1)(f) specifically confers jurisdiction on the State Commission to refer the dispute. Undoubtedly, the Commission is required to exercise its discretion reasonably and not arbitrarily. In the present case, the State Commission upon consideration of the entire matter has exercised its discretion. However, in our opinion, the APTEL ought not to have brushed aside the submissions of the appellant with the observation that the State Commission having exercised its discretion, the issue need not be investigated by the APTEL. It would always be open to APTEL to examine as to whether the State Commission has exercised the discretion with regard to the question whether the dispute ought to have been referred to arbitration, in accordance with the well known norms for exercising such discretion. APTEL exercises jurisdiction over the State Commission by way of a First Appeal. Therefore, it is the bounden duty of the Appellate Tribunal to examine as to whether all the decisions rendered by the State Commission suffer from the vice of arbitrariness, unreasonableness or perversity. This would be apart from examining as to whether the State Commission has exercised powers in accordance with the statutory provisions contained in Electricity Act, 2003. Having said this, we are not inclined to interfere with the conclusions reached by APTEL, as in our opinion, the jurisdiction has not been exercised by the State Commission arbitrarily, whimsically or against the statutory provisions.40. We, however, find substance in the submission of Mr. Nariman that adjudicatory functions generally ought not to be conducted by the State Commission in the absence of a Judicial Member. Especially in relation to disputes which are not fairly relative to tariff fixation or the advisory and recommendatory functions of the State Commission.In view of the aforesaid categorical statement of law, we would accept the submission of Mr. Nariman that the tribunal such as the State Commission in deciding a lis, between the appellant and the respondent discharges judicial functions and exercises judicial power to the State. It exercises judicial functions of far reaching effect. Therefore, in our opinion, Mr. Nariman is correct in his submission that it must have essential trapping of the court. This can only be achieved by the presence of one or more judicial members in the State Commission which is called upon to decide complicated contractual or civil issues which would normally have been decided by a Civil Court. Not only the decisions of the State Commission have far reaching consequences, they are final and binding between the parties, subject, of course, to judicial review.Keeping in view the aforesaid observations of this Court, in our opinion, the State of Tamil Nadu ought to make necessary appointments in terms of Section 84(2) of the Act. We have been informed that till date no judicial Member has been appointed in the Tamil Nadu State Commission. We are of the opinion that the matter needs to be considered, with some urgency, by the appropriate State authorities about the desirability and feasibility for making appointments, of any person, as the Chairperson from amongst persons who is, or has been, a Judge of a High Court.Even if the reference had been made under Article 16 of the PPA, the applicability of the Arbitration Act, 1996 and the Arbitration Act of 1940 have been specifically excepted under Article 16(2)(h). In the earlier part of the judgment, we have noticed that Article 16 indeed provides for informal resolution of disputes by way of arbitration. However, Article 16(2) mandates that the arbitration shall be conducted in accordance with the ICC Rules. Under those rules, ICC Court of arbitration is to make the appointment of the Arbitral Tribunal. To make the matters worst for the appellant, it has been provided in Article 16.2(e) that the seat of the arbitration shall be in London. This fact alone would make Part I of the Arbitration Act, 1996 inapplicable to the arbitration proceedings. There is a further provision that notwithstanding Article 17(8), the laws of England shall govern the validity, interpretation, construction, performance and the enforcement of the provision contained in Article 16(2). Clearly then, the applicability of Arbitration Act, 1996 is totally ruled out by the parties. This Court in Bhatia International vs. Bulk Trading S.A. & Anr. [2002 (4) SCC 105 ] has clearly held that the parties are at liberty by agreement to opt out of any or all the provisions of 1996 Act.55. In fact, in our opinion, the appellant has illegally arrogated to itself the right to adjudicate by unilaterally assuming the jurisdiction not available to it. It was required to comply with Article 10 of the PPA which provides for Compensation Payment and Billing. We are also not able to accept the submission of Mr. Nariman that invoices could not be paid in full as they were only estimated invoices. It is true that reconciliation is to be done annually but the payment is to be made on monthly basis. This cannot even be disputed by the appellant in the face of its claim for rebate at the rate of 2.5% for having made part payment of the invoice amount within 5 days. We also do not find any merit in the submission that any prejudice has been caused to the appellant by the delayed submission of annual invoice by the respondents. Pursuant to the directions issued by the State Commission, the monthly invoice and annual invoice for the respective years have been redrawn as on 30th September each year. Therefore, the benefit of interest has been given on such annual invoices. With regard to the issue raised about the interest on late payment, APTEL has considered the entire matter and come to the conclusion that interest is payable on compound rate basis in terms of Article 10.6 of the PPA. In coming to the aforesaid conclusion, APTEL has relied on a judgment of this Court in Central Bank of India vs. Ravindra & Ors. [2002 (1) SCC 367 ].58. This now bring us to applications for impleadment of IOCL and for direction. I.A.No.6 of 2013 is for the impleadment of IOCL. It is submitted that during the pendency of these proceedings, the respondents have received rebates, discounts, credits, refunds in the fuel price being extended by fuel supplier i.e. Indian Oil Corporation Ltd. (IOCL). Such benefits have been received by the respondent from January 2001 till date It is pleaded that the respondents have failed to give details about the discounts and credits received the benefit of which ought to have been passed on to the appellant. Therefore, IOCL be made parties to respondent No.2 to the present appeal. I.A.No.5 of 2013 seeks direction to IOCL to furnish details of all the documents of the matter. Further directions are also sought on the respondent to refund a sum of Rs.240 crores paid by the appellant under the order passed by the State Commission along with interest at the rate as mentioned in PPA.59. The respondents in a common counter statement to the applications have submitted that the applications are not maintainable. The applications have been evidently preferred purely as dilatory tactics, to delay and deny substantial payments that are due and payable to the respondent pursuant to the orders passed by the State Commission which have been upheld by APTEL. We are not inclined to entertain either of the applications at this stage. The issue sought to be raised in both the applications ought to have been raised by the appellant at the relevant time. The applications are, therefore, accordingly dismissed. | 0 | 14,365 | 1,680 | ### Instruction:
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to the issue raised about the interest on late payment, APTEL has considered the entire matter and come to the conclusion that interest is payable on compound rate basis in terms of Article 10.6 of the PPA. In coming to the aforesaid conclusion, APTEL has relied on a judgment of this Court in Central Bank of India vs. Ravindra & Ors. [2002 (1) SCC 367 ]. In this judgment it has been held as follows: “………The essence of interest in the opinion of Lord Wright, in Riches v. Westminster Bank Ltd.All ER at p. 472 is that it is a payment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had had the use of the money, or, conversely, the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation; the money due to the creditor was not paid, or, in other words, was withheld from him by the debtor after the time when payment should have been made, in breach of his legal rights, and interest was a compensation whether the compensation was liquidated under an agreement or statute. A Division Bench of the High Court of Punjab speaking through Tek Chand, J. in CIT v. Dr Sham Lal Narula thus articulated the concept of interest the words ‘interest’ and ‘compensation’ are sometimes used interchangeably and on other occasions they have distinct connotation. ‘Interest’ in general terms is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. In its narrow sense, ‘interest’ is understood to mean the amount which one has contracted to pay for use of borrowed money. … In whatever category ‘interest’ in a particular case may be put, it is a consideration paid either for the use of money or for forbearance in demanding it, after it has fallen due, and thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable.” 56. Similar observations have been made by this Court in Indian Council of Enviro-Legal Action vs. Union of India & Ors. [2011 (8) SCC 161 ] wherein it has been held as follows: “178. To do complete justice, prevent wrongs, remove incentive for wrongdoing or delay, and to implement in practical terms the concepts of time value of money, restitution and unjust enrichment noted above—or to simply levelise—a convenient approach is calculating interest. But here interest has to be calculated on compound basis—and not simple—for the latter leaves much uncalled for benefits in the hands of the wrongdoer.179. Further, a related concept of inflation is also to be kept in mind and the concept of compound interest takes into account, by reason of prevailing rates, both these factors i.e. use of the money and the inflationary trends, as the market forces and predictions work out.180. Some of our statute law provide only for simple interest and not compound interest. In those situations, the courts are helpless and it is a matter of law reform which the Law Commission must take note and more so, because the serious effect it has on the administration of justice. However, [pic]the power of the Court to order compound interest by way of restitution is not fettered in any way. We request the Law Commission to consider and recommend necessary amendments in relevant laws.” 57. The late payment clause only captures the principle that a person denied the benefit of money, that ought to have been paid on due dates should get compensated on the same basis as his bank would charge him for funds lent together with a deterrent of 0.5% in order to prevent delays. It is submitted by Mr. Salve and Mr. Bhushan that bankers of the respondents have applied quarterly compounding or monthly compounding for cash credits during different periods on the basis of RBI norms. Article 10.6 of the PPA has followed the norms of the bank. This can not be said to be unfair as the same principle would also apply to the appellants.58. This now bring us to applications for impleadment of IOCL and for direction. I.A.No.6 of 2013 is for the impleadment of IOCL. It is submitted that during the pendency of these proceedings, the respondents have received rebates, discounts, credits, refunds in the fuel price being extended by fuel supplier i.e. Indian Oil Corporation Ltd. (IOCL). Such benefits have been received by the respondent from January 2001 till date It is pleaded that the respondents have failed to give details about the discounts and credits received the benefit of which ought to have been passed on to the appellant. Therefore, IOCL be made parties to respondent No.2 to the present appeal. I.A.No.5 of 2013 seeks direction to IOCL to furnish details of all the documents of the matter. Further directions are also sought on the respondent to refund a sum of Rs.240 crores paid by the appellant under the order passed by the State Commission along with interest at the rate as mentioned in PPA.59. The respondents in a common counter statement to the applications have submitted that the applications are not maintainable. The applications have been evidently preferred purely as dilatory tactics, to delay and deny substantial payments that are due and payable to the respondent pursuant to the orders passed by the State Commission which have been upheld by APTEL. We are not inclined to entertain either of the applications at this stage. The issue sought to be raised in both the applications ought to have been raised by the appellant at the relevant time. The applications are, therefore, accordingly dismissed.
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State Commission in the absence of a Judicial Member. Especially in relation to disputes which are not fairly relative to tariff fixation or the advisory and recommendatory functions of the State Commission.In view of the aforesaid categorical statement of law, we would accept the submission of Mr. Nariman that the tribunal such as the State Commission in deciding a lis, between the appellant and the respondent discharges judicial functions and exercises judicial power to the State. It exercises judicial functions of far reaching effect. Therefore, in our opinion, Mr. Nariman is correct in his submission that it must have essential trapping of the court. This can only be achieved by the presence of one or more judicial members in the State Commission which is called upon to decide complicated contractual or civil issues which would normally have been decided by a Civil Court. Not only the decisions of the State Commission have far reaching consequences, they are final and binding between the parties, subject, of course, to judicial review.Keeping in view the aforesaid observations of this Court, in our opinion, the State of Tamil Nadu ought to make necessary appointments in terms of Section 84(2) of the Act. We have been informed that till date no judicial Member has been appointed in the Tamil Nadu State Commission. We are of the opinion that the matter needs to be considered, with some urgency, by the appropriate State authorities about the desirability and feasibility for making appointments, of any person, as the Chairperson from amongst persons who is, or has been, a Judge of a High Court.Even if the reference had been made under Article 16 of the PPA, the applicability of the Arbitration Act, 1996 and the Arbitration Act of 1940 have been specifically excepted under Article 16(2)(h). In the earlier part of the judgment, we have noticed that Article 16 indeed provides for informal resolution of disputes by way of arbitration. However, Article 16(2) mandates that the arbitration shall be conducted in accordance with the ICC Rules. Under those rules, ICC Court of arbitration is to make the appointment of the Arbitral Tribunal. To make the matters worst for the appellant, it has been provided in Article 16.2(e) that the seat of the arbitration shall be in London. This fact alone would make Part I of the Arbitration Act, 1996 inapplicable to the arbitration proceedings. There is a further provision that notwithstanding Article 17(8), the laws of England shall govern the validity, interpretation, construction, performance and the enforcement of the provision contained in Article 16(2). Clearly then, the applicability of Arbitration Act, 1996 is totally ruled out by the parties. This Court in Bhatia International vs. Bulk Trading S.A. & Anr. [2002 (4) SCC 105 ] has clearly held that the parties are at liberty by agreement to opt out of any or all the provisions of 1996 Act.55. In fact, in our opinion, the appellant has illegally arrogated to itself the right to adjudicate by unilaterally assuming the jurisdiction not available to it. It was required to comply with Article 10 of the PPA which provides for Compensation Payment and Billing. We are also not able to accept the submission of Mr. Nariman that invoices could not be paid in full as they were only estimated invoices. It is true that reconciliation is to be done annually but the payment is to be made on monthly basis. This cannot even be disputed by the appellant in the face of its claim for rebate at the rate of 2.5% for having made part payment of the invoice amount within 5 days. We also do not find any merit in the submission that any prejudice has been caused to the appellant by the delayed submission of annual invoice by the respondents. Pursuant to the directions issued by the State Commission, the monthly invoice and annual invoice for the respective years have been redrawn as on 30th September each year. Therefore, the benefit of interest has been given on such annual invoices. With regard to the issue raised about the interest on late payment, APTEL has considered the entire matter and come to the conclusion that interest is payable on compound rate basis in terms of Article 10.6 of the PPA. In coming to the aforesaid conclusion, APTEL has relied on a judgment of this Court in Central Bank of India vs. Ravindra & Ors. [2002 (1) SCC 367 ].58. This now bring us to applications for impleadment of IOCL and for direction. I.A.No.6 of 2013 is for the impleadment of IOCL. It is submitted that during the pendency of these proceedings, the respondents have received rebates, discounts, credits, refunds in the fuel price being extended by fuel supplier i.e. Indian Oil Corporation Ltd. (IOCL). Such benefits have been received by the respondent from January 2001 till date It is pleaded that the respondents have failed to give details about the discounts and credits received the benefit of which ought to have been passed on to the appellant. Therefore, IOCL be made parties to respondent No.2 to the present appeal. I.A.No.5 of 2013 seeks direction to IOCL to furnish details of all the documents of the matter. Further directions are also sought on the respondent to refund a sum of Rs.240 crores paid by the appellant under the order passed by the State Commission along with interest at the rate as mentioned in PPA.59. The respondents in a common counter statement to the applications have submitted that the applications are not maintainable. The applications have been evidently preferred purely as dilatory tactics, to delay and deny substantial payments that are due and payable to the respondent pursuant to the orders passed by the State Commission which have been upheld by APTEL. We are not inclined to entertain either of the applications at this stage. The issue sought to be raised in both the applications ought to have been raised by the appellant at the relevant time. The applications are, therefore, accordingly dismissed.
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COMMISSIONER OF CUSTOMS (PORT) KOLKATA Vs. M/S. STEEL AUTHORITY OF INDIA LTD | that 10% of this amount only should be added to the value of the plant as the plant had been sold abroad on an as is where is basis and needed to be dismantled abroad before it was ready for delivery in India. Obviously, therefore this 10% is attributable to a pre-import stage. Further, the amount of 22 Lakh Deutsche Marks payable for theoretical and practical training of personnel outside India again could not be added as this amount would presumably be attributable to trained personnel who would be used in the commissioning and operation of the plant, which would, therefore, be attributable to a post-importation event. Thus, properly read, the judgment in Essar Gujarat case actually supports the respondent in that the payment for engineering and technical consultancy services in India cannot be added to the value of the imported plant. Also, in the present case, there is no transfer of technology under a license. Therefore, no question arises as to whether without such license the plant to be set up in India could be operated at all. The judgment also concludes in favour of the respondent the fact that all amounts payable for training of personnel outside India cannot be added to the value of the plant. 24. We have already summarised the respondents case that the disputed items on which the customs authorities intended to impose duty all related to post importation activities and could not be included in the assessable value. It has been urged on behalf of the respondent that neither clause 9 (1) b (iv), nor 9 (1) (e) could be made applicable so far as the subject items are concerned. The imported items according to the respondent are the equipments and the engineering drawings etc. forming part of the contract were not necessary for production of the imported goods. It has also been urged that the customs authority had wrongly contended that the subject drawings etc. were purchased as the condition that the sale of the imported goods and this excluded application of clause 9 (1) (e) of the 1988 Rules. In this regard interpretative note to Rule 4 was relied upon. Reference was made, in particular, to clause (a) of that Note. 25. Revenue has not made out a case that the disputed items of contract do not relate to post-importation activities. The statutory provision relied upon by the Revenue to bring the subject-items within the duty net is Rule 9 (1) (e) of the 1988 Rules. 26. The expression condition, simply put, conveys the idea that something could be done only if another thing was also done. In the given context, it would imply that import of equipments could be allowed by the other party provided the design features for post- importation activities were also obtained from the same supplier or from a firm as per the overseas suppliers direction. But there is no material before us to suggest that import of equipments was effected with simultaneous obligation of SAIL that the designs relating to post- importation activities should also be obtained from the same entity. The revenue has proceeded with the understanding that since both were obtained from the same vendor, condition of obtaining designs etc., for post-importation activities was implicit in the contract. The Revenue has sought to emphasise their case on the basis that as it was a turnkey project, importation of equipments and post-importation project implementation exercise were mutually dependant. In our opinion, reading such implied condition into the contracts would be impermissible in the absence of any other material to demonstrate subsistence of such condition. No part of the contract has been shown to us from which such condition could be inferred. Necessity of subsistence such condition has been laid down in the case of Ferodo India (P) Ltd. for invoking rule 9 (1) (e). In our opinion, the provisions of Rule 9 (1) (e) cannot be automatically applied to every import which has surface features of a turnkey contract. Just because different components of a contract or multiple contracts give the shape of turnkey project to the imported items, without specific finding on existence of condition as contemplated in clause 9 (1) (e), value of all these components could not be added to arrive at the assessable value. Such an exercise would go against the provisions of Interpretative Note to Rule 4, which is part of the Valuation Rules in view of the provisions of Rule 12 thereof. 27. Similar were the revenues contentions in Essar Steel (supra) and Tata Iron & Steel Co. Ltd. (supra), except that in the factual context of those two cases, there were different sets of agreements. But that difference is more of form than of content. If a single agreement involves importation of dutiable equipments and also services for post- importation activities, and these two sets of items are segregable, it would be open to the importer to claim duty-exclusion in respect of items directly relatable to post importation activities in cases where Rule 9 of the Valuation Rules are applicable. The cases of J.K. Corp. Ltd. (supra), Hindalco Industries, Denso Kirloskar (supra), Toyota Kirloskar (supra) all deal with exclusion of value of post-import activities. 28. In the present appeal, involving two import consignments, the authorities of First Instance and the Appellate Authority proceeded on the basis that since all the scheduled items formed part of the same contract and were linked with activities at post-import stage with the imported equipments, the provisions of Section 9 (1) (e) could be invoked. Such reasoning infers subsistence of conditions for awarding post-importation work to the overseas consortia or makes import of both sets of items otherwise interdependent. We find from the orders in original that the stand of SAIL was consistent that the subject drawings and specifications did not relate to the equipments imported and was meant for post importation activities and there was no condition laid down that the import of the equipments were to be supplemented by post-importation work. | 0[ds]10. The Tribunal did not accept this plea of revenue. The Tribunal in the impugned order accepted SAILs plea for segregating the value of equipments and the other fees on services covered by the same contracts, the latter charges meant for post-importation phase of the arrangement between the contracting parties. It found that the designs and drawings and engineering/technical services were for plant direction and overall project implementation for manufacturing iron and steel to be commissioned in India and charges were collected by the consortium when the design and drawings and engineering services in relation to the components were to be imported. It is also not the revenues case before us that these designs and drawings and the services were in relation to the imported equipments and goodsBut ratio of that authority would not be applicable in the facts of this case, as the disputed amount involved payment made by the importer to their overseas associate towards engineering, design work, plant, sketches etc. which were necessary for production of imported goods. This was a case attracting Rule 9(1)(b)(iv) of the 1988 Rules. Factually, this authority is distinguishableThe only factual similarity in both these cases is that the case of ABB Limited (supra) also related to turnkey project. But import under that statute and the charging section in the Customs Act for imposing duty (under Section 12) are not the same. The mechanism for arriving at transaction value or assessable value under the two statutes are different and distinct. This authority can have no impact on the subject-controversyWe have earlier referred to this authority in this judgment. This case involved importation of a plant, which was originally installed in Germany. The Indian importer, Essar Gujrat, had entered into an agreement with the overseas owner of that plant in Germany. That owner was Teviot Investments Limited. The agreement Essar Gujarat had with Teviot for purchase of the plant, however, was subject to Essar obtaining transfer of operational license from another corporation, Midrex International BV. Question arose as to whether the license fees paid to Midrex should be included to the value of the plant or not. The revenue case was that the stipulation of obtaining the license from Midrex was a condition for sale. If this condition was not fulfilled, the sale would have had fallen through. Thus, to give effect to the plant sale agreement, there was an element of necessity or compulsion to enter into the licensing agreement with Midrex21. SAIL had taken specific stand before the authority of the first instance that it was not a condition for them to take design and engineering, which related to post importation activities from the supplier only. In terms of the schedule of the agreement, the purchaser (that is SAIL) had right to change the goods to be supplied by the supplier at any time22. An importer of equipments of a plant could always choose to obtain drawings and designs for undertaking post importation activities from an overseas consortium supplying the equipments. This may confer on such arrangements attributes of a turnkey contract, but that fact by itself would not automatically attract the condition clause contained in Rule 9(1) (e) of the Valuation Rules. In the cases of Essar Steel Ltd.(supra) and Tata Iron and Steel Co. Ltd.(supra), the contracts had certain elements of turnkey features. The case of Essar Gujarat (supra) is distinguishable, as the subject of import there carried a condition for entering into a licensing agreement with a third party24. We have already summarised the respondents case that the disputed items on which the customs authorities intended to impose duty all related to post importation activities and could not be included in the assessable value25. Revenue has not made out a case that the disputed items of contract do not relate to post-importation activities. The statutory provision relied upon by the Revenue to bring the subject-items within the duty net is Rule 9 (1) (e) of the 1988 Rules26. The expression condition, simply put, conveys the idea that something could be done only if another thing was also done. In the given context, it would imply that import of equipments could be allowed by the other party provided the design features for post- importation activities were also obtained from the same supplier or from a firm as per the overseas suppliers direction. But there is no material before us to suggest that import of equipments was effected with simultaneous obligation of SAIL that the designs relating to post- importation activities should also be obtained from the same entity. The revenue has proceeded with the understanding that since both were obtained from the same vendor, condition of obtaining designs etc., for post-importation activities was implicit in the contract. The Revenue has sought to emphasise their case on the basis that as it was a turnkey project, importation of equipments and post-importation project implementation exercise were mutually dependant. In our opinion, reading such implied condition into the contracts would be impermissible in the absence of any other material to demonstrate subsistence of such condition. No part of the contract has been shown to us from which such condition could be inferred. Necessity of subsistence such condition has been laid down in the case of Ferodo India (P) Ltd. for invoking rule 9 (1) (e). In our opinion, the provisions of Rule 9 (1) (e) cannot be automatically applied to every import which has surface features of a turnkey contract. Just because different components of a contract or multiple contracts give the shape of turnkey project to the imported items, without specific finding on existence of condition as contemplated in clause 9 (1) (e), value of all these components could not be added to arrive at the assessable value. Such an exercise would go against the provisions of Interpretativewhich is part of the Valuation Rules in view of the provisions of Rule 12 thereof28. In the present appeal, involving two import consignments, the authorities of First Instance and the Appellate Authority proceeded on the basis that since all the scheduled items formed part of the same contract and were linked with activities at post-import stage with the imported equipments, the provisions of Section 9 (1) (e) could be invoked. Such reasoning infers subsistence of conditions for awarding post-importation work to the overseas consortia or makes import of both sets of items otherwise interdependent. We find from the orders in original that the stand of SAIL was consistent that the subject drawings and specifications did not relate to the equipments imported and was meant for post importation activities and there was no condition laid down that the import of the equipments were to be supplemented by post-importation work. | 0 | 9,625 | 1,245 | ### Instruction:
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that 10% of this amount only should be added to the value of the plant as the plant had been sold abroad on an as is where is basis and needed to be dismantled abroad before it was ready for delivery in India. Obviously, therefore this 10% is attributable to a pre-import stage. Further, the amount of 22 Lakh Deutsche Marks payable for theoretical and practical training of personnel outside India again could not be added as this amount would presumably be attributable to trained personnel who would be used in the commissioning and operation of the plant, which would, therefore, be attributable to a post-importation event. Thus, properly read, the judgment in Essar Gujarat case actually supports the respondent in that the payment for engineering and technical consultancy services in India cannot be added to the value of the imported plant. Also, in the present case, there is no transfer of technology under a license. Therefore, no question arises as to whether without such license the plant to be set up in India could be operated at all. The judgment also concludes in favour of the respondent the fact that all amounts payable for training of personnel outside India cannot be added to the value of the plant. 24. We have already summarised the respondents case that the disputed items on which the customs authorities intended to impose duty all related to post importation activities and could not be included in the assessable value. It has been urged on behalf of the respondent that neither clause 9 (1) b (iv), nor 9 (1) (e) could be made applicable so far as the subject items are concerned. The imported items according to the respondent are the equipments and the engineering drawings etc. forming part of the contract were not necessary for production of the imported goods. It has also been urged that the customs authority had wrongly contended that the subject drawings etc. were purchased as the condition that the sale of the imported goods and this excluded application of clause 9 (1) (e) of the 1988 Rules. In this regard interpretative note to Rule 4 was relied upon. Reference was made, in particular, to clause (a) of that Note. 25. Revenue has not made out a case that the disputed items of contract do not relate to post-importation activities. The statutory provision relied upon by the Revenue to bring the subject-items within the duty net is Rule 9 (1) (e) of the 1988 Rules. 26. The expression condition, simply put, conveys the idea that something could be done only if another thing was also done. In the given context, it would imply that import of equipments could be allowed by the other party provided the design features for post- importation activities were also obtained from the same supplier or from a firm as per the overseas suppliers direction. But there is no material before us to suggest that import of equipments was effected with simultaneous obligation of SAIL that the designs relating to post- importation activities should also be obtained from the same entity. The revenue has proceeded with the understanding that since both were obtained from the same vendor, condition of obtaining designs etc., for post-importation activities was implicit in the contract. The Revenue has sought to emphasise their case on the basis that as it was a turnkey project, importation of equipments and post-importation project implementation exercise were mutually dependant. In our opinion, reading such implied condition into the contracts would be impermissible in the absence of any other material to demonstrate subsistence of such condition. No part of the contract has been shown to us from which such condition could be inferred. Necessity of subsistence such condition has been laid down in the case of Ferodo India (P) Ltd. for invoking rule 9 (1) (e). In our opinion, the provisions of Rule 9 (1) (e) cannot be automatically applied to every import which has surface features of a turnkey contract. Just because different components of a contract or multiple contracts give the shape of turnkey project to the imported items, without specific finding on existence of condition as contemplated in clause 9 (1) (e), value of all these components could not be added to arrive at the assessable value. Such an exercise would go against the provisions of Interpretative Note to Rule 4, which is part of the Valuation Rules in view of the provisions of Rule 12 thereof. 27. Similar were the revenues contentions in Essar Steel (supra) and Tata Iron & Steel Co. Ltd. (supra), except that in the factual context of those two cases, there were different sets of agreements. But that difference is more of form than of content. If a single agreement involves importation of dutiable equipments and also services for post- importation activities, and these two sets of items are segregable, it would be open to the importer to claim duty-exclusion in respect of items directly relatable to post importation activities in cases where Rule 9 of the Valuation Rules are applicable. The cases of J.K. Corp. Ltd. (supra), Hindalco Industries, Denso Kirloskar (supra), Toyota Kirloskar (supra) all deal with exclusion of value of post-import activities. 28. In the present appeal, involving two import consignments, the authorities of First Instance and the Appellate Authority proceeded on the basis that since all the scheduled items formed part of the same contract and were linked with activities at post-import stage with the imported equipments, the provisions of Section 9 (1) (e) could be invoked. Such reasoning infers subsistence of conditions for awarding post-importation work to the overseas consortia or makes import of both sets of items otherwise interdependent. We find from the orders in original that the stand of SAIL was consistent that the subject drawings and specifications did not relate to the equipments imported and was meant for post importation activities and there was no condition laid down that the import of the equipments were to be supplemented by post-importation work.
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0
### Explanation:
drawings and the services were in relation to the imported equipments and goodsBut ratio of that authority would not be applicable in the facts of this case, as the disputed amount involved payment made by the importer to their overseas associate towards engineering, design work, plant, sketches etc. which were necessary for production of imported goods. This was a case attracting Rule 9(1)(b)(iv) of the 1988 Rules. Factually, this authority is distinguishableThe only factual similarity in both these cases is that the case of ABB Limited (supra) also related to turnkey project. But import under that statute and the charging section in the Customs Act for imposing duty (under Section 12) are not the same. The mechanism for arriving at transaction value or assessable value under the two statutes are different and distinct. This authority can have no impact on the subject-controversyWe have earlier referred to this authority in this judgment. This case involved importation of a plant, which was originally installed in Germany. The Indian importer, Essar Gujrat, had entered into an agreement with the overseas owner of that plant in Germany. That owner was Teviot Investments Limited. The agreement Essar Gujarat had with Teviot for purchase of the plant, however, was subject to Essar obtaining transfer of operational license from another corporation, Midrex International BV. Question arose as to whether the license fees paid to Midrex should be included to the value of the plant or not. The revenue case was that the stipulation of obtaining the license from Midrex was a condition for sale. If this condition was not fulfilled, the sale would have had fallen through. Thus, to give effect to the plant sale agreement, there was an element of necessity or compulsion to enter into the licensing agreement with Midrex21. SAIL had taken specific stand before the authority of the first instance that it was not a condition for them to take design and engineering, which related to post importation activities from the supplier only. In terms of the schedule of the agreement, the purchaser (that is SAIL) had right to change the goods to be supplied by the supplier at any time22. An importer of equipments of a plant could always choose to obtain drawings and designs for undertaking post importation activities from an overseas consortium supplying the equipments. This may confer on such arrangements attributes of a turnkey contract, but that fact by itself would not automatically attract the condition clause contained in Rule 9(1) (e) of the Valuation Rules. In the cases of Essar Steel Ltd.(supra) and Tata Iron and Steel Co. Ltd.(supra), the contracts had certain elements of turnkey features. The case of Essar Gujarat (supra) is distinguishable, as the subject of import there carried a condition for entering into a licensing agreement with a third party24. We have already summarised the respondents case that the disputed items on which the customs authorities intended to impose duty all related to post importation activities and could not be included in the assessable value25. Revenue has not made out a case that the disputed items of contract do not relate to post-importation activities. The statutory provision relied upon by the Revenue to bring the subject-items within the duty net is Rule 9 (1) (e) of the 1988 Rules26. The expression condition, simply put, conveys the idea that something could be done only if another thing was also done. In the given context, it would imply that import of equipments could be allowed by the other party provided the design features for post- importation activities were also obtained from the same supplier or from a firm as per the overseas suppliers direction. But there is no material before us to suggest that import of equipments was effected with simultaneous obligation of SAIL that the designs relating to post- importation activities should also be obtained from the same entity. The revenue has proceeded with the understanding that since both were obtained from the same vendor, condition of obtaining designs etc., for post-importation activities was implicit in the contract. The Revenue has sought to emphasise their case on the basis that as it was a turnkey project, importation of equipments and post-importation project implementation exercise were mutually dependant. In our opinion, reading such implied condition into the contracts would be impermissible in the absence of any other material to demonstrate subsistence of such condition. No part of the contract has been shown to us from which such condition could be inferred. Necessity of subsistence such condition has been laid down in the case of Ferodo India (P) Ltd. for invoking rule 9 (1) (e). In our opinion, the provisions of Rule 9 (1) (e) cannot be automatically applied to every import which has surface features of a turnkey contract. Just because different components of a contract or multiple contracts give the shape of turnkey project to the imported items, without specific finding on existence of condition as contemplated in clause 9 (1) (e), value of all these components could not be added to arrive at the assessable value. Such an exercise would go against the provisions of Interpretativewhich is part of the Valuation Rules in view of the provisions of Rule 12 thereof28. In the present appeal, involving two import consignments, the authorities of First Instance and the Appellate Authority proceeded on the basis that since all the scheduled items formed part of the same contract and were linked with activities at post-import stage with the imported equipments, the provisions of Section 9 (1) (e) could be invoked. Such reasoning infers subsistence of conditions for awarding post-importation work to the overseas consortia or makes import of both sets of items otherwise interdependent. We find from the orders in original that the stand of SAIL was consistent that the subject drawings and specifications did not relate to the equipments imported and was meant for post importation activities and there was no condition laid down that the import of the equipments were to be supplemented by post-importation work.
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P. V. Sivarajan Vs. The Union Of India And Another | excludes or prohibits the application of the quantitative test in making rules for registration of exporters or for issuing licences for export trade. In fact the Act has deliberately left it to the rule-making authority to frame rules which it may regard as appropriate for export trade. In fact the Act has deliberately left it to the rule-making authority to frame rules which it may regard as appropriate for regulating the trade; and so it would be impossible to accept the argument that the rule-making authority was bound to prescribe the qualitative rather than the quantitative test. Besides, it does not appear that the report of the Committee on which Mr. Pai relied definitely indicated its partiality for the adoption of the qualitative test. Indeed App. XI to the said report would suggest that the Committee in fact was not averse to the adoption of a quantitative test; but even if the, Committee had expressly recommended the adoption of a qualitative not a quantitative test, it would be idle to suggest that the Coir Board was bound to accept the said recommendation or that the Central Government was not competent to make rules contrary to the recommendations of the Committee. The validity of the rules can be successfully challenged if it is shown that they are inconsistent with the provisions of the Act or that they have been made in excess of the powers conferred on the rule-making authority by S. 26 of the Act. In our opinion, no such infirmity has been established in respect of the impugned rules. 6. It is then contended that the relevant rules would ultimately tend to establish a monopoly in the export trade of coir commodities and would thereby extinguish the trade or business of small dealers like the petitioner. It is also contended that the application of the quantitative test discriminates between persons carrying on business on a large scale and those who carry on business on a small scale. That is how Arts. 19 and 14 and of the Constitution are invoked and the validity of the relevant rules is challenged on the ground that they violate the fundamental rights of the petitioner under the said Articles. We think there is no substance in this contention. 7. If it is conceded that the regulation of the coir industry is in the public interest, then it would be difficult to entertain the argument that the regulation or control must be introduced only on the basis of a qualitative test, it may well be that there are several difficulties in introducing and effectively enforcing the qualitative test. It is well known that granting permits or licences to export or import dealers on the basis of a quantitative test is not unknown in regard to export and import of essential commodities. It would obviously be for the rulemaking authority to decide which test would meet the requirements of public interest and what method would be most expedient in controlling the industry for the national good. Besides, even the adoption of a qualitative test may tend to extinguish the trade of those who do not satisfy the said test; but such a result cannot obviously be treated as contravening the fundamental rights under Art. 19. Control and regulation of any trade, though reasonable within the meaning of Art. 19, sub-Art- (6), may in some cases lead to hardship to some persons carrying on the said trade or business if they are unable to satisfy the requirements of the regulatory rules or provisions validly introduced; but once it is conceded that regulation of the trade and its control are justified in the public interest, it would not be open to a person who fails to satisfy the rules or regulations to invoke his fundamental right under Art. 19(g) and challenge the validity of the regulation or rule in question. In our opinion, therefore, the challenge to the validity of the rules on the ground of Art, 19 must fail. 8. The challenge to the validity of the said rules on the ground of Art. 14 must also fail, because the classification of traders made by Rr. 18 and 19 is clearly rational and is founded on an intelligible differentia distinguishing persons falling under one class from those falling under the other. It is also clear that the differentia had a rational relation to the object sought to be achieved by the Act.As we have already pointed, out, the export trade in coir commodities disclosed the existence of many malpractice which not only affected the volume of trade but also the reputation of Indian traders; and one of the main reasons which led to this unfortunate result was that exporters sometimes accepted orders far beyond their capacity and that inevitably led to non-fulfilment of contracts or to supply of inferior commodities. In order to remedy this position the trade had to be regulated and so the intending exporter was required to satisfy the test of the prescribed minimum capacity and to establish the prescribed minimum status before his application for registration is granted.In this connection it may also be relevant to point out that the rules seem to contemplate the granting of exemption from the operation of some of the relevant tests to cooperative societies; and that shows that the intention of the Legislature is to encourage small traders to form co-operative societies and carry, on export trade on behalf of such societies; and so it would not be possible to accept the argument that the impugned rules would lead to a monopoly in the trade. It is thus clear that the main object which the rules propose to achieve is to improve the anomalies and malpractice prevailing in the export trade of coir commodities and to put said trade on a firm and enduring basis in the interest of national economy. We, are, therefore, satisfied that the challenge to the impugned rules on the ground of infringement of Art. 14 of the Constitution must also fail. | 0[ds]4. There is no doubt that coir and coir products play an important role in our natural economy. They are commodities which earn foreign exchange, the total value of our exports in these commodities being of the order of Rupees Ten Crores per year. was found that several malpractice had crept in the export trade of these commodities such as non-fulfilment of contracts, supplying goods of inferior qualities and cut-throat competition; and these in turn considerably affected the volume of the trade. That is why Parliament thought it necessary that the Union should take under its control the coir industry in order to regulate its export trade. It is with the object of developing the coir industry that the Coir Board has been established and the registration and licensing of exporters has been introduced. The petitioner does not dispute this position and makes no grievance or complaint against the relevant provisions in the ActIt is well known that granting permits or licences to export or import dealers on the basis of a quantitative test is not unknown in regard to export and import of essential commodities. It would obviously be for the rulemaking authority to decide which test would meet the requirements of public interest and what method would be most expedient in controlling the industry for the national good. Besides, even the adoption of a qualitative test may tend to extinguish the trade of those who do not satisfy the said test; but such a result cannot obviously be treated as contravening the fundamental rights under Art.. Control and regulation of any trade, though reasonable within the meaning of Art. 19, sub-Art- (6), may in some cases lead to hardship to some persons carrying on the said trade or business if they are unable to satisfy the requirements of the regulatory rules or provisions validly introduced; but once it is conceded that regulation of the trade and its control are justified in the public interest, it would not be open to a person who fails to satisfy the rules or regulations to invoke his fundamental right under Art. 19(g) and challenge the validity of the regulation or rule in question. In our opinion, therefore, the challenge to the validity of the rules on the ground of Art, 19 must fail8. The challenge to the validity of the said rules on the ground of Art. 14 must also fail, because the classification of traders made by Rr. 18 and 19 is clearly rational and is founded on an intelligible differentia distinguishing persons falling under one class from those falling under the other. It is also clear that the differentia had a rational relation to the object sought to be achieved by the Act.As we have already pointed, out, the export trade in coir commodities disclosed the existence of many malpractice which not only affected the volume of trade but also the reputation of Indian traders; and one of the main reasons which led to this unfortunate result was that exporters sometimes accepted orders far beyond their capacity and that inevitably led to non-fulfilment of contracts or to supply of inferior commodities. In order to remedy this position the trade had to be regulated and so the intending exporter was required to satisfy the test of the prescribed minimum capacity and to establish the prescribed minimum status before his application for registration is granted.In this connection it may also be relevant to point out that the rules seem to contemplate the granting of exemption from the operation of some of the relevant tests to cooperative societies; and that shows that the intention of the Legislature is to encourage small traders to form co-operative societies and carry, on export trade on behalf of such societies; and so it would not be possible to accept the argument that the impugned rules would lead to a monopoly in the trade. It is thus clear that the main object which the rules propose to achieve is to improve the anomalies and malpractice prevailing in the export trade of coir commodities and to put said trade on a firm and enduring basis in the interest of national economy. We, are, therefore, satisfied that the challenge to the impugned rules on the ground of infringement of Art. 14 of the Constitution must also fail. | 0 | 2,573 | 771 | ### 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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excludes or prohibits the application of the quantitative test in making rules for registration of exporters or for issuing licences for export trade. In fact the Act has deliberately left it to the rule-making authority to frame rules which it may regard as appropriate for export trade. In fact the Act has deliberately left it to the rule-making authority to frame rules which it may regard as appropriate for regulating the trade; and so it would be impossible to accept the argument that the rule-making authority was bound to prescribe the qualitative rather than the quantitative test. Besides, it does not appear that the report of the Committee on which Mr. Pai relied definitely indicated its partiality for the adoption of the qualitative test. Indeed App. XI to the said report would suggest that the Committee in fact was not averse to the adoption of a quantitative test; but even if the, Committee had expressly recommended the adoption of a qualitative not a quantitative test, it would be idle to suggest that the Coir Board was bound to accept the said recommendation or that the Central Government was not competent to make rules contrary to the recommendations of the Committee. The validity of the rules can be successfully challenged if it is shown that they are inconsistent with the provisions of the Act or that they have been made in excess of the powers conferred on the rule-making authority by S. 26 of the Act. In our opinion, no such infirmity has been established in respect of the impugned rules. 6. It is then contended that the relevant rules would ultimately tend to establish a monopoly in the export trade of coir commodities and would thereby extinguish the trade or business of small dealers like the petitioner. It is also contended that the application of the quantitative test discriminates between persons carrying on business on a large scale and those who carry on business on a small scale. That is how Arts. 19 and 14 and of the Constitution are invoked and the validity of the relevant rules is challenged on the ground that they violate the fundamental rights of the petitioner under the said Articles. We think there is no substance in this contention. 7. If it is conceded that the regulation of the coir industry is in the public interest, then it would be difficult to entertain the argument that the regulation or control must be introduced only on the basis of a qualitative test, it may well be that there are several difficulties in introducing and effectively enforcing the qualitative test. It is well known that granting permits or licences to export or import dealers on the basis of a quantitative test is not unknown in regard to export and import of essential commodities. It would obviously be for the rulemaking authority to decide which test would meet the requirements of public interest and what method would be most expedient in controlling the industry for the national good. Besides, even the adoption of a qualitative test may tend to extinguish the trade of those who do not satisfy the said test; but such a result cannot obviously be treated as contravening the fundamental rights under Art. 19. Control and regulation of any trade, though reasonable within the meaning of Art. 19, sub-Art- (6), may in some cases lead to hardship to some persons carrying on the said trade or business if they are unable to satisfy the requirements of the regulatory rules or provisions validly introduced; but once it is conceded that regulation of the trade and its control are justified in the public interest, it would not be open to a person who fails to satisfy the rules or regulations to invoke his fundamental right under Art. 19(g) and challenge the validity of the regulation or rule in question. In our opinion, therefore, the challenge to the validity of the rules on the ground of Art, 19 must fail. 8. The challenge to the validity of the said rules on the ground of Art. 14 must also fail, because the classification of traders made by Rr. 18 and 19 is clearly rational and is founded on an intelligible differentia distinguishing persons falling under one class from those falling under the other. It is also clear that the differentia had a rational relation to the object sought to be achieved by the Act.As we have already pointed, out, the export trade in coir commodities disclosed the existence of many malpractice which not only affected the volume of trade but also the reputation of Indian traders; and one of the main reasons which led to this unfortunate result was that exporters sometimes accepted orders far beyond their capacity and that inevitably led to non-fulfilment of contracts or to supply of inferior commodities. In order to remedy this position the trade had to be regulated and so the intending exporter was required to satisfy the test of the prescribed minimum capacity and to establish the prescribed minimum status before his application for registration is granted.In this connection it may also be relevant to point out that the rules seem to contemplate the granting of exemption from the operation of some of the relevant tests to cooperative societies; and that shows that the intention of the Legislature is to encourage small traders to form co-operative societies and carry, on export trade on behalf of such societies; and so it would not be possible to accept the argument that the impugned rules would lead to a monopoly in the trade. It is thus clear that the main object which the rules propose to achieve is to improve the anomalies and malpractice prevailing in the export trade of coir commodities and to put said trade on a firm and enduring basis in the interest of national economy. We, are, therefore, satisfied that the challenge to the impugned rules on the ground of infringement of Art. 14 of the Constitution must also fail.
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0
### Explanation:
4. There is no doubt that coir and coir products play an important role in our natural economy. They are commodities which earn foreign exchange, the total value of our exports in these commodities being of the order of Rupees Ten Crores per year. was found that several malpractice had crept in the export trade of these commodities such as non-fulfilment of contracts, supplying goods of inferior qualities and cut-throat competition; and these in turn considerably affected the volume of the trade. That is why Parliament thought it necessary that the Union should take under its control the coir industry in order to regulate its export trade. It is with the object of developing the coir industry that the Coir Board has been established and the registration and licensing of exporters has been introduced. The petitioner does not dispute this position and makes no grievance or complaint against the relevant provisions in the ActIt is well known that granting permits or licences to export or import dealers on the basis of a quantitative test is not unknown in regard to export and import of essential commodities. It would obviously be for the rulemaking authority to decide which test would meet the requirements of public interest and what method would be most expedient in controlling the industry for the national good. Besides, even the adoption of a qualitative test may tend to extinguish the trade of those who do not satisfy the said test; but such a result cannot obviously be treated as contravening the fundamental rights under Art.. Control and regulation of any trade, though reasonable within the meaning of Art. 19, sub-Art- (6), may in some cases lead to hardship to some persons carrying on the said trade or business if they are unable to satisfy the requirements of the regulatory rules or provisions validly introduced; but once it is conceded that regulation of the trade and its control are justified in the public interest, it would not be open to a person who fails to satisfy the rules or regulations to invoke his fundamental right under Art. 19(g) and challenge the validity of the regulation or rule in question. In our opinion, therefore, the challenge to the validity of the rules on the ground of Art, 19 must fail8. The challenge to the validity of the said rules on the ground of Art. 14 must also fail, because the classification of traders made by Rr. 18 and 19 is clearly rational and is founded on an intelligible differentia distinguishing persons falling under one class from those falling under the other. It is also clear that the differentia had a rational relation to the object sought to be achieved by the Act.As we have already pointed, out, the export trade in coir commodities disclosed the existence of many malpractice which not only affected the volume of trade but also the reputation of Indian traders; and one of the main reasons which led to this unfortunate result was that exporters sometimes accepted orders far beyond their capacity and that inevitably led to non-fulfilment of contracts or to supply of inferior commodities. In order to remedy this position the trade had to be regulated and so the intending exporter was required to satisfy the test of the prescribed minimum capacity and to establish the prescribed minimum status before his application for registration is granted.In this connection it may also be relevant to point out that the rules seem to contemplate the granting of exemption from the operation of some of the relevant tests to cooperative societies; and that shows that the intention of the Legislature is to encourage small traders to form co-operative societies and carry, on export trade on behalf of such societies; and so it would not be possible to accept the argument that the impugned rules would lead to a monopoly in the trade. It is thus clear that the main object which the rules propose to achieve is to improve the anomalies and malpractice prevailing in the export trade of coir commodities and to put said trade on a firm and enduring basis in the interest of national economy. We, are, therefore, satisfied that the challenge to the impugned rules on the ground of infringement of Art. 14 of the Constitution must also fail.
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Nanhey Vs. State of Uttar Pradesh | of Chunnu, a rickshaw puller, used to live with her husband in the out-houses in railway quarter no. T-71, Railway Colony, within police circle Kotwali, Moradabad. She was a sweeper by caste and her husband used to ply rickshaw. They had a daughter by name Ku. Shanti, aged about 15 years, who, also lived within them in the same quarter. Smt. Malado was in the employment of one Shri Andrews who occupied a portion of the railway Kothi T-71, Railway Colony and it was as a result of this employment that she and her husband were allowed to occupy one of the servants quarters in that Kothi with Shri Andrews permission. To the south of the quarter occupied by Smt. Malado was the quarter of one Babu whereas to the north of her quarter was the quarter occupied by Nanhey, appellant, also a sweeper by caste but a railway employee. Munna, P.W. 1, brother of Chunnu used to come to Malados quarter every day at about lunch time to take his meals there. On October 26, 1967 at about 1 Oclock in the afternoon when Chunnu had gone out to ply his rickshaw both Smt. Malado and her daughter Shanti were present near their quarter. Munna came to Malados quarter for his meal as usual. He was taking his food inside Malados quarter. The food had been served to him by Shanti. Munna asked Shanti to bring some water for him. She went to the water tap at a distance of about 30 to 35 paces to the south-west of Malados quarter. While Shanti was away to get water for Munna, the latter heard his sister-in-law Malado shouting outside her quarter saying that she would not enter Nanheys quarter. Immediately thereafter Malado raised an alarm. Munna and Shanti and other persons who happened to be there rushed towards the place from where Malados shouts came and saw Nanhey (appellant) giving stab injuries to Malado with a knife. The appellant tried to run away but Munna who appeared as P.W. 1, and Munnan who appeared as P.W. 7, along with one Riyasat, chased him, beat him up, snatched the knife from his hands and took him to the Kotwali. Munna lodged the first information report at about 1.40 p.m. The appellant was thereafter tried for the murder of Malado and there being no extenuating circumstances, was, on conviction, sentenced to death by the Additional Sessions Judge, Moradabad. 3. The prosecution story was supported by the testimony of Munna P.W. 1, brother of Chunnu, Munnan P.W. 7, Bhagwati P.W. 9, Rajo P. W. 14, and Shanti P. W. 15. The appellant offered to appear as a witness in his own defence and did appear as D.W. 1. His plea was that he and Malado were in love with each other and that when the Panchayat was called, Malado admitted before the Panchayat about her illicit contention with him and the Panchayat decided that if Malado wanted to live with him, he might give Rs. 1,500 to Chunnu in return for keeping Malado with himself. He wanted to keep Malado with himself but as he was not in a position to arrange for Rs. 1,500/- he felt helpless. On the day of the occurrence, according to the appellants plea, Malado was sitting with him in his quarter when Munna by chance happened to come there and seeing the appellant and Malado together he got infuriated. Malado getting confused ran out of the appellants quarter whereupon Munna took out a knife and started hitting Malado, who fell down in the compound. The appellant rushed to save Malado but was attacked by Munna. It was in these circumstances that Malado died at the spot. In other words the appellants plea has been that it was Munna, and not the appellant, who murdered Malado. The appellant claims to have rushed to the police station Kotwali, Moradabad soon after Malados murder, to make a report against Munna. But the Kotwal recorded the information lodged by Munna and not the appellants report. 4. At this stage it is noteworthy that in the Court of the Additional District Magistrate (J) Moradabad (the committing Court) the appellant had made the statement to the effect that Munna had assaulted him (appellant) with churi which struck him in the abdomen, when Malado came in between, with the result, that Munna started assaulting her saying that she should not intervene. Malado thus died at the hands of Munna. 5. Before us Shri Shivpujan Singh, the learned counsel appearing on behalf of the appellant, took us through the statement of P.W. 1, Munna, P.W. 6 Toda Singh, Sub-Inspector, P.W. 7, Munnan P.W. 15 Shanti and P.W. 17 Jaswant Singh, Inspector-in-charge of Police Station, Kotwali.The counsel wanted us to re-appraise the evidence for ourselves which normally this Court does not do under Art. 136.It was suggested that the courts below had not correctly read the evidence on the record. However, after going through the relevant evidence on the record we are satisfied that its appreciation by the trial court as well as by the High Court is unexceptionable and it is not possible to hold that the conclusions of the two courts below are open to any serious challenge. It is difficult to believe that soon after the occurrence in question Munna so quickly cooked up a false story involving the appellant and by 1.40 p.m. lodged the concocted first information report at the police station. The report contains a very detailed version of the entire occurrence. These details constitute intrinsic evidence detracting from the plea of the first information report being a made up story. It is equally difficult to hold that the police officers at the police station purposely declined to entertain the appellants version and recorded Munnas report. There is no cogent material indicative even of a suggestion that the police officer in charge of the police station was for some reason inclined to favour Munna and was inimical towards the appellant. | 0[ds]5. Before us Shri Shivpujan Singh, the learned counsel appearing on behalf of the appellant, took us through the statement of P.W. 1, Munna, P.W. 6 Toda Singh,, P.W. 7, Munnan P.W. 15 Shanti and P.W. 17 Jaswant Singh,e of Police Station, Kotwali.The counsel wanted us toe the evidence for ourselves which normally this Court does not do under Art. 136.It was suggested that the courts below had not correctly read the evidence on the record.However, after going through the relevant evidence on the record we are satisfied that its appreciation by the trial court as well as by the High Court is unexceptionable and it is not possible to hold that the conclusions of the two courts below are open to any serious challenge. It is difficult to believe that soon after the occurrence in question Munna so quickly cooked up a false story involving the appellant and by 1.40 p.m. lodged the concocted first information report at the police station. The report contains a very detailed version of the entire occurrence. These details constitute intrinsic evidence detracting from the plea of the first information report being a made up story. It is equally difficult to hold that the police officers at the police station purposely declined to entertain the appellants version and recorded Munnas report. There is no cogent material indicative even of a suggestion that the police officer in charge of the police station was for some reason inclined to favour Munna and was inimical towards the appellant. | 0 | 1,175 | 279 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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of Chunnu, a rickshaw puller, used to live with her husband in the out-houses in railway quarter no. T-71, Railway Colony, within police circle Kotwali, Moradabad. She was a sweeper by caste and her husband used to ply rickshaw. They had a daughter by name Ku. Shanti, aged about 15 years, who, also lived within them in the same quarter. Smt. Malado was in the employment of one Shri Andrews who occupied a portion of the railway Kothi T-71, Railway Colony and it was as a result of this employment that she and her husband were allowed to occupy one of the servants quarters in that Kothi with Shri Andrews permission. To the south of the quarter occupied by Smt. Malado was the quarter of one Babu whereas to the north of her quarter was the quarter occupied by Nanhey, appellant, also a sweeper by caste but a railway employee. Munna, P.W. 1, brother of Chunnu used to come to Malados quarter every day at about lunch time to take his meals there. On October 26, 1967 at about 1 Oclock in the afternoon when Chunnu had gone out to ply his rickshaw both Smt. Malado and her daughter Shanti were present near their quarter. Munna came to Malados quarter for his meal as usual. He was taking his food inside Malados quarter. The food had been served to him by Shanti. Munna asked Shanti to bring some water for him. She went to the water tap at a distance of about 30 to 35 paces to the south-west of Malados quarter. While Shanti was away to get water for Munna, the latter heard his sister-in-law Malado shouting outside her quarter saying that she would not enter Nanheys quarter. Immediately thereafter Malado raised an alarm. Munna and Shanti and other persons who happened to be there rushed towards the place from where Malados shouts came and saw Nanhey (appellant) giving stab injuries to Malado with a knife. The appellant tried to run away but Munna who appeared as P.W. 1, and Munnan who appeared as P.W. 7, along with one Riyasat, chased him, beat him up, snatched the knife from his hands and took him to the Kotwali. Munna lodged the first information report at about 1.40 p.m. The appellant was thereafter tried for the murder of Malado and there being no extenuating circumstances, was, on conviction, sentenced to death by the Additional Sessions Judge, Moradabad. 3. The prosecution story was supported by the testimony of Munna P.W. 1, brother of Chunnu, Munnan P.W. 7, Bhagwati P.W. 9, Rajo P. W. 14, and Shanti P. W. 15. The appellant offered to appear as a witness in his own defence and did appear as D.W. 1. His plea was that he and Malado were in love with each other and that when the Panchayat was called, Malado admitted before the Panchayat about her illicit contention with him and the Panchayat decided that if Malado wanted to live with him, he might give Rs. 1,500 to Chunnu in return for keeping Malado with himself. He wanted to keep Malado with himself but as he was not in a position to arrange for Rs. 1,500/- he felt helpless. On the day of the occurrence, according to the appellants plea, Malado was sitting with him in his quarter when Munna by chance happened to come there and seeing the appellant and Malado together he got infuriated. Malado getting confused ran out of the appellants quarter whereupon Munna took out a knife and started hitting Malado, who fell down in the compound. The appellant rushed to save Malado but was attacked by Munna. It was in these circumstances that Malado died at the spot. In other words the appellants plea has been that it was Munna, and not the appellant, who murdered Malado. The appellant claims to have rushed to the police station Kotwali, Moradabad soon after Malados murder, to make a report against Munna. But the Kotwal recorded the information lodged by Munna and not the appellants report. 4. At this stage it is noteworthy that in the Court of the Additional District Magistrate (J) Moradabad (the committing Court) the appellant had made the statement to the effect that Munna had assaulted him (appellant) with churi which struck him in the abdomen, when Malado came in between, with the result, that Munna started assaulting her saying that she should not intervene. Malado thus died at the hands of Munna. 5. Before us Shri Shivpujan Singh, the learned counsel appearing on behalf of the appellant, took us through the statement of P.W. 1, Munna, P.W. 6 Toda Singh, Sub-Inspector, P.W. 7, Munnan P.W. 15 Shanti and P.W. 17 Jaswant Singh, Inspector-in-charge of Police Station, Kotwali.The counsel wanted us to re-appraise the evidence for ourselves which normally this Court does not do under Art. 136.It was suggested that the courts below had not correctly read the evidence on the record. However, after going through the relevant evidence on the record we are satisfied that its appreciation by the trial court as well as by the High Court is unexceptionable and it is not possible to hold that the conclusions of the two courts below are open to any serious challenge. It is difficult to believe that soon after the occurrence in question Munna so quickly cooked up a false story involving the appellant and by 1.40 p.m. lodged the concocted first information report at the police station. The report contains a very detailed version of the entire occurrence. These details constitute intrinsic evidence detracting from the plea of the first information report being a made up story. It is equally difficult to hold that the police officers at the police station purposely declined to entertain the appellants version and recorded Munnas report. There is no cogent material indicative even of a suggestion that the police officer in charge of the police station was for some reason inclined to favour Munna and was inimical towards the appellant.
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0
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5. Before us Shri Shivpujan Singh, the learned counsel appearing on behalf of the appellant, took us through the statement of P.W. 1, Munna, P.W. 6 Toda Singh,, P.W. 7, Munnan P.W. 15 Shanti and P.W. 17 Jaswant Singh,e of Police Station, Kotwali.The counsel wanted us toe the evidence for ourselves which normally this Court does not do under Art. 136.It was suggested that the courts below had not correctly read the evidence on the record.However, after going through the relevant evidence on the record we are satisfied that its appreciation by the trial court as well as by the High Court is unexceptionable and it is not possible to hold that the conclusions of the two courts below are open to any serious challenge. It is difficult to believe that soon after the occurrence in question Munna so quickly cooked up a false story involving the appellant and by 1.40 p.m. lodged the concocted first information report at the police station. The report contains a very detailed version of the entire occurrence. These details constitute intrinsic evidence detracting from the plea of the first information report being a made up story. It is equally difficult to hold that the police officers at the police station purposely declined to entertain the appellants version and recorded Munnas report. There is no cogent material indicative even of a suggestion that the police officer in charge of the police station was for some reason inclined to favour Munna and was inimical towards the appellant.
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Raja Bahadur Motilal Poona Mills Vs. Tukaram Piraji Masale | a strike shall be illegal if it is commenced or continued only for the reason that the employer has not carried out the provisions of any standing order or made "an illegal change"14. In considering whether the strike in question was illegal, the learned Judges of the High Court have expressed the opinion that there is a common law right for an employee to stop work and that it is only by statutory prohibition that certain strikes have been made illegal in the interest of labour relations. In the present case since there had been no illegal change effected by the employer the High Court, took the view that on the very finding of the Appellate Tribunal that the change was a legal change, the strike in question did not come within the ambit of S. 97.15. Learned counsel for the appellant has pressed two arguments before us with regard to the construction of cl. (c) of sub-s. (1) of S. 97 of the Bombay Industrial Relation Act, 1946. His first argument is that the High Court was in error when it held that there was any such right as a common law right of an employee to go on strike and S. 97 constituted an inroad on that right. Learned counsel has submitted that under cl.(c) of the sub-s. (1) of S. 97, a strike shall be illegal if it is commenced or continued only for the reason that the employer has not carried out the provisions of any standing order or has made an illegal change; if a strike is illegal when it is commenced or continued only for the reason that the employer has made an illegal change,a fortioriit must be illegal when it is commenced or continued for a legal change. The contention of learned counsel is that by necessary implication cl.(c) condemns a strike which is commenced or continued for a change which is not illegal. The second argument of learned counsel is that the true scope and effect of cl. (c) is this: the word only occurring in the clause goes with the word reason and if the strike is commenced or continued for the only reason that the employer has made an illegal change, it shall be illegal. The test is not whether there was legal or illegal change in fact but what was the reason for which the employees went on strike, and if the employees commenced or continued a strike only for the reason that the employer had made an illegal change, the strike would be illegal within the express terms of the clause.16. In our opinion it is unnecessary to decide in this case whether the first argument of learned counsel for the appellant is correct or not; because we are clearly of the opinion that the second argument with regard to the construction of cl.(c) of sub-s. (1) of S.97 is correct and should prevail. In this case the workman themselves came to Court with the plea that the action of the employer amounted to an illegal change. In their application to the Labour Court, they said:"That for the above mentioned reasons it is prayed that this Honourable Court be pleased to declare the said lockout by the opponent Mills as illegal being in contravention of the Bombay Industrial Relations Act, and the opponent be ordered to withdraw the said illegal change".It is obvious therefore, that the workmen in this case struck work only for the reason that the change or experiment made by the appellant employer as an illegal change. The action of the workmen, therefore, came within the express terms of cl.(c) of sub-s. (1) of S.97 of the Act. The learned Chief Justice did not consider this aspect of the case, and reached a conclusion with regard to the legality of the strike on a reasoning which did not give full effect to the words used in cl.(c) of sub-s. (1) of S. 97. In our view, the true test was to find out the reason for which the strike was commenced or continued, and it was unnecessary to consider or decide whether there was a common law right of the workmen to go on strike or whether the workmen had the right to go on strike as a means of collective bargaining against a change which they did not like.17. Mr. Gokhale appearing for the workmen has taken us through the different provisions of the Bombay Industrial Relations Act, 1946, and contended that the workmen have the right to go on strike as a means of collective bargaining against any measure adopted by the employer which the workmen may consider to be determintal to their interest, provided the strike does not come within the prohibited ambit of S. 97. Even assuming that Mr. Gokhale is right in his contention it is clear to us that if the workman commence or continue a strike for the only reason that the employer has made an illegal change, they come within the express terms of cl. (c) of sub-s (l) of S.97. It is immaterial whether the change is subsequently found by the Labour Court to be a legal change. It is worthy of note that there is a seperate provision for imposing a penalty on an employer who makes an illegal change. The relevant consideration, however, with regard to cl.(c) of sub-s (l) of S.97 is the reason for which the strike is commenced or continued. That reason in this particular case is clear enough. The workmen themselves said that they commenced and continued the strike because the employer had made an illegal change. That being the position, the strike was illegal within the express terms of cl. (c) of sub-s. (1) of S. 97 of the Act.18. We are, therefore, of the opinion that, on a proper interpretation of cl.(c) of sub-s (l) of S. 97 of the Act, the strike which was commenced and continued from September 6 to September 26, 1951, was clearly illegal. | 1[ds]16. In our opinion it is unnecessary to decide in this case whether the first argument of learned counsel for the appellant is correct or not; because we are clearly of the opinion that the second argument with regard to the construction of cl.(c) of sub-s. (1) of S.97 is correct and should prevail. In this case the workman themselves came to Court with the plea that the action of the employer amounted to an illegalis obvious therefore, that the workmen in this case struck work only for the reason that the change or experiment made by the appellant employer as an illegal change. The action of the workmen, therefore, came within the express terms of cl.(c) of sub-s. (1) of S.97 of the Act. The learned Chief Justice did not consider this aspect of the case, and reached a conclusion with regard to the legality of the strike on a reasoning which did not give full effect to the words used in cl.(c) of sub-s. (1) of S. 97. In our view, the true test was to find out the reason for which the strike was commenced or continued, and it was unnecessary to consider or decide whether there was a common law right of the workmen to go on strike or whether the workmen had the right to go on strike as a means of collective bargaining against a change which they did not like.Even assuming that Mr. Gokhale is right in his contention it is clear to us that if the workman commence or continue a strike for the only reason that the employer has made an illegal change, they come within the express terms of cl. (c) of sub-s (l) of S.97. It is immaterial whether the change is subsequently found by the Labour Court to be a legal change. It is worthy of note that there is a seperate provision for imposing a penalty on an employer who makes an illegal change. The relevant consideration, however, with regard to cl.(c) of sub-s (l) of S.97 is the reason for which the strike is commenced or continued. That reason in this particular case is clear enough. The workmen themselves said that they commenced and continued the strike because the employer had made an illegal change. That being the position, the strike was illegal within the express terms of cl. (c) of sub-s. (1) of S. 97 of the Act.18. We are, therefore, of the opinion that, on a proper interpretation of cl.(c) of sub-s (l) of S. 97 of the Act, the strike which was commenced and continued from September 6 to September 26, 1951, was clearly illegal. | 1 | 3,190 | 516 | ### 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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a strike shall be illegal if it is commenced or continued only for the reason that the employer has not carried out the provisions of any standing order or made "an illegal change"14. In considering whether the strike in question was illegal, the learned Judges of the High Court have expressed the opinion that there is a common law right for an employee to stop work and that it is only by statutory prohibition that certain strikes have been made illegal in the interest of labour relations. In the present case since there had been no illegal change effected by the employer the High Court, took the view that on the very finding of the Appellate Tribunal that the change was a legal change, the strike in question did not come within the ambit of S. 97.15. Learned counsel for the appellant has pressed two arguments before us with regard to the construction of cl. (c) of sub-s. (1) of S. 97 of the Bombay Industrial Relation Act, 1946. His first argument is that the High Court was in error when it held that there was any such right as a common law right of an employee to go on strike and S. 97 constituted an inroad on that right. Learned counsel has submitted that under cl.(c) of the sub-s. (1) of S. 97, a strike shall be illegal if it is commenced or continued only for the reason that the employer has not carried out the provisions of any standing order or has made an illegal change; if a strike is illegal when it is commenced or continued only for the reason that the employer has made an illegal change,a fortioriit must be illegal when it is commenced or continued for a legal change. The contention of learned counsel is that by necessary implication cl.(c) condemns a strike which is commenced or continued for a change which is not illegal. The second argument of learned counsel is that the true scope and effect of cl. (c) is this: the word only occurring in the clause goes with the word reason and if the strike is commenced or continued for the only reason that the employer has made an illegal change, it shall be illegal. The test is not whether there was legal or illegal change in fact but what was the reason for which the employees went on strike, and if the employees commenced or continued a strike only for the reason that the employer had made an illegal change, the strike would be illegal within the express terms of the clause.16. In our opinion it is unnecessary to decide in this case whether the first argument of learned counsel for the appellant is correct or not; because we are clearly of the opinion that the second argument with regard to the construction of cl.(c) of sub-s. (1) of S.97 is correct and should prevail. In this case the workman themselves came to Court with the plea that the action of the employer amounted to an illegal change. In their application to the Labour Court, they said:"That for the above mentioned reasons it is prayed that this Honourable Court be pleased to declare the said lockout by the opponent Mills as illegal being in contravention of the Bombay Industrial Relations Act, and the opponent be ordered to withdraw the said illegal change".It is obvious therefore, that the workmen in this case struck work only for the reason that the change or experiment made by the appellant employer as an illegal change. The action of the workmen, therefore, came within the express terms of cl.(c) of sub-s. (1) of S.97 of the Act. The learned Chief Justice did not consider this aspect of the case, and reached a conclusion with regard to the legality of the strike on a reasoning which did not give full effect to the words used in cl.(c) of sub-s. (1) of S. 97. In our view, the true test was to find out the reason for which the strike was commenced or continued, and it was unnecessary to consider or decide whether there was a common law right of the workmen to go on strike or whether the workmen had the right to go on strike as a means of collective bargaining against a change which they did not like.17. Mr. Gokhale appearing for the workmen has taken us through the different provisions of the Bombay Industrial Relations Act, 1946, and contended that the workmen have the right to go on strike as a means of collective bargaining against any measure adopted by the employer which the workmen may consider to be determintal to their interest, provided the strike does not come within the prohibited ambit of S. 97. Even assuming that Mr. Gokhale is right in his contention it is clear to us that if the workman commence or continue a strike for the only reason that the employer has made an illegal change, they come within the express terms of cl. (c) of sub-s (l) of S.97. It is immaterial whether the change is subsequently found by the Labour Court to be a legal change. It is worthy of note that there is a seperate provision for imposing a penalty on an employer who makes an illegal change. The relevant consideration, however, with regard to cl.(c) of sub-s (l) of S.97 is the reason for which the strike is commenced or continued. That reason in this particular case is clear enough. The workmen themselves said that they commenced and continued the strike because the employer had made an illegal change. That being the position, the strike was illegal within the express terms of cl. (c) of sub-s. (1) of S. 97 of the Act.18. We are, therefore, of the opinion that, on a proper interpretation of cl.(c) of sub-s (l) of S. 97 of the Act, the strike which was commenced and continued from September 6 to September 26, 1951, was clearly illegal.
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1
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16. In our opinion it is unnecessary to decide in this case whether the first argument of learned counsel for the appellant is correct or not; because we are clearly of the opinion that the second argument with regard to the construction of cl.(c) of sub-s. (1) of S.97 is correct and should prevail. In this case the workman themselves came to Court with the plea that the action of the employer amounted to an illegalis obvious therefore, that the workmen in this case struck work only for the reason that the change or experiment made by the appellant employer as an illegal change. The action of the workmen, therefore, came within the express terms of cl.(c) of sub-s. (1) of S.97 of the Act. The learned Chief Justice did not consider this aspect of the case, and reached a conclusion with regard to the legality of the strike on a reasoning which did not give full effect to the words used in cl.(c) of sub-s. (1) of S. 97. In our view, the true test was to find out the reason for which the strike was commenced or continued, and it was unnecessary to consider or decide whether there was a common law right of the workmen to go on strike or whether the workmen had the right to go on strike as a means of collective bargaining against a change which they did not like.Even assuming that Mr. Gokhale is right in his contention it is clear to us that if the workman commence or continue a strike for the only reason that the employer has made an illegal change, they come within the express terms of cl. (c) of sub-s (l) of S.97. It is immaterial whether the change is subsequently found by the Labour Court to be a legal change. It is worthy of note that there is a seperate provision for imposing a penalty on an employer who makes an illegal change. The relevant consideration, however, with regard to cl.(c) of sub-s (l) of S.97 is the reason for which the strike is commenced or continued. That reason in this particular case is clear enough. The workmen themselves said that they commenced and continued the strike because the employer had made an illegal change. That being the position, the strike was illegal within the express terms of cl. (c) of sub-s. (1) of S. 97 of the Act.18. We are, therefore, of the opinion that, on a proper interpretation of cl.(c) of sub-s (l) of S. 97 of the Act, the strike which was commenced and continued from September 6 to September 26, 1951, was clearly illegal.
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Parry & Co. Ltd Vs. Commercial Employees' Association,Madras | a day or 48 hours a week, wages at twice the ordinary rates should be paid as required by the proviso to Section 14 (1) and Section 31 of the Act. The conclusion reached by the Commissioner with regard to this issue is expressed by him in the following words:"I hold that the case of Messrs. Parry and Companys employees falls under the former category and that the employees in this company will be entitled to overtime wages only when the statutory hours are exceeded,"8. This order, as said above was made on 29th January, 1949 and on 16th of February following the respondent association filed a petition before the High Court at Madras, praying for a writ of certiorari to quash the same. This application was heard by a Bench of two Judges and by the judgment dated 1st of April, 1949 the learned Judges allowed the petition in part and quashed the order of the Labour Commissioner in so far as it decided that the employees of the appellant will be entitled to overtime wages only when the statutory hours were exceeded. It is the propriety of this decision that has been challenged before us in this appeal.9. It is somewhat unfortunate that the respondent remained unrepresented before us and the appeal had to be heard ex parte. Mr. Isaacs, who appeared on behalf of the appellant, has, however, rendered every assistance that he possibly could and has placed before us all the material facts and relevant provisions of law. Having given the matter our best consideration, we are of the opinion that the order of the High Court cannot be supported and that this appeal should be allowed.10. The High Court seems to have based its decision on the ground that the Commissioner of Labour failed to answer the question raised by the association as to whether the company was entitled to require the employees to work more than six and half hours a day. According to the learned Judge, the Labour Commissioner was not right in holding that even if the working hours were fixed at six and half hours a day, the employees would be entitled to overtime wages only when the statutory hours are exceeded.11. As has been pointed out already, the Labour Commissioner did decide that if the normal hours of work were previously fixed and rigidly adhered to, the employees would be entitled to seek protection under S. 50 of the Act against imposition of longer hours of work without a corresponding increase in their emoluments. The increase in such cases, according to the Labour Commissioner, should be on the scale of compensatory wages allowed under R. 10 of the Madras Shops and Establishment Rules. If, however, the increase is more than the statutory period, the employees will be entitled to wages at double rate under S. 31 of the Act. This decision may or may not be right, but it has not been and cannot be suggested that the Labour Commissioner acted without jurisdiction or in excess of his powers. Under S. 51 of the Madras Shops and Establishments Act, the Labour Commissioner is the only proper and competent authority to determine the questions referred to it in that section; and there is an express provision in it that the decision of the Labour Commissioner shall be final and not liable to be challenged in any Court of law. It was the respondent who took the matter before the Labour Commissioner in the present case and invited his decision upon the questions raised in the petition. The Commissioner was certainly bound to decide the questions and he did decide them. At the worst, he may have come to an erroneous conclusion, but the conclusion is in respect of a matter which lies entirely within the jurisdiction of the Labour Commissioner to decide and it does not relate to anything collateral, an erroneous decision upon which might affect his jurisdiction. The records of the case do not disclose any error apparent on the face of the proceeding or any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice. Thus there was absolutely no ground here which would justify a superior Court in issuing a writ of certiorari for removal of an order or proceeding of an inferior tribunal vested with powers to exercise judicial or quasi-judicial functions. What the High Court has done really is to exercise the powers of an appellate Court and correct what is considered to be an error in the decision of the Labour Commissioner. This obviously it cannot do. The position might have been different if the Labour Commissioner had omitted to decide a matter which he was bound to decide and in such cases a mandamus might legitimately issue commanding the authority to determine questions which if left undecided: vide BOARD OF EDUCATION v. RICE 1911 A. C. 179, but no certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous. The judgment of the High Court, therefore, in our opinion, is plainly unsustainable. In the view which we have taken, it is unnecessary to express any opinion as to whether certiorari has been taken away- if it can be taken away at all under our Constitution-by the provision of S. 51 of the Madras Shops and Establishments Act which lays down that the decision of the Labour Commissioner would be final and incapable of being challenged in any Court of law. It was conceded by Mr. Isaacs that in spite of such statutory provisions the superior Court is not absolutely deprived of the power to issue a writ, although it can do so only on the ground of either a manifest defect of jurisdiction in the tribunal that made the order or of a manifest fraud in the party procuring it vide COLONIAL BANK OF AUSTRALASIA v. ROBERT WILLAN,5 P C Appeals 417. | 1[ds]11. As has been pointed out already, the Labour Commissioner did decide that if the normal hours of work were previously fixed and rigidly adhered to, the employees would be entitled to seek protection under S. 50 of the Act against imposition of longer hours of work without a corresponding increase in their emoluments. The increase in such cases, according to the Labour Commissioner, should be on the scale of compensatory wages allowed under R. 10 of the Madras Shops and Establishment Rules. If, however, the increase is more than the statutory period, the employees will be entitled to wages at double rate under S. 31 of the Act. This decision may or may not be right, but it has not been and cannot be suggested that the Labour Commissioner acted without jurisdiction or in excess of his powers. Under S. 51 of the Madras Shops and Establishments Act, the Labour Commissioner is the only proper and competent authority to determine the questions referred to it in that section; and there is an express provision in it that the decision of the Labour Commissioner shall be final and not liable to be challenged in any Court of law. It was the respondent who took the matter before the Labour Commissioner in the present case and invited his decision upon the questions raised in the petition. The Commissioner was certainly bound to decide the questions and he did decide them. At the worst, he may have come to an erroneous conclusion, but the conclusion is in respect of a matter which lies entirely within the jurisdiction of the Labour Commissioner to decide and it does not relate to anything collateral, an erroneous decision upon which might affect his jurisdiction. The records of the case do not disclose any error apparent on the face of the proceeding or any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice. Thus there was absolutely no ground here which would justify a superior Court in issuing a writ of certiorari for removal of an order or proceeding of an inferior tribunal vested with powers to exercise judicial or quasi-judicial functions. What the High Court has done really is to exercise the powers of an appellate Court and correct what is considered to be an error in the decision of the Labour Commissioner. This obviously it cannot do. The position might have been different if the Labour Commissioner had omitted to decide a matter which he was bound to decide and in such cases a mandamus might legitimately issue commanding the authority to determine questions which if left undecided: vide BOARDOF EDUCATION v. RICE 1911 A. C.179, but no certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous. The judgment of the High Court, therefore, in our opinion, is plainly unsustainable. In the view which we have taken, it is unnecessary to express any opinion as to whether certiorari has been taken away- if it can be taken away at all under our Constitution-by the provision of S. 51 of the Madras Shops and Establishments Act which lays down that the decision of the Labour Commissioner would be final and incapable of being challenged in any Court of law. It was conceded by Mr. Isaacs that in spite of such statutory provisions the superior Court is not absolutely deprived of the power to issue a writ, although it can do so only on the ground of either a manifest defect of jurisdiction in the tribunal that made the order or of a manifest fraud in the party procuring it vide COLONIALBANK OF AUSTRALASIA v. ROBERT WILLAN,5 P C Appeals | 1 | 2,142 | 668 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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a day or 48 hours a week, wages at twice the ordinary rates should be paid as required by the proviso to Section 14 (1) and Section 31 of the Act. The conclusion reached by the Commissioner with regard to this issue is expressed by him in the following words:"I hold that the case of Messrs. Parry and Companys employees falls under the former category and that the employees in this company will be entitled to overtime wages only when the statutory hours are exceeded,"8. This order, as said above was made on 29th January, 1949 and on 16th of February following the respondent association filed a petition before the High Court at Madras, praying for a writ of certiorari to quash the same. This application was heard by a Bench of two Judges and by the judgment dated 1st of April, 1949 the learned Judges allowed the petition in part and quashed the order of the Labour Commissioner in so far as it decided that the employees of the appellant will be entitled to overtime wages only when the statutory hours were exceeded. It is the propriety of this decision that has been challenged before us in this appeal.9. It is somewhat unfortunate that the respondent remained unrepresented before us and the appeal had to be heard ex parte. Mr. Isaacs, who appeared on behalf of the appellant, has, however, rendered every assistance that he possibly could and has placed before us all the material facts and relevant provisions of law. Having given the matter our best consideration, we are of the opinion that the order of the High Court cannot be supported and that this appeal should be allowed.10. The High Court seems to have based its decision on the ground that the Commissioner of Labour failed to answer the question raised by the association as to whether the company was entitled to require the employees to work more than six and half hours a day. According to the learned Judge, the Labour Commissioner was not right in holding that even if the working hours were fixed at six and half hours a day, the employees would be entitled to overtime wages only when the statutory hours are exceeded.11. As has been pointed out already, the Labour Commissioner did decide that if the normal hours of work were previously fixed and rigidly adhered to, the employees would be entitled to seek protection under S. 50 of the Act against imposition of longer hours of work without a corresponding increase in their emoluments. The increase in such cases, according to the Labour Commissioner, should be on the scale of compensatory wages allowed under R. 10 of the Madras Shops and Establishment Rules. If, however, the increase is more than the statutory period, the employees will be entitled to wages at double rate under S. 31 of the Act. This decision may or may not be right, but it has not been and cannot be suggested that the Labour Commissioner acted without jurisdiction or in excess of his powers. Under S. 51 of the Madras Shops and Establishments Act, the Labour Commissioner is the only proper and competent authority to determine the questions referred to it in that section; and there is an express provision in it that the decision of the Labour Commissioner shall be final and not liable to be challenged in any Court of law. It was the respondent who took the matter before the Labour Commissioner in the present case and invited his decision upon the questions raised in the petition. The Commissioner was certainly bound to decide the questions and he did decide them. At the worst, he may have come to an erroneous conclusion, but the conclusion is in respect of a matter which lies entirely within the jurisdiction of the Labour Commissioner to decide and it does not relate to anything collateral, an erroneous decision upon which might affect his jurisdiction. The records of the case do not disclose any error apparent on the face of the proceeding or any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice. Thus there was absolutely no ground here which would justify a superior Court in issuing a writ of certiorari for removal of an order or proceeding of an inferior tribunal vested with powers to exercise judicial or quasi-judicial functions. What the High Court has done really is to exercise the powers of an appellate Court and correct what is considered to be an error in the decision of the Labour Commissioner. This obviously it cannot do. The position might have been different if the Labour Commissioner had omitted to decide a matter which he was bound to decide and in such cases a mandamus might legitimately issue commanding the authority to determine questions which if left undecided: vide BOARD OF EDUCATION v. RICE 1911 A. C. 179, but no certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous. The judgment of the High Court, therefore, in our opinion, is plainly unsustainable. In the view which we have taken, it is unnecessary to express any opinion as to whether certiorari has been taken away- if it can be taken away at all under our Constitution-by the provision of S. 51 of the Madras Shops and Establishments Act which lays down that the decision of the Labour Commissioner would be final and incapable of being challenged in any Court of law. It was conceded by Mr. Isaacs that in spite of such statutory provisions the superior Court is not absolutely deprived of the power to issue a writ, although it can do so only on the ground of either a manifest defect of jurisdiction in the tribunal that made the order or of a manifest fraud in the party procuring it vide COLONIAL BANK OF AUSTRALASIA v. ROBERT WILLAN,5 P C Appeals 417.
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11. As has been pointed out already, the Labour Commissioner did decide that if the normal hours of work were previously fixed and rigidly adhered to, the employees would be entitled to seek protection under S. 50 of the Act against imposition of longer hours of work without a corresponding increase in their emoluments. The increase in such cases, according to the Labour Commissioner, should be on the scale of compensatory wages allowed under R. 10 of the Madras Shops and Establishment Rules. If, however, the increase is more than the statutory period, the employees will be entitled to wages at double rate under S. 31 of the Act. This decision may or may not be right, but it has not been and cannot be suggested that the Labour Commissioner acted without jurisdiction or in excess of his powers. Under S. 51 of the Madras Shops and Establishments Act, the Labour Commissioner is the only proper and competent authority to determine the questions referred to it in that section; and there is an express provision in it that the decision of the Labour Commissioner shall be final and not liable to be challenged in any Court of law. It was the respondent who took the matter before the Labour Commissioner in the present case and invited his decision upon the questions raised in the petition. The Commissioner was certainly bound to decide the questions and he did decide them. At the worst, he may have come to an erroneous conclusion, but the conclusion is in respect of a matter which lies entirely within the jurisdiction of the Labour Commissioner to decide and it does not relate to anything collateral, an erroneous decision upon which might affect his jurisdiction. The records of the case do not disclose any error apparent on the face of the proceeding or any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice. Thus there was absolutely no ground here which would justify a superior Court in issuing a writ of certiorari for removal of an order or proceeding of an inferior tribunal vested with powers to exercise judicial or quasi-judicial functions. What the High Court has done really is to exercise the powers of an appellate Court and correct what is considered to be an error in the decision of the Labour Commissioner. This obviously it cannot do. The position might have been different if the Labour Commissioner had omitted to decide a matter which he was bound to decide and in such cases a mandamus might legitimately issue commanding the authority to determine questions which if left undecided: vide BOARDOF EDUCATION v. RICE 1911 A. C.179, but no certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous. The judgment of the High Court, therefore, in our opinion, is plainly unsustainable. In the view which we have taken, it is unnecessary to express any opinion as to whether certiorari has been taken away- if it can be taken away at all under our Constitution-by the provision of S. 51 of the Madras Shops and Establishments Act which lays down that the decision of the Labour Commissioner would be final and incapable of being challenged in any Court of law. It was conceded by Mr. Isaacs that in spite of such statutory provisions the superior Court is not absolutely deprived of the power to issue a writ, although it can do so only on the ground of either a manifest defect of jurisdiction in the tribunal that made the order or of a manifest fraud in the party procuring it vide COLONIALBANK OF AUSTRALASIA v. ROBERT WILLAN,5 P C Appeals
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DEBABRATA MOHANTY Vs. RABINDRA KUMAR MISHRA & ORS | rules, the period of officiating service will be counted.?71. There was some debate at the bar whether the case at hand is covered by corollary to proposition A or by proposition B (supra). But having given our consideration to the submissions at the Bar we are inclined to agree with Mr. Rao?s submission that the case at hand is more appropriately covered by proposition B extracted above. We say so because the initial appointment of ad hoc Assistant Engineers in the instant case was not made by following the procedure laid down by the Rules. Even so, the appointees had continued in the posts uninterruptedly till the Validation Act regularised their service. There is, in the light of those two significant aspects, no room for holding that grant of seniority and other benefits referred to in Section 3(3) of the impugned Act were legally impermissible or violated any vested right of the in service Assistant Engineers appointed from any other source.xxx xxx xxx77. In the light of what we have said above, we do not see any illegality or constitutional infirmity in the provisions of Section 3(2) or 3(3) of the impugned legislation.78. Having said so, there is no reason why a similar direction regarding the writ-petitioners degree holder Junior Engineers who have been held by us to be entitled to regularisation on account of their length of service should also not be given a similar benefit. We must mention to the credit of Dr. Dhawan, appearing for the Stipendiary Engineers who have been regularised under the provisions of the Legislation that such Stipendiary- ad hoc Assistant Engineers cannot, according to the learned counsel, have any objection to the degree holder Junior Engineers currently working as Assistant Engineers on ad hoc basis being regularised in service or being given seniority from the date they were first appointed. It was also conceded that Stipendiary Engineers all of whom were appointed after the appointment of the Junior Engineers would enbloc rank junior to such ad hoc Assistant Engineers from out of degree holder Junior Engineers. But all such regularised Assistant Engineers from Stipendiary Stream and from Junior Engineers category would together rank below the promotee Assistant Engineers.82. In the result, we pass the following order:82.1. Civil Appeals No.8324-8331 of 2009 filed by the State of Orissa and Civil Appeals No.8322- 8323 of 2009 and 1940 of 2010 filed by the Stipendiary Engineers are allowed and the impugned judgment and order dated 15th October, 2008 passed by the High Court of Orissa set aside.82.2 Writ Petitions No.9514/2003, 12494/2005, 12495/2005, 12627/2005, 12706/2006 and 8630/2006 filed by the degree holders Junior Engineers working as Assistant Engineers on ad hoc basis are also allowed but only to the limited extent that the services of the writ-petitioners and all those who are similarly situated and promoted as ad hoc Assistant Engineers against the proposed 5% quota reserved for in- service Junior Engineers degree holder shall stand regularized w.e.f. the date Orissa Service of Engineers (Validation of Appointment) Act, 2002 came into force. We further direct that such in-service degree holder Junior Engineers promoted as Assistant Engineers on ad hoc basis shall be placed below the promotees and above the Stipendiary Engineers regularized in terms of the impugned legislation. The inter se seniority of the Stipendiary Engineers regularized as Assistant Engineers under the impugned Legislation and Junior Engineer degree holders regularized in terms of this order shall be determined on the basis of their date of first appointment as Assistant Engineers on ad hoc basis.? 8. This Court has already upheld the proposition (B) of the direct recruitment and has found that the seniority to the Stipendiary Engineers be given with effect from the date they were appointed as ad-hoc Assistant Engineers and would be placed below the promotee Assistant Engineers of that year. Hence in the case of the appellant herein (who would also be covered by Proposition B), the seniority to him has been given of the year 2001, as he was appointed as ad-hoc Assistant Engineer on 26.6.2001 and has been placed below the promoted Assistant Engineers of 2001. 9. Respondent No.1 was admittedly appointed as an Assistant Engineer in the year 2005, but was given seniority with effect from 18.7.2003. As such, at best he could be treated to be promoted as Assistant Engineer in the year 2003. The appellant having been appointed prior to the year 2003, i.e., in the year 2001, would be entitled to the benefit of sub-Sections (2) & (3) of Section 3 of the Validation Act of 2002 and would thus be senior to the Respondent No.1. The view taken by the High Court while deciding the review petition would thus not be the correct view, as the said order had been passed on wrong interpretation of the judgment of this Court in the case of Amarendra Kumar Mohapatra (supra).10. Shri Debasis Misra, learned counsel appearing on behalf of Respondent No.1 has submitted that the provision of Rule 22 of the Orissa Service of Engineers? Rules, 1941 (hereinafter referred to as ?the Rules of 1941?) provides that when officers are recruited by promotion and by direct recruitment during the same year, the promoted officers shall be considered senior to the officers directly recruited irrespective of their dates of joining. There is no dispute about the said provision under Rule. However, the appellant would be entitled to the benefit of his ad-hoc promotion given in the year 2001 as per provision made in the Validation Act of 2002, whereas the notional promotion as an Assistant Engineer given to Respondent No.1 was in the year 2003. Since Sub-section (1) of Section 3 of the Validation Act of 2002 clearly provides ?Notwithstanding anything contained in the Recruitment Rules,…...?, as such the provisions of the Validation Act of 2002 would override the provisions of the Rules 1941. Thus, we are of the considered opinion that such submission as advanced by Shri Debasis Mishra, learned counsel appearing for Respondent No.1 does not hold force. | 1[ds]8. This Court has already upheld the proposition (B) of the direct recruitment and has found that the seniority to the Stipendiary Engineers be given with effect from the date they were appointed as ad-hoc Assistant Engineers and would be placed below the promotee Assistant Engineers of that year. Hence in the case of the appellant herein (who would also be covered by Proposition B), the seniority to him has been given of the year 2001, as he was appointed as ad-hoc Assistant Engineer on 26.6.2001 and has been placed below the promoted Assistant Engineers of 20019. Respondent No.1 was admittedly appointed as an Assistant Engineer in the year 2005, but was given seniority with effect from 18.7.2003. As such, at best he could be treated to be promoted as Assistant Engineer in the year 2003. The appellant having been appointed prior to the year 2003, i.e., in the year 2001, would be entitled to the benefit of sub-Sections (2) & (3) of Section 3 of the Validation Act of 2002 and would thus be senior to the Respondent No.1. The view taken by the High Court while deciding the review petition would thus not be the correct view, as the said order had been passed on wrong interpretation of the judgment of this Court in the case of Amarendra Kumar Mohapatra (supra)There is no dispute about the said provision under Rule. However, the appellant would be entitled to the benefit of his ad-hoc promotion given in the year 2001 as per provision made in the Validation Act of 2002, whereas the notional promotion as an Assistant Engineer given to Respondent No.1 was in the year 2003. Since Sub-section (1) of Section 3 of the Validation Act of 2002 clearly provides ?Notwithstanding anything contained in the Recruitment Rules,…...?, as such the provisions of the Validation Act of 2002 would override the provisions of the Rules 1941. Thus, we are of the considered opinion that such submission as advanced by Shri Debasis Mishra, learned counsel appearing for Respondent No.1 does not hold force. | 1 | 2,157 | 387 | ### Instruction:
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rules, the period of officiating service will be counted.?71. There was some debate at the bar whether the case at hand is covered by corollary to proposition A or by proposition B (supra). But having given our consideration to the submissions at the Bar we are inclined to agree with Mr. Rao?s submission that the case at hand is more appropriately covered by proposition B extracted above. We say so because the initial appointment of ad hoc Assistant Engineers in the instant case was not made by following the procedure laid down by the Rules. Even so, the appointees had continued in the posts uninterruptedly till the Validation Act regularised their service. There is, in the light of those two significant aspects, no room for holding that grant of seniority and other benefits referred to in Section 3(3) of the impugned Act were legally impermissible or violated any vested right of the in service Assistant Engineers appointed from any other source.xxx xxx xxx77. In the light of what we have said above, we do not see any illegality or constitutional infirmity in the provisions of Section 3(2) or 3(3) of the impugned legislation.78. Having said so, there is no reason why a similar direction regarding the writ-petitioners degree holder Junior Engineers who have been held by us to be entitled to regularisation on account of their length of service should also not be given a similar benefit. We must mention to the credit of Dr. Dhawan, appearing for the Stipendiary Engineers who have been regularised under the provisions of the Legislation that such Stipendiary- ad hoc Assistant Engineers cannot, according to the learned counsel, have any objection to the degree holder Junior Engineers currently working as Assistant Engineers on ad hoc basis being regularised in service or being given seniority from the date they were first appointed. It was also conceded that Stipendiary Engineers all of whom were appointed after the appointment of the Junior Engineers would enbloc rank junior to such ad hoc Assistant Engineers from out of degree holder Junior Engineers. But all such regularised Assistant Engineers from Stipendiary Stream and from Junior Engineers category would together rank below the promotee Assistant Engineers.82. In the result, we pass the following order:82.1. Civil Appeals No.8324-8331 of 2009 filed by the State of Orissa and Civil Appeals No.8322- 8323 of 2009 and 1940 of 2010 filed by the Stipendiary Engineers are allowed and the impugned judgment and order dated 15th October, 2008 passed by the High Court of Orissa set aside.82.2 Writ Petitions No.9514/2003, 12494/2005, 12495/2005, 12627/2005, 12706/2006 and 8630/2006 filed by the degree holders Junior Engineers working as Assistant Engineers on ad hoc basis are also allowed but only to the limited extent that the services of the writ-petitioners and all those who are similarly situated and promoted as ad hoc Assistant Engineers against the proposed 5% quota reserved for in- service Junior Engineers degree holder shall stand regularized w.e.f. the date Orissa Service of Engineers (Validation of Appointment) Act, 2002 came into force. We further direct that such in-service degree holder Junior Engineers promoted as Assistant Engineers on ad hoc basis shall be placed below the promotees and above the Stipendiary Engineers regularized in terms of the impugned legislation. The inter se seniority of the Stipendiary Engineers regularized as Assistant Engineers under the impugned Legislation and Junior Engineer degree holders regularized in terms of this order shall be determined on the basis of their date of first appointment as Assistant Engineers on ad hoc basis.? 8. This Court has already upheld the proposition (B) of the direct recruitment and has found that the seniority to the Stipendiary Engineers be given with effect from the date they were appointed as ad-hoc Assistant Engineers and would be placed below the promotee Assistant Engineers of that year. Hence in the case of the appellant herein (who would also be covered by Proposition B), the seniority to him has been given of the year 2001, as he was appointed as ad-hoc Assistant Engineer on 26.6.2001 and has been placed below the promoted Assistant Engineers of 2001. 9. Respondent No.1 was admittedly appointed as an Assistant Engineer in the year 2005, but was given seniority with effect from 18.7.2003. As such, at best he could be treated to be promoted as Assistant Engineer in the year 2003. The appellant having been appointed prior to the year 2003, i.e., in the year 2001, would be entitled to the benefit of sub-Sections (2) & (3) of Section 3 of the Validation Act of 2002 and would thus be senior to the Respondent No.1. The view taken by the High Court while deciding the review petition would thus not be the correct view, as the said order had been passed on wrong interpretation of the judgment of this Court in the case of Amarendra Kumar Mohapatra (supra).10. Shri Debasis Misra, learned counsel appearing on behalf of Respondent No.1 has submitted that the provision of Rule 22 of the Orissa Service of Engineers? Rules, 1941 (hereinafter referred to as ?the Rules of 1941?) provides that when officers are recruited by promotion and by direct recruitment during the same year, the promoted officers shall be considered senior to the officers directly recruited irrespective of their dates of joining. There is no dispute about the said provision under Rule. However, the appellant would be entitled to the benefit of his ad-hoc promotion given in the year 2001 as per provision made in the Validation Act of 2002, whereas the notional promotion as an Assistant Engineer given to Respondent No.1 was in the year 2003. Since Sub-section (1) of Section 3 of the Validation Act of 2002 clearly provides ?Notwithstanding anything contained in the Recruitment Rules,…...?, as such the provisions of the Validation Act of 2002 would override the provisions of the Rules 1941. Thus, we are of the considered opinion that such submission as advanced by Shri Debasis Mishra, learned counsel appearing for Respondent No.1 does not hold force.
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8. This Court has already upheld the proposition (B) of the direct recruitment and has found that the seniority to the Stipendiary Engineers be given with effect from the date they were appointed as ad-hoc Assistant Engineers and would be placed below the promotee Assistant Engineers of that year. Hence in the case of the appellant herein (who would also be covered by Proposition B), the seniority to him has been given of the year 2001, as he was appointed as ad-hoc Assistant Engineer on 26.6.2001 and has been placed below the promoted Assistant Engineers of 20019. Respondent No.1 was admittedly appointed as an Assistant Engineer in the year 2005, but was given seniority with effect from 18.7.2003. As such, at best he could be treated to be promoted as Assistant Engineer in the year 2003. The appellant having been appointed prior to the year 2003, i.e., in the year 2001, would be entitled to the benefit of sub-Sections (2) & (3) of Section 3 of the Validation Act of 2002 and would thus be senior to the Respondent No.1. The view taken by the High Court while deciding the review petition would thus not be the correct view, as the said order had been passed on wrong interpretation of the judgment of this Court in the case of Amarendra Kumar Mohapatra (supra)There is no dispute about the said provision under Rule. However, the appellant would be entitled to the benefit of his ad-hoc promotion given in the year 2001 as per provision made in the Validation Act of 2002, whereas the notional promotion as an Assistant Engineer given to Respondent No.1 was in the year 2003. Since Sub-section (1) of Section 3 of the Validation Act of 2002 clearly provides ?Notwithstanding anything contained in the Recruitment Rules,…...?, as such the provisions of the Validation Act of 2002 would override the provisions of the Rules 1941. Thus, we are of the considered opinion that such submission as advanced by Shri Debasis Mishra, learned counsel appearing for Respondent No.1 does not hold force.
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Raghunath & Ors Vs. Kedar Nath | Registration Act, 1908."Section 54 of the Transfer of Property Act reads:" Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards or in the case of a reversion or other intangible thing; can be made only by a registered instrument.In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property."Section 17 of the Registration Act state:"17. (1) The following documents shall be registered if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864 or the Indian Registration Act, 1866 or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:(a) instruments of gift of immoveable property;(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property.(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment limitation or extinction of any such right, title or interest; and(d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent;(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immoveable property.Section 49 of the Registration Act prior to its amendment in 1929 read:"No document required by Section 17 to be registered shall(a) affect any immoveable property comprised therein, or(b) confer any power to adopt, or(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered."By Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929, Section 49 was amended as follows:-"No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall-(a) affect any immoveable property comprised therein, or(b) confer any power to adopt, or(c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of S. 53-A of the Transfer of Property Act. 1882 or as evidence of any collateral transaction not required to be affected by registered instrument."The inclusion of the words "by any provision of the Transfer of Property Act. 1882" by the Amending Act, 1929 settled the doubt entertained as to whether the documents of which the registration was compulsory under the Transfer of Property Act, but not under Section 17 of the Registration Act were affected by Sec. 49 of the Registration Act. Section 4 of the Transfer of Property Act enacts that "sections 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908." It was previously supposed that the effect of this section was merely to add to the list of documents of which the registration was compulsory and not to include them in Section 17 so as to bring them within the scope of Section 49. This was the view taken by the Full Bench of the Allahabad High Court in Sohan Lals case. ILR 50 All 986 = (AIR 1928 All 726 (FB)) (supra). The same view was expressed in a Madras Case Rama Sahu v. Gowro Ratho, ILR 44 Mad 55 = (AIR 1921 Mad 337 (FB)) and by MacLeod. C. J. in a Bombay case Dawal v. Dharma. ILR 41 Bom 550 = (AIR 1917 Bom 203 ).We are however absolved in the present case from examining the correctness of these decisions. For these decisions have been superseded by subsequent legislation i. e., by the enactment of Act 21 of 1929 which by inserting in Section 49 of the Registration Act the words or by any provision of the Transfer of Property Act, 1882" has, made it clear that the documents in the supplemental list i. e. the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immoveable property comprised therein, and do not affect any such immoveable property. We are accordingly of the opinion that Ex. A-26.being unregistered is not admissible in evidence.In our opinion. Mr. Sinha is unable to make good his argument on this aspect of the case.4. Mr. Sinha contended that in any event the High Court should not have remanded the case to the lower appellate court with a direction that the defendants should be asked to render accounts before they claim any payment from the plaintiff at the time of redemption of the mortgage.It was pointed out that the plaintiff did not file an appeal against the decree of the trial Court and in the absence of such an appeal the High Court was not legally justified in giving further relief to the plaintiff than that granted by the trial Court. In our opinion, there is justification for this argument. | 1[ds]We are unable to accept the argument put forward on behalf of the appellant. Exhibit A-26. dated 8th October, 1922 is not a registered document, and is hence not admissible in evidence to prove the nature of the transaction covered by the registered mortgage deed Ex. 4 dated 27th July, 1922. if Ex. 4 is taken by itself there is no doubt that the transaction is one of mortgage. The document Ex. 4 recites that in consideration of money advanced the executants "mortgage the said house Bhog Bhandak bearing No. 64/71 situate Mohalla Gola Dina Nath". Clause 2 provides period of twenty years for redemption of the mortgage. Clause 6 of the document stipulates that the cost of repairs will be borne by the mortgagors. Clause 1the said sum of Rupees Seventeen hundred half of which is Rupees Eight hundred and fifty will carry interest at the rate of twelve annas per cent monthly. The sum of Rupees six will be deducted towards rent monthly from the interest which will accrue. The possession of the house has been delivered to the said mortgagee Mahajan (money lender). The mortgagors will pay the balance of Rupees six annas twelve month by month to the said mortgagee after deducting the rent of Rupees six after giving the possession of the said house andat we will go on paying the said Mahajan the sum of Rupees six twelve annas the balance of the interest monthly. If the whole or part of the interest remains unpaid we will pay at the time of redemption. If this amount of interest is not paid the said house shall not bereading of these terms clearly shows that Ex. 4 was a mortgage deed and not a salewe have already said Ex. A-26 was required to be registered under Section 54 of the Transfer of Property Act. In the absence of such registration this document cannot be received in evidence of any transaction affecting the property in view of Sec. 49 of the Registrationare however absolved in the present case from examining the correctness of these decisions. For these decisions have been superseded by subsequent legislation i. e., by the enactment of Act 21 of 1929 which by inserting in Section 49 of the Registration Act the words or by any provision ofthe Transfer of Property Act, 1882" has, made it clear that the documents in the supplemental list i. e. the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immoveable property comprised therein, and do not affect any such immoveable property. We are accordingly of the opinion that Ex. A-26.being unregistered is not admissible in evidence.In our opinion. Mr. Sinha is unable to make good his argument on this aspect of theour opinion, there is justification for this argument. We accordingly set aside that portion of the decree of the High Court remanding the case to the lower appellate Court with a direction that the defendants should be asked to render accounts.Otherwise we affirm the decree of the High Court allowing the plaintiffs appeal with costs and setting aside the judgment and decree of the lower appellate court and restoring judgment and decree of the trial Court dated 31st October, 1956. | 1 | 2,837 | 612 | ### Instruction:
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Registration Act, 1908."Section 54 of the Transfer of Property Act reads:" Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards or in the case of a reversion or other intangible thing; can be made only by a registered instrument.In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property."Section 17 of the Registration Act state:"17. (1) The following documents shall be registered if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864 or the Indian Registration Act, 1866 or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:(a) instruments of gift of immoveable property;(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property.(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment limitation or extinction of any such right, title or interest; and(d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent;(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immoveable property.Section 49 of the Registration Act prior to its amendment in 1929 read:"No document required by Section 17 to be registered shall(a) affect any immoveable property comprised therein, or(b) confer any power to adopt, or(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered."By Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929, Section 49 was amended as follows:-"No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall-(a) affect any immoveable property comprised therein, or(b) confer any power to adopt, or(c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of S. 53-A of the Transfer of Property Act. 1882 or as evidence of any collateral transaction not required to be affected by registered instrument."The inclusion of the words "by any provision of the Transfer of Property Act. 1882" by the Amending Act, 1929 settled the doubt entertained as to whether the documents of which the registration was compulsory under the Transfer of Property Act, but not under Section 17 of the Registration Act were affected by Sec. 49 of the Registration Act. Section 4 of the Transfer of Property Act enacts that "sections 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908." It was previously supposed that the effect of this section was merely to add to the list of documents of which the registration was compulsory and not to include them in Section 17 so as to bring them within the scope of Section 49. This was the view taken by the Full Bench of the Allahabad High Court in Sohan Lals case. ILR 50 All 986 = (AIR 1928 All 726 (FB)) (supra). The same view was expressed in a Madras Case Rama Sahu v. Gowro Ratho, ILR 44 Mad 55 = (AIR 1921 Mad 337 (FB)) and by MacLeod. C. J. in a Bombay case Dawal v. Dharma. ILR 41 Bom 550 = (AIR 1917 Bom 203 ).We are however absolved in the present case from examining the correctness of these decisions. For these decisions have been superseded by subsequent legislation i. e., by the enactment of Act 21 of 1929 which by inserting in Section 49 of the Registration Act the words or by any provision of the Transfer of Property Act, 1882" has, made it clear that the documents in the supplemental list i. e. the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immoveable property comprised therein, and do not affect any such immoveable property. We are accordingly of the opinion that Ex. A-26.being unregistered is not admissible in evidence.In our opinion. Mr. Sinha is unable to make good his argument on this aspect of the case.4. Mr. Sinha contended that in any event the High Court should not have remanded the case to the lower appellate court with a direction that the defendants should be asked to render accounts before they claim any payment from the plaintiff at the time of redemption of the mortgage.It was pointed out that the plaintiff did not file an appeal against the decree of the trial Court and in the absence of such an appeal the High Court was not legally justified in giving further relief to the plaintiff than that granted by the trial Court. In our opinion, there is justification for this argument.
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1
### Explanation:
We are unable to accept the argument put forward on behalf of the appellant. Exhibit A-26. dated 8th October, 1922 is not a registered document, and is hence not admissible in evidence to prove the nature of the transaction covered by the registered mortgage deed Ex. 4 dated 27th July, 1922. if Ex. 4 is taken by itself there is no doubt that the transaction is one of mortgage. The document Ex. 4 recites that in consideration of money advanced the executants "mortgage the said house Bhog Bhandak bearing No. 64/71 situate Mohalla Gola Dina Nath". Clause 2 provides period of twenty years for redemption of the mortgage. Clause 6 of the document stipulates that the cost of repairs will be borne by the mortgagors. Clause 1the said sum of Rupees Seventeen hundred half of which is Rupees Eight hundred and fifty will carry interest at the rate of twelve annas per cent monthly. The sum of Rupees six will be deducted towards rent monthly from the interest which will accrue. The possession of the house has been delivered to the said mortgagee Mahajan (money lender). The mortgagors will pay the balance of Rupees six annas twelve month by month to the said mortgagee after deducting the rent of Rupees six after giving the possession of the said house andat we will go on paying the said Mahajan the sum of Rupees six twelve annas the balance of the interest monthly. If the whole or part of the interest remains unpaid we will pay at the time of redemption. If this amount of interest is not paid the said house shall not bereading of these terms clearly shows that Ex. 4 was a mortgage deed and not a salewe have already said Ex. A-26 was required to be registered under Section 54 of the Transfer of Property Act. In the absence of such registration this document cannot be received in evidence of any transaction affecting the property in view of Sec. 49 of the Registrationare however absolved in the present case from examining the correctness of these decisions. For these decisions have been superseded by subsequent legislation i. e., by the enactment of Act 21 of 1929 which by inserting in Section 49 of the Registration Act the words or by any provision ofthe Transfer of Property Act, 1882" has, made it clear that the documents in the supplemental list i. e. the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immoveable property comprised therein, and do not affect any such immoveable property. We are accordingly of the opinion that Ex. A-26.being unregistered is not admissible in evidence.In our opinion. Mr. Sinha is unable to make good his argument on this aspect of theour opinion, there is justification for this argument. We accordingly set aside that portion of the decree of the High Court remanding the case to the lower appellate Court with a direction that the defendants should be asked to render accounts.Otherwise we affirm the decree of the High Court allowing the plaintiffs appeal with costs and setting aside the judgment and decree of the lower appellate court and restoring judgment and decree of the trial Court dated 31st October, 1956.
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M/s. South India Viscose Limited Vs. Commissioner of Income Tax | the impugned judgment on the provisions governing extra shift allowance contained in Part I of Appendix I to the Rules. 13. We may at this stage refer to the circulars/instructions issued by the Board. By their letter dated September 28, 1970, the Board had laid down that the extra shift allowance will be allowed in respect of the entire plant and machinery used by a concern which has worked extra shift without making any attempt to determine the number of days on which each machinery or plant actually worked extra shift during the relevant previous year. By Circular No. 109 (see 1973 (89) ITR(St) 30), dated March 20, 1973, the Board clarified the legal position regarding depreciation allowance in respect of normal, double/triple shift working in seasonal factories and other concerns. The said circular contained separate directions regarding calculating normal depreciation and extra shift allowance up to the assessment year 1969-70 and from the assessment year 1970-71 onwards. As regards extra shift allowance from the assessment year 197071 onwards it was indicated that the said allowance should be calculated separately for the period for which the concern has actually worked double shift only and the period for which it has worked triple shift, expressed in terms of the proportion which such period bears to the normal number of working days during the previous year. In the letter dated September 29, 1979, from the Under Secretary to the Board to the Commissioner of Income-tax, Calcutta (Central), on the subject of calculation of depreciation, extra shift a allowance in respect of plant and machinery, it was stated: " I am directed to refer to your letter No. A/21233/CT/6A/102/6970, dated November 1, 1969, on the above subject and to say that the Board have decided, that where a concern has worked double shift or triple shift, extra shift allowance will be allowed in respect of the entire plant and machinery used by a concern which has worked extra shift without making any attempt to determine the number of days on which each machinery or plant actually worked extra shift during the relevant previous year. " * 14. Subsequently, the Board issued Instruction No. 1605, dated February 26, 1985, wherein, after referring to the decisions of the Allahabad High Court in Kundan Sugar Mills v. CIT, and the Calcutta High Court in Anantapur Textiles Ltd. v. CIT, as well as the impugned judgment it has been stated "The instructions issued earlier have been considered again by the Board. In exercise of the powers conferred by section 119(1) of the Income-tax Act, 1961, the Central Board of Direct Taxes, being of the opinion, that it is expedient for the proper administration of these provisions directs that the grant of extra shift allowance for plant and machinery be calculated with reference to the working of a factory situated at a place and not with reference to the number of days each machinery or plant has worked. Where a concern has more than one factory, the extra shift allowance will be regulated for each factory in the above manner. As the determination of the number of days for each machinery or plant has worked in a factory is cumbersome, the existing instructions and the present clarification are aimed at simplifying the calculation of extra shift allowance. " 15. Shri Dogra has submitted that the circulars of the Board are binding on the authorities and has placed reliance on the decision of this court in K. P. Varghese v. ITO, wherein it has been laid down that apart from the fact that circulars of the Board are binding on the tax department they are in the nature of contemporanea expositio furnishing legitimate aid in the construction to the relevant provisions. Shri Dogra has also placed reliance on the decision of this court in Keshavji Ravji and Co. v. CIT, wherein it has been laid down that the circulars of the Board are statutory in character though the court did not consider it necessary to go into the question whether such circulars are recognised legitimate aids to statutory construction. Learned counsel has also relied on the decision of this court in CWT v. Vasudeo v. Dempo, wherein it was held that circulars issued by the Department are clearly meant to be accepted by the authorities. Dr. Gauri Shankar has, on the other hand, submitted that the circulars of the Board are not binding on the High Court or on this court and has placed reliance on the decision of this court in Kerala Financial Corporation v. CIT, wherein it has been laid down that circulars or instructions or directions of the Board cannot override the provisions of the Act. We do not consider it necessary to go into the question whether the circulars/instructions issued by the Board referred to above, can be taken into consideration for the purpose of construing the provisions of rule 5 and Appendix I to the Rules because the circulars/instructions referred to above are in consonance with the construction placed by us on the said provisionsFor the reasons aforementioned, it must be held that extra shift allowance had to be calculated on the basis of number of days during which the concern had actually worked double shift or triple shift and the said allowance was not required to be calculated on the basis of the number of days a particular item of machinery or plant had worked double shift or triple shift. We are, therefore, unable to uphold the impugned judgment of the High Court in this regard. In our opinion, the Tribunal had rightly held that the extra shift allowance had to be calculated on the basis of the number of days on which the concern worked as a whole double shift or triple shift and not on the basis of each item of machinery being used in double shift or triple shift. Question No. 4 must, therefore, be answered in the affirmative, i.e., in favour of the assessee and against the Revenue 16. | 1[ds]It would thus appear that for the purpose of calculating extra shift allowance allowable under Part I of Appendix I to the Rules what was required to be determined was the actual number of days on which the concern had worked double shift or triple shift, as the case may be. For the purpose of calculating the extra shift depreciation allowance under Part I of Appendix I to the Rules it was not necessary to determine the actual number of days on which the particular item of machinery or plant, on which such allowance was claimed, had been used in double shift or triple shift during the relevant previous yearIt is no doubt true that under section 32(1) of the Act depreciation is allowable on buildings, machinery, plant or furniture owned by the assessee and used for the purpose of the business or profession and, in rule 5 it was laid down that the depreciation shall be calculated on the written down value of the assets as are used for the purposes of business or profession of the assessee at any time during the previous year. That only means that depreciation allowance shall be allowable on the machinery or plant that is used for the purposes of business or profession of the assessee at any time during the relevant previous year. The said provisions in section 32(1) and rule 5 do not require that for the purpose of calculating the normal depreciation allowance it is necessary to determine the exact period during which a particular item of machinery or plant had been actually used during the previous year. So also for the purpose of calculating the extra shift depreciation allowance, which does not differ in nature from the normal depreciation allowance, it cannot be said that it is necessary to determine the exact period during which a particular item of machinery or plant had been actually used in the double/triple shift during the relevant previous year. The High Court, in our opinion, was in error in construing rule 5 and Part I of Appendix I to the Rules to hold that the Income-tax Officer is required to apply his mind to examine which machinery, owned by the assessee, had been used in the extra shiftWe do not consider it necessary to go into the question whether the circulars/instructions issued by the Board referred to above, can be taken into consideration for the purpose of construing the provisions of rule 5 and Appendix I to the Rules because the circulars/instructions referred to above are in consonance with the construction placed by us on the said provisionsFor the reasons aforementioned, it must be held that extra shift allowance had to be calculated on the basis of number of days during which the concern had actually worked double shift or triple shift and the said allowance was not required to be calculated on the basis of the number of days a particular item of machinery or plant had worked double shift or triple shift. We are, therefore, unable to uphold the impugned judgment of the High Court in this regard. In our opinion, the Tribunal had rightly held that the extra shift allowance had to be calculated on the basis of the number of days on which the concern worked as a whole double shift or triple shift and not on the basis of each item of machinery being used in double shift or triple shift. Question No. 4 must, therefore, be answered in the affirmative, i.e., in favour of the assessee and against the Revenue | 1 | 5,668 | 634 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
the impugned judgment on the provisions governing extra shift allowance contained in Part I of Appendix I to the Rules. 13. We may at this stage refer to the circulars/instructions issued by the Board. By their letter dated September 28, 1970, the Board had laid down that the extra shift allowance will be allowed in respect of the entire plant and machinery used by a concern which has worked extra shift without making any attempt to determine the number of days on which each machinery or plant actually worked extra shift during the relevant previous year. By Circular No. 109 (see 1973 (89) ITR(St) 30), dated March 20, 1973, the Board clarified the legal position regarding depreciation allowance in respect of normal, double/triple shift working in seasonal factories and other concerns. The said circular contained separate directions regarding calculating normal depreciation and extra shift allowance up to the assessment year 1969-70 and from the assessment year 1970-71 onwards. As regards extra shift allowance from the assessment year 197071 onwards it was indicated that the said allowance should be calculated separately for the period for which the concern has actually worked double shift only and the period for which it has worked triple shift, expressed in terms of the proportion which such period bears to the normal number of working days during the previous year. In the letter dated September 29, 1979, from the Under Secretary to the Board to the Commissioner of Income-tax, Calcutta (Central), on the subject of calculation of depreciation, extra shift a allowance in respect of plant and machinery, it was stated: " I am directed to refer to your letter No. A/21233/CT/6A/102/6970, dated November 1, 1969, on the above subject and to say that the Board have decided, that where a concern has worked double shift or triple shift, extra shift allowance will be allowed in respect of the entire plant and machinery used by a concern which has worked extra shift without making any attempt to determine the number of days on which each machinery or plant actually worked extra shift during the relevant previous year. " * 14. Subsequently, the Board issued Instruction No. 1605, dated February 26, 1985, wherein, after referring to the decisions of the Allahabad High Court in Kundan Sugar Mills v. CIT, and the Calcutta High Court in Anantapur Textiles Ltd. v. CIT, as well as the impugned judgment it has been stated "The instructions issued earlier have been considered again by the Board. In exercise of the powers conferred by section 119(1) of the Income-tax Act, 1961, the Central Board of Direct Taxes, being of the opinion, that it is expedient for the proper administration of these provisions directs that the grant of extra shift allowance for plant and machinery be calculated with reference to the working of a factory situated at a place and not with reference to the number of days each machinery or plant has worked. Where a concern has more than one factory, the extra shift allowance will be regulated for each factory in the above manner. As the determination of the number of days for each machinery or plant has worked in a factory is cumbersome, the existing instructions and the present clarification are aimed at simplifying the calculation of extra shift allowance. " 15. Shri Dogra has submitted that the circulars of the Board are binding on the authorities and has placed reliance on the decision of this court in K. P. Varghese v. ITO, wherein it has been laid down that apart from the fact that circulars of the Board are binding on the tax department they are in the nature of contemporanea expositio furnishing legitimate aid in the construction to the relevant provisions. Shri Dogra has also placed reliance on the decision of this court in Keshavji Ravji and Co. v. CIT, wherein it has been laid down that the circulars of the Board are statutory in character though the court did not consider it necessary to go into the question whether such circulars are recognised legitimate aids to statutory construction. Learned counsel has also relied on the decision of this court in CWT v. Vasudeo v. Dempo, wherein it was held that circulars issued by the Department are clearly meant to be accepted by the authorities. Dr. Gauri Shankar has, on the other hand, submitted that the circulars of the Board are not binding on the High Court or on this court and has placed reliance on the decision of this court in Kerala Financial Corporation v. CIT, wherein it has been laid down that circulars or instructions or directions of the Board cannot override the provisions of the Act. We do not consider it necessary to go into the question whether the circulars/instructions issued by the Board referred to above, can be taken into consideration for the purpose of construing the provisions of rule 5 and Appendix I to the Rules because the circulars/instructions referred to above are in consonance with the construction placed by us on the said provisionsFor the reasons aforementioned, it must be held that extra shift allowance had to be calculated on the basis of number of days during which the concern had actually worked double shift or triple shift and the said allowance was not required to be calculated on the basis of the number of days a particular item of machinery or plant had worked double shift or triple shift. We are, therefore, unable to uphold the impugned judgment of the High Court in this regard. In our opinion, the Tribunal had rightly held that the extra shift allowance had to be calculated on the basis of the number of days on which the concern worked as a whole double shift or triple shift and not on the basis of each item of machinery being used in double shift or triple shift. Question No. 4 must, therefore, be answered in the affirmative, i.e., in favour of the assessee and against the Revenue 16.
### Response:
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### Explanation:
It would thus appear that for the purpose of calculating extra shift allowance allowable under Part I of Appendix I to the Rules what was required to be determined was the actual number of days on which the concern had worked double shift or triple shift, as the case may be. For the purpose of calculating the extra shift depreciation allowance under Part I of Appendix I to the Rules it was not necessary to determine the actual number of days on which the particular item of machinery or plant, on which such allowance was claimed, had been used in double shift or triple shift during the relevant previous yearIt is no doubt true that under section 32(1) of the Act depreciation is allowable on buildings, machinery, plant or furniture owned by the assessee and used for the purpose of the business or profession and, in rule 5 it was laid down that the depreciation shall be calculated on the written down value of the assets as are used for the purposes of business or profession of the assessee at any time during the previous year. That only means that depreciation allowance shall be allowable on the machinery or plant that is used for the purposes of business or profession of the assessee at any time during the relevant previous year. The said provisions in section 32(1) and rule 5 do not require that for the purpose of calculating the normal depreciation allowance it is necessary to determine the exact period during which a particular item of machinery or plant had been actually used during the previous year. So also for the purpose of calculating the extra shift depreciation allowance, which does not differ in nature from the normal depreciation allowance, it cannot be said that it is necessary to determine the exact period during which a particular item of machinery or plant had been actually used in the double/triple shift during the relevant previous year. The High Court, in our opinion, was in error in construing rule 5 and Part I of Appendix I to the Rules to hold that the Income-tax Officer is required to apply his mind to examine which machinery, owned by the assessee, had been used in the extra shiftWe do not consider it necessary to go into the question whether the circulars/instructions issued by the Board referred to above, can be taken into consideration for the purpose of construing the provisions of rule 5 and Appendix I to the Rules because the circulars/instructions referred to above are in consonance with the construction placed by us on the said provisionsFor the reasons aforementioned, it must be held that extra shift allowance had to be calculated on the basis of number of days during which the concern had actually worked double shift or triple shift and the said allowance was not required to be calculated on the basis of the number of days a particular item of machinery or plant had worked double shift or triple shift. We are, therefore, unable to uphold the impugned judgment of the High Court in this regard. In our opinion, the Tribunal had rightly held that the extra shift allowance had to be calculated on the basis of the number of days on which the concern worked as a whole double shift or triple shift and not on the basis of each item of machinery being used in double shift or triple shift. Question No. 4 must, therefore, be answered in the affirmative, i.e., in favour of the assessee and against the Revenue
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D. N. Chanchala Vs. State Of Mysore And Ors. Etc.(With Connected Petitions) | but also elsewhere in India. It is, therefore, impossible to say that the basis of selection adopted in these rules would defeat the object of the rules as was said in Rajendrans case (supra) or make possible less meritorious students obtaining admission at the cost of the better candidates. The fact that candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a less meritorious candidate gets advantage over a more meritorious one. As is well known, different universities have different standards in the examinations held by them. A preference to one attached to one University in its own institutions for post-graduate or technical training is not uncommon. Rules giving such a preference are to be found in various universities. Such a system for that reason alone is not to be condemned as discriminatory, particularly when admission to such a university by passing a qualifying examination held by it is not precluded by any restrictive qualifications, such as birth or residence, or any other similar restrictions. In our view, it is not possible to equate the present basis for selection with those which were held invalid in the aforesaid two decisions. Further, the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot be successfully challenged, (see Chitra Ghosh v. Union of India (1969 (2) SCC 228 : (1970) 1 SCR 413 at 418)). In our view, the rules lay down a valid classification. Candidates passing through the qualifying examination held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. In our opinion, the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Article 14.23. The last challenge to the validity of those rules was based on the allegation that they lay down excessive reservation for certain categories of candidates. As already stated, under Clauses (a) to (i) of Rule 4, sixty, out of the present aggregate of 765 seats at the disposal of the Government are set apart for the various categories of persons therein mentioned. As aforesaid, the Government is entitled to lay down sources from which selection for admission would be made. A provision laying down such sources is strictly speaking not a reservation. It is not a reservation as understood by Article 15 against which objection can be taken on the ground that it is excessive. The reservation, as contemplated by Article 15, is the one which is made under Rule 5, Under that rule, 15% reservation is for persons belonging to the Scheduled casts, 3% for Scheduled Tribes and 30% for socially and educationally backward classes, that is to say, 48% in all against 690 available seats after deducting 60 seats set apart under Rule 4. But, setting apart 15 seats under Rule 4 (g) for candidates who take up family planning programme does not constitute a reservation as any one of the lady candidates can take up that programme. Therefore, the seats available for distribution would be 720, 48% of which are reserved under Rule 5. The question is whether such a reservation is unreasonably excessive.24. It was not disputed that Article 15(4) the state was entitled to make special provisions for the advancement of socially and educationally backward classes. It has to be remembered that the object of Article 15(4) is to advance the interests of the society as a whole by looking after the interests of its weaker sections. But as stated in Balaji v. Mysore, (1963 Supp (1) SCR 439 : AIR 1963 SC 649 : (1963) 2 SCA 1) while making such a provision the rights and interests of the rest of the society are not to be absolutely ignored. Consideration for the rest of the society and those who are its weaker elements have both to be kept in mind and taking the prevailing circumstances as a whole have to be adjusted. The impugned provision in Balajis case (supra) made reservation of 68% of the seats for the socially and educationally backward classes in medical and engineering colleges. Such a high percentage was held to amount almost to a exclusion of the deserving and qualified candidates from other communities, which also was not in the interests of the society as a whole. The Court there observed that in adjusting the claim of both the weaker and the stronger elements the reservation for the former should ordinarily be less than 50% although no inflexible percentage could be fixed and the actual reservation must depend upon the relevant prevailing circumstances in each case. In Periakaruppans case (supra) 41% reservation for the socially and educationally backward classes was held not to be excessive. No materials have been placed before us which would show that in the circumstances prevailing in Mysore State reservation made under Rule 5 is unreasonably excessive Setting apart 60 seats under Rule 4 is, as already stated, not a reservation but laying down sources for selection necessitated by certain overriding considerations, such as obligations towards those who serve the interests of the countrys security certain reciprocal obligations and the like. The reservation under Rule 5, though apparently on the high side, not having been shown as unreasonably excessive, the contention in regard to it must fail. | 0[ds]Under Rule 2, therefore, there are two categories of candidates who only are eligible for Selection : (1) those who have passed the P.U.C. examination or an equivalent examination, and (2) those who are graduates, having graduated with the optional subjects specified therein. The petitioner, not being a graduate, fell under the first category of candidates eligible for selection.Briefly, the effect of these rules is that the qualification for selection to thePart I leading to M.B.B.S. A student getting admission to the aforesaid course had thus to pass theexamination held by the Mysore and Bangalore Universities, or B.Sc. part I leading to M.B.B.S. examination held by the Karnatak University. It is only after passing the examination that a candidate can prosecute the regular M.B.B.S. course. The common qualification for being selected for thePart I leading to M.B.B.S. course and pass the requisite examination in that course.The second effect of these rules is that if a student has passed the P.U.C. examination held by a particular university, such a student is, by virtue of Rule 9(1), eligible for admission in the medical college or colleges affiliated to that university. The selection committee, however, has the discretion to allot seats, up to 20% of the seats in the colleges affiliated to a university, to students passing from colleges affiliated to any other university in the State or even elsewhere in India.13. Consequently, the petitioner having passed her P.U.C. examination from Bangalore University could apply for admission in a medical college affiliated to that university. If she were to apply for admission in a medical college affiliated to the Karnatak University she could only be selected to a seat from among seats up to the maximum of 20% of seats left in theof the SelectionCommittee as provided by Rule 9(1). It is true that she had got 67% marks in optional subjects in the P.U.C. examination and students with lesser number of marks, but passing from colleges affiliated to the Karnatak University, got admission. But that was because she had passed the P.U.C. examination held by the Bangalore University and wanted admission in a medical college affiliated to another university, namely, the Karnatak University.We propose to deal with those submissions in the order in which they were placed before us by counsel. As seen earlier, there are two sets of provisions dealing with the teaching of medical courses The first consists of Ordinances of the universities, and the second consists of the rules framed by the Government ores for admission to thePart I Course leading to M.B.B.S. degree in the Government medical colleges and in respect of 59 seats in the aggregate in the medical colleges run by private management. The control for admission in respect of the 59 seats in the private colleges must have been acquired by the Government with the consent of or under some agreement with those colleges by reason of their getting financial and other aid from the Government. So long as the rules for selection applicable to the colleges run by the Government do not suffer from any constitutional or legal infirmity, they cannot be challenged as the Government can regulate admission to its own institutions. The objection that it cannot, by such rules, provide for requirements over and above those laid down by the universities for eligibility cannot be sustained. (See State of Andhra Pradesh v. Lavu Narendranath (1971 (1) SCC 607 ) wherein the earlier decisions on this subject have been examined and followed.It will be easily seen that theof seats inthe Government medical colleges has nothing in common with theor unit wise selection struck down in Rajendrans case (supra) and Periakaruppans case (supra). In both the cases what was mainly objected to was that the selection would have to be made on the basis either of the place of birth or residence and the candidate was confined to the medical colleges at or nearest to such a place. Such a basis for selection was held to have no reasonable nexus with the object of the rules, namely, to select the most meritorious amongst the candidates to have the advantage of such education. In Periakaruppans case (supra) there was a further infirmity, in that, there were several committees for selection resulting in varying standards, thus defeating the very object of screening the candidates with a view to give chance to the best of them. Both these decisions are distinguishable as the basis on which thees is sought to be made under the present rules is quite different in that it is neithere, but isTherefore, the infirmities found in the selection rules in those two cases and for which they were struck down cannot be relevant in any scrutiny of the present rules much less can they be relied upon for an attack on them.22. The three universities were setup in three different places presumably for the purpose of catering to the educational and academic needs of those areas. Obviously one university for the whole of the State could neither have been adequate nor feaseable to satisfy those needs. Since it would not be possible to admit all candidates in the medical colleges run by Government, some basis for screening the candidates had to be set up. There can be no manner of doubt, and it is now fairly well settled, that the Government, as also other private agencies, who found such centers for medical training, have the right to frame rules for admission so long as those rules are not inconsistent with the university statutes and regulations and do not suffer from infirmities, constitutional or otherwise. Since the universities are set up for satisfying the educational needs of different areas where they are set up and medical colleges are established in those areas, it can safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universities. In our view, there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own universities. Such a basis for selection has not the disadvantage ofse selection as any student from any part of the State can pass the qualifying examination in any of the three universities irrespective of the place of his birth or residence. Further, the rules confer a discretion on the selection committee to admit outsiders up to 20% of the total available seats in any one of these colleges, i.e., those who have passed the equivalent examination held by any other university not only in the State but also elsewhere in India. It is, therefore, impossible to say that the basis of selection adopted in these rules would defeat the object of the rules as was said in Rajendrans case (supra) or make possible less meritorious students obtaining admission at the cost of the better candidates. The fact that candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a less meritorious candidate gets advantage over a more meritorious one. As is well known, different universities have different standards in the examinations held by them. A preference to one attached to one University in its own institutions foror technical training is not uncommon. Rules giving such a preference are to be found in various universities. Such a system for that reason alone is not to be condemned as discriminatory, particularly when admission to such a university by passing a qualifying examination held by it is not precluded by any restrictive qualifications, such as birth or residence, or any other similar restrictions. In our view, it is not possible to equate the present basis for selection with those which were held invalid in the aforesaid two decisions. Further, the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot be successfully challenged, (see Chitra Ghosh v.ia (1969 (2) SCC 228 : (1970) 1 SCR 413 at 418)). In our view, the rules lay down a valid classification. Candidates passing through the qualifying examination held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. In our opinion, the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Articlealready stated, under Clauses (a) to (i) of Rule 4, sixty, out of the present aggregate of 765 seats at the disposal of the Government are set apart for the various categories of persons therein mentioned. As aforesaid, the Government is entitled to lay down sources from which selection for admission would be made. A provision laying down such sources is strictly speaking not a reservation. It is not a reservation as understood by Article 15 against which objection can be taken on the ground that it is excessive. The reservation, as contemplated by Article 15, is the one which is made under Rule 5, Under that rule, 15% reservation is for persons belonging to the Scheduled casts, 3% for Scheduled Tribes and 30% for socially and educationally backward classes, that is to say, 48% in all against 690 available seats after deducting 60 seats set apart under Rule 4. But, setting apart 15 seats under Rule 4 (g) for candidates who take up family planning programme does not constitute a reservation as any one of the lady candidates can take up that programme. Therefore, the seats available for distribution would be 720, 48% of which are reserved under Rule 5.It was not disputed that Article 15(4) the state was entitled to make special provisions for the advancement of socially and educationally backward classes. It has to be remembered that the object of Article 15(4) is to advance the interests of the society as a whole by looking after the interests of its weaker sections. But as stated in Balaji v. Mysore, (1963 Supp (1) SCR 439 : AIR 1963 SC 649 : (1963) 2 SCA 1) while making such a provision the rights and interests of the rest of the society are not to be absolutely ignored. Consideration for the rest of the society and those who are its weaker elements have both to be kept in mind and taking the prevailing circumstances as a whole have to be adjusted. The impugned provision in Balajis case (supra) made8% of the seats for the socially and educationally backward classes in medical and engineering colleges. Such a high percentage was held to amount almost to ahe deserving and qualified candidates from other communities, which also was not in the interests of the society as a whole. The Court there observed that in adjusting the claim of both the weaker and the stronger elements the reservation for the former should ordinarily be less than 50% although no inflexible percentage could be fixed and the actual reservation must depend upon the relevant prevailing circumstances in each case. In Periakaruppans case (supra) 41% reservation for the socially and educationally backward classes was held not to be excessive. No materials have been placed before us which would show that in the circumstances prevailing in Mysore State reservation made under Rule 5 is unreasonably excessive Setting apart 60 seats under Rule 4 is, as already stated, not a reservation but laying down sources for selection necessitated by certain overriding considerations, such as obligations towards those who serve the interests of the countrys security certain reciprocal obligations and the like. The reservation under Rule 5, though apparently on the high side, not having been shown as unreasonably excessive, the contention in regard to it mustcandidates applying for selection fall into two two categories : (1) those having passed the P.U.C. examination from colleges affiliated to that university to which a medical college in which admission is sought is affiliated, and (2) those having passed the P.U.C. examination or an equivalent examination held by other universities in Mysore State or even elsewhere. The petitioner, therefore, belonged to the second category inasmuch as she was a candidate who had passed her P.U.C. examination not through a collage affiliated to the Karnatak University, but one who had passed the P.U.C. examination from a university to which none of the medical colleges in Karnatak was affiliated. Therefore, the proviso to Rule 9(1) would be applicable to her and she would be eligible for selection only from out of the 20% of the seats at the most left in theAnnexed to her application for selection, dated July 22, 1970, was a certificate from the Tehsildar, Bellary, certifying that she had not only her domicile in Mysore State but that she had also resided in the State for a period of 10 years prior to the date of her application. In Column 13 of the application, where particulars of institutions where the candidate had studied had to be given, it was stated that the petitioner had studied in Bellary during the years 1959 to 1963, and thereafter, from69 in different institutions in Andhra Pradesh. We will assume, though her father was in Andhra Pradesh where he served from 1954 to June 1970, that she was kept in her infancy in Bellary, the total Period of her residence would prima facie come to little less than 9 years, i.e., from August 2, 1954, her date of birth, to 1963. Therefore, the certificate obtained from the Tehsildar, certifying that she had resided in Mysore for 10 years at any time prior to the date of her application, would appear not to be factuallyan explanation, however, suffers from two defect : (1) that such a plea was made for the first time in the affidavit in rejoinder in answer to thefiled by the respondents, and (2) that residence as contemplated by Rule 3 must prima facie have an element of continuity or regularity in residence and would not mean an intermittent stay such as during the vacations. It would thus appear that the petitioner did not, notwithstanding the certificate of residence issued by the Tehsildar, comply with the requirement of 10 years residence under Rule 3. However, for the reasons stated hereafter it is not necessary to go into these questions either as regards the facts relating to her residence in Bellary or the validity of Rule 3 sought to be challenged in this petition.33. It is true that the petitioner obtained in the P.U.C. examination held by Venkateswara University, 150 out of 200 marks in optional subjects taken by her, but as her application itself shows, the total number of marks secured by her in that examination were 389 out of 600 marks, i.e. 65%. Even according to her, the last student who secured selection for the Bellary Medical College had secured 295 out of 450 marks, i.e., 65.6%. The same percentage of marks was also secured by the last student admitted to the Karnatak Medical College, Hubli, both these students having passed the P.U.C. examination held by the Karnatak University. Therefore, even irrespective of the fact whether she had qualified herself or not under Rule 3, she could not have been selected for either of these two college in Karnatak.34. The argument that she had been discriminated against in the sense that though she had secured 75% marks she was not selected and others with lesser number of marks than those secured by her were selected for medical colleges affiliated to the Karnatak University was founded on a wrong premise. For comparison between herself and the said two candidates she took her marks in optional subjects only and apparently compared them with the total marks obtained by the said two students in the whole of the P.U.C. examination. There was thus no comparison between persons equally situated even as regards the number of marks secured by them. But apart from that, the result obtained by a student in an examination held by one university cannot be regarded as comparable with the result obtained by another candidate in an examination held by another university. Even assuming that a conscious effort is made to equalise standards obtaining in different universities, such standards depend on several human factors, methods, of teaching and examining, the syllabus in such universities etc. even though the subjects taught and examined were to be the same. It ison ofdiscrimination can only arise in the case of persons equally situated. That the petitioner and those whom the Selection Committee selected were equally situated cannot, from the facts above stated, be assumed. Consequently, the argument that Rule 3, by prescribing the 10 years residence in Mysore State as a qualification for eligibility, is arbitrary and discriminatory becomes academic and need not to be gone into in the present writ petition as the petitioner, even without insisting on that qualification, was not entitled to be selected.So far as the first part of the argument is concerned, it is difficult to envisage the danger apprehended by counsel or to see the kind of vagueness or ambiguity complained of by him. The rule contains thea "political Sufferer" as meaning a person who "on account of participation in the national movement for thet; had suffered imprisonment or detention for a period of at least six months, or had been awarded capital punishment, or had died while undergoing imprisonment or detention or was killed or became permanently incapacitated by police or military firing or Lathi charge, or lost his "job, property or other means of livelihood". The definition is couched in clear and unambiguous language, besides containing sufficient details, so as to distinctively identify the persons who would fall within it. The person must have suffered incarceration, whether as imprisonment or detention, for a period of at least six months or been awarded capital punishment, or must have died while actually in detention or undergoing imprisonment, or killed or incapacitated permanently by firing or Lathi charge by the police or by the military, or must have lost employment, property or other means of livelihood. These should have been the consequences of his having participated in the national movement for thea. The "national movement" must obviously mean the late struggle for the freedom of the country from the alien British rule. The ambiguity, counsel complained of, in these words in the definition is difficult to comprehend. There are ample details in the definition not to leave any scope for arbitrariness or discrimination in its application to a candidate who claims to be a child of the political sufferer envisaged by clause (h) of the rule. We, therefore, turn to the second part of the argument without detaining ourselves any further on the grievance of ambiguity in the definition.On account of paucity of institutions imparting training in technical studies and increasing number of candidates seeking admission therein, there is obviously the need for classification to enable fair and equitablele seats. The very decisions relied on by counsel for the petitioner implicitly recognise the need for classification and the power of those who run such institutions, to lay down classification. In Rajendrans case (supra) this Court impliedly accepted two sources of recruitment made under the rules there challenged, namely, (1) those competing for seat in the general pool, and (2) those from the socially and educationally backward classes for whom reservation permitted under Article 15(4) was made. What was struck down there was thedistribution based on sheer residence as that would defeat the very object of the rules, namely, thehe best and the most meritorious from the two sources of recruitment. The power to lay down sources from which selection would be made was expressly conceded to the Government in Chitra Ghosh v.ia (supra), this Court observing in that connection at pp. 418 and 419 of the report that since it was the Government which bore the financial burden of running the medical college, it could lay down the criteria for eligibility and that from the very nature of things it was not possible to throw the admission open to students from all over the country. Consequently, the Government could not be denied the right to decide from what sources admissions would be made. The Court at the same time emphasised that if the sources were properly classified, whether on territorial, geographical or other reasonable basis, the Court would refuse to interfere with the manner and the method of making the classification. The classifications there made were in relation to candidates from Union territories other than Delhi, children of Central Government servants posted in Indian mission abroad, candidates under the Colombo Plan and other international arrangements, scholars from Jammu and Kashmir, etc. These classifications were found justifiable on one ground or the other and based on intelligible differentia which distinguished candidate falling within them from the rest. The Mysore High Court, in Subhashini v. State (AIR 1966 Mys 40) similarly recognised that there could be valid reservations, apart from those permissible under Article 15(4), that such reservations did not necessarily infringe the equality protection under Article 14 and held that classification based on a lawful State policy was not violative of that article. It upheld on this principle the reservation for children of Defence PersonnelPersonnel as being clearly in national interest. (see also Anil Kumar v. Mysore ((1969) 17 LR (Mys) 110).)43. Once the power to lay down classifications or categories of persons from whom admission is to be given is granted, the only question which would remain for consideration would be whether such categorisation has an intelligible criteria and whether it has a reasonable relation with the object for which the rules for admission are made. Rules for admission are inevitable so long as the demand of every candidate seeking admission cannot be complied with in view of the paucity of institutions imparting training in such subjects as medicine. Thea political sufferer being a detailed one and in certain terms, it would be easily possible to distinguish children of such political sufferers from the rest as possessing the criteria laid down by the definition. The object of the rules for admission can obviously be to secure a fair and equitablets amongst those seeking admission and who are eligible under the University Regulations. Such distribution can be on the principle that admission should be available to the best and the most meritorious. But an equally fair and equitable principle would also be that which secures admission in a just proportion to those who are handicapped and who, but for the preferential treatment given to them, would not stand a chance against those who are not so handicapped and are, therefore, in a superior position. The principle underlying Article 15(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society. It would not in any way be improper if that principle were also to be applied to those who are handicapped but do not fall under Article 15(4). It is on such a principle that reservation for children of Defence personnel andpersonnel appears to have been upheld. The criteria for such reservation is that those serving in the Defence forces or those who had so served are and were at a disadvantage in giving education to their children since they had to live, while discharging their duties, in difficult places where normal facilities available elsewhere are and were not available. In our view it is not unreasonable to extend that principle to the children of political sufferers who in consequence of their participation in the emancipation struggle became unsettled in life; in some cases economically ruined, and were therefore, not in a position to make available to their children that class of education which would place them in fair competition with the children of those who did not suffer from that disadvantage. If that be so, it must follow that theal sufferer not only makes the children of such sufferers distinguishable from the rest but such a classification has a reasonable nexus with the object of the rules which can be nothing else than a fair and justs. In our view, neither of the two contentions raised by counsel for the petitioner can be accepted, with the result that the writ petition fails and is dismissed. | 0 | 5,512 | 4,614 | ### Instruction:
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but also elsewhere in India. It is, therefore, impossible to say that the basis of selection adopted in these rules would defeat the object of the rules as was said in Rajendrans case (supra) or make possible less meritorious students obtaining admission at the cost of the better candidates. The fact that candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a less meritorious candidate gets advantage over a more meritorious one. As is well known, different universities have different standards in the examinations held by them. A preference to one attached to one University in its own institutions for post-graduate or technical training is not uncommon. Rules giving such a preference are to be found in various universities. Such a system for that reason alone is not to be condemned as discriminatory, particularly when admission to such a university by passing a qualifying examination held by it is not precluded by any restrictive qualifications, such as birth or residence, or any other similar restrictions. In our view, it is not possible to equate the present basis for selection with those which were held invalid in the aforesaid two decisions. Further, the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot be successfully challenged, (see Chitra Ghosh v. Union of India (1969 (2) SCC 228 : (1970) 1 SCR 413 at 418)). In our view, the rules lay down a valid classification. Candidates passing through the qualifying examination held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. In our opinion, the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Article 14.23. The last challenge to the validity of those rules was based on the allegation that they lay down excessive reservation for certain categories of candidates. As already stated, under Clauses (a) to (i) of Rule 4, sixty, out of the present aggregate of 765 seats at the disposal of the Government are set apart for the various categories of persons therein mentioned. As aforesaid, the Government is entitled to lay down sources from which selection for admission would be made. A provision laying down such sources is strictly speaking not a reservation. It is not a reservation as understood by Article 15 against which objection can be taken on the ground that it is excessive. The reservation, as contemplated by Article 15, is the one which is made under Rule 5, Under that rule, 15% reservation is for persons belonging to the Scheduled casts, 3% for Scheduled Tribes and 30% for socially and educationally backward classes, that is to say, 48% in all against 690 available seats after deducting 60 seats set apart under Rule 4. But, setting apart 15 seats under Rule 4 (g) for candidates who take up family planning programme does not constitute a reservation as any one of the lady candidates can take up that programme. Therefore, the seats available for distribution would be 720, 48% of which are reserved under Rule 5. The question is whether such a reservation is unreasonably excessive.24. It was not disputed that Article 15(4) the state was entitled to make special provisions for the advancement of socially and educationally backward classes. It has to be remembered that the object of Article 15(4) is to advance the interests of the society as a whole by looking after the interests of its weaker sections. But as stated in Balaji v. Mysore, (1963 Supp (1) SCR 439 : AIR 1963 SC 649 : (1963) 2 SCA 1) while making such a provision the rights and interests of the rest of the society are not to be absolutely ignored. Consideration for the rest of the society and those who are its weaker elements have both to be kept in mind and taking the prevailing circumstances as a whole have to be adjusted. The impugned provision in Balajis case (supra) made reservation of 68% of the seats for the socially and educationally backward classes in medical and engineering colleges. Such a high percentage was held to amount almost to a exclusion of the deserving and qualified candidates from other communities, which also was not in the interests of the society as a whole. The Court there observed that in adjusting the claim of both the weaker and the stronger elements the reservation for the former should ordinarily be less than 50% although no inflexible percentage could be fixed and the actual reservation must depend upon the relevant prevailing circumstances in each case. In Periakaruppans case (supra) 41% reservation for the socially and educationally backward classes was held not to be excessive. No materials have been placed before us which would show that in the circumstances prevailing in Mysore State reservation made under Rule 5 is unreasonably excessive Setting apart 60 seats under Rule 4 is, as already stated, not a reservation but laying down sources for selection necessitated by certain overriding considerations, such as obligations towards those who serve the interests of the countrys security certain reciprocal obligations and the like. The reservation under Rule 5, though apparently on the high side, not having been shown as unreasonably excessive, the contention in regard to it must fail.
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in the definition not to leave any scope for arbitrariness or discrimination in its application to a candidate who claims to be a child of the political sufferer envisaged by clause (h) of the rule. We, therefore, turn to the second part of the argument without detaining ourselves any further on the grievance of ambiguity in the definition.On account of paucity of institutions imparting training in technical studies and increasing number of candidates seeking admission therein, there is obviously the need for classification to enable fair and equitablele seats. The very decisions relied on by counsel for the petitioner implicitly recognise the need for classification and the power of those who run such institutions, to lay down classification. In Rajendrans case (supra) this Court impliedly accepted two sources of recruitment made under the rules there challenged, namely, (1) those competing for seat in the general pool, and (2) those from the socially and educationally backward classes for whom reservation permitted under Article 15(4) was made. What was struck down there was thedistribution based on sheer residence as that would defeat the very object of the rules, namely, thehe best and the most meritorious from the two sources of recruitment. The power to lay down sources from which selection would be made was expressly conceded to the Government in Chitra Ghosh v.ia (supra), this Court observing in that connection at pp. 418 and 419 of the report that since it was the Government which bore the financial burden of running the medical college, it could lay down the criteria for eligibility and that from the very nature of things it was not possible to throw the admission open to students from all over the country. Consequently, the Government could not be denied the right to decide from what sources admissions would be made. The Court at the same time emphasised that if the sources were properly classified, whether on territorial, geographical or other reasonable basis, the Court would refuse to interfere with the manner and the method of making the classification. The classifications there made were in relation to candidates from Union territories other than Delhi, children of Central Government servants posted in Indian mission abroad, candidates under the Colombo Plan and other international arrangements, scholars from Jammu and Kashmir, etc. These classifications were found justifiable on one ground or the other and based on intelligible differentia which distinguished candidate falling within them from the rest. The Mysore High Court, in Subhashini v. State (AIR 1966 Mys 40) similarly recognised that there could be valid reservations, apart from those permissible under Article 15(4), that such reservations did not necessarily infringe the equality protection under Article 14 and held that classification based on a lawful State policy was not violative of that article. It upheld on this principle the reservation for children of Defence PersonnelPersonnel as being clearly in national interest. (see also Anil Kumar v. Mysore ((1969) 17 LR (Mys) 110).)43. Once the power to lay down classifications or categories of persons from whom admission is to be given is granted, the only question which would remain for consideration would be whether such categorisation has an intelligible criteria and whether it has a reasonable relation with the object for which the rules for admission are made. Rules for admission are inevitable so long as the demand of every candidate seeking admission cannot be complied with in view of the paucity of institutions imparting training in such subjects as medicine. Thea political sufferer being a detailed one and in certain terms, it would be easily possible to distinguish children of such political sufferers from the rest as possessing the criteria laid down by the definition. The object of the rules for admission can obviously be to secure a fair and equitablets amongst those seeking admission and who are eligible under the University Regulations. Such distribution can be on the principle that admission should be available to the best and the most meritorious. But an equally fair and equitable principle would also be that which secures admission in a just proportion to those who are handicapped and who, but for the preferential treatment given to them, would not stand a chance against those who are not so handicapped and are, therefore, in a superior position. The principle underlying Article 15(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society. It would not in any way be improper if that principle were also to be applied to those who are handicapped but do not fall under Article 15(4). It is on such a principle that reservation for children of Defence personnel andpersonnel appears to have been upheld. The criteria for such reservation is that those serving in the Defence forces or those who had so served are and were at a disadvantage in giving education to their children since they had to live, while discharging their duties, in difficult places where normal facilities available elsewhere are and were not available. In our view it is not unreasonable to extend that principle to the children of political sufferers who in consequence of their participation in the emancipation struggle became unsettled in life; in some cases economically ruined, and were therefore, not in a position to make available to their children that class of education which would place them in fair competition with the children of those who did not suffer from that disadvantage. If that be so, it must follow that theal sufferer not only makes the children of such sufferers distinguishable from the rest but such a classification has a reasonable nexus with the object of the rules which can be nothing else than a fair and justs. In our view, neither of the two contentions raised by counsel for the petitioner can be accepted, with the result that the writ petition fails and is dismissed.
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State of Rajasthan, Jaipur Vs. S. K. Dutt Sharma | be said that the petitioner had suffered any prejudice on account of refusal on the part of the authorities to permit the petitioner to engage a legal practitioner to defend him 6. Another contention raised before the learned Single Judge was that there was a contravention of the provisions of sub-rule (6)(a)(i) of Rule 16 which provided that the evidence of any person being of formal character may be given by affidavit. It was contended that the petitioner had submitted the affidavits of a number of persons to prove that M/s. M. R. & Company existed at Bhadra, but the same were wrongly excluded from consideration by the Enquiry Officer as well as the disciplinary authority on the ground that the deponents were not subjected to cross-examination. Learned Single Judge brushed aside the said contention also and held that the Enquiry Officer had taken note of (sic the affidavit of) Padam Singh which was filed as Exhibit D-16 and did not find the same worthy of acceptance on the basis of the evidence that was produced by the department to prove that there was no firm in the name of M/s. M. R. & Company either at Shahdara, Delhi or at Bhadra. Learned Single Judge also observed that the Enquiry Officer had considered the evidence of Subhash Chandra Mittal, Padam Singh and Mahavir Prasad, but had not treated the said evidence as credible for the reason that there was no firm in the name of M/s. M. R. & Company in Bhadra or in Shahdara, Delhi 7. On appeal, the learned Division Bench set aside the findings of the learned Single Judge on all the aforesaid three contentions and passed an order setting aside the order of the learned Single Judge as well as the disciplinary authority and remanded the case with the direction as already mentioned above. In our view, the learned Division Bench wrongly decided the aforesaid points and there was no justification to remand the matter in the facts and circumstances of the case. Learned Division Bench on the first contention took the view that the petitioner was not given an opportunity to inspect all the relevant documents to enable him to prepare the proper defence regarding the charges levelled against him. It has been observed in this regard that several documents were mentioned in the three lists of Annexure 5 and the same were not included in the file of Anti-corruption Department. It was contended before us that the inspection of all the documents mentioned in the three lists of Annexure 5 were not allowed and as such the petitioner was prejudiced in defending his case. We find no force in this contention. Learned counsel for the respondent was unable to show the relevance of any of the documents of which inspection was not allowed with the charges framed. We have also gone through the report of the Enquiry Officer placed on record in which the finding has been recorded in detail that no such company by the name of M/s M. R. and Company ever existed at any period of time at Bhadra or at Shahdara, Delhi. We were prepared to consider such request even now if the respondent could show any material regarding the existence of M/s M. R. and Company at any place, but the respondent was unable to show any such material and in these circumstances we do not find that any injustice or prejudice has occasioned to the respondent in defending his case. It was merely a ruse for remanding the case and the learned Division Bench did not go to the substance of the matter 8. As regards the objection that the respondent was not afforded an opportunity to engage a legal practitioner, suffice to say that Shri D. C. Malik, the departmental nominee was not a legal practitioner nor a Prosecuting Inspector at the relevant time. Further, the charges against the respondent were not of such nature that he could not defend them himself or through the departmental representative whose assistance was offered to him but which assistance he declined. We agree with the finding and conclusion arrived at by the learned Single Judge in this regard 9. We also find no force in the contention that the Enquiry Officer and the disciplinary authority did not take into consideration the affidavits of some witnesses filed on behalf of the respondent on the ground same could not be taken into consideration without an opportunity of producing the said witness for cross-examination. The evidence on the question whether the firm of M/s M. R. & Company existed at Bhadra or not was not of a formal nature. In fact, it was a crucial point for consideration. The respondent had relied on the affidavit of Padam Singh in order to show that he was running the firm in the name of M/s M. R. & Company at Bhadra, but the same after consideration had been rightly discarded by the Enquiry Officer on adequate reasons given in the report placed on record. In these circumstances, we find that there was no ground or justification for the Division Bench to send the matter back for fresh inquiry 10. It was further submitted before us that the respondent was suspended as back as on February 3, 1968 and was dismissed from service by order dated September 21, 1978 and is now going to attain the age of superannuation in 1994 and has suffered the agony of the long protracted disciplinary proceedings as well as the litigation in the High Court and this Honble Court. It has been contended that the respondent after passing his LL.B. examination is now engaged in writing law books and is author of a large number of law books on local laws of Rajasthan which have been published during the intervening period. It has been submitted that the respondent may at least be given some relief by way of pension even if he is not held entitled to any back wages | 0[ds]We have heard learned counsel for the parties and have thoroughly perused the record. The disciplinary authority after considering in detail the evidence relating to the various charges recorded its finding on each charge. As regards charge No. 1, the disciplinary authority held that the department had failed to establish the first part of the said charge that French letters were not actually purchased by the petitioner (respondent before this Court). The disciplinary authority, however, found that second part of the charge of overwriting and interpolations in the record was established and there was sufficient evidence on the record to prove that there was no firm bearing the name M/s. M. R.Company at Bhadra or at Shahdara, Delhi and someone had arranged the supply of French letters in the name of a bogus firm and from the evidence on record it was established that the petitioner was aware of this fact and if this had not been so, the petitioner would not have become party to this scandal by actively associating himself in making overwriting/interpolations on the record. The disciplinary authority also found that the third part of this charge, namely, the petitioner made payment for French letters at 98 paise per piece whereas the prevalent market price during the relevant period was only 20 paise per piece was also established from the evidence on record and that an avoidable loss to the extent of Rs. 10, 000 was caused to the Panchayat Samiti. Charge No. 4 was also found fully established against the petitioner inasmuch as in making payment by cash, instead of cheque, the had contravened the provisions of the Rule 15 of the Rajasthan Panchayat Samiti and Zila Parishad (Finance, Accounts and Budget) Rules, 1959.The contention was raised before the learned Single Judge that the petitioner was not allowed inspection of the relevant documents which were necessary for the purpose of preparing his statement of. Learned Single Judge observed that there was no substance in the aforesaid submission because the letter (Annexure 7) dated September 1, 1972 showed that the petitioner had completed the inspection of the record in then Department on June 2, 1972 which is also borne out by the letter dated June 12, 1972 addressed by the Deputy Inspector General of Police,n Department to the Secretary to the Government of Rajasthan, Appointments Department. Learned Single Judge further observed that Shri Singhi, learned counsel for the petitioner was unable to show the relevance of the other records mentioned in the letter (Annexure 5) dated July 11, 1972 in ther of enquiryThe learned Single Judge in this regard held that in the present case, the case of the petitioner was that the departmental nominee in the inquiry proceedings was Shri D. C. Malik who had remained Prosecuting Inspector for a number of years, but at the time when the inquiry was held, he was holding the post of Deputy Superintendent of Police and was not Prosecuting Inspector. The request of the petitioner for engaging a lawyer was declined for the reason that no lawyer was appearing on behalf of the department. Learned Single Judge thus held that strictly speaking the petitioner could not ask for the assistance of a legal practitioner undere (5) of Rule 16, because the departmental representative was neither a legal practitioner nor a Police Prosecutor or Prosecuting Inspector. Learned Single Judge also noted that the petitioner was told that he should take the assistance of a government servant who may be in the service of the Rajasthan Government. The petitioner did not choose to exercise the said right and pleaded his own case. It was further noted that from the application that was submitted by the petitioner during the course of the inquiry, the petitioner was found to be a person well versed in law as well as legal decisions. Learned Single Judge also noted that from a persual of the statements of some of the witnesses filed as Annexures 18, 19 and 20 to the writ petition, it was clear that the said witnesses had beend by the petitioner at length. Learned Single Judge also observed that in the present case the main question which had to be considered during the course of inquiry was as to whether M/s. M. R.Company was a genuine firm or a bogus firm and the rates at which the French letters were purchased were higher than the market rate or not. Thus, taking into consideration the entire facts and circumstances of the case, learned Single Judge was of the opinion that it could not be said that the petitioner had suffered any prejudice on account of refusal on the part of the authorities to permit the petitioner to engage a legal practitioner to defend himLearned Single Judge brushed aside the said contention also and held that the Enquiry Officer had taken note of (sic the affidavit of) Padam Singh which was filed as Exhibit6 and did not find the same worthy of acceptance on the basis of the evidence that was produced by the department to prove that there was no firm in the name of M/s. M. R.Company either at Shahdara, Delhi or at Bhadra. Learned Single Judge also observed that the Enquiry Officer had considered the evidence of Subhash Chandra Mittal, Padam Singh and Mahavir Prasad, but had not treated the said evidence as credible for the reason that there was no firm in the name of M/s. M. R.Company in Bhadra or in Shahdara, Delhi7. On appeal, the learned Division Bench set aside the findings of the learned Single Judge on all the aforesaid three contentions and passed an order setting aside the order of the learned Single Judge as well as the disciplinary authority and remanded the case with the direction as already mentioned above. In our view, the learned Division Bench wrongly decided the aforesaid points and there was no justification to remand the matter in the facts and circumstances of the case. Learned Division Bench on the first contention took the view that the petitioner was not given an opportunity to inspect all the relevant documents to enable him to prepare the proper defence regarding the charges levelled against him. It has been observed in this regard that several documents were mentioned in the three lists of Annexure 5 and the same were not included in the file ofn Department. It was contended before us that the inspection of all the documents mentioned in the three lists of Annexure 5 were not allowed and as such the petitioner was prejudiced in defending his case. We find no force in this contention. Learned counsel for the respondent was unable to show the relevance of any of the documents of which inspection was not allowed with the charges framed. We have also gone through the report of the Enquiry Officer placed on record in which the finding has been recorded in detail that no such company by the name of M/s M. R. and Company ever existed at any period of time at Bhadra or at Shahdara, Delhi. We were prepared to consider such request even now if the respondent could show any material regarding the existence of M/s M. R. and Company at any place, but the respondent was unable to show any such material and in these circumstances we do not find that any injustice or prejudice has occasioned to the respondent in defending his case. It was merely a ruse for remanding the case and the learned Division Bench did not go to the substance of the matter8. As regards the objection that the respondent was not afforded an opportunity to engage a legal practitioner, suffice to say that Shri D. C. Malik, the departmental nominee was not a legal practitioner nor a Prosecuting Inspector at the relevant time. Further, the charges against the respondent were not of such nature that he could not defend them himself or through the departmental representative whose assistance was offered to him but which assistance he declined. We agree with the finding and conclusion arrived at by the learned Single Judge in this regard9. We also find no force in the contention that the Enquiry Officer and the disciplinary authority did not take into consideration the affidavits of some witnesses filed on behalf of the respondent on the ground same could not be taken into consideration without an opportunity of producing the said witness for. The evidence on the question whether the firm of M/s M. R.Company existed at Bhadra or not was not of a formal nature. In fact, it was a crucial point for consideration.The respondent had relied on the affidavit of Padam Singh in order to show that he was running the firm in the name of M/s M. R.Company at Bhadra, but the same after consideration had been rightly discarded by the Enquiry Officer on adequate reasons given in the report placed onrecord.In these circumstances, we find that there was no ground or justification for the Division Bench to send the matter back for fresh inquiry | 0 | 2,583 | 1,606 | ### 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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be said that the petitioner had suffered any prejudice on account of refusal on the part of the authorities to permit the petitioner to engage a legal practitioner to defend him 6. Another contention raised before the learned Single Judge was that there was a contravention of the provisions of sub-rule (6)(a)(i) of Rule 16 which provided that the evidence of any person being of formal character may be given by affidavit. It was contended that the petitioner had submitted the affidavits of a number of persons to prove that M/s. M. R. & Company existed at Bhadra, but the same were wrongly excluded from consideration by the Enquiry Officer as well as the disciplinary authority on the ground that the deponents were not subjected to cross-examination. Learned Single Judge brushed aside the said contention also and held that the Enquiry Officer had taken note of (sic the affidavit of) Padam Singh which was filed as Exhibit D-16 and did not find the same worthy of acceptance on the basis of the evidence that was produced by the department to prove that there was no firm in the name of M/s. M. R. & Company either at Shahdara, Delhi or at Bhadra. Learned Single Judge also observed that the Enquiry Officer had considered the evidence of Subhash Chandra Mittal, Padam Singh and Mahavir Prasad, but had not treated the said evidence as credible for the reason that there was no firm in the name of M/s. M. R. & Company in Bhadra or in Shahdara, Delhi 7. On appeal, the learned Division Bench set aside the findings of the learned Single Judge on all the aforesaid three contentions and passed an order setting aside the order of the learned Single Judge as well as the disciplinary authority and remanded the case with the direction as already mentioned above. In our view, the learned Division Bench wrongly decided the aforesaid points and there was no justification to remand the matter in the facts and circumstances of the case. Learned Division Bench on the first contention took the view that the petitioner was not given an opportunity to inspect all the relevant documents to enable him to prepare the proper defence regarding the charges levelled against him. It has been observed in this regard that several documents were mentioned in the three lists of Annexure 5 and the same were not included in the file of Anti-corruption Department. It was contended before us that the inspection of all the documents mentioned in the three lists of Annexure 5 were not allowed and as such the petitioner was prejudiced in defending his case. We find no force in this contention. Learned counsel for the respondent was unable to show the relevance of any of the documents of which inspection was not allowed with the charges framed. We have also gone through the report of the Enquiry Officer placed on record in which the finding has been recorded in detail that no such company by the name of M/s M. R. and Company ever existed at any period of time at Bhadra or at Shahdara, Delhi. We were prepared to consider such request even now if the respondent could show any material regarding the existence of M/s M. R. and Company at any place, but the respondent was unable to show any such material and in these circumstances we do not find that any injustice or prejudice has occasioned to the respondent in defending his case. It was merely a ruse for remanding the case and the learned Division Bench did not go to the substance of the matter 8. As regards the objection that the respondent was not afforded an opportunity to engage a legal practitioner, suffice to say that Shri D. C. Malik, the departmental nominee was not a legal practitioner nor a Prosecuting Inspector at the relevant time. Further, the charges against the respondent were not of such nature that he could not defend them himself or through the departmental representative whose assistance was offered to him but which assistance he declined. We agree with the finding and conclusion arrived at by the learned Single Judge in this regard 9. We also find no force in the contention that the Enquiry Officer and the disciplinary authority did not take into consideration the affidavits of some witnesses filed on behalf of the respondent on the ground same could not be taken into consideration without an opportunity of producing the said witness for cross-examination. The evidence on the question whether the firm of M/s M. R. & Company existed at Bhadra or not was not of a formal nature. In fact, it was a crucial point for consideration. The respondent had relied on the affidavit of Padam Singh in order to show that he was running the firm in the name of M/s M. R. & Company at Bhadra, but the same after consideration had been rightly discarded by the Enquiry Officer on adequate reasons given in the report placed on record. In these circumstances, we find that there was no ground or justification for the Division Bench to send the matter back for fresh inquiry 10. It was further submitted before us that the respondent was suspended as back as on February 3, 1968 and was dismissed from service by order dated September 21, 1978 and is now going to attain the age of superannuation in 1994 and has suffered the agony of the long protracted disciplinary proceedings as well as the litigation in the High Court and this Honble Court. It has been contended that the respondent after passing his LL.B. examination is now engaged in writing law books and is author of a large number of law books on local laws of Rajasthan which have been published during the intervening period. It has been submitted that the respondent may at least be given some relief by way of pension even if he is not held entitled to any back wages
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### Explanation:
was appearing on behalf of the department. Learned Single Judge thus held that strictly speaking the petitioner could not ask for the assistance of a legal practitioner undere (5) of Rule 16, because the departmental representative was neither a legal practitioner nor a Police Prosecutor or Prosecuting Inspector. Learned Single Judge also noted that the petitioner was told that he should take the assistance of a government servant who may be in the service of the Rajasthan Government. The petitioner did not choose to exercise the said right and pleaded his own case. It was further noted that from the application that was submitted by the petitioner during the course of the inquiry, the petitioner was found to be a person well versed in law as well as legal decisions. Learned Single Judge also noted that from a persual of the statements of some of the witnesses filed as Annexures 18, 19 and 20 to the writ petition, it was clear that the said witnesses had beend by the petitioner at length. Learned Single Judge also observed that in the present case the main question which had to be considered during the course of inquiry was as to whether M/s. M. R.Company was a genuine firm or a bogus firm and the rates at which the French letters were purchased were higher than the market rate or not. Thus, taking into consideration the entire facts and circumstances of the case, learned Single Judge was of the opinion that it could not be said that the petitioner had suffered any prejudice on account of refusal on the part of the authorities to permit the petitioner to engage a legal practitioner to defend himLearned Single Judge brushed aside the said contention also and held that the Enquiry Officer had taken note of (sic the affidavit of) Padam Singh which was filed as Exhibit6 and did not find the same worthy of acceptance on the basis of the evidence that was produced by the department to prove that there was no firm in the name of M/s. M. R.Company either at Shahdara, Delhi or at Bhadra. Learned Single Judge also observed that the Enquiry Officer had considered the evidence of Subhash Chandra Mittal, Padam Singh and Mahavir Prasad, but had not treated the said evidence as credible for the reason that there was no firm in the name of M/s. M. R.Company in Bhadra or in Shahdara, Delhi7. On appeal, the learned Division Bench set aside the findings of the learned Single Judge on all the aforesaid three contentions and passed an order setting aside the order of the learned Single Judge as well as the disciplinary authority and remanded the case with the direction as already mentioned above. In our view, the learned Division Bench wrongly decided the aforesaid points and there was no justification to remand the matter in the facts and circumstances of the case. Learned Division Bench on the first contention took the view that the petitioner was not given an opportunity to inspect all the relevant documents to enable him to prepare the proper defence regarding the charges levelled against him. It has been observed in this regard that several documents were mentioned in the three lists of Annexure 5 and the same were not included in the file ofn Department. It was contended before us that the inspection of all the documents mentioned in the three lists of Annexure 5 were not allowed and as such the petitioner was prejudiced in defending his case. We find no force in this contention. Learned counsel for the respondent was unable to show the relevance of any of the documents of which inspection was not allowed with the charges framed. We have also gone through the report of the Enquiry Officer placed on record in which the finding has been recorded in detail that no such company by the name of M/s M. R. and Company ever existed at any period of time at Bhadra or at Shahdara, Delhi. We were prepared to consider such request even now if the respondent could show any material regarding the existence of M/s M. R. and Company at any place, but the respondent was unable to show any such material and in these circumstances we do not find that any injustice or prejudice has occasioned to the respondent in defending his case. It was merely a ruse for remanding the case and the learned Division Bench did not go to the substance of the matter8. As regards the objection that the respondent was not afforded an opportunity to engage a legal practitioner, suffice to say that Shri D. C. Malik, the departmental nominee was not a legal practitioner nor a Prosecuting Inspector at the relevant time. Further, the charges against the respondent were not of such nature that he could not defend them himself or through the departmental representative whose assistance was offered to him but which assistance he declined. We agree with the finding and conclusion arrived at by the learned Single Judge in this regard9. We also find no force in the contention that the Enquiry Officer and the disciplinary authority did not take into consideration the affidavits of some witnesses filed on behalf of the respondent on the ground same could not be taken into consideration without an opportunity of producing the said witness for. The evidence on the question whether the firm of M/s M. R.Company existed at Bhadra or not was not of a formal nature. In fact, it was a crucial point for consideration.The respondent had relied on the affidavit of Padam Singh in order to show that he was running the firm in the name of M/s M. R.Company at Bhadra, but the same after consideration had been rightly discarded by the Enquiry Officer on adequate reasons given in the report placed onrecord.In these circumstances, we find that there was no ground or justification for the Division Bench to send the matter back for fresh inquiry
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The Commissioner of Income-Tax-3, Mumbai Vs. M/S. Saumya Finance & Leasing Company Private Limited | for the financial year was 28th November, 2007. Before this due date the Assessee Company declared and distributed an amount of Rs.2,19,97,105/by way of interim dividend for the financial year 199798. (b) When the returns were filed by the Assessee Company for the financial year 199697, the Company claimed a deduction of Rs.2,19,97,105/from its profit, under Section 80M of the Income Tax Act.(c) A deduction sought by the Assessee Company under Section 80M was disallowed by the Assessment Officer. The appeal filed by the Assessee Company on this point came to be allowed by the Commissioner of Income Tax(Appeals). In the second appeal filed by the revenue to the Income Tax Appellate Tribunal, the Tribunal by relying upon a Judgment of the Mumbai Bench delivered in ITA No.462/M/02 on 10th May, 2002 in the case of M/s.Silvassa Industries Private Limited passed an order on 23rd July, 2004 dismissing the appeal of the revenue. In the circumstances, the revenue has preferred the present appeal in this Court.3. On behalf of the revenue it is contended that it is open to revenue to argue a question of law which had been decided in the case of M/s.Silvassa Industries Private Limited even, though, the Judgment of the Tribunal in the aforesaid case had not been challenged by way of an appeal. It is then contended that the interim dividend was declared by the Assessee Company in the financial year 199798 and out of income accrued in the said year. His further contention was that the dividend declared and paid in a subsequent year could not be a permitted deduction from the income in a previous year since the said dividend was paid out of income accruing in the subsequent year.4. To appreciate the contention raised by the revenue, it is necessary to reproduce (80M as then existing) which was as under:80M. Deduction in respect of certain intercorporate dividends.(1) Where the gross total income of a domestic company, in any previous year, includes any income by way of dividends from another domestic company, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of such domestic company, a deduction of an amount equal to so much of the amount of income by way of dividends from another domestic company as does not exceed the amount of dividend distributed by the firstmentioned domestic company on or before the due date.(2) Where any deduction, in respect of the amount of dividend distributed by the domestic company, has been allowed under subsection (1) in any previous year, no deduction shall be allowed in respect of such amount in any other previous year. Explanation For the purposes of this section, the expression due date means the date for furnishing the return of income under subsection (1) of section 1395. On the bare reading of the Section it is clear that the deduction as permitted is of an amount equal to so much of the amount of income by way of dividend declared by the Company as does not exceed the amount of dividend distributed by the Assessee Company on or before the due date. 6. It is clearly seen that the section does not provide for the nature of the dividend distributed by the Assessee Company. It does not state that the nature of the dividend distributed must be for the financial year under assessment. Accepting the argument of the revenue will amount to laying down an additional restriction to the effect that the dividend distributed by the Assessee Company must be for the financial year under assessment. Laying down such restricting qualification, in our view, will amount to doing violence to the plain and clear meaning of the words as contained in Section 80M.7. Counsel appearing for the revenue sought to argue that where the literal meaning of the words contained in any provision of law, would lead to an absurd result i.e. a result not intended to be subserved, by the object of the legislation and if another construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. According to counsel for revenue, if a literal construction is given to Section 80M then it would lead to an absurd result, since the amount of deduction earned in the subsequent year will be permitted in respect of the income of the previous year. He placed strong reliance on the Judgment of the Apex Court in the case of Varghese v. ITO (1981), reported in 131 ITR 597 . In that case the Apex Court while considering the interpretation to be given to Section 16(3) of the Income Tax Act observed as under :If the purpose of a particular provision is easily discernible from the whole scheme of the Act, which in this case is to counteract the effect of the transfer of assets so far as computation of income of the assessee is concerned, then bearing that purpose in mind, we should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result, i.e., a result not intended to be subserved by the object of the legislation found in the manner indicated before, then if another construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. 8. In our view, this is not a case where a literal construction to be given to Section 80M would lead to an absurd result. The intention of legislature while enacting Section 80M was clearly to ensure that the dividend income received by the Assessee Company should be permitted as a deduction only if it is redistributed as dividend income to its shareholders. The section provided that the said distribution to be made before the due date of the filing of the returns. This has been done by the present respondent and all the requirements of Section 80M are clearly met by them. | 0[ds]5. On the bare reading of the Section it is clear that the deduction as permitted is of an amount equal to so much of the amount of income by way of dividend declared by the Company as does not exceed the amount of dividend distributed by the Assessee Company on or before the due date. 6. It is clearly seen that the section does not provide for the nature of the dividend distributed by the Assessee Company. It does not state that the nature of the dividend distributed must be for the financial year under assessment. Accepting the argument of the revenue will amount to laying down an additional restriction to the effect that the dividend distributed by the Assessee Company must be for the financial year under assessment. Laying down such restricting qualification, in our view, will amount to doing violence to the plain and clear meaning of the words as contained in Section 80M.7. Counsel appearing for the revenue sought to argue that where the literal meaning of the words contained in any provision of law, would lead to an absurd result i.e. a result not intended to be subserved, by the object of the legislation and if another construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. According to counsel for revenue, if a literal construction is given to Section 80M then it would lead to an absurd result, since the amount of deduction earned in the subsequent year will be permitted in respect of the income of the previous year.In our view, this is not a case where a literal construction to be given to Section 80M would lead to an absurd result. The intention of legislature while enacting Section 80M was clearly to ensure that the dividend income received by the Assessee Company should be permitted as a deduction only if it is redistributed as dividend income to its shareholders. The section provided that the said distribution to be made before the due date of the filing of the returns. This has been done by the present respondent and all the requirements of Section 80M are clearly met by them. | 0 | 1,315 | 391 | ### 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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for the financial year was 28th November, 2007. Before this due date the Assessee Company declared and distributed an amount of Rs.2,19,97,105/by way of interim dividend for the financial year 199798. (b) When the returns were filed by the Assessee Company for the financial year 199697, the Company claimed a deduction of Rs.2,19,97,105/from its profit, under Section 80M of the Income Tax Act.(c) A deduction sought by the Assessee Company under Section 80M was disallowed by the Assessment Officer. The appeal filed by the Assessee Company on this point came to be allowed by the Commissioner of Income Tax(Appeals). In the second appeal filed by the revenue to the Income Tax Appellate Tribunal, the Tribunal by relying upon a Judgment of the Mumbai Bench delivered in ITA No.462/M/02 on 10th May, 2002 in the case of M/s.Silvassa Industries Private Limited passed an order on 23rd July, 2004 dismissing the appeal of the revenue. In the circumstances, the revenue has preferred the present appeal in this Court.3. On behalf of the revenue it is contended that it is open to revenue to argue a question of law which had been decided in the case of M/s.Silvassa Industries Private Limited even, though, the Judgment of the Tribunal in the aforesaid case had not been challenged by way of an appeal. It is then contended that the interim dividend was declared by the Assessee Company in the financial year 199798 and out of income accrued in the said year. His further contention was that the dividend declared and paid in a subsequent year could not be a permitted deduction from the income in a previous year since the said dividend was paid out of income accruing in the subsequent year.4. To appreciate the contention raised by the revenue, it is necessary to reproduce (80M as then existing) which was as under:80M. Deduction in respect of certain intercorporate dividends.(1) Where the gross total income of a domestic company, in any previous year, includes any income by way of dividends from another domestic company, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of such domestic company, a deduction of an amount equal to so much of the amount of income by way of dividends from another domestic company as does not exceed the amount of dividend distributed by the firstmentioned domestic company on or before the due date.(2) Where any deduction, in respect of the amount of dividend distributed by the domestic company, has been allowed under subsection (1) in any previous year, no deduction shall be allowed in respect of such amount in any other previous year. Explanation For the purposes of this section, the expression due date means the date for furnishing the return of income under subsection (1) of section 1395. On the bare reading of the Section it is clear that the deduction as permitted is of an amount equal to so much of the amount of income by way of dividend declared by the Company as does not exceed the amount of dividend distributed by the Assessee Company on or before the due date. 6. It is clearly seen that the section does not provide for the nature of the dividend distributed by the Assessee Company. It does not state that the nature of the dividend distributed must be for the financial year under assessment. Accepting the argument of the revenue will amount to laying down an additional restriction to the effect that the dividend distributed by the Assessee Company must be for the financial year under assessment. Laying down such restricting qualification, in our view, will amount to doing violence to the plain and clear meaning of the words as contained in Section 80M.7. Counsel appearing for the revenue sought to argue that where the literal meaning of the words contained in any provision of law, would lead to an absurd result i.e. a result not intended to be subserved, by the object of the legislation and if another construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. According to counsel for revenue, if a literal construction is given to Section 80M then it would lead to an absurd result, since the amount of deduction earned in the subsequent year will be permitted in respect of the income of the previous year. He placed strong reliance on the Judgment of the Apex Court in the case of Varghese v. ITO (1981), reported in 131 ITR 597 . In that case the Apex Court while considering the interpretation to be given to Section 16(3) of the Income Tax Act observed as under :If the purpose of a particular provision is easily discernible from the whole scheme of the Act, which in this case is to counteract the effect of the transfer of assets so far as computation of income of the assessee is concerned, then bearing that purpose in mind, we should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result, i.e., a result not intended to be subserved by the object of the legislation found in the manner indicated before, then if another construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. 8. In our view, this is not a case where a literal construction to be given to Section 80M would lead to an absurd result. The intention of legislature while enacting Section 80M was clearly to ensure that the dividend income received by the Assessee Company should be permitted as a deduction only if it is redistributed as dividend income to its shareholders. The section provided that the said distribution to be made before the due date of the filing of the returns. This has been done by the present respondent and all the requirements of Section 80M are clearly met by them.
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### Explanation:
5. On the bare reading of the Section it is clear that the deduction as permitted is of an amount equal to so much of the amount of income by way of dividend declared by the Company as does not exceed the amount of dividend distributed by the Assessee Company on or before the due date. 6. It is clearly seen that the section does not provide for the nature of the dividend distributed by the Assessee Company. It does not state that the nature of the dividend distributed must be for the financial year under assessment. Accepting the argument of the revenue will amount to laying down an additional restriction to the effect that the dividend distributed by the Assessee Company must be for the financial year under assessment. Laying down such restricting qualification, in our view, will amount to doing violence to the plain and clear meaning of the words as contained in Section 80M.7. Counsel appearing for the revenue sought to argue that where the literal meaning of the words contained in any provision of law, would lead to an absurd result i.e. a result not intended to be subserved, by the object of the legislation and if another construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction. According to counsel for revenue, if a literal construction is given to Section 80M then it would lead to an absurd result, since the amount of deduction earned in the subsequent year will be permitted in respect of the income of the previous year.In our view, this is not a case where a literal construction to be given to Section 80M would lead to an absurd result. The intention of legislature while enacting Section 80M was clearly to ensure that the dividend income received by the Assessee Company should be permitted as a deduction only if it is redistributed as dividend income to its shareholders. The section provided that the said distribution to be made before the due date of the filing of the returns. This has been done by the present respondent and all the requirements of Section 80M are clearly met by them.
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SIRDAR K.B.RAMACHANDRA RAJ URS (DEAD) THROUGH LRS Vs. SARAH C URS | Court has held that estoppel by conduct could not arise when a person concerned knew the right position relating to the title in property in his possession, he could not plead that he was induced to hold an erroneous belief because of the conduct of real owner of that property. This court has observed thus: 6. We will consider the question of estoppel first. The conduct of the first defendant from which the learned counsel wants us to draw the inference of estoppel consists of her attitude when she was served with a notice by the plaintiff, her general attitude respecting Bangalore properties as expressed in the letter dated 17th January 1941, written by her to her stepmother and the attestation by her and her husband on 3rd October 1944, of the will executed on 25th January 1941 by Maddanappa. In the notice dated 26th January 1948, by the plaintiffs lawyer to the first defendant it was stated that the plaintiff and the first defendant were joint owners of the suit properties which were in possession of their father and requested for the cooperation of the first defendant in order to effect the division of the properties. A copy of this notice was sent to Maddanappa, and he sent a reply to it to the plaintiffs lawyers. The first defendant, however, sent no reply at all. We find it difficult to construe the conduct of the first defendant in not replying to the notice and is not cooperating with the plaintiff in instituting a suit for obtaining possession of the properties as justifying the inference of estoppel. It does not mean that she impliedly admitted that she had no interest in the properties. It is true that in Ex. 15, which is a letter sent by her on 17th January 1941, to her stepmother she has observed thus: I have no desire whatsoever in respect of the properties which are at Bangalore. Everything belongs to my father. He has the sole authority to do anything…. We give our consent to anything done by our father. We will not do anything. But even these statements cannot assist the appellants because admittedly, the father knew the true legal position. That is to say; the father knew that these properties belonged to Puttananjamma and that he had no authority to deal with these properties. No doubt, in his written statement, Maddanappa had set up a case that the properties belonged to him by virtue of the declaration made by Puttananjamma at the time of her death, but that case has been negatived by the courts below. The fathers possession must, therefore, be deemed to have been, to his knowledge, on behalf of the plaintiff and the first defendant. There was thus no possibility of an erroneous belief about his title being created in the mind of Maddanappa because of what the first defendant had said in her letter to her stepmother. 7. Insofar as the attestation of the will is concerned, the appellants position is no better. This will purports to make a disposition of the suit properties along with other properties by Maddanappa in favour of Defendants 3 to 8. The attestation of the will by the first defendant and her husband, would no doubt affix them with the knowledge of what Maddanappa was doing, but it cannot operate as estoppel against them and in favour of Defendants 3 to 8 or even in favour of Maddanappa. The will could take effect only upon the death of Maddanappa and, therefore, no interest in the property had at all accrued to Defendants 3 to 8, even on the date of the suit. So far as Maddanappa is concerned, he, as already stated, knew the true position and, therefore, could not say that an erroneous belief about his title to the properties was created in his mind by reason of the conduct of the first defendant and her husband in attesting the document. Apart from that, there is nothing on the record to show that by reason of the conduct of the first defendant Maddanappa altered his position to his disadvantage. 8. Mr. Venkatarangaiengar, however, says that subsequent to the execution of the will, he had effected further improvements in the properties and for this purpose, spent his own moneys. According to him, he would not have done so in the absence of assurance like the one given by the first defendant and her husband to the effect that they had no objection to the disposition of the suit properties by him in any way he chose to make it. The short answer to this is that Maddanappa, on his own allegations, was not only in possession and enjoyment of these properties ever since the death of Putananjamma but had made improvements in the properties even before the execution of the will. In these circumstances, it is clear that the provisions of Section 115 of the Indian Evidence Act, which contain the law of estoppel by representation, do not help him. 22. Thus, it is clear that there was no possibility of erroneous beliefs in the mind of the plaintiffs as to title position in the property. No doubt about it that defendant No.1 has acted as a power of attorney, but at the same time, did not act in his capacity as the owner of the property. The ownership of K.B. Ramchandra Raj Urs was known to the plaintiffs. In spite of that the plaintiffs have not set up the case to bind the share of K.B. Ramchandra Raj Urs. They have not pleaded in the plaint that K.B Ramchandra Raj Urs owned the property. There is no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint. They needed to plead the facts to attract the plea of estoppel. That has not been done. Thus, the agreement which had been executed was not concerning share of defendant No.1, but of late K. Basavaraja Urs as his power of attorney. | 1[ds]16. The concurrent findings are recorded as to receipt of consideration and execution of the agreement to sell. There is no doubt about it that M.P. Chandrakanta Raj Urs (Plaintiff No.2) was earlier a counsel and legal advisor to K. Basavaraja Urs, but when the agreement had been executed, he was not a lawyer and became a Judge of the High Court. There are concurrent findings recorded concerning the execution of the agreement, and it has been rightly found established that signatures were not obtained on blank papers. There is concurrent finding recorded by the courts below that consideration has been paid. Thus, no case for interference is made out in the aforesaid findings17. The courts below have found that correspondence was made by defendants No.1 to obtain Income Tax clearance. The suit has been held not to be barred by limitation. Given the facts and material placed on record, no interference is called for with those findings also19. The statement of plaintiff No. 2 has been pointed out, indicating that he was aware that there were equal shares of K. Basavaraja Urs and K. B. Ramchandra Raj Urs (defendant No.1) in the property. Thus, plaintiff No.2 cannot plead that they were induced by erroneous belief while entering into agreement, by the conduct of defendant No.1. The plea of estoppel is, thus, not attracted. There is no proper foundation in the pleading regarding the plea of estoppel. The submission raised by learned counsel on behalf of respondent is that defendant No.1 acted as power of attorney holder of his father and received the sale consideration also. As such he is bound by the plea of estoppel to contend to the contraryA bare reading of the agreement described above makes it clear that agreement is between late K. Basavaraja Urs through power of attorney, K.B. Ramchandra Raj Urs. The Vendors is mentioned as K. Basavaraja Urs and not K.B. Ramchandra Raj Urs. Thus, it cannot be said that K.B. Ramchandra Raj Urs had executed the agreement on his behalf, concerning his share in the property. There is no whisper about the same in the agreement. The position mentioned above may indicate that plaintiffs were misled by the Power of Attorney holder that only late K. Basavaraja Urs was the exclusive owner of the property. When we consider the statement of M.P Chandrakanta Raj Urs (Plaintiff No.2), it clearly indicates that he was well aware of the fact that Princess Leelavathi owned the property and upon her death the property devolved upon, in equal shares and he was aware of the other sale deeds executed (Exhs. P 43, P-44, P-45, P-46). It is clear that plaintiff No.2 was aware as to the extant title of K.B. Ram Chandra Raj Urs in the property and also the fact that it was a joint family property. In the plaint, the plaintiffs have not taken the plea of estoppel, and now the case was set up that property had been sold by defendant No.1 in his capacity without any such plea in the plaint. Thus, plaintiff No.2 was well aware of the fact as to the title of K.B. Ramchandra Raj Urs in the property and that late K. Basavaraja Urs did not exclusively own the property21. The plea of estoppel in view the decision of this court in R.S. Madanappa (deceased) v. Chandramma & Anr., (supra) is not attracted, in which the Court has held that estoppel by conduct could not arise when a person concerned knew the right position relating to the title in property in his possession, he could not plead that he was induced to hold an erroneous belief because of the conduct of real owner of that property22. Thus, it is clear that there was no possibility of erroneous beliefs in the mind of the plaintiffs as to title position in the property. No doubt about it that defendant No.1 has acted as a power of attorney, but at the same time, did not act in his capacity as the owner of the property. The ownership of K.B. Ramchandra Raj Urs was known to the plaintiffs. In spite of that the plaintiffs have not set up the case to bind the share of K.B. Ramchandra Raj Urs. They have not pleaded in the plaint that K.B Ramchandra Raj Urs owned the property. There is no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint. They needed to plead the facts to attract the plea of estoppel. That has not been done. Thus, the agreement which had been executed was not concerning share of defendant No.1, but of late K. Basavaraja Urs as his power of attorney. | 1 | 4,106 | 872 | ### 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:
Court has held that estoppel by conduct could not arise when a person concerned knew the right position relating to the title in property in his possession, he could not plead that he was induced to hold an erroneous belief because of the conduct of real owner of that property. This court has observed thus: 6. We will consider the question of estoppel first. The conduct of the first defendant from which the learned counsel wants us to draw the inference of estoppel consists of her attitude when she was served with a notice by the plaintiff, her general attitude respecting Bangalore properties as expressed in the letter dated 17th January 1941, written by her to her stepmother and the attestation by her and her husband on 3rd October 1944, of the will executed on 25th January 1941 by Maddanappa. In the notice dated 26th January 1948, by the plaintiffs lawyer to the first defendant it was stated that the plaintiff and the first defendant were joint owners of the suit properties which were in possession of their father and requested for the cooperation of the first defendant in order to effect the division of the properties. A copy of this notice was sent to Maddanappa, and he sent a reply to it to the plaintiffs lawyers. The first defendant, however, sent no reply at all. We find it difficult to construe the conduct of the first defendant in not replying to the notice and is not cooperating with the plaintiff in instituting a suit for obtaining possession of the properties as justifying the inference of estoppel. It does not mean that she impliedly admitted that she had no interest in the properties. It is true that in Ex. 15, which is a letter sent by her on 17th January 1941, to her stepmother she has observed thus: I have no desire whatsoever in respect of the properties which are at Bangalore. Everything belongs to my father. He has the sole authority to do anything…. We give our consent to anything done by our father. We will not do anything. But even these statements cannot assist the appellants because admittedly, the father knew the true legal position. That is to say; the father knew that these properties belonged to Puttananjamma and that he had no authority to deal with these properties. No doubt, in his written statement, Maddanappa had set up a case that the properties belonged to him by virtue of the declaration made by Puttananjamma at the time of her death, but that case has been negatived by the courts below. The fathers possession must, therefore, be deemed to have been, to his knowledge, on behalf of the plaintiff and the first defendant. There was thus no possibility of an erroneous belief about his title being created in the mind of Maddanappa because of what the first defendant had said in her letter to her stepmother. 7. Insofar as the attestation of the will is concerned, the appellants position is no better. This will purports to make a disposition of the suit properties along with other properties by Maddanappa in favour of Defendants 3 to 8. The attestation of the will by the first defendant and her husband, would no doubt affix them with the knowledge of what Maddanappa was doing, but it cannot operate as estoppel against them and in favour of Defendants 3 to 8 or even in favour of Maddanappa. The will could take effect only upon the death of Maddanappa and, therefore, no interest in the property had at all accrued to Defendants 3 to 8, even on the date of the suit. So far as Maddanappa is concerned, he, as already stated, knew the true position and, therefore, could not say that an erroneous belief about his title to the properties was created in his mind by reason of the conduct of the first defendant and her husband in attesting the document. Apart from that, there is nothing on the record to show that by reason of the conduct of the first defendant Maddanappa altered his position to his disadvantage. 8. Mr. Venkatarangaiengar, however, says that subsequent to the execution of the will, he had effected further improvements in the properties and for this purpose, spent his own moneys. According to him, he would not have done so in the absence of assurance like the one given by the first defendant and her husband to the effect that they had no objection to the disposition of the suit properties by him in any way he chose to make it. The short answer to this is that Maddanappa, on his own allegations, was not only in possession and enjoyment of these properties ever since the death of Putananjamma but had made improvements in the properties even before the execution of the will. In these circumstances, it is clear that the provisions of Section 115 of the Indian Evidence Act, which contain the law of estoppel by representation, do not help him. 22. Thus, it is clear that there was no possibility of erroneous beliefs in the mind of the plaintiffs as to title position in the property. No doubt about it that defendant No.1 has acted as a power of attorney, but at the same time, did not act in his capacity as the owner of the property. The ownership of K.B. Ramchandra Raj Urs was known to the plaintiffs. In spite of that the plaintiffs have not set up the case to bind the share of K.B. Ramchandra Raj Urs. They have not pleaded in the plaint that K.B Ramchandra Raj Urs owned the property. There is no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint. They needed to plead the facts to attract the plea of estoppel. That has not been done. Thus, the agreement which had been executed was not concerning share of defendant No.1, but of late K. Basavaraja Urs as his power of attorney.
### Response:
1
### Explanation:
16. The concurrent findings are recorded as to receipt of consideration and execution of the agreement to sell. There is no doubt about it that M.P. Chandrakanta Raj Urs (Plaintiff No.2) was earlier a counsel and legal advisor to K. Basavaraja Urs, but when the agreement had been executed, he was not a lawyer and became a Judge of the High Court. There are concurrent findings recorded concerning the execution of the agreement, and it has been rightly found established that signatures were not obtained on blank papers. There is concurrent finding recorded by the courts below that consideration has been paid. Thus, no case for interference is made out in the aforesaid findings17. The courts below have found that correspondence was made by defendants No.1 to obtain Income Tax clearance. The suit has been held not to be barred by limitation. Given the facts and material placed on record, no interference is called for with those findings also19. The statement of plaintiff No. 2 has been pointed out, indicating that he was aware that there were equal shares of K. Basavaraja Urs and K. B. Ramchandra Raj Urs (defendant No.1) in the property. Thus, plaintiff No.2 cannot plead that they were induced by erroneous belief while entering into agreement, by the conduct of defendant No.1. The plea of estoppel is, thus, not attracted. There is no proper foundation in the pleading regarding the plea of estoppel. The submission raised by learned counsel on behalf of respondent is that defendant No.1 acted as power of attorney holder of his father and received the sale consideration also. As such he is bound by the plea of estoppel to contend to the contraryA bare reading of the agreement described above makes it clear that agreement is between late K. Basavaraja Urs through power of attorney, K.B. Ramchandra Raj Urs. The Vendors is mentioned as K. Basavaraja Urs and not K.B. Ramchandra Raj Urs. Thus, it cannot be said that K.B. Ramchandra Raj Urs had executed the agreement on his behalf, concerning his share in the property. There is no whisper about the same in the agreement. The position mentioned above may indicate that plaintiffs were misled by the Power of Attorney holder that only late K. Basavaraja Urs was the exclusive owner of the property. When we consider the statement of M.P Chandrakanta Raj Urs (Plaintiff No.2), it clearly indicates that he was well aware of the fact that Princess Leelavathi owned the property and upon her death the property devolved upon, in equal shares and he was aware of the other sale deeds executed (Exhs. P 43, P-44, P-45, P-46). It is clear that plaintiff No.2 was aware as to the extant title of K.B. Ram Chandra Raj Urs in the property and also the fact that it was a joint family property. In the plaint, the plaintiffs have not taken the plea of estoppel, and now the case was set up that property had been sold by defendant No.1 in his capacity without any such plea in the plaint. Thus, plaintiff No.2 was well aware of the fact as to the title of K.B. Ramchandra Raj Urs in the property and that late K. Basavaraja Urs did not exclusively own the property21. The plea of estoppel in view the decision of this court in R.S. Madanappa (deceased) v. Chandramma & Anr., (supra) is not attracted, in which the Court has held that estoppel by conduct could not arise when a person concerned knew the right position relating to the title in property in his possession, he could not plead that he was induced to hold an erroneous belief because of the conduct of real owner of that property22. Thus, it is clear that there was no possibility of erroneous beliefs in the mind of the plaintiffs as to title position in the property. No doubt about it that defendant No.1 has acted as a power of attorney, but at the same time, did not act in his capacity as the owner of the property. The ownership of K.B. Ramchandra Raj Urs was known to the plaintiffs. In spite of that the plaintiffs have not set up the case to bind the share of K.B. Ramchandra Raj Urs. They have not pleaded in the plaint that K.B Ramchandra Raj Urs owned the property. There is no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint. They needed to plead the facts to attract the plea of estoppel. That has not been done. Thus, the agreement which had been executed was not concerning share of defendant No.1, but of late K. Basavaraja Urs as his power of attorney.
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Charanjit Singh Chadha Vs. Sudhir Mehra | to the hirer under the hire-purchase agreement will not amount to theft as the vital element of `dishonest intention is lacking. The element of `dishonest intention which is an essential element of constitute the offence of theft cannot be attributed to a person exercising his right under an agreement entered into between the parties as he may not have an intention of causing wrongful gain or to cause wrongful loss to the hirer. It is appropriate to note that the term `dishonestly is defined under Section 24 of the IPC as follows : "Dishonestly" ---- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". 14. It is also to be noticed that learned author R.M. Goode, in his book Hire Purchase Law and Practice (Second Edn.) has observed as follows at page 846 :- "It would seem that so long as the hirer is in possession of the goods they belong to him for the purpose of the Act [The Theft Act, 1968] even though his possession is unlawful, e.g. because the hire-purchase agreement has come to an end. If the owner has an enforceable right to possession then he will not be guilty of theft in seizing the goods if he knew of his legal rights since he will not be acting dishonestly but will have taken the goods in the well founded belief that he has a right to resume possession." 15. This Court also had occasion to consider this question. One of the earlier decisions is Sardar Trilok Singh and Ors. v. Satya Deo Tripathi, [1979] 4 SCC 396. In that case, the parties had entered into a hire-purchase agreement. The complainant alleged that the accused, in a high handed manner during his absence came to his house and forcibly removed the truck and thereby committed the offence of a dacoity. The police investigated the case and filed a final report. The accused filed his objection before the Magistrate, but the objection was not considered. The accused filed a revision before the sessions court which was dismissed. Thereafter the accused filed a petition under Section 482 Cr.P.C to quash the proceedings. That was summarily dismissed by the High Court to quash the proceedings. That was summarily dismissed by the High Court and the matter reached up to this Court at the instance of the accused. In paragraph 5 of the judgment, this Court observed : "We are clearly of the view that it was not a case where any processes ought to have been directed to be issued against any of the accused. On the well-settled principles of law it was a very suitable case where the criminal proceeding ought to have been quashed by the High Court in exercise of its inherent power. The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct. Money must have been advanced to him and his partner by the financier on the basis of some terms settled between the parties ............................................................................ Even assuming that the appellants either by themselves or in the company of some others went and seized the truck on July 30, 1973 from the house of the respondent they could and did claim to have done so in exercise of their bona fide right seizing the truck on the respondents failure to pay the third monthly instalment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck". 16. In K.A. Mathai and Anr. v. Kora Bibbikutty and Anr., [1996] 7 SCC 212 , the bus was obtained by the complainant on a hire-purchase agreement. The complainant paid only part of the consideration and defaulted in paying the instalments and the vehicle was taken possession of by the financier and at that time, both the first accused who had driven away the bus from the possession of the complainant and the second accused were present in the bus. They were prosecuted for the offence punishable under Section 379 read with Section 114 IPC. This Court holding that the bus was taken away at the instance of the financier and the accused had not committed any offence observed as under : "Though we do not have the advantage of reading the hire-purchase agreement, but as normally drawn it would have contained the clause that in the event of the failure to make payment of instalment/s the financier had the right to resume possession of the vehicle. Since the financiers agreement with A-2 contained that clause of resumption of possession, that has to be read, if not specifically provided in the agreement, as part of the sale agreement between A-2 and the complainant. It is in these circumstances, the financier took possession of the bus from the complainant with the aid of the appellants. It cannot thus be said that the appellants, in any way, had committed the offence of theft and that too, with the requisite mens rea and requisite dishonest intention." 17. The hire-purchase agreement in law is an executory contract of sale and confers no right in rem on hirer until the conditions for transfer of the property to him have been fulfilled. Therefore, the re-possession of goods as per the term of the agreement may not amount to any criminal offence. The agreement [Annexure P-1] specifically gave authority to the appellants to re-possess the vehicle and their agents have been given the right to enter any property or building wherein the motor vehicle was likely to be kept. Under the hire-purchase agreement, the appellants have continued to be the owners of the vehicle and even if the entire allegations against them are taken as true, no offence was made out against them. The learned Single Judge seriously flawed in his decision and failed to exercise jurisdiction vested in him by not quashing the proceedings initiated against the appellants. | 1[ds]13. But in the instant case, the ownerthe vehicle delivered to the hirer under theagreement will not amount to theft as the vital element of `dishonest intention is lacking. The element of `dishonest intention which is an essential element of constitute the offence of theft cannot be attributed to a person exercising his right under an agreement entered into between the parties as he may not have an intention of causing wrongful gain or to cause wrongful loss to the hirer.In K.A. Mathai and Anr. v. Kora Bibbikutty and Anr., [1996] 7 SCC 212 , the bus was obtained by the complainant on aagreement. The complainant paid only part of the consideration and defaulted in paying the instalments and the vehicle was taken possession of by the financier and at that time, both the first accused who had driven away the bus from the possession of the complainant and the second accused were present in the bus. They were prosecuted for the offence punishable under Section 379 read with Section 114 IPC.se agreement in law is an executory contract of sale and confers no right in rem on hirer until the conditions for transfer of the property to him have been fulfilled. Therefore, theof goods as per the term of the agreement may not amount to any criminal offence. The agreement [Annexurespecifically gave authority to the appellants torepossess the vehicle andtheir agents have been given the right to enter any property or building wherein the motor vehicle was likely to be kept. Under theagreement, the appellants have continued to be the owners of the vehicle and even if the entire allegations against them are taken as true, no offence was made out against them. The learned Single Judge seriously flawed in his decision and failed to exercise jurisdiction vested in him by not quashing the proceedings initiated against the appellants. | 1 | 2,924 | 337 | ### 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:
to the hirer under the hire-purchase agreement will not amount to theft as the vital element of `dishonest intention is lacking. The element of `dishonest intention which is an essential element of constitute the offence of theft cannot be attributed to a person exercising his right under an agreement entered into between the parties as he may not have an intention of causing wrongful gain or to cause wrongful loss to the hirer. It is appropriate to note that the term `dishonestly is defined under Section 24 of the IPC as follows : "Dishonestly" ---- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". 14. It is also to be noticed that learned author R.M. Goode, in his book Hire Purchase Law and Practice (Second Edn.) has observed as follows at page 846 :- "It would seem that so long as the hirer is in possession of the goods they belong to him for the purpose of the Act [The Theft Act, 1968] even though his possession is unlawful, e.g. because the hire-purchase agreement has come to an end. If the owner has an enforceable right to possession then he will not be guilty of theft in seizing the goods if he knew of his legal rights since he will not be acting dishonestly but will have taken the goods in the well founded belief that he has a right to resume possession." 15. This Court also had occasion to consider this question. One of the earlier decisions is Sardar Trilok Singh and Ors. v. Satya Deo Tripathi, [1979] 4 SCC 396. In that case, the parties had entered into a hire-purchase agreement. The complainant alleged that the accused, in a high handed manner during his absence came to his house and forcibly removed the truck and thereby committed the offence of a dacoity. The police investigated the case and filed a final report. The accused filed his objection before the Magistrate, but the objection was not considered. The accused filed a revision before the sessions court which was dismissed. Thereafter the accused filed a petition under Section 482 Cr.P.C to quash the proceedings. That was summarily dismissed by the High Court to quash the proceedings. That was summarily dismissed by the High Court and the matter reached up to this Court at the instance of the accused. In paragraph 5 of the judgment, this Court observed : "We are clearly of the view that it was not a case where any processes ought to have been directed to be issued against any of the accused. On the well-settled principles of law it was a very suitable case where the criminal proceeding ought to have been quashed by the High Court in exercise of its inherent power. The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct. Money must have been advanced to him and his partner by the financier on the basis of some terms settled between the parties ............................................................................ Even assuming that the appellants either by themselves or in the company of some others went and seized the truck on July 30, 1973 from the house of the respondent they could and did claim to have done so in exercise of their bona fide right seizing the truck on the respondents failure to pay the third monthly instalment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck". 16. In K.A. Mathai and Anr. v. Kora Bibbikutty and Anr., [1996] 7 SCC 212 , the bus was obtained by the complainant on a hire-purchase agreement. The complainant paid only part of the consideration and defaulted in paying the instalments and the vehicle was taken possession of by the financier and at that time, both the first accused who had driven away the bus from the possession of the complainant and the second accused were present in the bus. They were prosecuted for the offence punishable under Section 379 read with Section 114 IPC. This Court holding that the bus was taken away at the instance of the financier and the accused had not committed any offence observed as under : "Though we do not have the advantage of reading the hire-purchase agreement, but as normally drawn it would have contained the clause that in the event of the failure to make payment of instalment/s the financier had the right to resume possession of the vehicle. Since the financiers agreement with A-2 contained that clause of resumption of possession, that has to be read, if not specifically provided in the agreement, as part of the sale agreement between A-2 and the complainant. It is in these circumstances, the financier took possession of the bus from the complainant with the aid of the appellants. It cannot thus be said that the appellants, in any way, had committed the offence of theft and that too, with the requisite mens rea and requisite dishonest intention." 17. The hire-purchase agreement in law is an executory contract of sale and confers no right in rem on hirer until the conditions for transfer of the property to him have been fulfilled. Therefore, the re-possession of goods as per the term of the agreement may not amount to any criminal offence. The agreement [Annexure P-1] specifically gave authority to the appellants to re-possess the vehicle and their agents have been given the right to enter any property or building wherein the motor vehicle was likely to be kept. Under the hire-purchase agreement, the appellants have continued to be the owners of the vehicle and even if the entire allegations against them are taken as true, no offence was made out against them. The learned Single Judge seriously flawed in his decision and failed to exercise jurisdiction vested in him by not quashing the proceedings initiated against the appellants.
### Response:
1
### Explanation:
13. But in the instant case, the ownerthe vehicle delivered to the hirer under theagreement will not amount to theft as the vital element of `dishonest intention is lacking. The element of `dishonest intention which is an essential element of constitute the offence of theft cannot be attributed to a person exercising his right under an agreement entered into between the parties as he may not have an intention of causing wrongful gain or to cause wrongful loss to the hirer.In K.A. Mathai and Anr. v. Kora Bibbikutty and Anr., [1996] 7 SCC 212 , the bus was obtained by the complainant on aagreement. The complainant paid only part of the consideration and defaulted in paying the instalments and the vehicle was taken possession of by the financier and at that time, both the first accused who had driven away the bus from the possession of the complainant and the second accused were present in the bus. They were prosecuted for the offence punishable under Section 379 read with Section 114 IPC.se agreement in law is an executory contract of sale and confers no right in rem on hirer until the conditions for transfer of the property to him have been fulfilled. Therefore, theof goods as per the term of the agreement may not amount to any criminal offence. The agreement [Annexurespecifically gave authority to the appellants torepossess the vehicle andtheir agents have been given the right to enter any property or building wherein the motor vehicle was likely to be kept. Under theagreement, the appellants have continued to be the owners of the vehicle and even if the entire allegations against them are taken as true, no offence was made out against them. The learned Single Judge seriously flawed in his decision and failed to exercise jurisdiction vested in him by not quashing the proceedings initiated against the appellants.
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Anmol Kumar Tiwari & Ors Vs. The State of Jharkhand & Ors | Court ought not to have directed the appointment of the Writ Petitioners as they were initially appointed due to irregularities committed by the authorities in the selection process. After the revision of the select list, the Writ Petitioners were replaced by others who secured more marks than them. Learned Additional Advocate General made an attempt to distinguish the judgment of this Court in Vikas Pratap Singhs case (supra) by arguing that the period of service rendered by the Writ Petitioners is much lesser than the period of service of those in the case decided by this Court. Learned Additional Advocate General submitted that 39 out of 42 Writ Petitioners were reinstated due to the orders passed in Contempt proceedings after being informed that the reinstatements were subject to the result of these Appeals. According to the learned Additional Advocate General, the statement made on behalf of the Government that there were no vacancies for appointing the intervenors cannot be found fault with. He submitted that the vacancies that arose after 2008 were due to the restructuring of the police force. He further submitted that the intervenors in the Writ Petitions have no right to seek appointment as only 384 posts of Sub-Inspectors were advertised. 8. On behalf of the Writ Petitioners, it was argued that though the selections initially were made on the basis of preference to the 3 categories of posts that were advertised. It was later found that the select list should have been prepared on the basis of merit and thereafter, preference has to be taken into account. Having realized the mistake that was committed, the authorities revised the select list pursuant to which the appointment of the Writ Petitioners was cancelled. By the time a decision was taken to revise the select list and cancel their appointments. The Writ Petitioners had completed their training and had worked for a considerable period of time. According to them, the High Court correctly granted relief to the Writ Petitioners by taking into account the fact that they were not responsible for the irregularities committed in the preparation of the initial select list. 9. Two issues arise for our consideration. The first relates to the correctness of the direction given by the High Court to reinstate the Writ Petitioners. The High Court directed reinstatement of the Writ Petitioners after taking into account the fact that they were beneficiaries of the select list that was prepared in an irregular manner. However, the High Court found that the Writ Petitioners were not responsible for the irregularities committed by the authorities in preparation of the select list. Moreover, the Writ Petitioners were appointed after completion of training and worked for some time. The High Court was of the opinion that the Writ Petitioners ought to be considered for reinstatement without affecting the rights of other candidates who were already selected. A similar situation arose in Vikas Pratap Singhs case (supra), where this Court considered that the Appellants-therein were appointed due to an error committed by the Respondents in the matter of valuation of answer scripts. As there was no allegation of fraud or misrepresentation committed by the Appellants therein, the termination of their services was set aside as it would adversely affect their careers. That the Appellants-therein had successfully undergone training and were serving the State for more than 3 years was another reason that was given by this Court for setting aside the orders passed by the High Court. As the Writ Petitioners are similarly situated to the Appellants in Vikas Pratap Singhs case (supra), we are in agreement with the High Court that the Writ Petitioners are entitled to the relief granted. Moreover, though on pain of Contempt, the Writ Petitioners have been reinstated and are working at present. 10. The second issue relates to the claim of the intervenors in the Writ Petitions for appointment. There is no doubt that selections to public employment should be on the basis of merit. Appointment of persons with lesser merit ignoring those who have secured more marks would be in violation of the Articles 14 and 16 of the Constitution of India. The intervenors in the Writ Petitions admittedly have secured more marks than the Writ Petitioners. After cancellation of the appointments of the Writ Petitioners, 43 persons have been appointed from the revised select list. Those 43 persons have secured more marks than the intervenors. By the appointment of 43 persons, the number of posts that were advertised i.e. 384 have been filled up. The intervenors have no right for appointment to posts beyond those advertised. The contention on behalf of the intervenors in the Writ Petitions is that they cannot be ignored when relief is granted to the Writ Petitioners who were less meritorious than them. We are unable to agree. Relief granted to Writ Petitioners is mainly on the ground that they have already been appointed and have served the State for some time and they cannot be punished for no fault of theirs. The intervenors are not similarly situated to them and they cannot seek the same relief. The other ground taken by the intervenors in the Writ Petitions before us is that relief was denied to them only on the basis of a wrong statement made on behalf of the State Government that there were no vacancies. No doubt, the intervenors have placed on record material to show that there was no shortage of vacancies for their appointment. One of the reasons given by the High Court for not granting relief to the intervenors is lack of vacancies. However, we are not inclined to direct appointment of the intervenors as selections in issue pertain to an advertisement issued in 2008. Subsequently, selections to posts of Sub-Inspectors have been held and a large number of persons were appointed. The number of posts advertised in 2008 is 384 and the intervenors have no right for appointment for posts beyond those advertised. They cannot claim any parity with the Writ Petitioners. | 0[ds]The High Court directed reinstatement of the Writ Petitioners after taking into account the fact that they were beneficiaries of the select list that was prepared in an irregular manner. However, the High Court found that the Writ Petitioners were not responsible for the irregularities committed by the authorities in preparation of the select list. Moreover, the Writ Petitioners were appointed after completion of training and worked for some time. The High Court was of the opinion that the Writ Petitioners ought to be considered for reinstatement without affecting the rights of other candidates who were already selected. A similar situation arose in Vikas Pratap Singhs case (supra), where this Court considered that the Appellants-therein were appointed due to an error committed by the Respondents in the matter of valuation of answer scripts. As there was no allegation of fraud or misrepresentation committed by the Appellants therein, the termination of their services was set aside as it would adversely affect their careers. That the Appellants-therein had successfully undergone training and were serving the State for more than 3 years was another reason that was given by this Court for setting aside the orders passed by the High Court. As the Writ Petitioners are similarly situated to the Appellants in Vikas Pratap Singhs case (supra), we are in agreement with the High Court that the Writ Petitioners are entitled to the relief granted. Moreover, though on pain of Contempt, the Writ Petitioners have been reinstated and are working at present.There is no doubt that selections to public employment should be on the basis of merit. Appointment of persons with lesser merit ignoring those who have secured more marks would be in violation of the Articles 14 and 16 of the Constitution of India. The intervenors in the Writ Petitions admittedly have secured more marks than the Writ Petitioners. After cancellation of the appointments of the Writ Petitioners, 43 persons have been appointed from the revised select list. Those 43 persons have secured more marks than the intervenors. By the appointment of 43 persons, the number of posts that were advertised i.e. 384 have been filled up. The intervenors have no right for appointment to posts beyond those advertised. The contention on behalf of the intervenors in the Writ Petitions is that they cannot be ignored when relief is granted to the Writ Petitioners who were less meritorious than them. We are unable to agree. Relief granted to Writ Petitioners is mainly on the ground that they have already been appointed and have served the State for some time and they cannot be punished for no fault of theirs. The intervenors are not similarly situated to them and they cannot seek the same relief. The other ground taken by the intervenors in the Writ Petitions before us is that relief was denied to them only on the basis of a wrong statement made on behalf of the State Government that there were no vacancies. No doubt, the intervenors have placed on record material to show that there was no shortage of vacancies for their appointment. One of the reasons given by the High Court for not granting relief to the intervenors is lack of vacancies. However, we are not inclined to direct appointment of the intervenors as selections in issue pertain to an advertisement issued in 2008. Subsequently, selections to posts of Sub-Inspectors have been held and a large number of persons were appointed. The number of posts advertised in 2008 is 384 and the intervenors have no right for appointment for posts beyond those advertised. They cannot claim any parity with the Writ Petitioners. | 0 | 2,108 | 654 | ### Instruction:
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Court ought not to have directed the appointment of the Writ Petitioners as they were initially appointed due to irregularities committed by the authorities in the selection process. After the revision of the select list, the Writ Petitioners were replaced by others who secured more marks than them. Learned Additional Advocate General made an attempt to distinguish the judgment of this Court in Vikas Pratap Singhs case (supra) by arguing that the period of service rendered by the Writ Petitioners is much lesser than the period of service of those in the case decided by this Court. Learned Additional Advocate General submitted that 39 out of 42 Writ Petitioners were reinstated due to the orders passed in Contempt proceedings after being informed that the reinstatements were subject to the result of these Appeals. According to the learned Additional Advocate General, the statement made on behalf of the Government that there were no vacancies for appointing the intervenors cannot be found fault with. He submitted that the vacancies that arose after 2008 were due to the restructuring of the police force. He further submitted that the intervenors in the Writ Petitions have no right to seek appointment as only 384 posts of Sub-Inspectors were advertised. 8. On behalf of the Writ Petitioners, it was argued that though the selections initially were made on the basis of preference to the 3 categories of posts that were advertised. It was later found that the select list should have been prepared on the basis of merit and thereafter, preference has to be taken into account. Having realized the mistake that was committed, the authorities revised the select list pursuant to which the appointment of the Writ Petitioners was cancelled. By the time a decision was taken to revise the select list and cancel their appointments. The Writ Petitioners had completed their training and had worked for a considerable period of time. According to them, the High Court correctly granted relief to the Writ Petitioners by taking into account the fact that they were not responsible for the irregularities committed in the preparation of the initial select list. 9. Two issues arise for our consideration. The first relates to the correctness of the direction given by the High Court to reinstate the Writ Petitioners. The High Court directed reinstatement of the Writ Petitioners after taking into account the fact that they were beneficiaries of the select list that was prepared in an irregular manner. However, the High Court found that the Writ Petitioners were not responsible for the irregularities committed by the authorities in preparation of the select list. Moreover, the Writ Petitioners were appointed after completion of training and worked for some time. The High Court was of the opinion that the Writ Petitioners ought to be considered for reinstatement without affecting the rights of other candidates who were already selected. A similar situation arose in Vikas Pratap Singhs case (supra), where this Court considered that the Appellants-therein were appointed due to an error committed by the Respondents in the matter of valuation of answer scripts. As there was no allegation of fraud or misrepresentation committed by the Appellants therein, the termination of their services was set aside as it would adversely affect their careers. That the Appellants-therein had successfully undergone training and were serving the State for more than 3 years was another reason that was given by this Court for setting aside the orders passed by the High Court. As the Writ Petitioners are similarly situated to the Appellants in Vikas Pratap Singhs case (supra), we are in agreement with the High Court that the Writ Petitioners are entitled to the relief granted. Moreover, though on pain of Contempt, the Writ Petitioners have been reinstated and are working at present. 10. The second issue relates to the claim of the intervenors in the Writ Petitions for appointment. There is no doubt that selections to public employment should be on the basis of merit. Appointment of persons with lesser merit ignoring those who have secured more marks would be in violation of the Articles 14 and 16 of the Constitution of India. The intervenors in the Writ Petitions admittedly have secured more marks than the Writ Petitioners. After cancellation of the appointments of the Writ Petitioners, 43 persons have been appointed from the revised select list. Those 43 persons have secured more marks than the intervenors. By the appointment of 43 persons, the number of posts that were advertised i.e. 384 have been filled up. The intervenors have no right for appointment to posts beyond those advertised. The contention on behalf of the intervenors in the Writ Petitions is that they cannot be ignored when relief is granted to the Writ Petitioners who were less meritorious than them. We are unable to agree. Relief granted to Writ Petitioners is mainly on the ground that they have already been appointed and have served the State for some time and they cannot be punished for no fault of theirs. The intervenors are not similarly situated to them and they cannot seek the same relief. The other ground taken by the intervenors in the Writ Petitions before us is that relief was denied to them only on the basis of a wrong statement made on behalf of the State Government that there were no vacancies. No doubt, the intervenors have placed on record material to show that there was no shortage of vacancies for their appointment. One of the reasons given by the High Court for not granting relief to the intervenors is lack of vacancies. However, we are not inclined to direct appointment of the intervenors as selections in issue pertain to an advertisement issued in 2008. Subsequently, selections to posts of Sub-Inspectors have been held and a large number of persons were appointed. The number of posts advertised in 2008 is 384 and the intervenors have no right for appointment for posts beyond those advertised. They cannot claim any parity with the Writ Petitioners.
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0
### Explanation:
The High Court directed reinstatement of the Writ Petitioners after taking into account the fact that they were beneficiaries of the select list that was prepared in an irregular manner. However, the High Court found that the Writ Petitioners were not responsible for the irregularities committed by the authorities in preparation of the select list. Moreover, the Writ Petitioners were appointed after completion of training and worked for some time. The High Court was of the opinion that the Writ Petitioners ought to be considered for reinstatement without affecting the rights of other candidates who were already selected. A similar situation arose in Vikas Pratap Singhs case (supra), where this Court considered that the Appellants-therein were appointed due to an error committed by the Respondents in the matter of valuation of answer scripts. As there was no allegation of fraud or misrepresentation committed by the Appellants therein, the termination of their services was set aside as it would adversely affect their careers. That the Appellants-therein had successfully undergone training and were serving the State for more than 3 years was another reason that was given by this Court for setting aside the orders passed by the High Court. As the Writ Petitioners are similarly situated to the Appellants in Vikas Pratap Singhs case (supra), we are in agreement with the High Court that the Writ Petitioners are entitled to the relief granted. Moreover, though on pain of Contempt, the Writ Petitioners have been reinstated and are working at present.There is no doubt that selections to public employment should be on the basis of merit. Appointment of persons with lesser merit ignoring those who have secured more marks would be in violation of the Articles 14 and 16 of the Constitution of India. The intervenors in the Writ Petitions admittedly have secured more marks than the Writ Petitioners. After cancellation of the appointments of the Writ Petitioners, 43 persons have been appointed from the revised select list. Those 43 persons have secured more marks than the intervenors. By the appointment of 43 persons, the number of posts that were advertised i.e. 384 have been filled up. The intervenors have no right for appointment to posts beyond those advertised. The contention on behalf of the intervenors in the Writ Petitions is that they cannot be ignored when relief is granted to the Writ Petitioners who were less meritorious than them. We are unable to agree. Relief granted to Writ Petitioners is mainly on the ground that they have already been appointed and have served the State for some time and they cannot be punished for no fault of theirs. The intervenors are not similarly situated to them and they cannot seek the same relief. The other ground taken by the intervenors in the Writ Petitions before us is that relief was denied to them only on the basis of a wrong statement made on behalf of the State Government that there were no vacancies. No doubt, the intervenors have placed on record material to show that there was no shortage of vacancies for their appointment. One of the reasons given by the High Court for not granting relief to the intervenors is lack of vacancies. However, we are not inclined to direct appointment of the intervenors as selections in issue pertain to an advertisement issued in 2008. Subsequently, selections to posts of Sub-Inspectors have been held and a large number of persons were appointed. The number of posts advertised in 2008 is 384 and the intervenors have no right for appointment for posts beyond those advertised. They cannot claim any parity with the Writ Petitioners.
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Vinod Giri Goswami & Ors Vs. The State of Uttarakhand & Ors | the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A). 13. In the instant case, the promotees were appointed on ad hoc basis in the year 2004. There is no dispute regarding their appointment on a regular basis in the year 2007. According to the 1982 Rules and the 2005 Rules, appointment by promotion to the post of Deputy Collector shall be as per the Promotion for Selection in consultation with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970. Procedure for promotion is laid down in the 1970 Rules which provide that the eligibility list or lists have to be forwarded by the State Government to the Commission which conducts the selection. The appointment of the promotees in the year 2004 is on ad hoc basis for a period of one year without following the procedure prescribed under the Uttaranchal Promotion by Selection in consultation with Public Service Commission (Procedure) Rules, 2003. As the promotions in 2004 were made in clear violation of the Rules, the promotees are not entitled to claim seniority from the dates of initial appointments as Deputy Collectors. The High Court committed an error in treating the ad hoc appointments of the promotees to be only procedurally defective to give them the benefit of the ad hoc service by applying the judgment in Direct Recruit Class II Engineering Officers Association (supra). The High Court further went wrong in holding that the promotees were entitled for the benefit of ad hoc service in view of proviso to sub-rule (4) of Rule 24 of 2005 Rules. No doubt, according to the proviso to sub-rule (4) Rule 24 a promotee is entitled to count ad hoc service provided he continuously worked till he is regularly promoted in a post within the promotee quota. No finding is recorded by the High Court on this very important prerequisite whether promotees appointed on ad hoc basis in 2004 continuously worked in a post within the promottee quota. On the other hand, it is clear from the Office Memorandum dated 21.10.2015 that only 2 posts were available in the promotee quota during 2003-2004. Those posts also were allotted to promotees who worked in Uttar Pradesh throughout their career and never joined in the State of Uttarakhand. Admittedly, they are seniors to promotees in the instant case. Therefore, the High Court was not right in giving the benefit of ad hoc service to the promotees on the basis that the proviso to Rule 24(4) of 2005 Rules comes into play. In view of the above, we do not think it necessary to adjudicate the dispute relating to the proviso to Rule 24 which exists in the English translation and does not find place in the Hindi copy. 14. A close scrutiny of the Office Memorandum dated 21.10.2015 would show that the exercise done by the State of Uttarakhand in the matter of identification of vacancies within the direct recruit and promotee quota from 2000-2001 to 2006-2007 is correct. The objection of the promotees is that the Deputy Collectors who were allotted to Uttarakhand never worked in the State of Uttarakhand and they continued to work in the State of Uttar Pradesh from which they retired. The grievance of the promotees is that if such officers are included in the seniority list, the promotees will suffer as they would be placed below the direct recruits who were appointed in the year 2005. The allotment process was delayed due to some officers continuing in Uttar Pradesh on the strength of interim orders in Writ Petitions filed by them challenging the allotment orders. Some of them have retired on attaining the age of superannuation while working in Uttar Pradesh. The allotment process ultimately was finalised on 02.09.2015. After the final allocation, persons who did not join in Uttarakhand and retired in Uttar Pradesh have to be treated as employees of the successor State of Uttarakhand. Moreover, the allotment was made w.e.f. 09.11.2000 which leaves no doubt that they cannot be ignored while finalising the quota for promotees and deciding the allotment of slots for the personnel in the order of their seniority. | 1[ds]In Direct Recruit Class II Engineering Officers Association (supra), this Court held that the seniority of a person has to be counted from the date of his initial appointment if he was appointed in a post in accordance with the Rules. The corollary is that where the initial appointment is only ad hoc and not according to Rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for determining seniority. It was further held that the period of officiation can be counted if the initial appointment is not made by following the procedure laid down by the Rules but the appointees continued in the post uninterruptedly till the regularisation of his service in accordance with the Rules. This Court settled a controversy relating to the application of the principles laid down in Direct Recruit Class II Engineering Officers Association (supra) by a judgment in State of West Bengal & Ors. v. Aghore Nath Dey & Ors. (1993) 3 SCC 371 It was held as follows:22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed according to rules. The corollary set out in conclusion (A), then is, that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority23. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other24. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A)25. In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, if the initial appointment is not made by following the procedure laid down by the rules and the latter expression till the regularisation of his service in accordance with the rules. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A)13. In the instant case, the promotees were appointed on ad hoc basis in the year 2004. There is no dispute regarding their appointment on a regular basis in the year 2007. According to the 1982 Rules and the 2005 Rules, appointment by promotion to the post of Deputy Collector shall be as per the Promotion for Selection in consultation with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970. Procedure for promotion is laid down in the 1970 Rules which provide that the eligibility list or lists have to be forwarded by the State Government to the Commission which conducts the selection. The appointment of the promotees in the year 2004 is on ad hoc basis for a period of one year without following the procedure prescribed under the Uttaranchal Promotion by Selection in consultation with Public Service Commission (Procedure) Rules, 2003. As the promotions in 2004 were made in clear violation of the Rules, the promotees are not entitled to claim seniority from the dates of initial appointments as Deputy Collectors. The High Court committed an error in treating the ad hoc appointments of the promotees to be only procedurally defective to give them the benefit of the ad hoc service by applying the judgment in Direct Recruit Class II Engineering Officers Association (supra). The High Court further went wrong in holding that the promotees were entitled for the benefit of ad hoc service in view of proviso to sub-rule (4) of Rule 24 of 2005 Rules. No doubt, according to the proviso to sub-rule (4) Rule 24 a promotee is entitled to count ad hoc service provided he continuously worked till he is regularly promoted in a post within the promotee quota. No finding is recorded by the High Court on this very important prerequisite whether promotees appointed on ad hoc basis in 2004 continuously worked in a post within the promottee quota. On the other hand, it is clear from the Office Memorandum dated 21.10.2015 that only 2 posts were available in the promotee quota during 2003-2004. Those posts also were allotted to promotees who worked in Uttar Pradesh throughout their career and never joined in the State of Uttarakhand. Admittedly, they are seniors to promotees in the instant case. Therefore, the High Court was not right in giving the benefit of ad hoc service to the promotees on the basis that the proviso to Rule 24(4) of 2005 Rules comes into play. In view of the above, we do not think it necessary to adjudicate the dispute relating to the proviso to Rule 24 which exists in the English translation and does not find place in the Hindi copy14. A close scrutiny of the Office Memorandum dated 21.10.2015 would show that the exercise done by the State of Uttarakhand in the matter of identification of vacancies within the direct recruit and promotee quota from 2000-2001 to 2006-2007 is correct.The objection of the promotees is that the Deputy Collectors who were allotted to Uttarakhand never worked in the State of Uttarakhand and they continued to work in the State of Uttar Pradesh from which they retired. The grievance of the promotees is that if such officers are included in the seniority list, the promotees will suffer as they would be placed below the direct recruits who were appointed in the year 2005.The allotment process was delayed due to some officers continuing in Uttar Pradesh on the strength of interim orders in Writ Petitions filed by them challenging the allotment orders. Some of them have retired on attaining the age of superannuation while working in Uttar Pradesh. The allotment process ultimately was finalised on 02.09.2015. After the final allocation, persons who did not join in Uttarakhand and retired in Uttar Pradesh have to be treated as employees of the successor State of Uttarakhand. Moreover, the allotment was made w.e.f. 09.11.2000 which leaves no doubt that they cannot be ignored while finalising the quota for promotees and deciding the allotment of slots for the personnel in the order of their seniority. | 1 | 4,512 | 1,739 | ### Instruction:
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the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A). 13. In the instant case, the promotees were appointed on ad hoc basis in the year 2004. There is no dispute regarding their appointment on a regular basis in the year 2007. According to the 1982 Rules and the 2005 Rules, appointment by promotion to the post of Deputy Collector shall be as per the Promotion for Selection in consultation with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970. Procedure for promotion is laid down in the 1970 Rules which provide that the eligibility list or lists have to be forwarded by the State Government to the Commission which conducts the selection. The appointment of the promotees in the year 2004 is on ad hoc basis for a period of one year without following the procedure prescribed under the Uttaranchal Promotion by Selection in consultation with Public Service Commission (Procedure) Rules, 2003. As the promotions in 2004 were made in clear violation of the Rules, the promotees are not entitled to claim seniority from the dates of initial appointments as Deputy Collectors. The High Court committed an error in treating the ad hoc appointments of the promotees to be only procedurally defective to give them the benefit of the ad hoc service by applying the judgment in Direct Recruit Class II Engineering Officers Association (supra). The High Court further went wrong in holding that the promotees were entitled for the benefit of ad hoc service in view of proviso to sub-rule (4) of Rule 24 of 2005 Rules. No doubt, according to the proviso to sub-rule (4) Rule 24 a promotee is entitled to count ad hoc service provided he continuously worked till he is regularly promoted in a post within the promotee quota. No finding is recorded by the High Court on this very important prerequisite whether promotees appointed on ad hoc basis in 2004 continuously worked in a post within the promottee quota. On the other hand, it is clear from the Office Memorandum dated 21.10.2015 that only 2 posts were available in the promotee quota during 2003-2004. Those posts also were allotted to promotees who worked in Uttar Pradesh throughout their career and never joined in the State of Uttarakhand. Admittedly, they are seniors to promotees in the instant case. Therefore, the High Court was not right in giving the benefit of ad hoc service to the promotees on the basis that the proviso to Rule 24(4) of 2005 Rules comes into play. In view of the above, we do not think it necessary to adjudicate the dispute relating to the proviso to Rule 24 which exists in the English translation and does not find place in the Hindi copy. 14. A close scrutiny of the Office Memorandum dated 21.10.2015 would show that the exercise done by the State of Uttarakhand in the matter of identification of vacancies within the direct recruit and promotee quota from 2000-2001 to 2006-2007 is correct. The objection of the promotees is that the Deputy Collectors who were allotted to Uttarakhand never worked in the State of Uttarakhand and they continued to work in the State of Uttar Pradesh from which they retired. The grievance of the promotees is that if such officers are included in the seniority list, the promotees will suffer as they would be placed below the direct recruits who were appointed in the year 2005. The allotment process was delayed due to some officers continuing in Uttar Pradesh on the strength of interim orders in Writ Petitions filed by them challenging the allotment orders. Some of them have retired on attaining the age of superannuation while working in Uttar Pradesh. The allotment process ultimately was finalised on 02.09.2015. After the final allocation, persons who did not join in Uttarakhand and retired in Uttar Pradesh have to be treated as employees of the successor State of Uttarakhand. Moreover, the allotment was made w.e.f. 09.11.2000 which leaves no doubt that they cannot be ignored while finalising the quota for promotees and deciding the allotment of slots for the personnel in the order of their seniority.
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time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A)13. In the instant case, the promotees were appointed on ad hoc basis in the year 2004. There is no dispute regarding their appointment on a regular basis in the year 2007. According to the 1982 Rules and the 2005 Rules, appointment by promotion to the post of Deputy Collector shall be as per the Promotion for Selection in consultation with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970. Procedure for promotion is laid down in the 1970 Rules which provide that the eligibility list or lists have to be forwarded by the State Government to the Commission which conducts the selection. The appointment of the promotees in the year 2004 is on ad hoc basis for a period of one year without following the procedure prescribed under the Uttaranchal Promotion by Selection in consultation with Public Service Commission (Procedure) Rules, 2003. As the promotions in 2004 were made in clear violation of the Rules, the promotees are not entitled to claim seniority from the dates of initial appointments as Deputy Collectors. The High Court committed an error in treating the ad hoc appointments of the promotees to be only procedurally defective to give them the benefit of the ad hoc service by applying the judgment in Direct Recruit Class II Engineering Officers Association (supra). The High Court further went wrong in holding that the promotees were entitled for the benefit of ad hoc service in view of proviso to sub-rule (4) of Rule 24 of 2005 Rules. No doubt, according to the proviso to sub-rule (4) Rule 24 a promotee is entitled to count ad hoc service provided he continuously worked till he is regularly promoted in a post within the promotee quota. No finding is recorded by the High Court on this very important prerequisite whether promotees appointed on ad hoc basis in 2004 continuously worked in a post within the promottee quota. On the other hand, it is clear from the Office Memorandum dated 21.10.2015 that only 2 posts were available in the promotee quota during 2003-2004. Those posts also were allotted to promotees who worked in Uttar Pradesh throughout their career and never joined in the State of Uttarakhand. Admittedly, they are seniors to promotees in the instant case. Therefore, the High Court was not right in giving the benefit of ad hoc service to the promotees on the basis that the proviso to Rule 24(4) of 2005 Rules comes into play. In view of the above, we do not think it necessary to adjudicate the dispute relating to the proviso to Rule 24 which exists in the English translation and does not find place in the Hindi copy14. A close scrutiny of the Office Memorandum dated 21.10.2015 would show that the exercise done by the State of Uttarakhand in the matter of identification of vacancies within the direct recruit and promotee quota from 2000-2001 to 2006-2007 is correct.The objection of the promotees is that the Deputy Collectors who were allotted to Uttarakhand never worked in the State of Uttarakhand and they continued to work in the State of Uttar Pradesh from which they retired. The grievance of the promotees is that if such officers are included in the seniority list, the promotees will suffer as they would be placed below the direct recruits who were appointed in the year 2005.The allotment process was delayed due to some officers continuing in Uttar Pradesh on the strength of interim orders in Writ Petitions filed by them challenging the allotment orders. Some of them have retired on attaining the age of superannuation while working in Uttar Pradesh. The allotment process ultimately was finalised on 02.09.2015. After the final allocation, persons who did not join in Uttarakhand and retired in Uttar Pradesh have to be treated as employees of the successor State of Uttarakhand. Moreover, the allotment was made w.e.f. 09.11.2000 which leaves no doubt that they cannot be ignored while finalising the quota for promotees and deciding the allotment of slots for the personnel in the order of their seniority.
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Kedari Lal Vs. State of M.P. & Others | and a fine of Rs. 15,000 in default whereof to undergo further sentence of rigorous imprisonment for 1 year.6. While dealing with Criminal Appeal preferred by the appellant, the High Court took the view that Rules 14, 17 and 19 of the M.P. Civil Services (Conduct) Rules, 1965 (“the Rules” for short) prohibit the public servant from accepting gifts or loan except in the manner prescribed therein. It was observed that given the expression “known sources of income” appearing under Section 13(1)(e) of the Act, the income must be such which was received from lawful source and that it must be in compliance of the Rules as well. The High Court held disclosure of receipt of money in the Income Tax Returns was of no assistance to the appellant unless the Rules were duly complied with. The High Court thus affirmed the view taken by the Trial Court and dismissed the appeal confirming the sentence.7. The correctness of the judgment passed by the High Court is challenged in this appeal by Special Leave. During the pendency of this appeal, this court was pleased to direct the release of the appellant on bail. 8. Appearing in support of the appeal, Mr. Siddharth Luthra, learned Senior Counsel submitted that every receipt of amount was duly intimated by the appellant to the department contemporaneously and such amounts were also reflected in his Income Tax Report, filed well before the initiation of the prosecution in the instant case. It was further submitted that after taking into account the amount so intimated, the balance of Rs. 37,605 at best remains unexplained. But such amount being less than 10% of the total income, the appellant was entitled to the benefit in terms of decisions of this Court. 9. Mr. C. D. Singh, learned advocate appearing for the State supported the view taken by the court below. Relying upon the decision of this court in N. Ramakrishnaiah (D) through LR’s Vs. State of A.P. (2008 (17) SCC 83 ), it was submitted that the loans and gifts received by the petitioner would not constitute “known sources of income” as defined under Section 13(1) (e) of the Act. 10. The expression “known sources of income” in Section 13(1) (e) of the Act has two elements, first the income must be received from a lawful source and secondly the receipt of such income must have been intimated in accordance with the provisions of law, rules or orders for the time being applicable to the public servant. In N. Ramakrishnaiah (Supra), while dealing with said expression, it was observed:- “…For the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (1) his property, or (b) his investment.” The categories so enumerated are illustrative. Receipt by way of share in the partition of ancestral property or bequest under a will or advances from close relations would come within the expression “known sources of income” provided the second condition stands fulfilled that is to say, such receipts were duly intimated to the authorities as prescribed. 11. We have gone through Rules 14, 17 and 19 of the Rules. Rule 14 lays down that a government servant on occasions such as weddings, anniversaries or religious functions may accept gifts up to certain limit, if he makes a report of such fact to the Government within a period of one month. Sub Rules (4) and (5) provide inter alia, that in any other case, the government servant shall not accept any gift without the sanction of the Government and if the gift exceeds Rs. 2000, except through an account payee cheque. Rule 17 deals with investment, lending and borrowing and provides inter alia that Government Servant may give to, or accept from a relation or a personal friend, a purely temporary loan. Rule 19 lays down that the government servant must intimate the details of property inherited or acquired by the Govt. Servant. There is no absolute embargo or prohibition in the Rules and all that is required is sanction or permission from the Government. 12. In the instant case, every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also supported by contemporaneous documents and intimations to the Government. It is not the case that the receipts so projected were bogus or was part of a calculated device. The fact that these amounts were actually received from the sources so named is not in dispute. Furthermore, these amounts are well reflected in the Income Tax Returns filed by the appellant. In similar circumstances, the acquisitions being reflected in Income Tax Returns weighed with this court in granting relief to the public servant. In M. Krishana Reddy Vs. State (1992(4) SCC 49). It was observed in Para 14 :- “…..Therefore, on the face of these unassailable documents i.e. the wealth tax and income tax returns, we hold that the appellant is entitled to have a deduction of Rs.56,240/- from the disproportionate assets of Rs.2,37,842/-.” Similarly in D.S.P Chennai Vs. K. Ibasagarain (2006 (1) SCC 420 ), the fact that the money was treated in the hands of the wife of the public servant and that she was assessed by the Income Tax Department was taken note of while accepting the explanation given by the public servant.13. If the amounts in question, which were duly intimated and are reflected in the Income Tax Return are thus deducted, the alleged disproportionate assets stand reduced to Rs. 37,605, which is less than 10 % of the income of the Appellant. In Krishnanand Vs. State of Madhya Pradesh (1977 (1) SCC 816 )and in M. Krishna Reddy (Supra), this court had granted benefit to the public servants in similar circumstances. We respectfully follow said decisions.14. In our view there is no violation of Section 13(1)(e) read with Section 13(2) of the Act. | 1[ds]12. In the instant case, every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also supported by contemporaneous documents and intimations to the Government. It is not the case that the receipts so projected were bogus or was part of a calculated device. The fact that these amounts were actually received from the sources so named is not in dispute. Furthermore, these amounts are well reflected in the Income Tax Returns filed by the appellant. In similar circumstances, the acquisitions being reflected in Income Tax Returns weighed with this court in granting relief to the public servant. In M. Krishana Reddy Vs. State (1992(4) SCC 49). It was observed in Para 14on the face of these unassailable documents i.e. the wealth tax and income tax returns, we hold that the appellant is entitled to have a deduction of Rs.56,240/from the disproportionate assets ofin D.S.P Chennai Vs. K. Ibasagarain (2006 (1) SCC 420 ), the fact that the money was treated in the hands of the wife of the public servant and that she was assessed by the Income Tax Department was taken note of while accepting the explanation given by the public servant.13. If the amounts in question, which were duly intimated and are reflected in the Income Tax Return are thus deducted, the alleged disproportionate assets stand reduced to Rs. 37,605, which is less than 10 % of the income of the Appellant. In Krishnanand Vs. State of Madhya Pradesh (1977 (1) SCC 816 )and in M. Krishna Reddy (Supra), this court had granted benefit to the public servants in similar circumstances. We respectfully follow said decisions.14. In our view there is no violation of Section 13(1)(e) read with Section 13(2) of the Act. | 1 | 2,119 | 346 | ### 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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and a fine of Rs. 15,000 in default whereof to undergo further sentence of rigorous imprisonment for 1 year.6. While dealing with Criminal Appeal preferred by the appellant, the High Court took the view that Rules 14, 17 and 19 of the M.P. Civil Services (Conduct) Rules, 1965 (“the Rules” for short) prohibit the public servant from accepting gifts or loan except in the manner prescribed therein. It was observed that given the expression “known sources of income” appearing under Section 13(1)(e) of the Act, the income must be such which was received from lawful source and that it must be in compliance of the Rules as well. The High Court held disclosure of receipt of money in the Income Tax Returns was of no assistance to the appellant unless the Rules were duly complied with. The High Court thus affirmed the view taken by the Trial Court and dismissed the appeal confirming the sentence.7. The correctness of the judgment passed by the High Court is challenged in this appeal by Special Leave. During the pendency of this appeal, this court was pleased to direct the release of the appellant on bail. 8. Appearing in support of the appeal, Mr. Siddharth Luthra, learned Senior Counsel submitted that every receipt of amount was duly intimated by the appellant to the department contemporaneously and such amounts were also reflected in his Income Tax Report, filed well before the initiation of the prosecution in the instant case. It was further submitted that after taking into account the amount so intimated, the balance of Rs. 37,605 at best remains unexplained. But such amount being less than 10% of the total income, the appellant was entitled to the benefit in terms of decisions of this Court. 9. Mr. C. D. Singh, learned advocate appearing for the State supported the view taken by the court below. Relying upon the decision of this court in N. Ramakrishnaiah (D) through LR’s Vs. State of A.P. (2008 (17) SCC 83 ), it was submitted that the loans and gifts received by the petitioner would not constitute “known sources of income” as defined under Section 13(1) (e) of the Act. 10. The expression “known sources of income” in Section 13(1) (e) of the Act has two elements, first the income must be received from a lawful source and secondly the receipt of such income must have been intimated in accordance with the provisions of law, rules or orders for the time being applicable to the public servant. In N. Ramakrishnaiah (Supra), while dealing with said expression, it was observed:- “…For the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (1) his property, or (b) his investment.” The categories so enumerated are illustrative. Receipt by way of share in the partition of ancestral property or bequest under a will or advances from close relations would come within the expression “known sources of income” provided the second condition stands fulfilled that is to say, such receipts were duly intimated to the authorities as prescribed. 11. We have gone through Rules 14, 17 and 19 of the Rules. Rule 14 lays down that a government servant on occasions such as weddings, anniversaries or religious functions may accept gifts up to certain limit, if he makes a report of such fact to the Government within a period of one month. Sub Rules (4) and (5) provide inter alia, that in any other case, the government servant shall not accept any gift without the sanction of the Government and if the gift exceeds Rs. 2000, except through an account payee cheque. Rule 17 deals with investment, lending and borrowing and provides inter alia that Government Servant may give to, or accept from a relation or a personal friend, a purely temporary loan. Rule 19 lays down that the government servant must intimate the details of property inherited or acquired by the Govt. Servant. There is no absolute embargo or prohibition in the Rules and all that is required is sanction or permission from the Government. 12. In the instant case, every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also supported by contemporaneous documents and intimations to the Government. It is not the case that the receipts so projected were bogus or was part of a calculated device. The fact that these amounts were actually received from the sources so named is not in dispute. Furthermore, these amounts are well reflected in the Income Tax Returns filed by the appellant. In similar circumstances, the acquisitions being reflected in Income Tax Returns weighed with this court in granting relief to the public servant. In M. Krishana Reddy Vs. State (1992(4) SCC 49). It was observed in Para 14 :- “…..Therefore, on the face of these unassailable documents i.e. the wealth tax and income tax returns, we hold that the appellant is entitled to have a deduction of Rs.56,240/- from the disproportionate assets of Rs.2,37,842/-.” Similarly in D.S.P Chennai Vs. K. Ibasagarain (2006 (1) SCC 420 ), the fact that the money was treated in the hands of the wife of the public servant and that she was assessed by the Income Tax Department was taken note of while accepting the explanation given by the public servant.13. If the amounts in question, which were duly intimated and are reflected in the Income Tax Return are thus deducted, the alleged disproportionate assets stand reduced to Rs. 37,605, which is less than 10 % of the income of the Appellant. In Krishnanand Vs. State of Madhya Pradesh (1977 (1) SCC 816 )and in M. Krishna Reddy (Supra), this court had granted benefit to the public servants in similar circumstances. We respectfully follow said decisions.14. In our view there is no violation of Section 13(1)(e) read with Section 13(2) of the Act.
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12. In the instant case, every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also supported by contemporaneous documents and intimations to the Government. It is not the case that the receipts so projected were bogus or was part of a calculated device. The fact that these amounts were actually received from the sources so named is not in dispute. Furthermore, these amounts are well reflected in the Income Tax Returns filed by the appellant. In similar circumstances, the acquisitions being reflected in Income Tax Returns weighed with this court in granting relief to the public servant. In M. Krishana Reddy Vs. State (1992(4) SCC 49). It was observed in Para 14on the face of these unassailable documents i.e. the wealth tax and income tax returns, we hold that the appellant is entitled to have a deduction of Rs.56,240/from the disproportionate assets ofin D.S.P Chennai Vs. K. Ibasagarain (2006 (1) SCC 420 ), the fact that the money was treated in the hands of the wife of the public servant and that she was assessed by the Income Tax Department was taken note of while accepting the explanation given by the public servant.13. If the amounts in question, which were duly intimated and are reflected in the Income Tax Return are thus deducted, the alleged disproportionate assets stand reduced to Rs. 37,605, which is less than 10 % of the income of the Appellant. In Krishnanand Vs. State of Madhya Pradesh (1977 (1) SCC 816 )and in M. Krishna Reddy (Supra), this court had granted benefit to the public servants in similar circumstances. We respectfully follow said decisions.14. In our view there is no violation of Section 13(1)(e) read with Section 13(2) of the Act.
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Suhas H Pophale Vs. Oriental Ins.Co.Ltd | particularly paragraph 18 thereof for that purpose. What is however, material to note is that this paragraph also permits discretion to be exercised when there is no declared position in law. The Bombay Rent Act exempted from its application only the premises belonging to the government or a local authority. The premises belonging to the Government Companies or Statutory Corporations were however covered under the Bombay Rent Act. This position was altered from 16.9.1958 when the Public Premises (Eviction of Unauthorised Occupation) Act, 1958 came in force which applied thereafter to the Government Companies and Statutory Corporations, and that position has been reiterated under the Public Premises Act of 1971 which replaced the 1958 Act. Under these Acts of 1958 and 1971, the Premises belonging to the Government Companies or Statutory Corporations are declared to be Public Premises. Thus, the Parliament took away these premises from the coverage of the Bombay Rent Act under Article 254(1) of the Constitution of India. This was, however, in the matter of the subjects covered under the Public Premises Act, viz. eviction of unauthorised occupants and recovery of arrears of rent etc. as stated above. Thereafter, if the State Legislature wanted to cover these subjects viz. a viz. the premises of the Government Companies and Public Corporations under the Maharashtra Rent Control Act, 1999, it had to specifically state that notwithstanding anything in the Public Premises Act of 1971, the Government Companies and Public Corporations would be covered under the Maharashtra Rent Control Act, 1999. If that was so done, and if the President was to give assent to such a legislation, then the Government Companies and Public Corporation would have continued to be covered under the Maharashtra Rent Control Act, 1999 in view of the provision of Article 254(2). That has not happened. Thus, the Government Companies and Public Corporations are taken out of the coverage of the Bombay Rent Act, and they are covered under Public Premises Act, 1971, though from the date specified therein i.e. 16.9.1958. After that date, the Government Companies and Public Corporations will be entitled to claim the application of the Public Premises Act, 1971 (and not of the Bombay Rent Act or its successor Maharashtra Rent Control Act, 1999), but from the date on which premises belong to these companies or corporations and with respect to the subjects specified under the Public Premises Act. In that also the public companies and corporations are expected to follow the earlier mentioned guidelines. 50. We have not for a moment taken any position different from the propositions in AshokaMarketing. We are infact in agreement therewith, and we are not accepting the submission of Mr. Nariman, that only contractual tenancies were sought to be covered under that judgment, and not statutory tenancies. Tenancies of both kinds will be covered by that judgment, and they will be covered under the Public Premises Act for the subjects specified therein. The only issue is with effect from which date. That aspect was not canvassed at all before the Constitution Bench, and that is the only aspect which is being clarified by this judgment. We are only clarifying that the application of the Public Premises Act will be only from 16.9.1958, or from such later date when concerned premises become Public Premises on the concerned landlord becoming a Government Company or Public Corporation. When the law laid down by the different Benches of this Court including by the Constitution Benches on retrospectivity is so clear, and so are the provisions of the Public Premises Act, there is no occasion for this Court to take any other view. When this judgment is only clarifying and advancing the proposition laid down in AshokaMarketing, there is no reason for us to accept the objections raised by Mr. Raval, that the issues raised in this matter should not be decided by this bench but ought to be referred to a larger bench.51. In this context we may note that since the issue of retrospective application of the Public Premises Act, to tenancies entered into before 16.9.1958, or before the property in question becoming a public premises, was neither canvassed nor considered by the bench in AshokaMarketing (supra), the decision does not, in any way, prevent this Bench from clarifying the law regarding the same. This follows from the judgment of the Supreme Court in State of Haryana Vs. Ranbir @ Rana reported in (2006) 5 SCC 167 wherein it was held that a decision, it is well-settled, is an authority for what it decides and not what can logically be deduced therefrom. The following observations of this court from paragraph 39 of Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd. reported in AIR1993 SC 43 are also pertinent: “The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.(emphasis supplied) It is clear from a reading of the very first paragraph of Ashoka Marketing that the question before it was: ‘whether the provisions of the Public Premises Act would override the provisions of the Rent Control Act in relation to premises which fall within the ambit of both the enactments.’ The Court answered this in the affirmative, and we respectfully agree with the same. However, AshokaMarketing (supra) can not be said to be an authority on the retrospective application of the Public Premises Act, or where the premises fall within the ambit of only one act, as that issue was not before the Court." | 1[ds]50. We have not for a moment taken any position different from the propositions in AshokaMarketing. We are infact in agreement therewith, and we are not accepting the submission of Mr. Nariman, that only contractual tenancies were sought to be covered under that judgment, and not statutory tenancies. Tenancies of both kinds will be covered by that judgment, and they will be covered under the Public Premises Act for the subjects specified therein. The only issue is with effect from which date. That aspect was not canvassed at all before the Constitution Bench, and that is the only aspect which is being clarified by this judgment. We are only clarifying that the application of the Public Premises Act will be only from 16.9.1958, or from such later date when concerned premises become Public Premises on the concerned landlord becoming a Government Company or Public Corporation. When the law laid down by the different Benches of this Court including by the Constitution Benches on retrospectivity is so clear, and so are the provisions of the Public Premises Act, there is no occasion for this Court to take any other view. When this judgment is only clarifying and advancing the proposition laid down in AshokaMarketing, there is no reason for us to accept the objections raised by Mr. Raval, that the issues raised in this matter should not be decided by this bench but ought to be referred to a larger bench.51. In this context we may note that since the issue of retrospective application of the Public Premises Act, to tenancies entered into before 16.9.1958, or before the property in question becoming a public premises, was neither canvassed nor considered by the bench in AshokaMarketing (supra), the decision does not, in any way, prevent this Bench from clarifying the law regarding the same. This follows from the judgment of the Supreme Court in State of Haryana Vs. Ranbir @ Rana reported in (2006) 5 SCC 167 wherein it was held that a decision, it is well-settled, is an authority for what it decides and not what can logically be deduced therefrom. The following observations of this court from paragraph 39 of Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd. reported in AIR1993 SC 43 are alsojudgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.(emphasisis clear from a reading of the very first paragraph ofthat the question before it was‘whether the provisions of the Public Premises Act would override the provisions of the Rent Control Act in relation to premises which fall within the ambit of both theThe Court answered this in the affirmative, and we respectfully agree with the same. However, AshokaMarketing (supra) can not be said to be an authority on the retrospective application of the Public Premises Act, or where the premises fall within the ambit of only one act, as that issue was not before thethe instant case, we are concerned with one Act passed by the Parliament, and another by a State Legislature. That apart, in his submission, the Public Premises Act must firstly apply to the concerned premises, and in his submission the concerned premises did not fall within the ambit of that act. That being so, in any case, the rights of the tenants who were protected under the State Act prior to passing of this Act, could not be said to have been extinguished by virtue of coming into force of the Public Premisesis material to note that it was not a case like the present one, where the occupant has claimed protection under the State Rent Control Law available to him prior to the Public Premises Act becoming applicable.In the present matter we are concerned with the question, whether the respondents could resort to the provisions of the Public Premises Act at a time when the merger of the erstwhile insurance company into the first respondent was not complete. The question is whether taking over of the management of the erstwhile company can confer upon the respondent No. 1 the authority to claim that the premises belong to it to initiate eviction proceedings under the Public Premises Act, to the detriment of an occupant who is claiming protection under a welfare enactment passed by the State Legislature. At this juncture we may profitably refer to the judgment of this Court concerning another welfare enactment in RashtriyaMill Mazdoor Sangh, Nagpur Vs. Model Mills, Nagpur and Anr. reported in AIR 1984 SC 1813 . The issue before the Court was whether upon the appointment of an authorised controller under Section 18A ofthe Industries (Development and Regulation) Act, 1951(IDR Act short) in respect of an industrial undertaking, when it is run by him under the authority of a Department of the Central Government, the employees of the undertaking would get excluded from the application ofthe Payment of Bonus Act,in view of the provision contained in Section 32(iv) of the Bonus Act. The court made a distinction between the concept of taking over of management and taking over of ownership. Inasmuch as the taking over of the management did not result into the Central Government becoming the owner of the textile mills, the right of the workmen to receive bonus was notas far as the erstwhile Insurance Company in the present case is concerned, as an initial step, its management was taken over by the Central Government w.e.f. 13.5.1971, and it was entrusted with the custodian appointed by the Central Government. It would definitely entail a right in the custodian to take necessary steps to safeguard the property of the erstwhile insurance company. But it was a transitory arrangement. The properties of the erstwhile insurance companies did not belong to the Government Companies or the Government at that stage. The Public Premises Act, undoubtedly provides a speedy remedy to recover the premises from the unauthorised occupants. At the same time, we have also to note that in the instant case the occupant is claiming a substantive right under a welfare provision of the State Rent Control Act, which gave him a protected status in view of the amendment to that Act. The question is whether this authority of management bestowed on the Government Company can take in its sweep the right to proceed against such protected tenants under the Public Premises Act, by contending that the premises belonged to the Government Company at that stage itself, and that the State Rent Control Act no longer protected them. Considering that the Rent Control Act is a welfare enactment, and a further protective provision has been made therein, can it be permitted to be rendered otiose and made inapplicable to premises specifically sought to be covered thereunder, and defeated by resorting to the provisions of the Public Premises Act? In the present case, it must also be noted that the appellant is seeking a protection under Section 15A of the Bombay Rent Act, which has aclause. The respondent No. 1 is undoubtedly not without a remedy, and it can proceed to evict an unauthorised occupant under the Rent Control Act, if an occasion arises. It can certainly resort thereto until the managerial right fructifies into a right of ownership. However by enforcing a speedier remedy, a welfare provision cannot be rendered nugatory. The provisions of the two enactments will have to be read harmoniously to permit the operation andof both of them to the extent it can be done. Therefore, the term ‘belongingas occurring in the definition of Public Premises in Section 2(e) will have to be interpreted meaningfully to imply only the premises owned by or taken on lease by the Government Company at the relevant time. In the facts of this case what we find is that the appellant had the status of a deemed tenant under the Bombay Rent Act, 1947 prior to the concerned premises ‘belonging to a Governmentand becoming public premises. If at all he had to be evicted, it was necessary to follow the due process of law which would mean the process as available under the Bombay Rent Act or its successor Maharashtra Rent Control Act, 1999, and not the one which is provided under the provisions of the Public Premiseshas been laid down by this Court time and again that if there are rights created in favour of any person, whether they are property rights or rights arising from a transaction in the nature of a contract, and particularly if they are protected under a statute, and if they are to be taken away by any legislation, that legislation will have to say so specifically by giving it a retrospective effect. This is because prima facie every legislation is prospective (see para 7 of the Constitution Bench judgment in JanardanReddy Vs. The State reported in AIR 1951 SC 124). In the instant case, the appellant was undoubtedly protected as a ‘deemedunder Section 15A of the Bombay Rent Act, prior to the merger of the erstwhile insurance company with a Government Company, and he could be removed only by following the procedure available under the Bombay Rent Act. A ‘deemedunder the Bombay Rent Act, continued to be protected under the succeeding Act, in view of the definition of aunder Section 7(15)(a)(ii) ofthe Maharashtra Rent Control Act,Thus, as far as the tenants of the premises which are not covered under the Public Premises Act are concerned, those tenants who were deemed tenants under the Bombay Rent Act continued to have their protection underthe Maharashtra Rent Control Act,Should the coverage of their premises under the Public Premises Act make a difference to the tenants or occupants of such premises, and if so, from which date?32. It has been laid down by this Court through a number of judgments rendered over the years, that a legislation is not be given a retrospective effect unless specifically provided for, and not beyond the period that is provided therein. Thus, a Constitution Bench held in GarkiapatiVeeraya Vs. N. Subbiah Choudhry reported in AIR 1957 SC 540 that in the absence of anything in the enactment to show that it is to be retrospective, it cannot be so constructed, as to have the effect of altering the law applicable to a claim in litigation at the time when the act was passed. In that matter, the Court was concerned with the issue as to whether theright to file an appeal continued to be available to him for filing an appeal to the Andhra Pradesh High Court after it was created from the erstwhile Madras High Court. The Constitution Bench held that the right very much survived, and the vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.Having noted the aforesaid observations, it is very clear that in the facts of the present case, thestatus as a deemed tenant was accepted under the state enactment, and therefore he could not be said to be in. His right granted by the state enactment cannot be destroyed by giving any retrospective application to the provisions of Public Premises Act, since there is no such express provision in the statute, nor is it warranted by any implication. In fact his premises would not come within the ambit of the Public Premises Act, until they belonged to the respondent No. 1, i.e until 1.1.1974. The corollary is that if the respondent No. 1 wanted to evict the appellant, the remedy was to resort to the procedure available under the Bombay Rent Act or its successor Maharashtra Rent Control Act, by approaching the forum thereunder, and not by resorting to the provisions of the Public Premises Act.In the context of the present controversy, we must refer to one more aspect. As we have noted earlier in paragraph 63 of AshokaMarketing, the Constitution Bench has referred to the objects and reasons behind the Public Premises Act wherein it is stated that it has become impossible for the Government to take expeditious action even in ‘flagrant cases of unauthorisedof public premises. The Court has thereafter observed in that very paragraph that the Public Premises Act is enacted to deal with mischief of ‘rampant unauthorisedof public premises.41. It is relevant to note that there has been a criticism of the use of the powers under the Public Premises Act, and the manner in which they are used in an arbitrary way to evict the genuine tenants from the public premises causing serious hardships to them. The Central Government itself has therefore, issued the guidelines to prevent such arbitrary use of these powers.Thus as can be seen from these guidelines, it is emphasized in Clause 2(i) thereof, that the Act was meant to evict (a) totally unauthorised occupants of the public premises or subletees, or (b) employees who have ceased to be in their service, and were ineligible to occupy the premises. In Clause 2(ii), it is emphasized that the provisions should not be resorted to (a) either with a commercial motive, or (b) to secure vacant possession of the premises in order to accommodate their own employees, where the premises were in occupation of the original tenants to whom the premises were let out (i) either by the public authorities, or (ii) by persons from whom the premises were acquired, indicating thereby the predecessors of the public authorities. Clause 2 (iii) of these guidelines is very important. It states on the one hand that it will be open for the public authority to secure periodic revision of rent in terms of the provision of the Rent Control Act in each state, and to move under genuine grounds under the Rent control Act for resuming possession. This Clause on the other hand states that the public authorities would have rights similar to private landlords under the Rent Control Act in dealing with genuine legal tenants. This clause in a way indicates that for resuming possession in certain situations, where the tenants are protected under the State Rent Control Act prior to the Public Premises Act becoming applicable, the public authorities will have to move under the Rent Control Acts on the grounds which are available to the private landlords. Clause 2(iv) seeks to prevent imputations or abuse of discretionary powers in this behalf by stating that there should be no room for allegation that evictions were selectively resorted for the purpose of securing an unwarranted increase in rent or change in tenancy to benefit particular individuals or institutions. It, therefore, states that the release of premises or change of tenancy should be decided at the level of Board of Directors of Public Sector Undertakings. Clause 2(v) goes further ahead and instructs all public undertakings that they should review all pending cases before the Estate Officer or Courts with reference to these guidelines, and withdraw the proceedings against genuine tenants on grounds otherwise than as provided under the guidelines.43. The instructions contained in this Resolution are undoubtedly guidelines, and are advisory in character and do not confer any rights on the tenants as held in para 23 of New Insurance Assurance Company Vs. Nusli Neville Wadia reported in 2008 (3) SCC 279. At the same time, the intention behind the guidelines cannot be ignored by the Public Undertakings which are expected to follow the same. When it comes to the interpretation of the provisions of the statute, the guidelines have been referred herein for the limited purpose of indicating the intention in making the statutory provision, since the guidelines are issued to effectuate the statutory provision. The guidelines do throw some light on the intention behind the statute. The guidelines are issued with good intention to stop arbitrary use of the powers under the Public Premises Act. The powers are given to act for specified reasons, and are expected to be used only in justified circumstances and not otherwise.The overall consequence44. In(supra), this Court was concerned with the premises of two Nationalised Banks and the Life Insurance Corporation. As far as Life Insurance Corporation is concerned, the life insurance business was nationalised underthe Life Insurance Corporation Act,Therefore, as far as the premises of LIC are concerned, they will come under the ambit of the Public Premises Act from 16.9.1958, i.e the date from which the Act is brought into force. As far as Nationalised Banks are concerned, their nationalization is governed byThe Banking Companies (Acquisition and Transfer of Undertakings) Act,and therefore, the application of Public Premises Act to the premises of the Nationalised Banks will be from the particular date in the year 1970 or thereafter. For any premises to become public premises, the relevant date will be 16.9.1958 or whichever is the later date on which the concerned premises become the public premises as belonging to or taken on lease by LIC or the Nationalised Banks or the concerned General Insurance Companies like the first respondent. All those persons falling within the definition of a tenant occupying the premises prior thereto will not come under the ambit of the Public Premises Act and cannot therefore, be said to be persons in. Whatever rights such prior tenants, members of their families or heirs of such tenants or deemed tenants or all of those who fall within the definition of a tenant under the Bombay Rent Act have, are continued underthe Maharashtra Rent Control Act,If possession of their premises is required, that will have to be resorted to by taking steps under the Bombay Rent Act or Maharashtra Rent Control Act, 1999. If person concerned has come in occupation subsequent to such date, then of course the Public Premises Act, 1971 will apply.45. It is true that Section 15 of the Public Premises Act creates a bar of jurisdiction to entertain suits or proceedings in respect of eviction of any person in an unauthorized occupation. However, as far as the relationship between the respondent No. 1, the other General Insurance Companies, LIC, Nationalised Banks and such other Government Companies or Corporations, on the one hand and their occupants/licencees/tenants on the other hand is concerned, such persons who are in occupation prior to the premises belonging to or taken on lease by such entities, will continue to be governed by the State Rent Control Act for all purposes. The Public Premises Act will apply only to those who come in such occupation after such date. Thus, there is no occasion to have a dual procedure which is ruled out in paragraph 66 of AshokaMarketing. We must remember that the occupants of these properties were earlier tenants of the erstwhile Insurance Companies which were the private landlords. They have not chosen to be the tenants of the Government Companies. Their status as occupants of the Public Insurance Companies has been thrust upon them by the Public Premises Act.46. This Court has noted in Banatwalaand Co. Vs. LIC reported in 2011 (13) SCC 446 that the Public Premises Act, 1971 is concerned with eviction of unauthorized occupants and recovery of arrears of rent or damages for such unauthorised occupation, and incidental matters specified under the act. As far as the Maharashtra Rent Control Act is concerned, this Court noted in paragraph 25 of that judgment that as per the preamble of the said Act, it is an Act relating to five subjects, namely (i) control of rent, (ii) repairs of certain premises, (iii) eviction, (iv) encouraging the construction of new houses by assuring fair return of investment by the landlord, and (v) matters connected with the purposes mentioned above.In that matter, the Court was concerned with the issue of fixation of standard rent and restoration and maintenance of essential supplies and services by the landlord. It was held that these two subjects were not covered under the Public Premises Act, and infact were covered under the Maharashtra Rent Controlis, however, material to note that in that case the premises were owned by LIC from 19.7.1958, i.e. prior to the Delhi Rent Control Act becoming applicable from 9.2.1959. Besides, the issue of protection under a welfare legislation being available to the tenant prior to the premises becoming public premises, and the issue of retrospectivity was not under consideration before the Court. The observations of the Court in that matter will have to be understood in that context.48. As far as the eviction of unauthorised occupants from public premises is concerned, undoubtedly it is covered under the Public Premises Act, but it is so covered from 16.9.1958, or from the later date when the concerned premises become public premises by virtue of the concerned premises vesting into a Government company or a corporation like LIC or the Nationalised Banks or the General Insurance Companies like the respondent no.1. Thus there are two categories of occupants of these public corporations who get excluded from the coverage of the Act itself. Firstly, those who are in occupation since prior to 16.9.1958, i.e. prior to the Act becoming applicable, are clearly outside the coverage of the Act. Secondly, those who come in occupation, thereafter, but prior to the date of the concerned premises belonging to a Government Corporation or a Company, and are covered under a protective provision of the State Rent Act, like the appellant herein, also get excluded. Until such date, the Bombay Rent Act and its successor Maharashtra Rent Control Act will continue to govern the relationship between the occupants of such premises on the one hand, and such government companies and corporations on the other. Hence, with respect to such occupants it will not be open to such companies or corporations to issue notices, and to proceed against such occupants under the Public Premises Act, and such proceedings will be void and illegal. Similarly, it will be open for such occupants of these premises to seek declaration of their status, and other rights such as transmission of the tenancy to the legal heirs etc. under the Bombay Rent Act or its successor Maharashtra Rent Control Act, and also to seek protective reliefs in the nature of injunctions against unjustified actions or orders of eviction if so passed, by approaching the forum provided under the State Act which alone will have the jurisdiction to entertain suchis however, material to note is that this paragraph also permits discretion to be exercised when there is no declared position in law. The Bombay Rent Act exempted from its application only the premises belonging to the government or a local authority. The premises belonging to the Government Companies or Statutory Corporations were however covered under the Bombay Rent Act. This position was altered from 16.9.1958 when the Public Premises (Eviction of Unauthorised Occupation) Act, 1958 came in force which applied thereafter to the Government Companies and Statutory Corporations, and that position has been reiterated under the Public Premises Act of 1971 which replaced the 1958 Act. Under these Acts of 1958 and 1971, the Premises belonging to the Government Companies or Statutory Corporations are declared to be Public Premises. Thus, the Parliament took away these premises from the coverage of the Bombay Rent Act under Article 254(1) of the Constitution of India. This was, however, in the matter of the subjects covered under the Public Premises Act, viz. eviction of unauthorised occupants and recovery of arrears of rent etc. as stated above. Thereafter, if the State Legislature wanted to cover these subjects viz. a viz. the premises of the Government Companies and Public Corporations underthe Maharashtra Rent Control Act,it had to specifically state that notwithstanding anything in the Public Premises Act of 1971, the Government Companies and Public Corporations would be covered underthe Maharashtra Rent Control Act,If that was so done, and if the President was to give assent to such a legislation, then the Government Companies and Public Corporation would have continued to be covered underthe Maharashtra Rent Control Act,in view of the provision of Article 254(2). That has not happened. Thus, the Government Companies and Public Corporations are taken out of the coverage of the Bombay Rent Act, and they are covered under Public Premises Act, 1971, though from the date specified therein i.e. 16.9.1958. After that date, the Government Companies and Public Corporations will be entitled to claim the application of the Public Premises Act, 1971 (and not of the Bombay Rent Act or its successor Maharashtra Rent Control Act, 1999), but from the date on which premises belong to these companies or corporations and with respect to the subjects specified under the Public Premises Act. In that also the public companies and corporations are expected to follow the earlier mentioned guidelines. | 1 | 15,797 | 4,618 | ### Instruction:
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particularly paragraph 18 thereof for that purpose. What is however, material to note is that this paragraph also permits discretion to be exercised when there is no declared position in law. The Bombay Rent Act exempted from its application only the premises belonging to the government or a local authority. The premises belonging to the Government Companies or Statutory Corporations were however covered under the Bombay Rent Act. This position was altered from 16.9.1958 when the Public Premises (Eviction of Unauthorised Occupation) Act, 1958 came in force which applied thereafter to the Government Companies and Statutory Corporations, and that position has been reiterated under the Public Premises Act of 1971 which replaced the 1958 Act. Under these Acts of 1958 and 1971, the Premises belonging to the Government Companies or Statutory Corporations are declared to be Public Premises. Thus, the Parliament took away these premises from the coverage of the Bombay Rent Act under Article 254(1) of the Constitution of India. This was, however, in the matter of the subjects covered under the Public Premises Act, viz. eviction of unauthorised occupants and recovery of arrears of rent etc. as stated above. Thereafter, if the State Legislature wanted to cover these subjects viz. a viz. the premises of the Government Companies and Public Corporations under the Maharashtra Rent Control Act, 1999, it had to specifically state that notwithstanding anything in the Public Premises Act of 1971, the Government Companies and Public Corporations would be covered under the Maharashtra Rent Control Act, 1999. If that was so done, and if the President was to give assent to such a legislation, then the Government Companies and Public Corporation would have continued to be covered under the Maharashtra Rent Control Act, 1999 in view of the provision of Article 254(2). That has not happened. Thus, the Government Companies and Public Corporations are taken out of the coverage of the Bombay Rent Act, and they are covered under Public Premises Act, 1971, though from the date specified therein i.e. 16.9.1958. After that date, the Government Companies and Public Corporations will be entitled to claim the application of the Public Premises Act, 1971 (and not of the Bombay Rent Act or its successor Maharashtra Rent Control Act, 1999), but from the date on which premises belong to these companies or corporations and with respect to the subjects specified under the Public Premises Act. In that also the public companies and corporations are expected to follow the earlier mentioned guidelines. 50. We have not for a moment taken any position different from the propositions in AshokaMarketing. We are infact in agreement therewith, and we are not accepting the submission of Mr. Nariman, that only contractual tenancies were sought to be covered under that judgment, and not statutory tenancies. Tenancies of both kinds will be covered by that judgment, and they will be covered under the Public Premises Act for the subjects specified therein. The only issue is with effect from which date. That aspect was not canvassed at all before the Constitution Bench, and that is the only aspect which is being clarified by this judgment. We are only clarifying that the application of the Public Premises Act will be only from 16.9.1958, or from such later date when concerned premises become Public Premises on the concerned landlord becoming a Government Company or Public Corporation. When the law laid down by the different Benches of this Court including by the Constitution Benches on retrospectivity is so clear, and so are the provisions of the Public Premises Act, there is no occasion for this Court to take any other view. When this judgment is only clarifying and advancing the proposition laid down in AshokaMarketing, there is no reason for us to accept the objections raised by Mr. Raval, that the issues raised in this matter should not be decided by this bench but ought to be referred to a larger bench.51. In this context we may note that since the issue of retrospective application of the Public Premises Act, to tenancies entered into before 16.9.1958, or before the property in question becoming a public premises, was neither canvassed nor considered by the bench in AshokaMarketing (supra), the decision does not, in any way, prevent this Bench from clarifying the law regarding the same. This follows from the judgment of the Supreme Court in State of Haryana Vs. Ranbir @ Rana reported in (2006) 5 SCC 167 wherein it was held that a decision, it is well-settled, is an authority for what it decides and not what can logically be deduced therefrom. The following observations of this court from paragraph 39 of Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd. reported in AIR1993 SC 43 are also pertinent: “The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.(emphasis supplied) It is clear from a reading of the very first paragraph of Ashoka Marketing that the question before it was: ‘whether the provisions of the Public Premises Act would override the provisions of the Rent Control Act in relation to premises which fall within the ambit of both the enactments.’ The Court answered this in the affirmative, and we respectfully agree with the same. However, AshokaMarketing (supra) can not be said to be an authority on the retrospective application of the Public Premises Act, or where the premises fall within the ambit of only one act, as that issue was not before the Court."
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erstwhile Insurance Companies which were the private landlords. They have not chosen to be the tenants of the Government Companies. Their status as occupants of the Public Insurance Companies has been thrust upon them by the Public Premises Act.46. This Court has noted in Banatwalaand Co. Vs. LIC reported in 2011 (13) SCC 446 that the Public Premises Act, 1971 is concerned with eviction of unauthorized occupants and recovery of arrears of rent or damages for such unauthorised occupation, and incidental matters specified under the act. As far as the Maharashtra Rent Control Act is concerned, this Court noted in paragraph 25 of that judgment that as per the preamble of the said Act, it is an Act relating to five subjects, namely (i) control of rent, (ii) repairs of certain premises, (iii) eviction, (iv) encouraging the construction of new houses by assuring fair return of investment by the landlord, and (v) matters connected with the purposes mentioned above.In that matter, the Court was concerned with the issue of fixation of standard rent and restoration and maintenance of essential supplies and services by the landlord. It was held that these two subjects were not covered under the Public Premises Act, and infact were covered under the Maharashtra Rent Controlis, however, material to note that in that case the premises were owned by LIC from 19.7.1958, i.e. prior to the Delhi Rent Control Act becoming applicable from 9.2.1959. Besides, the issue of protection under a welfare legislation being available to the tenant prior to the premises becoming public premises, and the issue of retrospectivity was not under consideration before the Court. The observations of the Court in that matter will have to be understood in that context.48. As far as the eviction of unauthorised occupants from public premises is concerned, undoubtedly it is covered under the Public Premises Act, but it is so covered from 16.9.1958, or from the later date when the concerned premises become public premises by virtue of the concerned premises vesting into a Government company or a corporation like LIC or the Nationalised Banks or the General Insurance Companies like the respondent no.1. Thus there are two categories of occupants of these public corporations who get excluded from the coverage of the Act itself. Firstly, those who are in occupation since prior to 16.9.1958, i.e. prior to the Act becoming applicable, are clearly outside the coverage of the Act. Secondly, those who come in occupation, thereafter, but prior to the date of the concerned premises belonging to a Government Corporation or a Company, and are covered under a protective provision of the State Rent Act, like the appellant herein, also get excluded. Until such date, the Bombay Rent Act and its successor Maharashtra Rent Control Act will continue to govern the relationship between the occupants of such premises on the one hand, and such government companies and corporations on the other. Hence, with respect to such occupants it will not be open to such companies or corporations to issue notices, and to proceed against such occupants under the Public Premises Act, and such proceedings will be void and illegal. Similarly, it will be open for such occupants of these premises to seek declaration of their status, and other rights such as transmission of the tenancy to the legal heirs etc. under the Bombay Rent Act or its successor Maharashtra Rent Control Act, and also to seek protective reliefs in the nature of injunctions against unjustified actions or orders of eviction if so passed, by approaching the forum provided under the State Act which alone will have the jurisdiction to entertain suchis however, material to note is that this paragraph also permits discretion to be exercised when there is no declared position in law. The Bombay Rent Act exempted from its application only the premises belonging to the government or a local authority. The premises belonging to the Government Companies or Statutory Corporations were however covered under the Bombay Rent Act. This position was altered from 16.9.1958 when the Public Premises (Eviction of Unauthorised Occupation) Act, 1958 came in force which applied thereafter to the Government Companies and Statutory Corporations, and that position has been reiterated under the Public Premises Act of 1971 which replaced the 1958 Act. Under these Acts of 1958 and 1971, the Premises belonging to the Government Companies or Statutory Corporations are declared to be Public Premises. Thus, the Parliament took away these premises from the coverage of the Bombay Rent Act under Article 254(1) of the Constitution of India. This was, however, in the matter of the subjects covered under the Public Premises Act, viz. eviction of unauthorised occupants and recovery of arrears of rent etc. as stated above. Thereafter, if the State Legislature wanted to cover these subjects viz. a viz. the premises of the Government Companies and Public Corporations underthe Maharashtra Rent Control Act,it had to specifically state that notwithstanding anything in the Public Premises Act of 1971, the Government Companies and Public Corporations would be covered underthe Maharashtra Rent Control Act,If that was so done, and if the President was to give assent to such a legislation, then the Government Companies and Public Corporation would have continued to be covered underthe Maharashtra Rent Control Act,in view of the provision of Article 254(2). That has not happened. Thus, the Government Companies and Public Corporations are taken out of the coverage of the Bombay Rent Act, and they are covered under Public Premises Act, 1971, though from the date specified therein i.e. 16.9.1958. After that date, the Government Companies and Public Corporations will be entitled to claim the application of the Public Premises Act, 1971 (and not of the Bombay Rent Act or its successor Maharashtra Rent Control Act, 1999), but from the date on which premises belong to these companies or corporations and with respect to the subjects specified under the Public Premises Act. In that also the public companies and corporations are expected to follow the earlier mentioned guidelines.
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H. P. Gupta Vs. Hiralal | stock-holders of the company at their general meeting had declared the amount of dividend as proposed by the directors but had passed no resolution as to how payment was to be made. It was held that though no such resolution was passed by the stockholders, they had notice as to how the directors proposed to pay the dividends and as no alteration was made in those proposals, the stockholders were held to have decided among themselves by a proper resolution that the dividend should be paid on a certain day and in the manner proposed by the directors. Such a conduct was equivalent to a request, and therefore, the stockholders became entitled to payment in that way and in that way alone. Consequently, when the dividend warrant had been sent by Post the dividend was paid and the companys obligation to pay stood discharged. 8. It follows, therefore, that once a mode of payment of dividend is agreed to, namely, by posting a cheque or a warrant, the place where such posting is to be done is the place of performance and also the place of payment, as such performance in the manner agreed to is equivalent to payment and results in the discharge of the obligation. 9. It is clear from section 205 (5) that the company could pay dividend either in cash or by posting a cheque or a warrant at the registered address of the respondent. Article 132 of the Articles of Association also authorises the company to pay dividend either in cash or by posting a cheque or a warrant to the shareholder at his registered address. The effect of Article 132 is that when a dividend warrant is posted at the registered address of the shareholder that would be equivalent to payment. Once a warrant is so posted the company is deemed to have paid and discharged its obligation. As aforesaid, the Articles of Association constitute an agreement between the company and the shareholders, and the latter was entitled to the payment of dividend in the manner laid down in the Articles and in that manner alone. Article 132 thus not only authorises the company to make the payment in the manner laid down therein but amounts to a request by the shareholders to be paid in the manner so laid down. When, therefore, the company posts the dividend warrant at the registered address of a shareholder, that being done at the shareholders request, the post office becomes the agent of the shareholder, and the loss of a dividend warrant during transit thereafter is the risk of the shareholder. In Indore Malwa United Mills Ltd. v. Commr of Income-Tax, (1966) 59 ITR 738 = (AIR 1966 SC 1466 ) this Court, on a question arising whether on the facts there, payment was made in taxable territory, held that if by an agreement, express or implied, between the creditor and the debtor, or by a request, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque and to send the cheque to the creditor by post, the post office is the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him. That being the position, the place where a dividend warrant would be posted, the post office being the agent of the shareholder, is the place where the obligation to pay the debt is discharged-in the present case at Delhi where the company has its registered office. It follows that the offence under section 207 of the Act would also occur at the place where the failure to discharge that obligation arises, namely, the failure to post the dividend warrant within 42 days. The venue of the offence, therefore, would be Delhi and not Meerut, and the court competent to try the offence would be that court within whose jurisdiction the offence takes place i.e., Delhi. This should be so both in law and common sense, for, if held otherwise, the directors of companies can be prosecuted at hundreds of places on an allegation by shareholders that they have not received the warrant. That cannot be the intention of the legislature when it enacted Section 207 and made failure to pay or post a dividend warrant within 42 days from the declaration of the dividend an offence. 10. This view is also in accord with the principle laid down by Maule J. in Ragina v. James Milner, (1846) 175 ER 128, that the felony of no, surrendering at a district court to a fiat in bankruptcy, under Stat. 5 and 6 Vict. c. 122, Section 32, is committed at the place where the district court is situate; and an indictment for the offence cannot be sustained in a different country from that in which the person was a trader or in which he committed an act of bankruptcy. On the same principle the High Court of Calcutta has also held in Gunananda Dhone v. Santi Prokash Nanley, 29 Cal WN 432 = (AIR 1925 Cal 613 ) that it is the court within the local limits of whose jurisdiction the accused is liable to render accounts and fails to do so by reason of having committed a breach of trust alleged against him that has the jurisdiction. 11. The offence under S. 207 is the failure to pay dividend or to post a cheque or a warrant for the dividend amount. Since the obligation to post the warrant arose at the registered office of the company, failure to discharge that obligation also arose al the registered office of the company Therefore, the alleged offence must be held to have taken place at the place where the companys registered office is situate and not where the dividend warrant, when posted, would be received. 12. In that view, the High Court was in error in holding that the Magistrate at Meerut had the jurisdiction to try the said complaints. | 1[ds]The High Courts reasoning was clearly based on the premise that payment of dividend has to be made at the place where the shareholder resides and therefore, it is the Magistrate within whose jurisdiction the shareholders registered address is situate who has the jurisdiction. The contention in these appeals is that such a view is not in accord with section 207. The question is of some importance, for, if the view taken by the High Court is correct, it would mean that directors of companies would be liable to be prosecuted at hundreds of places where the registered addresses of their shareholders are on allegations that dividends are not paid to them9. It is clear from section 205 (5) that the company could pay dividend either in cash or by posting a cheque or a warrant at the registered address of the respondent. Article 132 of the Articles of Association also authorises the company to pay dividend either in cash or by posting a cheque or a warrant to the shareholder at his registered address. The effect of Article 132 is that when a dividend warrant is posted at the registered address of the shareholder that would be equivalent to payment. Once a warrant is so posted the company is deemed to have paid and discharged its obligation. As aforesaid, the Articles of Association constitute an agreement between the company and the shareholders, and the latter was entitled to the payment of dividend in the manner laid down in the Articles and in that manner alone. Article 132 thus not only authorises the company to make the payment in the manner laid down therein but amounts to a request by the shareholders to be paid in the manner so laid down. When, therefore, the company posts the dividend warrant at the registered address of a shareholder, that being done at the shareholders request, the post office becomes the agent of the shareholder, and the loss of a dividend warrant during transit thereafter is the risk of the shareholder. In Indore Malwa United Mills Ltd. v. Commr of Income-Tax, (1966) 59 ITR 738 = (AIR 1966 SC 1466 ) this Court, on a question arising whether on the facts there, payment was made in taxable territory, held that if by an agreement, express or implied, between the creditor and the debtor, or by a request, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque and to send the cheque to the creditor by post, the post office is the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him. That being the position, the place where a dividend warrant would be posted, the post office being the agent of the shareholder, is the place where the obligation to pay the debt is discharged-in the present case at Delhi where the company has its registered office. It follows that the offence under section 207 of the Act would also occur at the place where the failure to discharge that obligation arises, namely, the failure to post the dividend warrant within 42 days. The venue of the offence, therefore, would be Delhi and not Meerut, and the court competent to try the offence would be that court within whose jurisdiction the offence takes place i.e., Delhi. This should be so both in law and common sense, for, if held otherwise, the directors of companies can be prosecuted at hundreds of places on an allegation by shareholders that they have not received the warrant. That cannot be the intention of the legislature when it enacted Section 207 and made failure to pay or post a dividend warrant within 42 days from the declaration of the dividend an offence10. This view is also in accord with the principle laid down by Maule J. inRagina v. James Milner, (1846) 175 ER, that the felony of no, surrendering at a district court to a fiat in bankruptcy, under Stat. 5 and 6 Vict. c. 122, Section 32, is committed at the place where the district court is situate; and an indictment for the offence cannot be sustained in a different country from that in which the person was a trader or in which he committed an act of bankruptcy. On the same principle the High Court of Calcutta has also held in Gunananda Dhone v. Santi Prokash Nanley, 29 Cal WN 432 = (AIR 1925 Cal 613 ) that it is the court within the local limits of whose jurisdiction the accused is liable to render accounts and fails to do so by reason of having committed a breach of trust alleged against him that has the jurisdiction11. The offence under S. 207 is the failure to pay dividend or to post a cheque or a warrant for the dividend amount. Since the obligation to post the warrant arose at the registered office of the company, failure to discharge that obligation also arose al the registered office of the company Therefore, the alleged offence must be held to have taken place at the place where the companys registered office is situate and not where the dividend warrant, when posted, would be received12. In that view, the High Court was in error in holding that the Magistrate at Meerut had the jurisdiction to try the said complaints. | 1 | 3,143 | 983 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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stock-holders of the company at their general meeting had declared the amount of dividend as proposed by the directors but had passed no resolution as to how payment was to be made. It was held that though no such resolution was passed by the stockholders, they had notice as to how the directors proposed to pay the dividends and as no alteration was made in those proposals, the stockholders were held to have decided among themselves by a proper resolution that the dividend should be paid on a certain day and in the manner proposed by the directors. Such a conduct was equivalent to a request, and therefore, the stockholders became entitled to payment in that way and in that way alone. Consequently, when the dividend warrant had been sent by Post the dividend was paid and the companys obligation to pay stood discharged. 8. It follows, therefore, that once a mode of payment of dividend is agreed to, namely, by posting a cheque or a warrant, the place where such posting is to be done is the place of performance and also the place of payment, as such performance in the manner agreed to is equivalent to payment and results in the discharge of the obligation. 9. It is clear from section 205 (5) that the company could pay dividend either in cash or by posting a cheque or a warrant at the registered address of the respondent. Article 132 of the Articles of Association also authorises the company to pay dividend either in cash or by posting a cheque or a warrant to the shareholder at his registered address. The effect of Article 132 is that when a dividend warrant is posted at the registered address of the shareholder that would be equivalent to payment. Once a warrant is so posted the company is deemed to have paid and discharged its obligation. As aforesaid, the Articles of Association constitute an agreement between the company and the shareholders, and the latter was entitled to the payment of dividend in the manner laid down in the Articles and in that manner alone. Article 132 thus not only authorises the company to make the payment in the manner laid down therein but amounts to a request by the shareholders to be paid in the manner so laid down. When, therefore, the company posts the dividend warrant at the registered address of a shareholder, that being done at the shareholders request, the post office becomes the agent of the shareholder, and the loss of a dividend warrant during transit thereafter is the risk of the shareholder. In Indore Malwa United Mills Ltd. v. Commr of Income-Tax, (1966) 59 ITR 738 = (AIR 1966 SC 1466 ) this Court, on a question arising whether on the facts there, payment was made in taxable territory, held that if by an agreement, express or implied, between the creditor and the debtor, or by a request, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque and to send the cheque to the creditor by post, the post office is the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him. That being the position, the place where a dividend warrant would be posted, the post office being the agent of the shareholder, is the place where the obligation to pay the debt is discharged-in the present case at Delhi where the company has its registered office. It follows that the offence under section 207 of the Act would also occur at the place where the failure to discharge that obligation arises, namely, the failure to post the dividend warrant within 42 days. The venue of the offence, therefore, would be Delhi and not Meerut, and the court competent to try the offence would be that court within whose jurisdiction the offence takes place i.e., Delhi. This should be so both in law and common sense, for, if held otherwise, the directors of companies can be prosecuted at hundreds of places on an allegation by shareholders that they have not received the warrant. That cannot be the intention of the legislature when it enacted Section 207 and made failure to pay or post a dividend warrant within 42 days from the declaration of the dividend an offence. 10. This view is also in accord with the principle laid down by Maule J. in Ragina v. James Milner, (1846) 175 ER 128, that the felony of no, surrendering at a district court to a fiat in bankruptcy, under Stat. 5 and 6 Vict. c. 122, Section 32, is committed at the place where the district court is situate; and an indictment for the offence cannot be sustained in a different country from that in which the person was a trader or in which he committed an act of bankruptcy. On the same principle the High Court of Calcutta has also held in Gunananda Dhone v. Santi Prokash Nanley, 29 Cal WN 432 = (AIR 1925 Cal 613 ) that it is the court within the local limits of whose jurisdiction the accused is liable to render accounts and fails to do so by reason of having committed a breach of trust alleged against him that has the jurisdiction. 11. The offence under S. 207 is the failure to pay dividend or to post a cheque or a warrant for the dividend amount. Since the obligation to post the warrant arose at the registered office of the company, failure to discharge that obligation also arose al the registered office of the company Therefore, the alleged offence must be held to have taken place at the place where the companys registered office is situate and not where the dividend warrant, when posted, would be received. 12. In that view, the High Court was in error in holding that the Magistrate at Meerut had the jurisdiction to try the said complaints.
### Response:
1
### Explanation:
The High Courts reasoning was clearly based on the premise that payment of dividend has to be made at the place where the shareholder resides and therefore, it is the Magistrate within whose jurisdiction the shareholders registered address is situate who has the jurisdiction. The contention in these appeals is that such a view is not in accord with section 207. The question is of some importance, for, if the view taken by the High Court is correct, it would mean that directors of companies would be liable to be prosecuted at hundreds of places where the registered addresses of their shareholders are on allegations that dividends are not paid to them9. It is clear from section 205 (5) that the company could pay dividend either in cash or by posting a cheque or a warrant at the registered address of the respondent. Article 132 of the Articles of Association also authorises the company to pay dividend either in cash or by posting a cheque or a warrant to the shareholder at his registered address. The effect of Article 132 is that when a dividend warrant is posted at the registered address of the shareholder that would be equivalent to payment. Once a warrant is so posted the company is deemed to have paid and discharged its obligation. As aforesaid, the Articles of Association constitute an agreement between the company and the shareholders, and the latter was entitled to the payment of dividend in the manner laid down in the Articles and in that manner alone. Article 132 thus not only authorises the company to make the payment in the manner laid down therein but amounts to a request by the shareholders to be paid in the manner so laid down. When, therefore, the company posts the dividend warrant at the registered address of a shareholder, that being done at the shareholders request, the post office becomes the agent of the shareholder, and the loss of a dividend warrant during transit thereafter is the risk of the shareholder. In Indore Malwa United Mills Ltd. v. Commr of Income-Tax, (1966) 59 ITR 738 = (AIR 1966 SC 1466 ) this Court, on a question arising whether on the facts there, payment was made in taxable territory, held that if by an agreement, express or implied, between the creditor and the debtor, or by a request, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque and to send the cheque to the creditor by post, the post office is the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him. That being the position, the place where a dividend warrant would be posted, the post office being the agent of the shareholder, is the place where the obligation to pay the debt is discharged-in the present case at Delhi where the company has its registered office. It follows that the offence under section 207 of the Act would also occur at the place where the failure to discharge that obligation arises, namely, the failure to post the dividend warrant within 42 days. The venue of the offence, therefore, would be Delhi and not Meerut, and the court competent to try the offence would be that court within whose jurisdiction the offence takes place i.e., Delhi. This should be so both in law and common sense, for, if held otherwise, the directors of companies can be prosecuted at hundreds of places on an allegation by shareholders that they have not received the warrant. That cannot be the intention of the legislature when it enacted Section 207 and made failure to pay or post a dividend warrant within 42 days from the declaration of the dividend an offence10. This view is also in accord with the principle laid down by Maule J. inRagina v. James Milner, (1846) 175 ER, that the felony of no, surrendering at a district court to a fiat in bankruptcy, under Stat. 5 and 6 Vict. c. 122, Section 32, is committed at the place where the district court is situate; and an indictment for the offence cannot be sustained in a different country from that in which the person was a trader or in which he committed an act of bankruptcy. On the same principle the High Court of Calcutta has also held in Gunananda Dhone v. Santi Prokash Nanley, 29 Cal WN 432 = (AIR 1925 Cal 613 ) that it is the court within the local limits of whose jurisdiction the accused is liable to render accounts and fails to do so by reason of having committed a breach of trust alleged against him that has the jurisdiction11. The offence under S. 207 is the failure to pay dividend or to post a cheque or a warrant for the dividend amount. Since the obligation to post the warrant arose at the registered office of the company, failure to discharge that obligation also arose al the registered office of the company Therefore, the alleged offence must be held to have taken place at the place where the companys registered office is situate and not where the dividend warrant, when posted, would be received12. In that view, the High Court was in error in holding that the Magistrate at Meerut had the jurisdiction to try the said complaints.
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Shalimar Tar Products Ltd Vs. H.C. Sharma & Ors | there was a sub-letting, or assignment. It has been observed by the Madras High Court in paragraph (5) of the said decision as under: In Jackson v. Simons, (1923) 1 Ch. 373 (B) the question was whether the tenant broke a similar covenant. The defendant who was the tenant, without the plaintiffs consent or knowledge agreed for the sum of Rs. 7 per week to allow the proprietor of a night club carried on in a basement beneath the shop to the front part of the shop between the hours of 10.30.P.M. and 2 A.M. for the sale of tickets of admission to the club Romer J. held that the arrangement conferred to estate or interest in the demised premises but was a mere privilege or licence to use portion thereof, the defen-dant retaining the legal possession of the whole and did not, therefore, constitute a breach of the covenants not the assign, underlet or part with the demised premises or any part thereof. The Madras High Court also relied on an observation made by Scrution LJ. in Chaplin v. Smith, (1926) 1 KB 198, at p. 211, wherein it was observed : He did not assign ; nor did he underlet. He was constantly on the premises himself and kept the key of them. He did business of his own as well as business of the company. In my view he allowed the company to use the premises while he himself remained in possession of them. Reliance was also placed on the Treatise of Foa on Landlord and Tenant, Edn. at page 323, where the low on the subject has been summarised in the following words: The mere act of the letting other persons into possession by the tenant, and permitting them to use premises for their own purposes, is not so long as he retains the legal possession himself, a breach of the covenant. After considering all these decisions, the High Court of Madras extracted the following principles and came to the conclusion that a mere taking in of partners did not amount to transferring of possession and did not constitute assign-ment or subletting. Says the Madras High Court: It is clear from the aforesaid decisions that there cannot be a sub-letting unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Section 105 of the Transfer of Property Act defines a lease of immov-able property as to transfer of right to enjoy such property. There-fore, to create a lease of sub-lease a right to exclusive possession and enjoyment of the property should be conferred on another. In the present case the exclusive possession of the premises was not given to the second respondent. The first respondent continued to be the lessee, though in regard to the business carried on in the premises he had taken in other partners. The partners are not given any exclusive possession of the premises on a part thereof. The first respondent continues to be in possession subject to the liability to pay rent to his landlord. The partnership deed also, as I have already stated, dose not confer any such right in the premises on the other partners. I, therefore, hold in the circumstances of the case the first respondent did not sublet the premises to the second respondent, and, therefore, he is not liable to be evicted under the provisions of Act No. 25 of 1949. The view taken by me is reinforced by the opinion expressed by the Madras High Court in the aforesaid decision. A similar view has also been taken by Saurashtra High Court in Karsandas Ramji v. Karsanji Kalyanji, AIR 1953 Sau. at 113 pp. 114 and 115. In my opinion, it is therefore clear that there has been no assignment or subletting in favour of the partners of the firm by the tenant so as to attract the Bar of Section 13(1)(e) of the Rent Act. The view taken by the lower Court is correct and no exception can be taken thereto. 17. There is no dispute in the legal proposition that there must be part-ing of the legal possession. Parting of the legal possession means possession with the right to include and also right to exclude others. That is, in our opinion, is the matter of fact. In this case, it has been found that there was aright of possession in favour of the sub-lessee R.C. Abrol & Co. Pvt.Ltd. and right to exclude indeed as it appears from the narration of the fact that the company has gone into liquidation and the official liquidator has taken possession of the premises on behalf of the liquidator and that must be on the basis that it was the asset belonging to the company. In the aforesaid view of the matter we are unable to accept this proposition that there was no sub-letting. 18. Dr. Shankar Ghosh drew our attention to the observations of the High Court of Delhi in the following three cases: Vishwa Nath and Anr. v. Chaman Lal Khanna & Others (1975 All India Rent Control Journal 514); Shri Gurdial Singh v. Stiri Brij Kishore & Others (6 1970 Delhi Law Times 592) ; M/s Reliable Finance Corporation (P) Ltd. v. M/s Clearing House and Agencies Private Ltd. & Ors. (1984(2) Rent Control Reporter 449); Madras Bangalore Transport Co. (West) v. Inder Singh and Others (1986 3 SCC 62 ). 19. He contended that in the light of the aforesaid authorities in this case, there was no parting of legal possession in favour of the sub-lessee. We are unable to accept this position. In the instant case, exclusive possession was given to the sub-lessee and the tenant had transferred the right to possess in that portion. It is clear that sub-letting was done without the consent in writing of the landlord. If that is so, there was inevitably breach of the covenant. | 0[ds]5. It is true that Justice R.S. Bachawat had expressed the view that the consent could be general or special but in the case before the Court there was no conduct which showed that there was consent by the general words of the clause in the deed. We are of the opinion on reading of the different provisions that the consent enjoined by bargain between the parties in this case must be in writing and must be to the specific sub-letting7. We are in agreement with this approach to the interpretation and it is in consonance with the view expressed by this Court earlier as mentioned hereinbefore. In the aforesaid view of the matter we are of the opinion that it was necessary for the tenant to obtain the consent in writing to sub-letting the premises. The mere permission or acquiescence will not do. The consent must be to the specific sub-letting and must be in writing. Indeed there was no implied permission also here. Our attention was drawn to the fact that the landlord had written letter to the tenant and the landlord objected to the sub-letting, the moment he realised the situation8. In that view of the matter we are clearly of the opinion that in this case there was no consent in writing on the part of landlord to such sub-letting9. Dr. Shankar Ghosh tried to state that in view of the fact that the key of the premises was stated to be in the custody of the tenant, there was no sub-letting. It was the mere user, it was urged. It is difficult to accept this contention. The case of sub-letting was accepted as has been found by all the Courts in this case10. Our attention was drawn to the certain observations on the ques-tion of directory/mandatory nature of the requirement that consent should be in writing17. There is no dispute in the legal proposition that there must be part-ing of the legal possession. Parting of the legal possession means possession with the right to include and also right to exclude others. That is, in our opinion, is the matter of fact. In this case, it has been found that there was aright of possession in favour of the sub-lessee R.C. Abrol & Co. Pvt.Ltd. and right to exclude indeed as it appears from the narration of the fact that the company has gone into liquidation and the official liquidator has taken possession of the premises on behalf of the liquidator and that must be on the basis that it was the asset belonging to the company. In the aforesaid view of the matter we are unable to accept this proposition that there was no sub-letting. | 0 | 3,492 | 483 | ### 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:
there was a sub-letting, or assignment. It has been observed by the Madras High Court in paragraph (5) of the said decision as under: In Jackson v. Simons, (1923) 1 Ch. 373 (B) the question was whether the tenant broke a similar covenant. The defendant who was the tenant, without the plaintiffs consent or knowledge agreed for the sum of Rs. 7 per week to allow the proprietor of a night club carried on in a basement beneath the shop to the front part of the shop between the hours of 10.30.P.M. and 2 A.M. for the sale of tickets of admission to the club Romer J. held that the arrangement conferred to estate or interest in the demised premises but was a mere privilege or licence to use portion thereof, the defen-dant retaining the legal possession of the whole and did not, therefore, constitute a breach of the covenants not the assign, underlet or part with the demised premises or any part thereof. The Madras High Court also relied on an observation made by Scrution LJ. in Chaplin v. Smith, (1926) 1 KB 198, at p. 211, wherein it was observed : He did not assign ; nor did he underlet. He was constantly on the premises himself and kept the key of them. He did business of his own as well as business of the company. In my view he allowed the company to use the premises while he himself remained in possession of them. Reliance was also placed on the Treatise of Foa on Landlord and Tenant, Edn. at page 323, where the low on the subject has been summarised in the following words: The mere act of the letting other persons into possession by the tenant, and permitting them to use premises for their own purposes, is not so long as he retains the legal possession himself, a breach of the covenant. After considering all these decisions, the High Court of Madras extracted the following principles and came to the conclusion that a mere taking in of partners did not amount to transferring of possession and did not constitute assign-ment or subletting. Says the Madras High Court: It is clear from the aforesaid decisions that there cannot be a sub-letting unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Section 105 of the Transfer of Property Act defines a lease of immov-able property as to transfer of right to enjoy such property. There-fore, to create a lease of sub-lease a right to exclusive possession and enjoyment of the property should be conferred on another. In the present case the exclusive possession of the premises was not given to the second respondent. The first respondent continued to be the lessee, though in regard to the business carried on in the premises he had taken in other partners. The partners are not given any exclusive possession of the premises on a part thereof. The first respondent continues to be in possession subject to the liability to pay rent to his landlord. The partnership deed also, as I have already stated, dose not confer any such right in the premises on the other partners. I, therefore, hold in the circumstances of the case the first respondent did not sublet the premises to the second respondent, and, therefore, he is not liable to be evicted under the provisions of Act No. 25 of 1949. The view taken by me is reinforced by the opinion expressed by the Madras High Court in the aforesaid decision. A similar view has also been taken by Saurashtra High Court in Karsandas Ramji v. Karsanji Kalyanji, AIR 1953 Sau. at 113 pp. 114 and 115. In my opinion, it is therefore clear that there has been no assignment or subletting in favour of the partners of the firm by the tenant so as to attract the Bar of Section 13(1)(e) of the Rent Act. The view taken by the lower Court is correct and no exception can be taken thereto. 17. There is no dispute in the legal proposition that there must be part-ing of the legal possession. Parting of the legal possession means possession with the right to include and also right to exclude others. That is, in our opinion, is the matter of fact. In this case, it has been found that there was aright of possession in favour of the sub-lessee R.C. Abrol & Co. Pvt.Ltd. and right to exclude indeed as it appears from the narration of the fact that the company has gone into liquidation and the official liquidator has taken possession of the premises on behalf of the liquidator and that must be on the basis that it was the asset belonging to the company. In the aforesaid view of the matter we are unable to accept this proposition that there was no sub-letting. 18. Dr. Shankar Ghosh drew our attention to the observations of the High Court of Delhi in the following three cases: Vishwa Nath and Anr. v. Chaman Lal Khanna & Others (1975 All India Rent Control Journal 514); Shri Gurdial Singh v. Stiri Brij Kishore & Others (6 1970 Delhi Law Times 592) ; M/s Reliable Finance Corporation (P) Ltd. v. M/s Clearing House and Agencies Private Ltd. & Ors. (1984(2) Rent Control Reporter 449); Madras Bangalore Transport Co. (West) v. Inder Singh and Others (1986 3 SCC 62 ). 19. He contended that in the light of the aforesaid authorities in this case, there was no parting of legal possession in favour of the sub-lessee. We are unable to accept this position. In the instant case, exclusive possession was given to the sub-lessee and the tenant had transferred the right to possess in that portion. It is clear that sub-letting was done without the consent in writing of the landlord. If that is so, there was inevitably breach of the covenant.
### Response:
0
### Explanation:
5. It is true that Justice R.S. Bachawat had expressed the view that the consent could be general or special but in the case before the Court there was no conduct which showed that there was consent by the general words of the clause in the deed. We are of the opinion on reading of the different provisions that the consent enjoined by bargain between the parties in this case must be in writing and must be to the specific sub-letting7. We are in agreement with this approach to the interpretation and it is in consonance with the view expressed by this Court earlier as mentioned hereinbefore. In the aforesaid view of the matter we are of the opinion that it was necessary for the tenant to obtain the consent in writing to sub-letting the premises. The mere permission or acquiescence will not do. The consent must be to the specific sub-letting and must be in writing. Indeed there was no implied permission also here. Our attention was drawn to the fact that the landlord had written letter to the tenant and the landlord objected to the sub-letting, the moment he realised the situation8. In that view of the matter we are clearly of the opinion that in this case there was no consent in writing on the part of landlord to such sub-letting9. Dr. Shankar Ghosh tried to state that in view of the fact that the key of the premises was stated to be in the custody of the tenant, there was no sub-letting. It was the mere user, it was urged. It is difficult to accept this contention. The case of sub-letting was accepted as has been found by all the Courts in this case10. Our attention was drawn to the certain observations on the ques-tion of directory/mandatory nature of the requirement that consent should be in writing17. There is no dispute in the legal proposition that there must be part-ing of the legal possession. Parting of the legal possession means possession with the right to include and also right to exclude others. That is, in our opinion, is the matter of fact. In this case, it has been found that there was aright of possession in favour of the sub-lessee R.C. Abrol & Co. Pvt.Ltd. and right to exclude indeed as it appears from the narration of the fact that the company has gone into liquidation and the official liquidator has taken possession of the premises on behalf of the liquidator and that must be on the basis that it was the asset belonging to the company. In the aforesaid view of the matter we are unable to accept this proposition that there was no sub-letting.
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M/S. Karnataka State Forest Indus.Corpn Vs. M/S. Indian Rocks | in the recently held Board meeting of KSFIC on 19.12.1995 and the financial position was made known to the Board Members. The decision to take up granite trade by KSFIC was taken only after thorough discussion in the Board for nearly half a dozen times. The seized granite blocks were auctioned by the Corporation with the full knowledge of Government of Karnataka to the Honble Minister of Forests and the Forest Development. In fact Forest Department gave the full support for this activity. Moreover the Mines and Minersals Department can dispose in the public auction only those minerals which are seized under sub-section (4) of 21 of the Act and sub-rule (6) of 43 and minor Minerals left at the quarry after expiry of termination of lease or licences. In this instant case granite blocks are seized under provision of Section 62 of Karnataka Forest Act and this can be disposed off only under Cchapter 12 of Karnataka Forest Rules, 1963. Hence, we request you to kindly prevail upon the Joint Legislative Committee and Mines and Geology Department to issue necessary permits for the remaining Blocks to KSFIC Ltd. as per the rules in force. There is no alternative left for the KSFIC Ltd. to make arrangement for issue of transit permits through Mines and Geology Department to the purchasers for lifting the remaining blocks purchased by them in Tender cum auction sale as the KSFIC Ltd. Is totally unable to refund the deposit amount to the purchasers in the circumstances explained above. But there is nothing to show that the Government of Karnataka acted thereupon or withdrawn its direction contained in its letter dated 16th January, 1996. 37. The plea which was raised, therefore, was not a legal plea but a plea for show of compassion expressing its inability to refund the amount because of financial constraints. Its response to the State was not based on legal premise but it was based on its own difficulty. If the agency had been terminated and had not been restored, we would not know under what authority the appellant had been asking respondents to perform their part of contract. 38. In any view of the matter there is nothing on the records to show that the State of Karnataka and particularly the Joint Committee of the Karnataka Legislative Assembly directed grant of transit permits for transportation of granite blocks. If such permits had been granted, it might have been obligatory on its part while issuing the notice upon the concerned respondents to direct lifting of the remaining blocks of granites enclosing therewith copies of the said permits, but in absence thereof, it is idle to contend, on the one hand that the respondents were bound to perform their part of the contract and on the other that although they have asked for supply of permits, as per rules, they did not obtain the same. 39. Appellant is also guilty of suppressio veri and suggestio falsi. Its action in the entire matter appears to be wholly unfair. It was in a dominant position in terms of the provisions of the contract but then in a case of this nature when its authority to continue to deal with the granite blocks came to be questioned, it was obligatory on its part to clear its position in this behalf. We have no words to express our displeasure also in regard to the conduct of the State. It did not take a positive stand. As a principal, the State of Karnataka was also obligated to disclose the entire facts before the High Court. 40. Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable. (See ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. [ (2004) 3 SCC 553. 41. There cannot be any doubt whatsoever that a writ of mandamus can be issued only when there exists a legal right in the Writ Petition and a corresponding legal duty on the part of the State, but then if any action on the part of the State is wholly unfair or arbitrary, the superior courts are not powerless. Reliance placed by Mr. Divan on G.J. Fernandez v. State of Mysore and other, ( [1967] 3 SCR 636 ) is not apposite. In that case itself it was held :- Thus under Art. 162 the State Government can take executive action in all matters in which the legislature of the State can pass laws. But Art. 162 itself does not confer any rule making power on the State Government in the behalf. G.J. Fernandez (supra) was considered in ABL International Ltd. (supra) 42. Furthermore the concession made by the counsel for appellants in the earlier round of litigation also cannot be lost sight of. A specific concession was made. It may be that no specific direction was issued by the High Court therein, but the stand taken by it was clear and unequivocal. 43. Mr. Shyam Divan, when questioned, had very fairly submitted that the conduct of the counsel who had appeared on behalf of the appellant in the earlier round of litigation is not in question and it cannot be said that he acted beyond his authority. 44. If such a stand had taken in the earlier round of litigation we fail to see any reason as to why the concession made by it should not be given effect to. If a right has accrued to the respondents for maintaining a writ so as to compel the State to give effect to an earlier order passed by the Court as has been held by this Court in the case of Commissioner, Karnataka Housing Board v. C. Muddaiah, [ (2007) 7 SCC 689 , the same should not be denied to respondent herein. | 0[ds]37. The plea which was raised, therefore, was not a legal plea but a plea for show of compassion expressing its inability to refund the amount because of financial constraints. Its response to the State was not based on legal premise but it was based on its own difficulty. If the agency had been terminated and had not been restored, we would not know under what authority the appellant had been asking respondents to perform their part of contract38. In any view of the matter there is nothing on the records to show that the State of Karnataka and particularly the Joint Committee of the Karnataka Legislative Assembly directed grant of transit permits for transportation of granite blocks. If such permits had been granted, it might have been obligatory on its part while issuing the notice upon the concerned respondents to direct lifting of the remaining blocks of granites enclosing therewith copies of the said permits, but in absence thereof, it is idle to contend, on the one hand that the respondents were bound to perform their part of the contract and on the other that although they have asked for supply of permits, as per rules, they did not obtain the same39. Appellant is also guilty of suppressio veri and suggestio falsi. Its action in the entire matter appears to be wholly unfair. It was in a dominant position in terms of the provisions of the contract but then in a case of this nature when its authority to continue to deal with the granite blocks came to be questioned, it was obligatory on its part to clear its position in this behalf. We have no words to express our displeasure also in regard to the conduct of the State. It did not take a positive stand. As a principal, the State of Karnataka was also obligated to disclose the entire facts before the High Court40. Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable. (See ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. [ (2004) 3 SCC 55341. There cannot be any doubt whatsoever that a writ of mandamus can be issued only when there exists a legal right in the Writ Petition and a corresponding legal duty on the part of the State, but then if any action on the part of the State is wholly unfair or arbitrary, the superior courts are not powerless. Reliance placed by Mr. Divan on G.J. Fernandez v. State of Mysore and other, ( [1967] 3 SCR 636 ) is not apposite. In that case itself it was held :-Thus under Art. 162 the State Government can take executive action in all matters in which the legislature of the State can pass laws. But Art. 162 itself does not confer any rule making power on the State Government in the behalfG.J. Fernandez (supra) was considered in ABL International Ltd. (supra)42. Furthermore the concession made by the counsel for appellants in the earlier round of litigation also cannot be lost sight of. A specific concession was made. It may be that no specific direction was issued by the High Court therein, but the stand taken by it was clear and unequivocal43. Mr. Shyam Divan, when questioned, had very fairly submitted that the conduct of the counsel who had appeared on behalf of the appellant in the earlier round of litigation is not in question and it cannot be said that he acted beyond his authority44. If such a stand had taken in the earlier round of litigation we fail to see any reason as to why the concession made by it should not be given effect to. If a right has accrued to the respondents for maintaining a writ so as to compel the State to give effect to an earlier order passed by the Court as has been held by this Court in the case of Commissioner, Karnataka Housing Board v. C. Muddaiah, [ (2007) 7 SCC 689 , the same should not be denied to respondent herein. | 0 | 6,909 | 785 | ### 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:
in the recently held Board meeting of KSFIC on 19.12.1995 and the financial position was made known to the Board Members. The decision to take up granite trade by KSFIC was taken only after thorough discussion in the Board for nearly half a dozen times. The seized granite blocks were auctioned by the Corporation with the full knowledge of Government of Karnataka to the Honble Minister of Forests and the Forest Development. In fact Forest Department gave the full support for this activity. Moreover the Mines and Minersals Department can dispose in the public auction only those minerals which are seized under sub-section (4) of 21 of the Act and sub-rule (6) of 43 and minor Minerals left at the quarry after expiry of termination of lease or licences. In this instant case granite blocks are seized under provision of Section 62 of Karnataka Forest Act and this can be disposed off only under Cchapter 12 of Karnataka Forest Rules, 1963. Hence, we request you to kindly prevail upon the Joint Legislative Committee and Mines and Geology Department to issue necessary permits for the remaining Blocks to KSFIC Ltd. as per the rules in force. There is no alternative left for the KSFIC Ltd. to make arrangement for issue of transit permits through Mines and Geology Department to the purchasers for lifting the remaining blocks purchased by them in Tender cum auction sale as the KSFIC Ltd. Is totally unable to refund the deposit amount to the purchasers in the circumstances explained above. But there is nothing to show that the Government of Karnataka acted thereupon or withdrawn its direction contained in its letter dated 16th January, 1996. 37. The plea which was raised, therefore, was not a legal plea but a plea for show of compassion expressing its inability to refund the amount because of financial constraints. Its response to the State was not based on legal premise but it was based on its own difficulty. If the agency had been terminated and had not been restored, we would not know under what authority the appellant had been asking respondents to perform their part of contract. 38. In any view of the matter there is nothing on the records to show that the State of Karnataka and particularly the Joint Committee of the Karnataka Legislative Assembly directed grant of transit permits for transportation of granite blocks. If such permits had been granted, it might have been obligatory on its part while issuing the notice upon the concerned respondents to direct lifting of the remaining blocks of granites enclosing therewith copies of the said permits, but in absence thereof, it is idle to contend, on the one hand that the respondents were bound to perform their part of the contract and on the other that although they have asked for supply of permits, as per rules, they did not obtain the same. 39. Appellant is also guilty of suppressio veri and suggestio falsi. Its action in the entire matter appears to be wholly unfair. It was in a dominant position in terms of the provisions of the contract but then in a case of this nature when its authority to continue to deal with the granite blocks came to be questioned, it was obligatory on its part to clear its position in this behalf. We have no words to express our displeasure also in regard to the conduct of the State. It did not take a positive stand. As a principal, the State of Karnataka was also obligated to disclose the entire facts before the High Court. 40. Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable. (See ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. [ (2004) 3 SCC 553. 41. There cannot be any doubt whatsoever that a writ of mandamus can be issued only when there exists a legal right in the Writ Petition and a corresponding legal duty on the part of the State, but then if any action on the part of the State is wholly unfair or arbitrary, the superior courts are not powerless. Reliance placed by Mr. Divan on G.J. Fernandez v. State of Mysore and other, ( [1967] 3 SCR 636 ) is not apposite. In that case itself it was held :- Thus under Art. 162 the State Government can take executive action in all matters in which the legislature of the State can pass laws. But Art. 162 itself does not confer any rule making power on the State Government in the behalf. G.J. Fernandez (supra) was considered in ABL International Ltd. (supra) 42. Furthermore the concession made by the counsel for appellants in the earlier round of litigation also cannot be lost sight of. A specific concession was made. It may be that no specific direction was issued by the High Court therein, but the stand taken by it was clear and unequivocal. 43. Mr. Shyam Divan, when questioned, had very fairly submitted that the conduct of the counsel who had appeared on behalf of the appellant in the earlier round of litigation is not in question and it cannot be said that he acted beyond his authority. 44. If such a stand had taken in the earlier round of litigation we fail to see any reason as to why the concession made by it should not be given effect to. If a right has accrued to the respondents for maintaining a writ so as to compel the State to give effect to an earlier order passed by the Court as has been held by this Court in the case of Commissioner, Karnataka Housing Board v. C. Muddaiah, [ (2007) 7 SCC 689 , the same should not be denied to respondent herein.
### Response:
0
### Explanation:
37. The plea which was raised, therefore, was not a legal plea but a plea for show of compassion expressing its inability to refund the amount because of financial constraints. Its response to the State was not based on legal premise but it was based on its own difficulty. If the agency had been terminated and had not been restored, we would not know under what authority the appellant had been asking respondents to perform their part of contract38. In any view of the matter there is nothing on the records to show that the State of Karnataka and particularly the Joint Committee of the Karnataka Legislative Assembly directed grant of transit permits for transportation of granite blocks. If such permits had been granted, it might have been obligatory on its part while issuing the notice upon the concerned respondents to direct lifting of the remaining blocks of granites enclosing therewith copies of the said permits, but in absence thereof, it is idle to contend, on the one hand that the respondents were bound to perform their part of the contract and on the other that although they have asked for supply of permits, as per rules, they did not obtain the same39. Appellant is also guilty of suppressio veri and suggestio falsi. Its action in the entire matter appears to be wholly unfair. It was in a dominant position in terms of the provisions of the contract but then in a case of this nature when its authority to continue to deal with the granite blocks came to be questioned, it was obligatory on its part to clear its position in this behalf. We have no words to express our displeasure also in regard to the conduct of the State. It did not take a positive stand. As a principal, the State of Karnataka was also obligated to disclose the entire facts before the High Court40. Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable. (See ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. [ (2004) 3 SCC 55341. There cannot be any doubt whatsoever that a writ of mandamus can be issued only when there exists a legal right in the Writ Petition and a corresponding legal duty on the part of the State, but then if any action on the part of the State is wholly unfair or arbitrary, the superior courts are not powerless. Reliance placed by Mr. Divan on G.J. Fernandez v. State of Mysore and other, ( [1967] 3 SCR 636 ) is not apposite. In that case itself it was held :-Thus under Art. 162 the State Government can take executive action in all matters in which the legislature of the State can pass laws. But Art. 162 itself does not confer any rule making power on the State Government in the behalfG.J. Fernandez (supra) was considered in ABL International Ltd. (supra)42. Furthermore the concession made by the counsel for appellants in the earlier round of litigation also cannot be lost sight of. A specific concession was made. It may be that no specific direction was issued by the High Court therein, but the stand taken by it was clear and unequivocal43. Mr. Shyam Divan, when questioned, had very fairly submitted that the conduct of the counsel who had appeared on behalf of the appellant in the earlier round of litigation is not in question and it cannot be said that he acted beyond his authority44. If such a stand had taken in the earlier round of litigation we fail to see any reason as to why the concession made by it should not be given effect to. If a right has accrued to the respondents for maintaining a writ so as to compel the State to give effect to an earlier order passed by the Court as has been held by this Court in the case of Commissioner, Karnataka Housing Board v. C. Muddaiah, [ (2007) 7 SCC 689 , the same should not be denied to respondent herein.
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Adiraj Manpower Services Pvt. Ltd Vs. Commissioner of Central Excise Pune II | payment will be as described by the Government Authorities. 11 It is agreed between the parties that the contractor shall take necessary licence whenever required under the provisions of Contract labour (Regulation & Abolition) Act, 1970 and shall submit a copy of the same to the Company. 12. The Contractor shall maintain various records, registers, and shall submit timely returns required under legislation, rules and regulations as applicable to him and his personnel. The contractor shall submit xerox copies of musters vouchers to the company in respect of his personnel. 13. The Contractor indemnifies the Company that he shall bear any burden of whatsoever nature like fees, fines, penalty, damages, rise in wages, HRA, Back-wages etc in respect of his personnel under the provisions of any law. […] 16. The Contractor ensures that he will maintain the discipline among his own employees. In case of any misbehavior or misconduct by the personnel engaged by the Contractor, the Contractor shall take proper action against such person, the Company shall not have any right to take such action. In the event if the Contractor docs not take proper action the contract is liable to be terminated without notice. 17. The Contractor shall pay timely dues under ESI Act, Provident Fund if applicable in respect of his persons I employees and shall maintain Registers, submit returns under ESI Act and Provident fund Act. If due to failure of the Contractor any financial or otherwise burden costs on the Company is at liberty to recover the same from the bills of the Contractor. […] 23. The Contractor shall fix the duty and timings of his own personnel as per his own requirement. However, it shall not conflict with the working of the Company and its employees. 24. The Contractor indemnifies the Company against any liability that may arise because of the persons engaged by him. 25. The Contractor will issue the equipments materials etc. to his personnel on his (Contractors) responsibility and will keep proper record of it. In case of any shortcomings the Contractor is liable to pay the costs of the same to the Company. In the event of any doubts as to interpretation of the clauses in this agreement, the interpretation of the Company shall be final and binding on the Contractor. 13. Schedules (I) and (II) of the agreement have been extracted in the judgment of the Tribunal and are reproduced below: SCHEDULE I Provide services for Felting, Material Handling, Assembly, Pouring, Supply of Cast & machine part, Painting, at our establishment situated at Gate No. 154/1 & 155/1, Mahalunge, Chakan, Pune, 410501, which consists of plant area, offices, stores, canteen, utilities, open land, scrap yard etc. SCHEDULE II The rate per Kg is given below Particulars Copper/kg Zinc/kg Aluminium/kg Steel/kg Felting 0.83 Material Handling 0.58 Packing Pouring Supply Cast/Machined Parts 2.49 Painting Total 2.49 1.41 0.00 0.00 14. The submission of the appellant is that under the terms of the CLRA, the definition of the expression contractor covers both a person who undertakes to produce a given result as well as a supplier of manpower service. Hence it is urged that though the appellant has to be registered as a contractor under the CLRA, that is because the appellant falls within the definition of the expression contractor in Section 2(c), as a person who undertakes to produce a given result for the establishment by engaging contract labour. 15. Under the CLRA, the expression contractor is defined to mean: (i) A person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture through contract labour; and (ii) A person who supplies contract labour for any work of the establishment including a sub-contractor. The definition covers, in the latter part, the supply of contract labour for any work of the establishment. But in the first part noted above, it comprehends a person who undertakes to produce a result for the establishment other than a mere supply of goods and services. The issue before the Court is whether the appellant is a job worker within the meaning of the exemption notification dated 20 June 2012 or is merely a supplier of contract labour for the work of the establishment. 16. The substratum of the agreement between the appellant and Sigma deals with the regulation of the manpower which is supplied by the appellant in his capacity as a contractor. The fact that the appellant is not a job worker is evident from a conspicuous absence in the agreement of crucial contractual terms which would have been found had it been a true contract for the provision of job work in terms of Para 30(c) of the exemption notification. There is a complete absence in the agreement of any reference to: (i) the nature of the process of work which has to be carried out by the appellant; (ii) provisions for maintaining (a) the quality of work; (b) the nature of the facilities utilised; or (c) the infrastructure deployed to generate the work; (iii) the delivery schedule; (iv) specifications in regard to the work to be performed; and (v) consequences which ensue in the event of a breach of the contractual obligation. 17. The decisions of CESTAT relied upon by the appellant also do not help their submissions as they are fact-specific and based on a reading of the contracts in those cases. In this case, though ostensibly, the agreement contains a provision for payment on the basis of the rates mentioned in Schedule II, the agreement has to be read as a composite whole. On reading the agreement as a whole, it is apparent that the contract is pure and simple a contract for the provision of contract labour. An attempt has been made to camouflage the contract as a contract for job work to avail of the exemption from the payment of service tax. The judgment of the Tribunal does not, in the circumstances, suffer from any error of reasoning. | 0[ds]16. The substratum of the agreement between the appellant and Sigma deals with the regulation of the manpower which is supplied by the appellant in his capacity as a contractor. The fact that the appellant is not a job worker is evident from a conspicuous absence in the agreement of crucial contractual terms which would have been found had it been a true contract for the provision of job work in terms of Para 30(c) of the exemption notification. There is a complete absence in the agreement of any reference to:(i) the nature of the process of work which has to be carried out by the appellant;(ii) provisions for maintaining (a) the quality of work; (b) the nature of the facilities utilised; or (c) the infrastructure deployed to generate the work;(iii) the delivery schedule;(iv) specifications in regard to the work to be performed; and(v) consequences which ensue in the event of a breach of the contractual obligation.17. The decisions of CESTAT relied upon by the appellant also do not help their submissions as they are fact-specific and based on a reading of the contracts in those cases. In this case, though ostensibly, the agreement contains a provision for payment on the basis of the rates mentioned in Schedule II, the agreement has to be read as a composite whole. On reading the agreement as a whole, it is apparent that the contract is pure and simple a contract for the provision of contract labour. An attempt has been made to camouflage the contract as a contract for job work to avail of the exemption from the payment of service tax. The judgment of the Tribunal does not, in the circumstances, suffer from any error of reasoning. | 0 | 3,433 | 336 | ### 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:
payment will be as described by the Government Authorities. 11 It is agreed between the parties that the contractor shall take necessary licence whenever required under the provisions of Contract labour (Regulation & Abolition) Act, 1970 and shall submit a copy of the same to the Company. 12. The Contractor shall maintain various records, registers, and shall submit timely returns required under legislation, rules and regulations as applicable to him and his personnel. The contractor shall submit xerox copies of musters vouchers to the company in respect of his personnel. 13. The Contractor indemnifies the Company that he shall bear any burden of whatsoever nature like fees, fines, penalty, damages, rise in wages, HRA, Back-wages etc in respect of his personnel under the provisions of any law. […] 16. The Contractor ensures that he will maintain the discipline among his own employees. In case of any misbehavior or misconduct by the personnel engaged by the Contractor, the Contractor shall take proper action against such person, the Company shall not have any right to take such action. In the event if the Contractor docs not take proper action the contract is liable to be terminated without notice. 17. The Contractor shall pay timely dues under ESI Act, Provident Fund if applicable in respect of his persons I employees and shall maintain Registers, submit returns under ESI Act and Provident fund Act. If due to failure of the Contractor any financial or otherwise burden costs on the Company is at liberty to recover the same from the bills of the Contractor. […] 23. The Contractor shall fix the duty and timings of his own personnel as per his own requirement. However, it shall not conflict with the working of the Company and its employees. 24. The Contractor indemnifies the Company against any liability that may arise because of the persons engaged by him. 25. The Contractor will issue the equipments materials etc. to his personnel on his (Contractors) responsibility and will keep proper record of it. In case of any shortcomings the Contractor is liable to pay the costs of the same to the Company. In the event of any doubts as to interpretation of the clauses in this agreement, the interpretation of the Company shall be final and binding on the Contractor. 13. Schedules (I) and (II) of the agreement have been extracted in the judgment of the Tribunal and are reproduced below: SCHEDULE I Provide services for Felting, Material Handling, Assembly, Pouring, Supply of Cast & machine part, Painting, at our establishment situated at Gate No. 154/1 & 155/1, Mahalunge, Chakan, Pune, 410501, which consists of plant area, offices, stores, canteen, utilities, open land, scrap yard etc. SCHEDULE II The rate per Kg is given below Particulars Copper/kg Zinc/kg Aluminium/kg Steel/kg Felting 0.83 Material Handling 0.58 Packing Pouring Supply Cast/Machined Parts 2.49 Painting Total 2.49 1.41 0.00 0.00 14. The submission of the appellant is that under the terms of the CLRA, the definition of the expression contractor covers both a person who undertakes to produce a given result as well as a supplier of manpower service. Hence it is urged that though the appellant has to be registered as a contractor under the CLRA, that is because the appellant falls within the definition of the expression contractor in Section 2(c), as a person who undertakes to produce a given result for the establishment by engaging contract labour. 15. Under the CLRA, the expression contractor is defined to mean: (i) A person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture through contract labour; and (ii) A person who supplies contract labour for any work of the establishment including a sub-contractor. The definition covers, in the latter part, the supply of contract labour for any work of the establishment. But in the first part noted above, it comprehends a person who undertakes to produce a result for the establishment other than a mere supply of goods and services. The issue before the Court is whether the appellant is a job worker within the meaning of the exemption notification dated 20 June 2012 or is merely a supplier of contract labour for the work of the establishment. 16. The substratum of the agreement between the appellant and Sigma deals with the regulation of the manpower which is supplied by the appellant in his capacity as a contractor. The fact that the appellant is not a job worker is evident from a conspicuous absence in the agreement of crucial contractual terms which would have been found had it been a true contract for the provision of job work in terms of Para 30(c) of the exemption notification. There is a complete absence in the agreement of any reference to: (i) the nature of the process of work which has to be carried out by the appellant; (ii) provisions for maintaining (a) the quality of work; (b) the nature of the facilities utilised; or (c) the infrastructure deployed to generate the work; (iii) the delivery schedule; (iv) specifications in regard to the work to be performed; and (v) consequences which ensue in the event of a breach of the contractual obligation. 17. The decisions of CESTAT relied upon by the appellant also do not help their submissions as they are fact-specific and based on a reading of the contracts in those cases. In this case, though ostensibly, the agreement contains a provision for payment on the basis of the rates mentioned in Schedule II, the agreement has to be read as a composite whole. On reading the agreement as a whole, it is apparent that the contract is pure and simple a contract for the provision of contract labour. An attempt has been made to camouflage the contract as a contract for job work to avail of the exemption from the payment of service tax. The judgment of the Tribunal does not, in the circumstances, suffer from any error of reasoning.
### Response:
0
### Explanation:
16. The substratum of the agreement between the appellant and Sigma deals with the regulation of the manpower which is supplied by the appellant in his capacity as a contractor. The fact that the appellant is not a job worker is evident from a conspicuous absence in the agreement of crucial contractual terms which would have been found had it been a true contract for the provision of job work in terms of Para 30(c) of the exemption notification. There is a complete absence in the agreement of any reference to:(i) the nature of the process of work which has to be carried out by the appellant;(ii) provisions for maintaining (a) the quality of work; (b) the nature of the facilities utilised; or (c) the infrastructure deployed to generate the work;(iii) the delivery schedule;(iv) specifications in regard to the work to be performed; and(v) consequences which ensue in the event of a breach of the contractual obligation.17. The decisions of CESTAT relied upon by the appellant also do not help their submissions as they are fact-specific and based on a reading of the contracts in those cases. In this case, though ostensibly, the agreement contains a provision for payment on the basis of the rates mentioned in Schedule II, the agreement has to be read as a composite whole. On reading the agreement as a whole, it is apparent that the contract is pure and simple a contract for the provision of contract labour. An attempt has been made to camouflage the contract as a contract for job work to avail of the exemption from the payment of service tax. The judgment of the Tribunal does not, in the circumstances, suffer from any error of reasoning.
|
Arjunlal Bhatt Mall Gothani & Others Vs. Girish Chandra Dutta & Another | half the building. If the balance of Rs. 40,000/- was paid in equal annual instalments by 31st March of each year and the entire amount paid within 8 years the vendor was to execute a sale deed for the remaining half. The most important clause of this agreement which it would be useful to extract in full reads:"5 That in case of default of any instalment, this agreement for sale shall stand cancelled and if the purchasers fail to pay the defaulted instalments within one months notice the payments made shall stand forfeited and the purchasers shall make over possession of the land and houses shown Schedule to the vendor."3. As a result of this agreement all the three proceedings against the appellants started by the respondent and his father were withdrawn. The first instalment was not paid on 31st March, 1960. Instead the appellants filed a petition before the Subordinate Judge at Jorhat on 31st March 1960 stating that the plaintiff could not be found and wanted to be permitted to deposit the sum of Rupees 10,000/- in Jorhat Treasury to the credit of plaintiff. But even by 2-6-1960 no Treasury challan had been submitted by them. Instead they filed a petition stating that they had not deposited Rs. 10,000/- as the plaintiff had asked them not to do so and prayed for keeping the petition on file.4. Thereafter the respondent filed a suit out of which this appeal arises for possession of the land together with the buildings. The defendants contended that the terms of the agreement were unconscionable and obtained by putting undue pressure, that the suit had been filed even without notice. The learned Subordinate Judge, who tried the suit held that the agreement was not obtained by fraud and coercion nor was it illegal and the plaintiff was entitled to possession as well as the declaration of his right and title in the suit properties. This judgment was upheld by the High Court of Assam and Nagaland. With regard to clause (5) mentioned above the High Court held that:"The requirement of one months notice is only in case where there is a default for payment of instalments and the purchaser wants to avoid forfeiture of the money which has already been paid under the agreement. There is nothing in clause 5 which enjoins upon the vendor to give one months notice before he can bring a suit for possession."It also held that:"If a default is committed in payment of any instalment, the agreement stands cancelled and if the defendant fails to pay the defaulted instalments within one month of the notice, the money already paid will stand forfeited. The result of the agreement being cancelled is that the purchaser will deliver back possession of the premises to the vendor."5.We are satisfied that both the Courts below have arrived at the correct conclusion that there is no evidence at all to justify an inference that the agreement in question was obtained from the appellants under undue influence or coercion. None of the instalments were paid as agreed upon. The application made by the appellants on 31-3-1960 as well as the application made subsequently are patently dishonest attempts at avoiding payment of the instalments as agreed upon. Under clause 5 of the agreement the question of giving notice arises only if the vendor wanted to forfeit the instalments paid by the purchaser. Not even one instalment having been paid the question of forfeiture does not arise and no notice was necessary for cancelling agreement. It stood automatically cancelled. It was sought to be argued before us that once the agreement stood cancelled the appellants stood restored to their original position as tenants and the suit could not be filed without giving notice under the Transfer of Property Act. We are of opinion that when the agreement dated 7-6-1959 was entered into the old relationship of landlord and tenant came to an end. The rights and liabilities of the parties have to be worked out on the basis of that agreement. This is obvious from the fact that there was no provision for payment of any rent till the whole purchase money was paid or even for the balance of the purchase money that may be due after one or more instalments were paid. There was no provision even for payment of interest in respect of the whole of the purchase money or any of the instalments. Therefore, when the agreement stood cancelled the plaintiff was automatically entitled to possession under the terms of the agreement.6. Even otherwise it has to be noticed that before T. S. No. 14 of 1958 was filed the plaintiff had actually given notice terminating the tenancy and asking for possession and that suit was withdrawn consequent on the agreement entered into between the parties on 7-6-1959. If the appellants want to go back to the position as tenants that notice should still be held to hold the field. The appellants cannot be allowed to take advantage of their own wrong.7. It was further urged before us that the appellants were entitled to certain right under the Assam Tenancy Act. The only statement of the appellants in their written statement was that they were protected under the tenancy law from eviction for having permanent structure on the land with consent, knowledge and acquiescence of the plaintiff and his father for many years past. The Courts below have not found that the appellants had put any permanent structures on the land with the consent, knowledge and acquiescence of the plaintiff and his father. It is not mentioned under what tenancy law the appellants were entitled to be protected against eviction. In any case they do not claim that the tenancy law gave them any rights over the land. Such an argument does not seem to have been advanced before the trial court or before the High Court. We, therefore, refused to allow that argument to be raised. It is a case wholly without merits. | 0[ds]5.We are satisfied that both the Courts below have arrived at the correct conclusion that there is no evidence at all to justify an inference that the agreement in question was obtained from the appellants under undue influence or coercion. None of the instalments were paid as agreed upon. The application made by the appellants onas well as the application made subsequently are patently dishonest attempts at avoiding payment of the instalments as agreed upon. Under clause 5 of the agreement the question of giving notice arises only if the vendor wanted to forfeit the instalments paid by the purchaser. Not even one instalment having been paid the question of forfeiture does not arise and no notice was necessary for cancelling agreement. It stood automatically cancelled. It was sought to be argued before us that once the agreement stood cancelled the appellants stood restored to their original position as tenants and the suit could not be filed without giving notice under the Transfer of Property Act. We are of opinion that when the agreement datedwas entered into the old relationship of landlord and tenant came to an end. The rights and liabilities of the parties have to be worked out on the basis of that agreement. This is obvious from the fact that there was no provision for payment of any rent till the whole purchase money was paid or even for the balance of the purchase money that may be due after one or more instalments were paid. There was no provision even for payment of interest in respect of the whole of the purchase money or any of the instalments. Therefore, when the agreement stood cancelled the plaintiff was automatically entitled to possession under the terms of the agreement.6. Even otherwise it has to be noticed that before T. S. No. 14 of 1958 was filed the plaintiff had actually given notice terminating the tenancy and asking for possession and that suit was withdrawn consequent on the agreement entered into between the parties onIf the appellants want to go back to the position as tenants that notice should still be held to hold the field. The appellants cannot be allowed to take advantage of their own wrong.7. It was further urged before us that the appellants were entitled to certain right under the Assam Tenancy Act. The only statement of the appellants in their written statement was that they were protected under the tenancy law from eviction for having permanent structure on the land with consent, knowledge and acquiescence of the plaintiff and his father for many years past. The Courts below have not found that the appellants had put any permanent structures on the land with the consent, knowledge and acquiescence of the plaintiff and his father. It is not mentioned under what tenancy law the appellants were entitled to be protected against eviction. In any case they do not claim that the tenancy law gave them any rights over the land. Such an argument does not seem to have been advanced before the trial court or before the High Court. We, therefore, refused to allow that argument to be raised. It is a case wholly without merits. | 0 | 1,374 | 564 | ### Instruction:
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half the building. If the balance of Rs. 40,000/- was paid in equal annual instalments by 31st March of each year and the entire amount paid within 8 years the vendor was to execute a sale deed for the remaining half. The most important clause of this agreement which it would be useful to extract in full reads:"5 That in case of default of any instalment, this agreement for sale shall stand cancelled and if the purchasers fail to pay the defaulted instalments within one months notice the payments made shall stand forfeited and the purchasers shall make over possession of the land and houses shown Schedule to the vendor."3. As a result of this agreement all the three proceedings against the appellants started by the respondent and his father were withdrawn. The first instalment was not paid on 31st March, 1960. Instead the appellants filed a petition before the Subordinate Judge at Jorhat on 31st March 1960 stating that the plaintiff could not be found and wanted to be permitted to deposit the sum of Rupees 10,000/- in Jorhat Treasury to the credit of plaintiff. But even by 2-6-1960 no Treasury challan had been submitted by them. Instead they filed a petition stating that they had not deposited Rs. 10,000/- as the plaintiff had asked them not to do so and prayed for keeping the petition on file.4. Thereafter the respondent filed a suit out of which this appeal arises for possession of the land together with the buildings. The defendants contended that the terms of the agreement were unconscionable and obtained by putting undue pressure, that the suit had been filed even without notice. The learned Subordinate Judge, who tried the suit held that the agreement was not obtained by fraud and coercion nor was it illegal and the plaintiff was entitled to possession as well as the declaration of his right and title in the suit properties. This judgment was upheld by the High Court of Assam and Nagaland. With regard to clause (5) mentioned above the High Court held that:"The requirement of one months notice is only in case where there is a default for payment of instalments and the purchaser wants to avoid forfeiture of the money which has already been paid under the agreement. There is nothing in clause 5 which enjoins upon the vendor to give one months notice before he can bring a suit for possession."It also held that:"If a default is committed in payment of any instalment, the agreement stands cancelled and if the defendant fails to pay the defaulted instalments within one month of the notice, the money already paid will stand forfeited. The result of the agreement being cancelled is that the purchaser will deliver back possession of the premises to the vendor."5.We are satisfied that both the Courts below have arrived at the correct conclusion that there is no evidence at all to justify an inference that the agreement in question was obtained from the appellants under undue influence or coercion. None of the instalments were paid as agreed upon. The application made by the appellants on 31-3-1960 as well as the application made subsequently are patently dishonest attempts at avoiding payment of the instalments as agreed upon. Under clause 5 of the agreement the question of giving notice arises only if the vendor wanted to forfeit the instalments paid by the purchaser. Not even one instalment having been paid the question of forfeiture does not arise and no notice was necessary for cancelling agreement. It stood automatically cancelled. It was sought to be argued before us that once the agreement stood cancelled the appellants stood restored to their original position as tenants and the suit could not be filed without giving notice under the Transfer of Property Act. We are of opinion that when the agreement dated 7-6-1959 was entered into the old relationship of landlord and tenant came to an end. The rights and liabilities of the parties have to be worked out on the basis of that agreement. This is obvious from the fact that there was no provision for payment of any rent till the whole purchase money was paid or even for the balance of the purchase money that may be due after one or more instalments were paid. There was no provision even for payment of interest in respect of the whole of the purchase money or any of the instalments. Therefore, when the agreement stood cancelled the plaintiff was automatically entitled to possession under the terms of the agreement.6. Even otherwise it has to be noticed that before T. S. No. 14 of 1958 was filed the plaintiff had actually given notice terminating the tenancy and asking for possession and that suit was withdrawn consequent on the agreement entered into between the parties on 7-6-1959. If the appellants want to go back to the position as tenants that notice should still be held to hold the field. The appellants cannot be allowed to take advantage of their own wrong.7. It was further urged before us that the appellants were entitled to certain right under the Assam Tenancy Act. The only statement of the appellants in their written statement was that they were protected under the tenancy law from eviction for having permanent structure on the land with consent, knowledge and acquiescence of the plaintiff and his father for many years past. The Courts below have not found that the appellants had put any permanent structures on the land with the consent, knowledge and acquiescence of the plaintiff and his father. It is not mentioned under what tenancy law the appellants were entitled to be protected against eviction. In any case they do not claim that the tenancy law gave them any rights over the land. Such an argument does not seem to have been advanced before the trial court or before the High Court. We, therefore, refused to allow that argument to be raised. It is a case wholly without merits.
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5.We are satisfied that both the Courts below have arrived at the correct conclusion that there is no evidence at all to justify an inference that the agreement in question was obtained from the appellants under undue influence or coercion. None of the instalments were paid as agreed upon. The application made by the appellants onas well as the application made subsequently are patently dishonest attempts at avoiding payment of the instalments as agreed upon. Under clause 5 of the agreement the question of giving notice arises only if the vendor wanted to forfeit the instalments paid by the purchaser. Not even one instalment having been paid the question of forfeiture does not arise and no notice was necessary for cancelling agreement. It stood automatically cancelled. It was sought to be argued before us that once the agreement stood cancelled the appellants stood restored to their original position as tenants and the suit could not be filed without giving notice under the Transfer of Property Act. We are of opinion that when the agreement datedwas entered into the old relationship of landlord and tenant came to an end. The rights and liabilities of the parties have to be worked out on the basis of that agreement. This is obvious from the fact that there was no provision for payment of any rent till the whole purchase money was paid or even for the balance of the purchase money that may be due after one or more instalments were paid. There was no provision even for payment of interest in respect of the whole of the purchase money or any of the instalments. Therefore, when the agreement stood cancelled the plaintiff was automatically entitled to possession under the terms of the agreement.6. Even otherwise it has to be noticed that before T. S. No. 14 of 1958 was filed the plaintiff had actually given notice terminating the tenancy and asking for possession and that suit was withdrawn consequent on the agreement entered into between the parties onIf the appellants want to go back to the position as tenants that notice should still be held to hold the field. The appellants cannot be allowed to take advantage of their own wrong.7. It was further urged before us that the appellants were entitled to certain right under the Assam Tenancy Act. The only statement of the appellants in their written statement was that they were protected under the tenancy law from eviction for having permanent structure on the land with consent, knowledge and acquiescence of the plaintiff and his father for many years past. The Courts below have not found that the appellants had put any permanent structures on the land with the consent, knowledge and acquiescence of the plaintiff and his father. It is not mentioned under what tenancy law the appellants were entitled to be protected against eviction. In any case they do not claim that the tenancy law gave them any rights over the land. Such an argument does not seem to have been advanced before the trial court or before the High Court. We, therefore, refused to allow that argument to be raised. It is a case wholly without merits.
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Commissioner of Income Tax, Kerala Vs. C. D. Lonappan | SUBBA RAO J.1. This appeal by special leave is preferred against the judgment of the High Court of Kerala at Ernakulam in Income-tax Reference No. 22 of 1961 C. D. Lonappan, the respondent, was carrying on business in groceries, rice, paddy, etc., under the name and style of C.L.V. Brothers at Mattancherry. During the accounting year ending with March 31, 1956, the respondent had 34 employees. He paid them a total annual salary of Rs. 16, 000. As he had made a profit of Rs. 31, 812 he paid them a bonus of Rs. 10, 125. During the assessment year 1956-57 he claimed a deduction of the said amount from his taxable income. The Income-tax Officer found that in most of the cases the payment of bonus was far in excess of three months salary and on that ground disallowed a sum of Rs. 5, 936. The assessee preferred an appeal to the Appellate Assistant Commissioner, who rejected the appeal on the following grounds : (i) the actual cash payments to the various employees were much less than the salary and bonus found credited in their accounts; and (ii) the vouchers in annexure "C" were unsatisfactory and unacceptable. On further appeal, the Income-tax Appellate Tribunal, Madras Bench "B", took the same view. It gave, inter alia, the following reasons for its conclusion : (i) the bonus claimed had no relation to the salary or length of service; (ii) the bonus disbursement was only at the end of the year; (iii) the genuineness of the payment was doubtful; and (iv) there were over-writing and erasures in the ledger account of P. V. Lonappan. As the Tribunal refused to make a reference to the High Court, at the instance of the assessee, the High Court directed the Tribunal to state a case and refer to it the following question of law"Whether the Tribunal misdirected itself in law in disallowing a part of the bonus paid to the employees ?"Thereupon, the Tribunal drew up a statement of case and referred the said question to the High Court. The High Court answered the question in the affirmative. Hence the present appeal2. Learned counsel for the revenue, Mr. N. D. Karkhanis, contended that no question of law arose on the Tribunals order and, therefore, the High Court had no jurisdiction either to direct the Tribunal to refer the question to it or to express its opinion thereon3. It is commonplace that a reference lies only on a question of law. The High Court was not unaware of the limits of its jurisdiction. Indeed, the question ex facie involves a question of law and the High Court expressed its opinion, as it came to the conclusion that the Tribunal misdirected itself in law in disallowing a part of the bonus paid to the employees of the assessee. A perusal of the order of the Tribunal discloses that it has rejected the claim of the assessee mainly on the ground that the bonus claimed had no relation to the salary and on the basis of the suspicious nature of some of the entries found in the accounts of the assessee. The High Court took the view that the finding of the Tribunal was not based on any evidence falling under the following three heads mentioned in the proviso to section 10(2)(x) of the Indian Income-tax Act : (a) the pay of the employee and the conditions of his service; (b) the profits of the business of the year; and (c) the general practice in similar business. It pointed out that the average salary of the employees was quite meagre, that there was no evidence regarding the other conditions of service, that it was not suggested that the employees were afforded other amenities and facilities, that there was no evidence about the practice in similar businesses and that the profits during the relevant accounting year were substantial. It further held that the bonus given worked out to about 7 1/2 months salary and that, having regard to the low salary of the employees, it was impossible to say that the bonus paid was not reasonable. Under those circumstances the High Court held that the Tribunal, inasmuch as it did not take into consideration the relevant factors in terms of the said proviso, misdirected itself in law in disallowing a part of the bonus paid by the assessee to the employees. It will, therefore, be seen that the High Court answered the reference, as in the view expressed by it a question of law arose for its consideration. Therefore no question of want of jurisdiction arises in this case. The argument of the learned counsel, in substance, was not that the question referred to and answered by the High Court did not raise a question of law, but that the circumstances mentioned by the High Court were also taken into consideration by the TribunalA perusal of the order of the Tribunal does not justify that contention4. Apart from the merits of the case, we do not think that this is a fit case for interference in exercise of our extraordinary jurisdiction under article 136 of the Constitution. The amount involved in the appeal was a few thousand rupees; and no important question of law arises for our decision. The scope of clauses (1) and (2) of section 66 of the Income-tax Act has been laid down by authoritative decisions of this court more than once5. | 0[ds]A perusal of the order of the Tribunal discloses that it has rejected the claim of the assessee mainly on the ground that the bonus claimed had no relation to the salary and on the basis of the suspicious nature of some of the entries found in the accounts of the assessee. The High Court took the view that the finding of the Tribunal was not based on any evidence falling under the following three heads mentioned in the proviso to section 10(2)(x) of the IndianAct : (a) the pay of the employee and the conditions of his service; (b) the profits of the business of the year; and (c) the general practice in similar business. It pointed out that the average salary of the employees was quite meagre, that there was no evidence regarding the other conditions of service, that it was not suggested that the employees were afforded other amenities and facilities, that there was no evidence about the practice in similar businesses and that the profits during the relevant accounting year were substantial. It further held that the bonus given worked out to about 7 1/2 months salary and that, having regard to the low salary of the employees, it was impossible to say that the bonus paid was not reasonable. Under those circumstances the High Court held that the Tribunal, inasmuch as it did not take into consideration the relevant factors in terms of the said proviso, misdirected itself in law in disallowing a part of the bonus paid by the assessee to the employees. It will, therefore, be seen that the High Court answered the reference, as in the view expressed by it a question of law arose for its consideration. Therefore no question of want of jurisdiction arises in thisargument of the learned counsel, in substance, was not that the question referred to and answered by the High Court did not raise a question of law, but that the circumstances mentioned by the High Court were also taken into consideration by the TribunalA perusal of the order of the Tribunal does not justify thatfrom the merits of the case, we do not think that this is a fit case for interference in exercise of our extraordinary jurisdiction under article 136 of the Constitution. The amount involved in the appeal was a few thousand rupees; and no important question of law arises for our decision. The scope of clauses (1) and (2) of section 66 of theAct has been laid down by authoritative decisions of this court more than once | 0 | 1,024 | 470 | ### Instruction:
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SUBBA RAO J.1. This appeal by special leave is preferred against the judgment of the High Court of Kerala at Ernakulam in Income-tax Reference No. 22 of 1961 C. D. Lonappan, the respondent, was carrying on business in groceries, rice, paddy, etc., under the name and style of C.L.V. Brothers at Mattancherry. During the accounting year ending with March 31, 1956, the respondent had 34 employees. He paid them a total annual salary of Rs. 16, 000. As he had made a profit of Rs. 31, 812 he paid them a bonus of Rs. 10, 125. During the assessment year 1956-57 he claimed a deduction of the said amount from his taxable income. The Income-tax Officer found that in most of the cases the payment of bonus was far in excess of three months salary and on that ground disallowed a sum of Rs. 5, 936. The assessee preferred an appeal to the Appellate Assistant Commissioner, who rejected the appeal on the following grounds : (i) the actual cash payments to the various employees were much less than the salary and bonus found credited in their accounts; and (ii) the vouchers in annexure "C" were unsatisfactory and unacceptable. On further appeal, the Income-tax Appellate Tribunal, Madras Bench "B", took the same view. It gave, inter alia, the following reasons for its conclusion : (i) the bonus claimed had no relation to the salary or length of service; (ii) the bonus disbursement was only at the end of the year; (iii) the genuineness of the payment was doubtful; and (iv) there were over-writing and erasures in the ledger account of P. V. Lonappan. As the Tribunal refused to make a reference to the High Court, at the instance of the assessee, the High Court directed the Tribunal to state a case and refer to it the following question of law"Whether the Tribunal misdirected itself in law in disallowing a part of the bonus paid to the employees ?"Thereupon, the Tribunal drew up a statement of case and referred the said question to the High Court. The High Court answered the question in the affirmative. Hence the present appeal2. Learned counsel for the revenue, Mr. N. D. Karkhanis, contended that no question of law arose on the Tribunals order and, therefore, the High Court had no jurisdiction either to direct the Tribunal to refer the question to it or to express its opinion thereon3. It is commonplace that a reference lies only on a question of law. The High Court was not unaware of the limits of its jurisdiction. Indeed, the question ex facie involves a question of law and the High Court expressed its opinion, as it came to the conclusion that the Tribunal misdirected itself in law in disallowing a part of the bonus paid to the employees of the assessee. A perusal of the order of the Tribunal discloses that it has rejected the claim of the assessee mainly on the ground that the bonus claimed had no relation to the salary and on the basis of the suspicious nature of some of the entries found in the accounts of the assessee. The High Court took the view that the finding of the Tribunal was not based on any evidence falling under the following three heads mentioned in the proviso to section 10(2)(x) of the Indian Income-tax Act : (a) the pay of the employee and the conditions of his service; (b) the profits of the business of the year; and (c) the general practice in similar business. It pointed out that the average salary of the employees was quite meagre, that there was no evidence regarding the other conditions of service, that it was not suggested that the employees were afforded other amenities and facilities, that there was no evidence about the practice in similar businesses and that the profits during the relevant accounting year were substantial. It further held that the bonus given worked out to about 7 1/2 months salary and that, having regard to the low salary of the employees, it was impossible to say that the bonus paid was not reasonable. Under those circumstances the High Court held that the Tribunal, inasmuch as it did not take into consideration the relevant factors in terms of the said proviso, misdirected itself in law in disallowing a part of the bonus paid by the assessee to the employees. It will, therefore, be seen that the High Court answered the reference, as in the view expressed by it a question of law arose for its consideration. Therefore no question of want of jurisdiction arises in this case. The argument of the learned counsel, in substance, was not that the question referred to and answered by the High Court did not raise a question of law, but that the circumstances mentioned by the High Court were also taken into consideration by the TribunalA perusal of the order of the Tribunal does not justify that contention4. Apart from the merits of the case, we do not think that this is a fit case for interference in exercise of our extraordinary jurisdiction under article 136 of the Constitution. The amount involved in the appeal was a few thousand rupees; and no important question of law arises for our decision. The scope of clauses (1) and (2) of section 66 of the Income-tax Act has been laid down by authoritative decisions of this court more than once5.
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A perusal of the order of the Tribunal discloses that it has rejected the claim of the assessee mainly on the ground that the bonus claimed had no relation to the salary and on the basis of the suspicious nature of some of the entries found in the accounts of the assessee. The High Court took the view that the finding of the Tribunal was not based on any evidence falling under the following three heads mentioned in the proviso to section 10(2)(x) of the IndianAct : (a) the pay of the employee and the conditions of his service; (b) the profits of the business of the year; and (c) the general practice in similar business. It pointed out that the average salary of the employees was quite meagre, that there was no evidence regarding the other conditions of service, that it was not suggested that the employees were afforded other amenities and facilities, that there was no evidence about the practice in similar businesses and that the profits during the relevant accounting year were substantial. It further held that the bonus given worked out to about 7 1/2 months salary and that, having regard to the low salary of the employees, it was impossible to say that the bonus paid was not reasonable. Under those circumstances the High Court held that the Tribunal, inasmuch as it did not take into consideration the relevant factors in terms of the said proviso, misdirected itself in law in disallowing a part of the bonus paid by the assessee to the employees. It will, therefore, be seen that the High Court answered the reference, as in the view expressed by it a question of law arose for its consideration. Therefore no question of want of jurisdiction arises in thisargument of the learned counsel, in substance, was not that the question referred to and answered by the High Court did not raise a question of law, but that the circumstances mentioned by the High Court were also taken into consideration by the TribunalA perusal of the order of the Tribunal does not justify thatfrom the merits of the case, we do not think that this is a fit case for interference in exercise of our extraordinary jurisdiction under article 136 of the Constitution. The amount involved in the appeal was a few thousand rupees; and no important question of law arises for our decision. The scope of clauses (1) and (2) of section 66 of theAct has been laid down by authoritative decisions of this court more than once
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Delhi Cloth and General Mills Company Limited Vs. State of Uttar Pradesh and Others | of the records of the assessing authority cannot and does not amount to acquiescence or waiver of its right to file a declaration indicating its option afresh along with the return validly filed in response served under s. 15(3) of the ActApart from the aforesaid position there is yet one more aspect to which we would like to refer in relation to the question raised before us in these appeals and that arises in view of the provisions of s. 16(4) of the Act under which the assessing authority makes its best judgment assessment. In this connection ss. 15(3), 15(3B) and 16(4) of the Act will have to be considered together. Section 15(3) runs thus:" 15. (3) In the case of any person whose total agricultural income is, in the opinion of the assessing authority, such amount as to render such person liable to payment of agricultural income-tax in any year, he may serve in that year a notice in the prescribed form requiring such person to furnish within such period, not being less than thirty days as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth (along with such other particulars as may be provided for in the notice), his total agricultural income during the previous yearProvided that the assessing authority may in his discretion extend the date for delivery of the return."7. Section 15(3B) runs thus:" 15. (3B) Along with the notice under sub-section (3) the assessing authority shall send a statement showing a provisional estimate of the agricutural income which in his opinion accrued to the person during the previous year. The estimate shall be prepared in accordance with the provisions of clause (a) of sub-section (2) of section 6 and be in such form and contain such particulars as may be prescribed."8. In the instant case, as we have said above, notice under s. 15(3) was served by the assessing authority upon the appellant and as required by s. 15(3B), along with the notice, the assessing authority had sent a statement showing the provisional estimate of the agricultural income which in its opinion accrued to the appellant during the previous year 1953-54, which estimate was prepared in accordance with the provisions of s. 6(2)(a). Admittedly, the change of option sought to be exercised by the appellant was denied to it by the assessing authority and the assessing authority proceeded with the assessment of the agricultural income of the appellant-assessee in accordance with s. 6(2)(b). Admittedly, further, the assessing authority had issued a notice under s. 16(2) requiring the appellant to produce evidence in support of its earlier returns. On September 29, 1955, the assessing authority served a further notice upon the appellant informing the latter that agricultural income to the tune of Rs. 38, 947 had escaped assessment and invited objection from the appellant whereafter it seems that the assessing authority not being satisfied with the evidence produced by the appellant proceeded to make its best judgment assessment under s. 16(4). Section 16(4) runs thus:" 16. (4) If the principal officer of any company or other person fails to make a return under sub-section (2) or (3) of section 15, as the case may be, or, having made the return, fails to comply with all the terms of the notice issued under sub-section (2) of this section or to produce any evidence required under sub-section (3) the assessing authority shall make the assessment to the best of his judgment with due regard to the statement, if any, sent under sub-section (3-B) of section 15, notwithstanding any option exercised under sub-section (1) of section 6."9. It will appear clear from the aforesaid provision contained in s. 16(4) that whenever the assessing authority proceeds to make the assessment to the best of its judgment the same is required to be made " with due regard to the statement, if any, sent under sub-s. (3B) of s. 15 notwithstanding any option exercised under sub-s. (1) of s. 6 ". It is thus clear that irrespective of whatever option might have been exercised by the assessee the best judgment assessment has to be made by the assessing authority by having due regard to the statement of provisional estimate of agricultural income made in accordance with s. 6(2)(a) of the Act. The non-obstante clause leaves it open to the assessing authority to select whatever basis it considers appropriate for computing and determining the true agricultural income of the assessee ; it may adopt any one of the bases in respect of the entire agricultural area or adopt one basis in respect of one part of agricultural area and the other basis in respect of another part, the only obligation being to have " due regard " to the statement under s. 15(3B). The scheme of s. 16(4) clearly shows that in regard to the best judgment assessment there is nothing sacrosanct about the option exercised by the assessee under s 6(1) of the Act ; equally it can be said that in regard to assessments other than best judgment assessments under the scheme of s. 15, there is nothing sacrosanct about the particular option previously exercised by the assessee and he need not be held bound by it provided he changes the option by filing a subsequent or a fresh or a revised return in accordance with the applicable provisions contained in s. 15, the object being to determine his true agricultural income for the relevant previous year, --though so far as the assessing authority is concerned such option, whether original or sub-sequent, would indisputably be binding on itIn view of the aforesaid discussion, we are clearly of the view that the learned single judge of the Allalhabad High Court was right in his conclusion that the appellant-assessee was entitled to have the computation of its agricutural income for the previous year 1953-54 (1361 Fasli) relevant to the assessment year 1954-55, done in accordance with s. 6(2)(a) of the Act.10. | 1[ds]It seems to us clear that s. 6 as originally framed gave an assessee the right to exercise the option, unfettered, only once after the commencement of the Act and if he once selected one method of computation of agricultural income he could not vary it subsequently in any year without the permission of the Board of Revenue which was given absolute discretion to grant or to refuse such permission. At any rate, that was how the original unamended provisions were authoritatively interpreted by the Allahabad HighIn our view, there is considerable force in this contention for the reason that whatever restrictions had been imposed on the change of option by the original proviso to s. 6(1) have been removed and the concept of " first return " is deleted from r. 5. That being so, the expression " his return of income " occurring in r. 5 would apply to any of the returns contemplated under s. 15 of the Act, namely, (1) a return filed in pursuance of the general notice issued and published by the Collector under s. 15(1) ; (2) a return filed by the principal officer of a company under s. 15(2) read with r. 21 ; (3) a return filed in pursuance of individual notice served upon an assessee by the assessing authority under s. 15(3), and (4) a return or a revised return filed by an assessee under s. 15(4), provided that in the first three cases the return is filed within the time specified in the notice or the rule or within the extended time granted by the assessing authority and in the last case the revised return is filed on account of discovery of a wrong statement in the previous return and is filed before the assessment is complete. In fact, r. 5 is obligatory and makes it incumbent upon an assessee to file along with his return of income a declaration in Form No. A.I.T.-2 indicating his option under s. 6(1) of the Act and as such the exercise of such option including a change of the option indicated in the declaration filed along with a subsequent return or a fresh return or a revised return will be valid provided the return itself is validly submitted. In this view of the matter it is not possible to accept the view of the Division Bench of the High Court that if once option is exercised by an assessee by filing the requisite declaration along with his return for a particular year he will have no right to change his option by filing a fresh return or a revised return before the assessment is made for thatquestion assumes significance because it was along with this return that the assessee had filed a declaration in Form No. A.I.T.-2 indicating a change in the option and praying that the computation of its agricultural income should be made in accordance with s. 6(2) of the Act instead of under s. 6(2)(b) as mentioned in the declarations filed along with two earlier returns dated November 27, 1954, and April 4, 1955. It is obvious that if the return dated November 8, 1958, was filed under s. 15(4) then in order to avail of the change of the option the appellant will have to show that it was really a revised return in the sense that the same had been filed because of a wrong statement discovered in the earlier returns filed by him. The Division Bench of the High Court has rightly taken the view that a wrong statement in the earlier returns does not mean selection of a wrong option by the assessee ; in other words, the assessee does get the right to file a revised return under s. 15(4) merely because he wishes to change theThe hearing of the appeal was, therefore, adjourned to enable both the parties particularly the revenue which will be possessing the records to produce material in that behalf and at the resumed hearing, though no material by way of assessment records or files in the custody of the assessing authority was produced by the revenue, the appellant placed on record a copy of the return dated November 7, 1958 (which was filed on November 8, 1958), together with a copy of the declaration in the Form No. A.I.T.-2 and the forwarding letter. The forwarding letter dated November 7, 1958, clearly shows that the return was filed in response to the notice dated April 7, 1955, served upon the appellant under s. 15(3) of the Act. The said letter in terms referred to the notice dated April 7, 1955, under s. 15(3) as also to the statement of provisional estimate of agricultural income for the relevant previous year 1953-54 (1361 Fasli) prepared under s. 6(2)(a) read with s. 15(3-B) accompanying the notice and further stated that the appellant had decided in order to avoid further prolonged litigation, to accept the provisional estimate of agricultural income under s. 6(2)(a) (subject only to necessary corrections as regards area and classification of soil, etc.) and to suffer agricultural income-tax on that basis and requested the assessing authority to complete the assessment in accordance with s. 6(2)(a) of the Act. It is, therefore, clear that the return filed by the appellant on November 8, 1958, was in response to the notice served upon it by the assessing authority under s. 15(3). Moreover, the said return was rejected by the assessing authority not on the ground that it had been filed beyond time but on the ground that the appellant had no right to change its option which clear suggests that the return was treated by the assessing authority as having been filed within time but the same was rejected on merits holding that the appellant was not entitled to change its option. It is thus clear that the return filed by the assessee on November 8, 1958, was not a revised return under s. 15(4) but a fresh return filed within time in response to notice under s. 15(3) served upon it by the assessing authority and as such the appellant was entitled to change its option and have the computation of its agricultural income made in accordance with s. 6(2)(a) of the Act. The fact that the appellant had produced some evidence in pursuance notice received under s. 16(2) in relation to its earlier returns or inspection of the records of the assessing authority cannot and does not amount to acquiescence or waiver of its right to file a declaration indicating its option afresh along with the return validly filed in response served under s. 15(3) of thet from the aforesaid position there is yet one more aspect to which we would like to refer in relation to the question raised before us in these appeals and that arises in view of the provisions of s. 16(4) of the Act under which the assessing authority makes its best judgment assessment.the instant case, as we have said above, notice under s. 15(3) was served by the assessing authority upon the appellant and as required by s. 15(3B), along with the notice, the assessing authority had sent a statement showing the provisional estimate of the agricultural income which in its opinion accrued to the appellant during the previous year 1953-54, which estimate was prepared in accordance with the provisions of s. 6(2)(a). Admittedly, the change of option sought to be exercised by the appellant was denied to it by the assessing authority and the assessing authority proceeded with the assessment of the agricultural income of the appellant-assessee in accordance with s. 6(2)(b). Admittedly, further, the assessing authority had issued a notice under s. 16(2) requiring the appellant to produce evidence in support of its earlier returns. On September 29, 1955, the assessing authority served a further notice upon the appellant informing the latter that agricultural income to the tune of Rs. 38, 947 had escaped assessment and invited objection from the appellant whereafter it seems that the assessing authority not being satisfied with the evidence produced by the appellant proceeded to make its best judgment assessment under s. 16(4). Section 16(4) runs16. (4) If the principal officer of any company or other person fails to make a return under sub-section (2) or (3) of section 15, as the case may be, or, having made the return, fails to comply with all the terms of the notice issued under sub-section (2) of this section or to produce any evidence required under sub-section (3) the assessing authority shall make the assessment to the best of his judgment with due regard to the statement, if any, sent under sub-section (3-B) of section 15, notwithstanding any option exercised under sub-section (1) of sectionwill appear clear from the aforesaid provision contained in s. 16(4) that whenever the assessing authority proceeds to make the assessment to the best of its judgment the same is required to be made " with due regard to the statement, if any, sent under sub-s. (3B) of s. 15 notwithstanding any option exercised under sub-s. (1) of s. 6 ". It is thus clear that irrespective of whatever option might have been exercised by the assessee the best judgment assessment has to be made by the assessing authority by having due regard to the statement of provisional estimate of agricultural income made in accordance with s. 6(2)(a) of the Act. The non-obstante clause leaves it open to the assessing authority to select whatever basis it considers appropriate for computing and determining the true agricultural income of the assessee ; it may adopt any one of the bases in respect of the entire agricultural area or adopt one basis in respect of one part of agricultural area and the other basis in respect of another part, the only obligation being to have " due regard " to the statement under s. 15(3B). The scheme of s. 16(4) clearly shows that in regard to the best judgment assessment there is nothing sacrosanct about the option exercised by the assessee under s 6(1) of the Act ; equally it can be said that in regard to assessments other than best judgment assessments under the scheme of s. 15, there is nothing sacrosanct about the particular option previously exercised by the assessee and he need not be held bound by it provided he changes the option by filing a subsequent or a fresh or a revised return in accordance with the applicable provisions contained in s. 15, the object being to determine his true agricultural income for the relevant previous year, --though so far as the assessing authority is concerned such option, whether original or sub-sequent, would indisputably be binding onn view of the aforesaid discussion, we are clearly of the view that the learned single judge of the Allalhabad High Court was right in his conclusion that the appellant-assessee was entitled to have the computation of its agricutural income for the previous year 1953-54 (1361 Fasli) relevant to the assessment year 1954-55, done in accordance with s. 6(2)(a) of the Act | 1 | 7,337 | 2,109 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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of the records of the assessing authority cannot and does not amount to acquiescence or waiver of its right to file a declaration indicating its option afresh along with the return validly filed in response served under s. 15(3) of the ActApart from the aforesaid position there is yet one more aspect to which we would like to refer in relation to the question raised before us in these appeals and that arises in view of the provisions of s. 16(4) of the Act under which the assessing authority makes its best judgment assessment. In this connection ss. 15(3), 15(3B) and 16(4) of the Act will have to be considered together. Section 15(3) runs thus:" 15. (3) In the case of any person whose total agricultural income is, in the opinion of the assessing authority, such amount as to render such person liable to payment of agricultural income-tax in any year, he may serve in that year a notice in the prescribed form requiring such person to furnish within such period, not being less than thirty days as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth (along with such other particulars as may be provided for in the notice), his total agricultural income during the previous yearProvided that the assessing authority may in his discretion extend the date for delivery of the return."7. Section 15(3B) runs thus:" 15. (3B) Along with the notice under sub-section (3) the assessing authority shall send a statement showing a provisional estimate of the agricutural income which in his opinion accrued to the person during the previous year. The estimate shall be prepared in accordance with the provisions of clause (a) of sub-section (2) of section 6 and be in such form and contain such particulars as may be prescribed."8. In the instant case, as we have said above, notice under s. 15(3) was served by the assessing authority upon the appellant and as required by s. 15(3B), along with the notice, the assessing authority had sent a statement showing the provisional estimate of the agricultural income which in its opinion accrued to the appellant during the previous year 1953-54, which estimate was prepared in accordance with the provisions of s. 6(2)(a). Admittedly, the change of option sought to be exercised by the appellant was denied to it by the assessing authority and the assessing authority proceeded with the assessment of the agricultural income of the appellant-assessee in accordance with s. 6(2)(b). Admittedly, further, the assessing authority had issued a notice under s. 16(2) requiring the appellant to produce evidence in support of its earlier returns. On September 29, 1955, the assessing authority served a further notice upon the appellant informing the latter that agricultural income to the tune of Rs. 38, 947 had escaped assessment and invited objection from the appellant whereafter it seems that the assessing authority not being satisfied with the evidence produced by the appellant proceeded to make its best judgment assessment under s. 16(4). Section 16(4) runs thus:" 16. (4) If the principal officer of any company or other person fails to make a return under sub-section (2) or (3) of section 15, as the case may be, or, having made the return, fails to comply with all the terms of the notice issued under sub-section (2) of this section or to produce any evidence required under sub-section (3) the assessing authority shall make the assessment to the best of his judgment with due regard to the statement, if any, sent under sub-section (3-B) of section 15, notwithstanding any option exercised under sub-section (1) of section 6."9. It will appear clear from the aforesaid provision contained in s. 16(4) that whenever the assessing authority proceeds to make the assessment to the best of its judgment the same is required to be made " with due regard to the statement, if any, sent under sub-s. (3B) of s. 15 notwithstanding any option exercised under sub-s. (1) of s. 6 ". It is thus clear that irrespective of whatever option might have been exercised by the assessee the best judgment assessment has to be made by the assessing authority by having due regard to the statement of provisional estimate of agricultural income made in accordance with s. 6(2)(a) of the Act. The non-obstante clause leaves it open to the assessing authority to select whatever basis it considers appropriate for computing and determining the true agricultural income of the assessee ; it may adopt any one of the bases in respect of the entire agricultural area or adopt one basis in respect of one part of agricultural area and the other basis in respect of another part, the only obligation being to have " due regard " to the statement under s. 15(3B). The scheme of s. 16(4) clearly shows that in regard to the best judgment assessment there is nothing sacrosanct about the option exercised by the assessee under s 6(1) of the Act ; equally it can be said that in regard to assessments other than best judgment assessments under the scheme of s. 15, there is nothing sacrosanct about the particular option previously exercised by the assessee and he need not be held bound by it provided he changes the option by filing a subsequent or a fresh or a revised return in accordance with the applicable provisions contained in s. 15, the object being to determine his true agricultural income for the relevant previous year, --though so far as the assessing authority is concerned such option, whether original or sub-sequent, would indisputably be binding on itIn view of the aforesaid discussion, we are clearly of the view that the learned single judge of the Allalhabad High Court was right in his conclusion that the appellant-assessee was entitled to have the computation of its agricutural income for the previous year 1953-54 (1361 Fasli) relevant to the assessment year 1954-55, done in accordance with s. 6(2)(a) of the Act.10.
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to suffer agricultural income-tax on that basis and requested the assessing authority to complete the assessment in accordance with s. 6(2)(a) of the Act. It is, therefore, clear that the return filed by the appellant on November 8, 1958, was in response to the notice served upon it by the assessing authority under s. 15(3). Moreover, the said return was rejected by the assessing authority not on the ground that it had been filed beyond time but on the ground that the appellant had no right to change its option which clear suggests that the return was treated by the assessing authority as having been filed within time but the same was rejected on merits holding that the appellant was not entitled to change its option. It is thus clear that the return filed by the assessee on November 8, 1958, was not a revised return under s. 15(4) but a fresh return filed within time in response to notice under s. 15(3) served upon it by the assessing authority and as such the appellant was entitled to change its option and have the computation of its agricultural income made in accordance with s. 6(2)(a) of the Act. The fact that the appellant had produced some evidence in pursuance notice received under s. 16(2) in relation to its earlier returns or inspection of the records of the assessing authority cannot and does not amount to acquiescence or waiver of its right to file a declaration indicating its option afresh along with the return validly filed in response served under s. 15(3) of thet from the aforesaid position there is yet one more aspect to which we would like to refer in relation to the question raised before us in these appeals and that arises in view of the provisions of s. 16(4) of the Act under which the assessing authority makes its best judgment assessment.the instant case, as we have said above, notice under s. 15(3) was served by the assessing authority upon the appellant and as required by s. 15(3B), along with the notice, the assessing authority had sent a statement showing the provisional estimate of the agricultural income which in its opinion accrued to the appellant during the previous year 1953-54, which estimate was prepared in accordance with the provisions of s. 6(2)(a). Admittedly, the change of option sought to be exercised by the appellant was denied to it by the assessing authority and the assessing authority proceeded with the assessment of the agricultural income of the appellant-assessee in accordance with s. 6(2)(b). Admittedly, further, the assessing authority had issued a notice under s. 16(2) requiring the appellant to produce evidence in support of its earlier returns. On September 29, 1955, the assessing authority served a further notice upon the appellant informing the latter that agricultural income to the tune of Rs. 38, 947 had escaped assessment and invited objection from the appellant whereafter it seems that the assessing authority not being satisfied with the evidence produced by the appellant proceeded to make its best judgment assessment under s. 16(4). Section 16(4) runs16. (4) If the principal officer of any company or other person fails to make a return under sub-section (2) or (3) of section 15, as the case may be, or, having made the return, fails to comply with all the terms of the notice issued under sub-section (2) of this section or to produce any evidence required under sub-section (3) the assessing authority shall make the assessment to the best of his judgment with due regard to the statement, if any, sent under sub-section (3-B) of section 15, notwithstanding any option exercised under sub-section (1) of sectionwill appear clear from the aforesaid provision contained in s. 16(4) that whenever the assessing authority proceeds to make the assessment to the best of its judgment the same is required to be made " with due regard to the statement, if any, sent under sub-s. (3B) of s. 15 notwithstanding any option exercised under sub-s. (1) of s. 6 ". It is thus clear that irrespective of whatever option might have been exercised by the assessee the best judgment assessment has to be made by the assessing authority by having due regard to the statement of provisional estimate of agricultural income made in accordance with s. 6(2)(a) of the Act. The non-obstante clause leaves it open to the assessing authority to select whatever basis it considers appropriate for computing and determining the true agricultural income of the assessee ; it may adopt any one of the bases in respect of the entire agricultural area or adopt one basis in respect of one part of agricultural area and the other basis in respect of another part, the only obligation being to have " due regard " to the statement under s. 15(3B). The scheme of s. 16(4) clearly shows that in regard to the best judgment assessment there is nothing sacrosanct about the option exercised by the assessee under s 6(1) of the Act ; equally it can be said that in regard to assessments other than best judgment assessments under the scheme of s. 15, there is nothing sacrosanct about the particular option previously exercised by the assessee and he need not be held bound by it provided he changes the option by filing a subsequent or a fresh or a revised return in accordance with the applicable provisions contained in s. 15, the object being to determine his true agricultural income for the relevant previous year, --though so far as the assessing authority is concerned such option, whether original or sub-sequent, would indisputably be binding onn view of the aforesaid discussion, we are clearly of the view that the learned single judge of the Allalhabad High Court was right in his conclusion that the appellant-assessee was entitled to have the computation of its agricutural income for the previous year 1953-54 (1361 Fasli) relevant to the assessment year 1954-55, done in accordance with s. 6(2)(a) of the Act
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Baselius Mar Thoma Mathews & Ors Vs. Paulose Mar Athanasius Ors | should be called up to the High Court and disposed of. 3. The learned judge considered the various grounds urged before him for withdrawal of the suits to the High Court and was unimpressed by them. Merely because a considerable section of the public was tensely interested in these litigations the court was not prepared to withdraw them to the High Court nor was the circumstance that important and intricate questions of law were involved sufficient for such transfer in its view. A massive volume of oral evidence had been recorded by the specially appointed judge and so the High Court felt that it would be proper for the court that recorded the evidence to bear the arguments also. We are not inclined to fault the learned judge in the view he has adopted. But there are many buts to any general proposition. 4. Shri Tarkunde appearing for the respondents, stressed before us, as an additional consideration that if the cases were withdrawn to the High Court and tried, as was likely by a Division Bench of that Court his clients might lose a statutory right of appeal and would have to depend upon the chancy jurisdiction under Art.136 of the Constitution. A single appeal, as of right, would be taken away, was his apprehension. 5. Shri Nariman, appearing for the petitioners appellants has prudently though belatedly withdrawn the Special Leave Petition which made reference to bias, focussed on the advantage both sides would derive by an early determination of the litigation at the High Court level. He also submitted that there was hardly any doubt that questions of law of considerable public importance were involved and an appeal to the Supreme Court, as of right, both under Art.133 and S.110 CPC., was a certainty. He further emphasised that S.24(1) (b) would become a dead letter if Shri Tarkundes objection that an automatic right of appeal to the Supreme Court would be imperilled in the event of the High Court withdrawing suits, were to be accepted. 6. We agree with the learned judge of the High Court that some of the grounds put forward for withdrawal of the suits to the High Court were without merit and were rightly rejected. But we are not inclined to exaggerate the importance of the demeanour of witnesses observed by the trial judge, especially when years have lapsed, heaps of evidence have been recorded and judicial memory with hyper-psychic sensitivity may, for a case like this, be said to be more in the books than in the wear and tear of life. What weighs with us is the importance of shortening the longevity of these quasi-public litigations, reducing the enormous expenditures involved for both sides and entrusting even the first determination, now that all evidence has been recorded, to the highest deck of justice in the State. 7. It is indubitable that after the decision by the District Court, appeals will inevitably be carried to the High Court. It is predictably reasonable to expect, from all that has been presented to us and all that we have been able to gather from the records, that the case involves questions of public moment and are likely to spiral up the Supreme Court on final appeal. In this jurisdiction, the approach has to be pragmatic, not theoretic, without whittling down the basics of law bearing on transfer of cases. 8. We do not for a moment countenance the suggestion that the Distinct Judge is not equal to the legal intricacies or factual challenges of these or other cases, the procedural law having vested him with unlimited jurisdiction and the High Court having committed these cases to his seisin. Hints of bias are also out of bounds, as we have indicated. If these suits, at this stage of early arguments which have yet to begin effectively, are transferred to the High Court a spell of few years in the stressful life of the litigation will be saved. Taking copies of a bunch of decrees by the District Court, followed by preliminaries and filing of appeals, service of notices and other ripening processes, may consume considerable time and money. And then the High Court would begin de novo the entire arguments and appreciation of the whole range of facts and law as in first appeal it is bound to do in a case of this type. Where lakhs of people are excitedly affected by the ultimate decision and the fate of a few hundred suits and a thousand churches is to be settled by adjudication, the elimination of some years and duplication of hearings and full arguments at the commanding height of the High Court is a wise measure, all things considered. The social savings of abbreviation of laws delays are important to social justice. 9. We do not tarry to dilate on the many dimensions to this transfer petition except to state that we feel the advancement of public justice will be promoted by the High Court itself at this stage, proceeding to hear the suits. We, therefore, direct that all the suits covered by the transfer petition be transferred to the High Court and tried from the present stage post-haste, since expeditious termination is the driving force behind this order for transfer. 10. A last thought before we part with this case. When sacerdotal institutions are litigious fights double and disaster threatens society because the souls of the votaries not only suffer spiritual neglect but are maddened by the passions unleashed by forensic disputation. We leave this lis with the deep wish that the High Court will give the suits high priority in its agenda of postings and finish this unhappy chapter, if persuasively possible, by both sides burying the hatchet, abjuring litigative pugilistics and restoring a modus vivendi which will heal old wounds, bring new harmony and please the Spirit of Christ. That is the highest justice the several lakhs of good Christians, now locked in long years of suits and appeals, sincerely hunger for. | 1[ds]6. We agree with the learned judge of the High Court that some of the grounds put forward for withdrawal of the suits to the High Court were without merit and were rightly rejected. But we are not inclined to exaggerate the importance of the demeanour of witnesses observed by the trial judge, especially when years have lapsed, heaps of evidence have been recorded and judicial memory withc sensitivity may, for a case like this, be said to be more in the books than in the wear and tear of life. What weighs with us is the importance of shortening the longevity of thesec litigations, reducing the enormous expenditures involved for both sides and entrusting even the first determination, now that all evidence has been recorded, to the highest deck of justice in the State9. We do not tarry to dilate on the many dimensions to this transfer petition except to state that we feel the advancement of public justice will be promoted by the High Court itself at this stage, proceeding to hear the suits. We, therefore, direct that all the suits covered by the transfer petition be transferred to the High Court and tried from the present stage, since expeditious termination is the driving force behind this order for transfer10. A last thought before we part with this case. When sacerdotal institutions are litigious fights double and disaster threatens society because the souls of the votaries not only suffer spiritual neglect but are maddened by the passions unleashed by forensic disputation. We leave this lis with the deep wish that the High Court will give the suits high priority in its agenda of postings and finish this unhappy chapter, if persuasively possible, by both sides burying the hatchet, abjuring litigative pugilistics and restoring a modus vivendi which will heal old wounds, bring new harmony and please the Spirit of Christ. That is the highest justice the several lakhs of good Christians, now locked in long years of suits and appeals, sincerely hunger for. | 1 | 1,630 | 366 | ### 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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should be called up to the High Court and disposed of. 3. The learned judge considered the various grounds urged before him for withdrawal of the suits to the High Court and was unimpressed by them. Merely because a considerable section of the public was tensely interested in these litigations the court was not prepared to withdraw them to the High Court nor was the circumstance that important and intricate questions of law were involved sufficient for such transfer in its view. A massive volume of oral evidence had been recorded by the specially appointed judge and so the High Court felt that it would be proper for the court that recorded the evidence to bear the arguments also. We are not inclined to fault the learned judge in the view he has adopted. But there are many buts to any general proposition. 4. Shri Tarkunde appearing for the respondents, stressed before us, as an additional consideration that if the cases were withdrawn to the High Court and tried, as was likely by a Division Bench of that Court his clients might lose a statutory right of appeal and would have to depend upon the chancy jurisdiction under Art.136 of the Constitution. A single appeal, as of right, would be taken away, was his apprehension. 5. Shri Nariman, appearing for the petitioners appellants has prudently though belatedly withdrawn the Special Leave Petition which made reference to bias, focussed on the advantage both sides would derive by an early determination of the litigation at the High Court level. He also submitted that there was hardly any doubt that questions of law of considerable public importance were involved and an appeal to the Supreme Court, as of right, both under Art.133 and S.110 CPC., was a certainty. He further emphasised that S.24(1) (b) would become a dead letter if Shri Tarkundes objection that an automatic right of appeal to the Supreme Court would be imperilled in the event of the High Court withdrawing suits, were to be accepted. 6. We agree with the learned judge of the High Court that some of the grounds put forward for withdrawal of the suits to the High Court were without merit and were rightly rejected. But we are not inclined to exaggerate the importance of the demeanour of witnesses observed by the trial judge, especially when years have lapsed, heaps of evidence have been recorded and judicial memory with hyper-psychic sensitivity may, for a case like this, be said to be more in the books than in the wear and tear of life. What weighs with us is the importance of shortening the longevity of these quasi-public litigations, reducing the enormous expenditures involved for both sides and entrusting even the first determination, now that all evidence has been recorded, to the highest deck of justice in the State. 7. It is indubitable that after the decision by the District Court, appeals will inevitably be carried to the High Court. It is predictably reasonable to expect, from all that has been presented to us and all that we have been able to gather from the records, that the case involves questions of public moment and are likely to spiral up the Supreme Court on final appeal. In this jurisdiction, the approach has to be pragmatic, not theoretic, without whittling down the basics of law bearing on transfer of cases. 8. We do not for a moment countenance the suggestion that the Distinct Judge is not equal to the legal intricacies or factual challenges of these or other cases, the procedural law having vested him with unlimited jurisdiction and the High Court having committed these cases to his seisin. Hints of bias are also out of bounds, as we have indicated. If these suits, at this stage of early arguments which have yet to begin effectively, are transferred to the High Court a spell of few years in the stressful life of the litigation will be saved. Taking copies of a bunch of decrees by the District Court, followed by preliminaries and filing of appeals, service of notices and other ripening processes, may consume considerable time and money. And then the High Court would begin de novo the entire arguments and appreciation of the whole range of facts and law as in first appeal it is bound to do in a case of this type. Where lakhs of people are excitedly affected by the ultimate decision and the fate of a few hundred suits and a thousand churches is to be settled by adjudication, the elimination of some years and duplication of hearings and full arguments at the commanding height of the High Court is a wise measure, all things considered. The social savings of abbreviation of laws delays are important to social justice. 9. We do not tarry to dilate on the many dimensions to this transfer petition except to state that we feel the advancement of public justice will be promoted by the High Court itself at this stage, proceeding to hear the suits. We, therefore, direct that all the suits covered by the transfer petition be transferred to the High Court and tried from the present stage post-haste, since expeditious termination is the driving force behind this order for transfer. 10. A last thought before we part with this case. When sacerdotal institutions are litigious fights double and disaster threatens society because the souls of the votaries not only suffer spiritual neglect but are maddened by the passions unleashed by forensic disputation. We leave this lis with the deep wish that the High Court will give the suits high priority in its agenda of postings and finish this unhappy chapter, if persuasively possible, by both sides burying the hatchet, abjuring litigative pugilistics and restoring a modus vivendi which will heal old wounds, bring new harmony and please the Spirit of Christ. That is the highest justice the several lakhs of good Christians, now locked in long years of suits and appeals, sincerely hunger for.
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6. We agree with the learned judge of the High Court that some of the grounds put forward for withdrawal of the suits to the High Court were without merit and were rightly rejected. But we are not inclined to exaggerate the importance of the demeanour of witnesses observed by the trial judge, especially when years have lapsed, heaps of evidence have been recorded and judicial memory withc sensitivity may, for a case like this, be said to be more in the books than in the wear and tear of life. What weighs with us is the importance of shortening the longevity of thesec litigations, reducing the enormous expenditures involved for both sides and entrusting even the first determination, now that all evidence has been recorded, to the highest deck of justice in the State9. We do not tarry to dilate on the many dimensions to this transfer petition except to state that we feel the advancement of public justice will be promoted by the High Court itself at this stage, proceeding to hear the suits. We, therefore, direct that all the suits covered by the transfer petition be transferred to the High Court and tried from the present stage, since expeditious termination is the driving force behind this order for transfer10. A last thought before we part with this case. When sacerdotal institutions are litigious fights double and disaster threatens society because the souls of the votaries not only suffer spiritual neglect but are maddened by the passions unleashed by forensic disputation. We leave this lis with the deep wish that the High Court will give the suits high priority in its agenda of postings and finish this unhappy chapter, if persuasively possible, by both sides burying the hatchet, abjuring litigative pugilistics and restoring a modus vivendi which will heal old wounds, bring new harmony and please the Spirit of Christ. That is the highest justice the several lakhs of good Christians, now locked in long years of suits and appeals, sincerely hunger for.
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Tejas Construction & Infras.Pvt.Ltd Vs. Municipal Council Sendhwa | by the Municipal Council and respondent No.2, the contention that the latter was not eligible on the ground stated by the appellant has been stoutly denied. Respondent-Council has, inter alia, stated: To satisfy this condition, respondent no.2 has placed on record the certificate issued by Municipal Council Upleta, whereby respondent No.2 was awarded construction of similar work and has completed the work on 15.8.2010 for a sum of Rs.14,96,78,721/-. Not merely this, to show his experience, respondent No.2 has filed various certificates relating to work at Bardoli, as well as certificate issued by Gujarat Urban Development Mission, demonstrating that he has undertaken the work of 87,21,36,172/- of the similar/somewhat similar nature. In this regard it is worth noticing that the only requirement under this clause was to have executed single work of integrated water supply scheme having above referred components in it and it was not at all necessary for a bidder to have constructed all the components himself but he could have used the existing components, as such it is inconsequential as to whether respondent No.2 has infact constructed intake well and water treatment plant in Upleta, but it is of utmost importance that Respondent No.2 should have experience of having executed integrated water supply scheme. 17. To the same effect is the case set up by respondent No.2 who has stated as under: I say and submit that the only requirement as per the said eligibility condition was to have executed a single work of integrated water supply scheme comprising of all the components, such as intake well, raw/clean water, pumping main, pumps, water treatment plants, over head tanks, distribution system etc., but it was not necessary for the bidder to have himself constructed all the components of integrated water supply scheme. As such to show his experience in the said matter, respondent No.2 also has placed on record certificate issued by Bardoli Nagar Seva Sadan, (Annexure P/10 Page 78 of SLP), wherein respondent No.2 has constructed water treatment plant of 13.5 MLD capacity……………… They have carried out the work of integrated water supply for Upleta Municipal Council for a sum of Rs.14.97 crores, similarly respondent No.2 have also carried augmentation water supply scheme for Bardoli Incorporation Seva Sadan of Rs.4.35 crores, integrated drinking water supply scheme for Vyara project of Rs.6.84 crores, Unjha Water Supply Project of Rs.13.19 crores, Jaitpur Water Project Rs. 16.25 crores, Songarh Integrated Drinking Water Supply Scheme Rs.5.21 crores, Vapi Water Works of Rs.4.00 crores, Jasadan Water Suppply Scheme of Rs.3.05 crores, Rajula Water Supply Scheme of Rs.3.83 crores, Idar Water Supply Scheme of Rs.4.74 crores, Viramgam Water Supply Project Rs.6.92 crores, Amreli City Pipeline Distribution Work Rs.6.49 crores, thus the respondent No.2 have executed works of similar nature of Rs.87.21 crores, whereas the present work was for only Rs.20.80 crores, additionally respondent No.2 is executing similar work of about Rs.40.50 crores at Dholka, Dhandhuka, Ankleshwar, Gondal, Jasdan and Dhorangdhra. Thus respondent No.2 is competent to execute the present work, a copy of list of works executed by respondent No.2 under Gujarat Urban Development Mission duly certified by the G.M. (Technical) of said organization are already annexed as Annexure P/8 (Page 69 of SLP). It is worth mentioning here that average turnover of respondent No.2 during last 5 years ignoring figures of 2010-11 is Rs.45.14 crores and average net worth of respondent No.2 for last 5 years ignoring figures of 2010-11 is Rs. 9.018 crores. 18. The High Court has, while examining the question of eligibility of respondent No.2 by reference to the execution of the single integrated water supply scheme, recorded a finding that the nature of the work executed by respondent No.2 for Upleta satisfied the requirement of the tender notice. That finding, in our view, is in no way irrational or absurd. We say so because the certificate relied upon by respondent No.2 sufficiently demonstrates that respondent No.2 had designed, and executed an integrated water supply scheme for Upleta which included raw water transmission from intake wells and transmission of treated clear water from WTP including providing, supplying and laying of pipelines, construction of E.S.R.s, Sumps, Pump houses and providing erecting pumping machinery. 19. It is also noteworthy that in the matter of evaluation of the bids and determination of the eligibility of the bidders Municipal Council had the advantage of the aid & advice of an empanelled consultant, a technical hand, who could well appreciate the significance of the tender condition regarding the bidder executing the single integrated water supply scheme and fulfilling that condition of tender by reference to the work undertaken by them. We, therefore, see no reason to interfere with the view taken by the High Court of the allotment of work made in favour of respondent No.2. 20. We may while parting point out that out of a total of Rs.19.5 crores representing the estimated value of the contract, respondent No.2 is certified to have already executed work worth Rs.11.50 crores and received a sum of Rs.8.79 crores towards the said work. More importantly the work in question relates to a drinking water supply scheme for the residents of a scarcity stricken municipality. The project is sponsored with the Central Government assistance under its urban infrastructure scheme for small and middle towns. The completion target of the scheme is September 2012. Any interference with the award of the contract at this stage is bound to delay the execution of the work and put the inhabitants of the municipal area to further hardship. Interference with the on-going work is, therefore, not conducive to public interest which can be served only if the scheme is completed as expeditiously as possible giving relief to the thirsting residents of Sendhwa. This is particularly so when the allotment of work in favour of respondent No.2 does not involve any extra cost in comparison to the cost that may be incurred if the contract was allotted to the appellant-company. 21. In the light of the above settled legal position and in | 0[ds]18. The High Court has, while examining the question of eligibility of respondent No.2 by reference to the execution of the single integrated water supply scheme, recorded a finding that the nature of the work executed by respondent No.2 for Upleta satisfied the requirement of the tender notice. That finding, in our view, is in no way irrational or absurd. We say so because the certificate relied upon by respondent No.2 sufficiently demonstrates that respondent No.2 had designed, and executed an integrated water supply scheme for Upleta which included raw water transmission from intake wells and transmission of treated clear water from WTP including providing, supplying and laying of pipelines, construction of E.S.R.s, Sumps, Pump houses and providing erecting pumping machinery19. It is also noteworthy that in the matter of evaluation of the bids and determination of the eligibility of the bidders Municipal Council had the advantage of the aid & advice of an empanelled consultant, a technical hand, who could well appreciate the significance of the tender condition regarding the bidder executing the single integrated water supply scheme and fulfilling that condition of tender by reference to the work undertaken by them. We, therefore, see no reason to interfere with the view taken by the High Court of the allotment of work made in favour of respondent No.220. We may while parting point out that out of a total of Rs.19.5 crores representing the estimated value of the contract, respondent No.2 is certified to have already executed work worth Rs.11.50 crores and received a sum of Rs.8.79 crores towards the said work. More importantly the work in question relates to a drinking water supply scheme for the residents of a scarcity stricken municipality. The project is sponsored with the Central Government assistance under its urban infrastructure scheme for small and middle towns. The completion target of the scheme is September 2012. Any interference with the award of the contract at this stage is bound to delay the execution of the work and put the inhabitants of the municipal area to further hardship. Interference with the on-going work is, therefore, not conducive to public interest which can be served only if the scheme is completed as expeditiously as possible giving relief to the thirsting residents of Sendhwa. This is particularly so when the allotment of work in favour of respondent No.2 does not involve any extra cost in comparison to the cost that may be incurred if the contract was allotted to the appellant-company | 0 | 4,870 | 446 | ### Instruction:
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by the Municipal Council and respondent No.2, the contention that the latter was not eligible on the ground stated by the appellant has been stoutly denied. Respondent-Council has, inter alia, stated: To satisfy this condition, respondent no.2 has placed on record the certificate issued by Municipal Council Upleta, whereby respondent No.2 was awarded construction of similar work and has completed the work on 15.8.2010 for a sum of Rs.14,96,78,721/-. Not merely this, to show his experience, respondent No.2 has filed various certificates relating to work at Bardoli, as well as certificate issued by Gujarat Urban Development Mission, demonstrating that he has undertaken the work of 87,21,36,172/- of the similar/somewhat similar nature. In this regard it is worth noticing that the only requirement under this clause was to have executed single work of integrated water supply scheme having above referred components in it and it was not at all necessary for a bidder to have constructed all the components himself but he could have used the existing components, as such it is inconsequential as to whether respondent No.2 has infact constructed intake well and water treatment plant in Upleta, but it is of utmost importance that Respondent No.2 should have experience of having executed integrated water supply scheme. 17. To the same effect is the case set up by respondent No.2 who has stated as under: I say and submit that the only requirement as per the said eligibility condition was to have executed a single work of integrated water supply scheme comprising of all the components, such as intake well, raw/clean water, pumping main, pumps, water treatment plants, over head tanks, distribution system etc., but it was not necessary for the bidder to have himself constructed all the components of integrated water supply scheme. As such to show his experience in the said matter, respondent No.2 also has placed on record certificate issued by Bardoli Nagar Seva Sadan, (Annexure P/10 Page 78 of SLP), wherein respondent No.2 has constructed water treatment plant of 13.5 MLD capacity……………… They have carried out the work of integrated water supply for Upleta Municipal Council for a sum of Rs.14.97 crores, similarly respondent No.2 have also carried augmentation water supply scheme for Bardoli Incorporation Seva Sadan of Rs.4.35 crores, integrated drinking water supply scheme for Vyara project of Rs.6.84 crores, Unjha Water Supply Project of Rs.13.19 crores, Jaitpur Water Project Rs. 16.25 crores, Songarh Integrated Drinking Water Supply Scheme Rs.5.21 crores, Vapi Water Works of Rs.4.00 crores, Jasadan Water Suppply Scheme of Rs.3.05 crores, Rajula Water Supply Scheme of Rs.3.83 crores, Idar Water Supply Scheme of Rs.4.74 crores, Viramgam Water Supply Project Rs.6.92 crores, Amreli City Pipeline Distribution Work Rs.6.49 crores, thus the respondent No.2 have executed works of similar nature of Rs.87.21 crores, whereas the present work was for only Rs.20.80 crores, additionally respondent No.2 is executing similar work of about Rs.40.50 crores at Dholka, Dhandhuka, Ankleshwar, Gondal, Jasdan and Dhorangdhra. Thus respondent No.2 is competent to execute the present work, a copy of list of works executed by respondent No.2 under Gujarat Urban Development Mission duly certified by the G.M. (Technical) of said organization are already annexed as Annexure P/8 (Page 69 of SLP). It is worth mentioning here that average turnover of respondent No.2 during last 5 years ignoring figures of 2010-11 is Rs.45.14 crores and average net worth of respondent No.2 for last 5 years ignoring figures of 2010-11 is Rs. 9.018 crores. 18. The High Court has, while examining the question of eligibility of respondent No.2 by reference to the execution of the single integrated water supply scheme, recorded a finding that the nature of the work executed by respondent No.2 for Upleta satisfied the requirement of the tender notice. That finding, in our view, is in no way irrational or absurd. We say so because the certificate relied upon by respondent No.2 sufficiently demonstrates that respondent No.2 had designed, and executed an integrated water supply scheme for Upleta which included raw water transmission from intake wells and transmission of treated clear water from WTP including providing, supplying and laying of pipelines, construction of E.S.R.s, Sumps, Pump houses and providing erecting pumping machinery. 19. It is also noteworthy that in the matter of evaluation of the bids and determination of the eligibility of the bidders Municipal Council had the advantage of the aid & advice of an empanelled consultant, a technical hand, who could well appreciate the significance of the tender condition regarding the bidder executing the single integrated water supply scheme and fulfilling that condition of tender by reference to the work undertaken by them. We, therefore, see no reason to interfere with the view taken by the High Court of the allotment of work made in favour of respondent No.2. 20. We may while parting point out that out of a total of Rs.19.5 crores representing the estimated value of the contract, respondent No.2 is certified to have already executed work worth Rs.11.50 crores and received a sum of Rs.8.79 crores towards the said work. More importantly the work in question relates to a drinking water supply scheme for the residents of a scarcity stricken municipality. The project is sponsored with the Central Government assistance under its urban infrastructure scheme for small and middle towns. The completion target of the scheme is September 2012. Any interference with the award of the contract at this stage is bound to delay the execution of the work and put the inhabitants of the municipal area to further hardship. Interference with the on-going work is, therefore, not conducive to public interest which can be served only if the scheme is completed as expeditiously as possible giving relief to the thirsting residents of Sendhwa. This is particularly so when the allotment of work in favour of respondent No.2 does not involve any extra cost in comparison to the cost that may be incurred if the contract was allotted to the appellant-company. 21. In the light of the above settled legal position and in
### Response:
0
### Explanation:
18. The High Court has, while examining the question of eligibility of respondent No.2 by reference to the execution of the single integrated water supply scheme, recorded a finding that the nature of the work executed by respondent No.2 for Upleta satisfied the requirement of the tender notice. That finding, in our view, is in no way irrational or absurd. We say so because the certificate relied upon by respondent No.2 sufficiently demonstrates that respondent No.2 had designed, and executed an integrated water supply scheme for Upleta which included raw water transmission from intake wells and transmission of treated clear water from WTP including providing, supplying and laying of pipelines, construction of E.S.R.s, Sumps, Pump houses and providing erecting pumping machinery19. It is also noteworthy that in the matter of evaluation of the bids and determination of the eligibility of the bidders Municipal Council had the advantage of the aid & advice of an empanelled consultant, a technical hand, who could well appreciate the significance of the tender condition regarding the bidder executing the single integrated water supply scheme and fulfilling that condition of tender by reference to the work undertaken by them. We, therefore, see no reason to interfere with the view taken by the High Court of the allotment of work made in favour of respondent No.220. We may while parting point out that out of a total of Rs.19.5 crores representing the estimated value of the contract, respondent No.2 is certified to have already executed work worth Rs.11.50 crores and received a sum of Rs.8.79 crores towards the said work. More importantly the work in question relates to a drinking water supply scheme for the residents of a scarcity stricken municipality. The project is sponsored with the Central Government assistance under its urban infrastructure scheme for small and middle towns. The completion target of the scheme is September 2012. Any interference with the award of the contract at this stage is bound to delay the execution of the work and put the inhabitants of the municipal area to further hardship. Interference with the on-going work is, therefore, not conducive to public interest which can be served only if the scheme is completed as expeditiously as possible giving relief to the thirsting residents of Sendhwa. This is particularly so when the allotment of work in favour of respondent No.2 does not involve any extra cost in comparison to the cost that may be incurred if the contract was allotted to the appellant-company
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Hari Shankar Vs. Deputy Director of Consolidation and Others | HEGDE, J.1. This appeal by certificate arises from consolidation proceedings regarding Khata No. 24 in village Keoli Khurd, Tehsil Khurja District Bullandshahr. The appellant contended in the said proceedings that he was a co-tenant with respondents Jyoti Prasad and Sonpal and therefore he is entitled to half share in the property included in Khata No. 24. Jyoti Prasad and Sonpal denied his claim. The Consolidation Officer accepted the claim made by the appellant. Jyoti Prasad and Sonpal appealed against that order to the Settlement Officer (Consolidation), Rampur. He dismissed that appeal. As against that order, Jyoti Prasad and Sonpal want up in revision to the Dy. Director of Consolidation, U.P. The revision petition was fixed for hearing on May 12, 1967. On that day the appellants moved an application before the Deputy Director of Consolidation seeking an adjournement of the case firstly on the ground that the appellant was ill and secondly on the allegation that the petitioners Counsel Sri Babu Ram Gupta was a relation of the Deputy Director of Consolidation and as such the appellant wanted to move the District Dy. Director of Consolidation for transfer of the case from the file of Deputy Director of Consolidation. The Deputy Director of Consolidation refused to grant the adjournment prayed for. Thereupon the appellants Counsel left the Court. Thereafter the Deputy Director of Consolidation heard the revision petition and allowed the same. The then Deputy Director of Consolidation was Sri Satya Prakash. The appellant then moved the Deputy Director of Consolidation to review his order. That application came up before Shri Sharma who rejected the same on the ground that he had no jurisdiction to review the order once made. Aggrieved by that decision, the appellant moved the High Court of Allahabad under Article 226 of the Constitution to quash the order of the Deputy Director of Consolidation on the ground that in making the order, the Deputy Director had contravened the principles of natural justice inasmuch as he did not give reasonable opportunity to the appellant to move the appropriate authorities to transfer the case to the file of some other competent officer on the ground that the Counsel for the contesting respondents and the Deputy Director are relations and as such the appellant is not likely to get justice at his hands. The High Court summarily dismissed that petition. Hence this appeal.2. The appellants allegation that the contesting respondents Counsel and the Deputy Director of Consolidation were relations stands unrefuted. The Deputy Director did not make any formal order rejecting the prayer for adjournment of the case nor did he record in his order in the revision petition that there was no basis for the allegation that the contesting respondents Counsel was his relation. In fact his order does not even refer to the prayer made by the Counsel for the appellant for adjournment of the case and his refusal to grant the same. It merely mentions that when the case was taken up for hearing, the appellants Counsel went away. But all the relevant facts are available from the order made by Mr. Sharma on the review application. We think that the Deputy Director of Consolidation was not well advised in refusing to grant the adjournment asked for particularly in view of the fact that he did not deny that the Counsel for the contesting respondents was his relation. Naturally the appellant had reason to believe that he may not get justice at the hands of Sri Satya Prakash. It is a common saying that justice must not only be done but it must appear to have been done.3. From the facts of this case, it is clear that the appellant had no reasonable opportunity to present his case in the revision application filed by Jyoti Prasad and Sonpal. On the facts of this case we are unable to hold that the appellants suspicion about the impartiality of Sri Satya Prakash was either baseless or unfounded. It may be that despite the fact that the contesting respondents Counsel was his relation, Sri Satya Prakash might have decided the case on its own merits but that is not the same thing as saying that the appellant had no reasonable ground to move for the transfer of the case Sri Satya Prakash should have left it to the appropriate authorities to decide whether the case should be tried by him or by some other competent officer. He should not have taken upon himself the responsibility of deciding the case despite the apprehensions expressed by the appellant.4. We are clearly of the opinion that the High Court was not justified is summarily dismissing the writ petition of the appellant. There was basis for the allegation of the appellant that the principles of natural justice had been contravened while deciding the revision petition inasmuch as he was not given a reasonable opportunity to present his case. | 1[ds]3. From the facts of this case, it is clear that the appellant had no reasonable opportunity to present his case in the revision application filed by Jyoti Prasad and Sonpal. On the facts of this case we are unable to hold that the appellants suspicion about the impartiality of Sri Satya Prakash was either baseless or unfounded. It may be that despite the fact that the contesting respondents Counsel was his relation, Sri Satya Prakash might have decided the case on its own merits but that is not the same thing as saying that the appellant had no reasonable ground to move for the transfer of the case Sri Satya Prakash should have left it to the appropriate authorities to decide whether the case should be tried by him or by some other competent officer. He should not have taken upon himself the responsibility of deciding the case despite the apprehensions expressed by the appellant.4. We are clearly of the opinion that the High Court was not justified is summarily dismissing the writ petition of the appellant. There was basis for the allegation of the appellant that the principles of natural justice had been contravened while deciding the revision petition inasmuch as he was not given a reasonable opportunity to present his case. | 1 | 865 | 227 | ### Instruction:
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HEGDE, J.1. This appeal by certificate arises from consolidation proceedings regarding Khata No. 24 in village Keoli Khurd, Tehsil Khurja District Bullandshahr. The appellant contended in the said proceedings that he was a co-tenant with respondents Jyoti Prasad and Sonpal and therefore he is entitled to half share in the property included in Khata No. 24. Jyoti Prasad and Sonpal denied his claim. The Consolidation Officer accepted the claim made by the appellant. Jyoti Prasad and Sonpal appealed against that order to the Settlement Officer (Consolidation), Rampur. He dismissed that appeal. As against that order, Jyoti Prasad and Sonpal want up in revision to the Dy. Director of Consolidation, U.P. The revision petition was fixed for hearing on May 12, 1967. On that day the appellants moved an application before the Deputy Director of Consolidation seeking an adjournement of the case firstly on the ground that the appellant was ill and secondly on the allegation that the petitioners Counsel Sri Babu Ram Gupta was a relation of the Deputy Director of Consolidation and as such the appellant wanted to move the District Dy. Director of Consolidation for transfer of the case from the file of Deputy Director of Consolidation. The Deputy Director of Consolidation refused to grant the adjournment prayed for. Thereupon the appellants Counsel left the Court. Thereafter the Deputy Director of Consolidation heard the revision petition and allowed the same. The then Deputy Director of Consolidation was Sri Satya Prakash. The appellant then moved the Deputy Director of Consolidation to review his order. That application came up before Shri Sharma who rejected the same on the ground that he had no jurisdiction to review the order once made. Aggrieved by that decision, the appellant moved the High Court of Allahabad under Article 226 of the Constitution to quash the order of the Deputy Director of Consolidation on the ground that in making the order, the Deputy Director had contravened the principles of natural justice inasmuch as he did not give reasonable opportunity to the appellant to move the appropriate authorities to transfer the case to the file of some other competent officer on the ground that the Counsel for the contesting respondents and the Deputy Director are relations and as such the appellant is not likely to get justice at his hands. The High Court summarily dismissed that petition. Hence this appeal.2. The appellants allegation that the contesting respondents Counsel and the Deputy Director of Consolidation were relations stands unrefuted. The Deputy Director did not make any formal order rejecting the prayer for adjournment of the case nor did he record in his order in the revision petition that there was no basis for the allegation that the contesting respondents Counsel was his relation. In fact his order does not even refer to the prayer made by the Counsel for the appellant for adjournment of the case and his refusal to grant the same. It merely mentions that when the case was taken up for hearing, the appellants Counsel went away. But all the relevant facts are available from the order made by Mr. Sharma on the review application. We think that the Deputy Director of Consolidation was not well advised in refusing to grant the adjournment asked for particularly in view of the fact that he did not deny that the Counsel for the contesting respondents was his relation. Naturally the appellant had reason to believe that he may not get justice at the hands of Sri Satya Prakash. It is a common saying that justice must not only be done but it must appear to have been done.3. From the facts of this case, it is clear that the appellant had no reasonable opportunity to present his case in the revision application filed by Jyoti Prasad and Sonpal. On the facts of this case we are unable to hold that the appellants suspicion about the impartiality of Sri Satya Prakash was either baseless or unfounded. It may be that despite the fact that the contesting respondents Counsel was his relation, Sri Satya Prakash might have decided the case on its own merits but that is not the same thing as saying that the appellant had no reasonable ground to move for the transfer of the case Sri Satya Prakash should have left it to the appropriate authorities to decide whether the case should be tried by him or by some other competent officer. He should not have taken upon himself the responsibility of deciding the case despite the apprehensions expressed by the appellant.4. We are clearly of the opinion that the High Court was not justified is summarily dismissing the writ petition of the appellant. There was basis for the allegation of the appellant that the principles of natural justice had been contravened while deciding the revision petition inasmuch as he was not given a reasonable opportunity to present his case.
### Response:
1
### Explanation:
3. From the facts of this case, it is clear that the appellant had no reasonable opportunity to present his case in the revision application filed by Jyoti Prasad and Sonpal. On the facts of this case we are unable to hold that the appellants suspicion about the impartiality of Sri Satya Prakash was either baseless or unfounded. It may be that despite the fact that the contesting respondents Counsel was his relation, Sri Satya Prakash might have decided the case on its own merits but that is not the same thing as saying that the appellant had no reasonable ground to move for the transfer of the case Sri Satya Prakash should have left it to the appropriate authorities to decide whether the case should be tried by him or by some other competent officer. He should not have taken upon himself the responsibility of deciding the case despite the apprehensions expressed by the appellant.4. We are clearly of the opinion that the High Court was not justified is summarily dismissing the writ petition of the appellant. There was basis for the allegation of the appellant that the principles of natural justice had been contravened while deciding the revision petition inasmuch as he was not given a reasonable opportunity to present his case.
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Thiru Manickam And Co Vs. The State Of Tamil Nadu | a person who has not himself paid such tax. So far as those observations are concerned, we are of the opinion that the emphasis in the word "refunded" as used in clause (b) of section 15 of the Central Act and the proviso to section 4 of the State Act is on repayment of the amount. A word can have many meanings. To find out the exact connotation of a word in a statute, we must look to the context in which it is used. The context would quite often provide the key to the meaning of the word and the sense it should carry. Its setting would give colour to it and provide clue to the intention of the legislature in using it. A word, as said by Holmes, is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and the time in which it is used. The context in which the word "refunded" is used shows that such repayment need not be to the person who initially paid the tax. It is indeed for the State Legislature to specify the person to whom such amount is to be repaid either in the statute enacted by it or to make a provision for that purpose in the Rules. The State Legislature has made it clear in the proviso to section 4 of the statute that provision in this respect would be made in the Rules. The Rules which have been framed leave no doubt that the amount has to be paid to the dealer who sells the goods in the course of inter-State trade and who has paid the tax under the Central Act in respect of such sale.There is also no anomaly in paying the amount of the sales tax under the State Act to a dealer who sells declared goods in the course of inter-State trade, even though he did not himself pay the tax under the State Act in respect of those goods. The reason for that is that the price charged from such dealer by the person from whom he purchases the goods would normally take into account the sales tax paid by the seller. 5. Assuming that there was some ambiguity in the language of clause (b) of section 15, as it existed at the relevant time, the matter is made clear by the amendment made in the Central Act by the Central Sales Tax (Amendment) Act, 1972 (Act No. 61 of 1972). As a result of the amendment, clause (b) of section 15 of the Central Act reads as under :"(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, and tax has been paid under this Act in respect of the sale of such goods in the course of inter-State trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale in the course of inter-State trade or commerce in such manner and subject to such conditions as may be provided in any law in force in that State." 6. The amended provision makes it plain beyond any pale of controversy that the tax levied under the State Act in respect of declared goods has to be reimbursed to the person making sale of those goods in the course of inter-State trade or commerce in such manner and subject to such conditions as may be provided in the law in force in that State. According to the notes explaining the different clauses appended to the statement of objects and reasons of the Bill, which emerged as the amending Act, the amendment made in clause (b) makes it clear that local sales tax would be reimbursed to the person making the sale in the course of inter-State trade and commerce. The amendment made in clause (b) can thus be taken to be an exposition by the legislature itself of its intent contained in the earlier provision. We are not impressed by the argument of the learned Additional Solicitor-General that the amendment made in clause (b) was intended to mark a departure from the position in law as it existed before the amendment. The fact that the amendment of clause (b) of section 15 was not like some other provisions given retrospective effect, would not materially affect the position. As already mentioned above, the legislature as a result of the amendment, clarified what was implicit in the provisions as they existed earlier. An amendment which is by way of clarification of an earlier ambiguous provision can be useful aid in construing the earlier provision, even though such amendment is not given retrospective effect. We may refer in this context to the observations on page 147 of Craies on Statute Law (Sixth Ed.), which read as under :"...... In Cape Brandy Syndicate v. I.R.C. ([1921] 2 K.B. 403 at 414), Lord Sterndale, M.R., said : I think it is clearly established in Att.-Gen. v. Clarkson ([1900] 1 Q.B. 156), that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation if it proceeded on an erroneous construction of previous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier." 7. Looking to all the facts, we are of the view that the appellant-firm is entitled to be paid the amount of sales tax levied under the State Act in respect of the goods sold by it in the course of inter-State trade provided the appellant has paid the sales tax under the Central Act in respect of those sales. | 1[ds]Section 15 of the Central Act, as it existed at the relevant time, contemplates that every State law in so far as it imposes or authorises the imposition of tax on sale or purchase of declared goods, would be subject to the restriction and condition that the tax payable under that law in respect of any sale or purchase of such gods inside the State, shall not exceed two per cent. of the sale or purchase price thereof and such tax shall not be levied at more than one stage. Clause (b) of that section has a direct bearing and, according to that clause, where tax has been levied under the State law in respect of sale or purchase of declared of declared goods which are subsequently sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be prescribed in any law in force in that State. Section 4 of the State Act has been enacted in conformity with section 15 of the Central Act. The proviso to that section deals with the refund of the sales tax levied under the State Act in respect of declared goods when such goods are sold in the course of inter-State trade or commerce. According to that proviso, where a tax has been levied under section 4 in respect of the sale or purchase of declared goods, and such goods are sold in the course of inter-State trade or commerce, the amount of tax shall be refunded to such person in such manner and subject to such conditions as may be prescribed. In pursuance of this proviso, the State Government has framed rule 23 of the Madras General Sales Tax Rules, 1959. According to clause (1) of that rule, the refund of the sales tax has to be made to the dealer who makes the inter-State sale and who has paid the sales tax under the Central Act in respect of such sale. Clause (3) of the rule provides that statement shall be submitted to the assessing authority by the aforesaid dealer not later than three months from the date on which the dealer pays the tax under the Central Act. It may be stated that the Madras General Sales Tax Rules, 1959, had to be placed on the table of both the Houses of the State Legislature under sub-section (5) of section 53 of the State Act. In the face of clause (b) of section 15 of the Central Act, the proviso to section 4 of the State Act and rule 23 of the Madras General Sales Tax Rules, we have to doubt in our mind that it is the appellant who is entitled to get the refund of the sales tax levied under the State Act in respect of the goods in question because it was the appellant who sold the goods in the course of inter-State trade and paid the sales tax under the Central Act on that account.The High Court in turning down the claim of the appellant relied upon its earlier decision in the case of M. A. Khader & Co. ([1970] 25 S.T.C. 104) Perusal of the facts of that case would show that the assessee therein sought a writ of certiorari to quash the assessment made under the Central Act in respect of transactions which were admittedly inter-State sales. The question of asking for the refund of the sales tax paid under the State Act did not arise directly in that case. There were no doubt some observations in the course of that judgment, according to which, refund of the sales tax can be claimed only by the person who himself has earlier paid that tax and not by a person who has not himself paid such tax. So far as those observations are concerned, we are of the opinion that the emphasis in the word "refunded" as used in clause (b) of section 15 of the Central Act and the proviso to section 4 of the State Act is on repayment of the amount. A word can have many meanings. To find out the exact connotation of a word in a statute, we must look to the context in which it is used. The context would quite often provide the key to the meaning of the word and the sense it should carry. Its setting would give colour to it and provide clue to the intention of the legislature in using it. A word, as said by Holmes, is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and the time in which it is used. The context in which the word "refunded" is used shows that such repayment need not be to the person who initially paid the tax. It is indeed for the State Legislature to specify the person to whom such amount is to be repaid either in the statute enacted by it or to make a provision for that purpose in the Rules. The State Legislature has made it clear in the proviso to section 4 of the statute that provision in this respect would be made in the Rules. The Rules which have been framed leave no doubt that the amount has to be paid to the dealer who sells the goods in the course of inter-State trade and who has paid the tax under the Central Act in respect of such sale.There is also no anomaly in paying the amount of the sales tax under the State Act to a dealer who sells declared goods in the course of inter-State trade, even though he did not himself pay the tax under the State Act in respect of those goods. The reason for that is that the price charged from such dealer by the person from whom he purchases the goods would normally take into account the sales tax paid by the sellerAssuming that there was some ambiguity in the language of clause (b) of section 15, as it existed at the relevant time, the matter is made clear by the amendment made in the Central Act by the Central Sales Tax (Amendment) Act, 1972 (Act No. 61 of 1972)The amended provision makes it plain beyond any pale of controversy that the tax levied under the State Act in respect of declared goods has to be reimbursed to the person making sale of those goods in the course of inter-State trade or commerce in such manner and subject to such conditions as may be provided in the law in force in that State. According to the notes explaining the different clauses appended to the statement of objects and reasons of the Bill, which emerged as the amending Act, the amendment made in clause (b) makes it clear that local sales tax would be reimbursed to the person making the sale in the course of inter-State trade and commerce. The amendment made in clause (b) can thus be taken to be an exposition by the legislature itself of its intent contained in the earlier provision. We are not impressed by the argument of the learned Additional Solicitor-General that the amendment made in clause (b) was intended to mark a departure from the position in law as it existed before the amendment. The fact that the amendment of clause (b) of section 15 was not like some other provisions given retrospective effect, would not materially affect the position. As already mentioned above, the legislature as a result of the amendment, clarified what was implicit in the provisions as they existed earlier. An amendment which is by way of clarification of an earlier ambiguous provision can be useful aid in construing the earlier provision, even though such amendment is not given retrospective effectLooking to all the facts, we are of the view that the appellant-firm is entitled to be paid the amount of sales tax levied under the State Act in respect of the goods sold by it in the course of inter-State trade provided the appellant has paid the sales tax under the Central Act in respect of those sales. | 1 | 3,088 | 1,481 | ### 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:
a person who has not himself paid such tax. So far as those observations are concerned, we are of the opinion that the emphasis in the word "refunded" as used in clause (b) of section 15 of the Central Act and the proviso to section 4 of the State Act is on repayment of the amount. A word can have many meanings. To find out the exact connotation of a word in a statute, we must look to the context in which it is used. The context would quite often provide the key to the meaning of the word and the sense it should carry. Its setting would give colour to it and provide clue to the intention of the legislature in using it. A word, as said by Holmes, is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and the time in which it is used. The context in which the word "refunded" is used shows that such repayment need not be to the person who initially paid the tax. It is indeed for the State Legislature to specify the person to whom such amount is to be repaid either in the statute enacted by it or to make a provision for that purpose in the Rules. The State Legislature has made it clear in the proviso to section 4 of the statute that provision in this respect would be made in the Rules. The Rules which have been framed leave no doubt that the amount has to be paid to the dealer who sells the goods in the course of inter-State trade and who has paid the tax under the Central Act in respect of such sale.There is also no anomaly in paying the amount of the sales tax under the State Act to a dealer who sells declared goods in the course of inter-State trade, even though he did not himself pay the tax under the State Act in respect of those goods. The reason for that is that the price charged from such dealer by the person from whom he purchases the goods would normally take into account the sales tax paid by the seller. 5. Assuming that there was some ambiguity in the language of clause (b) of section 15, as it existed at the relevant time, the matter is made clear by the amendment made in the Central Act by the Central Sales Tax (Amendment) Act, 1972 (Act No. 61 of 1972). As a result of the amendment, clause (b) of section 15 of the Central Act reads as under :"(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, and tax has been paid under this Act in respect of the sale of such goods in the course of inter-State trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale in the course of inter-State trade or commerce in such manner and subject to such conditions as may be provided in any law in force in that State." 6. The amended provision makes it plain beyond any pale of controversy that the tax levied under the State Act in respect of declared goods has to be reimbursed to the person making sale of those goods in the course of inter-State trade or commerce in such manner and subject to such conditions as may be provided in the law in force in that State. According to the notes explaining the different clauses appended to the statement of objects and reasons of the Bill, which emerged as the amending Act, the amendment made in clause (b) makes it clear that local sales tax would be reimbursed to the person making the sale in the course of inter-State trade and commerce. The amendment made in clause (b) can thus be taken to be an exposition by the legislature itself of its intent contained in the earlier provision. We are not impressed by the argument of the learned Additional Solicitor-General that the amendment made in clause (b) was intended to mark a departure from the position in law as it existed before the amendment. The fact that the amendment of clause (b) of section 15 was not like some other provisions given retrospective effect, would not materially affect the position. As already mentioned above, the legislature as a result of the amendment, clarified what was implicit in the provisions as they existed earlier. An amendment which is by way of clarification of an earlier ambiguous provision can be useful aid in construing the earlier provision, even though such amendment is not given retrospective effect. We may refer in this context to the observations on page 147 of Craies on Statute Law (Sixth Ed.), which read as under :"...... In Cape Brandy Syndicate v. I.R.C. ([1921] 2 K.B. 403 at 414), Lord Sterndale, M.R., said : I think it is clearly established in Att.-Gen. v. Clarkson ([1900] 1 Q.B. 156), that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation if it proceeded on an erroneous construction of previous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier." 7. Looking to all the facts, we are of the view that the appellant-firm is entitled to be paid the amount of sales tax levied under the State Act in respect of the goods sold by it in the course of inter-State trade provided the appellant has paid the sales tax under the Central Act in respect of those sales.
### Response:
1
### Explanation:
the Central Act. It may be stated that the Madras General Sales Tax Rules, 1959, had to be placed on the table of both the Houses of the State Legislature under sub-section (5) of section 53 of the State Act. In the face of clause (b) of section 15 of the Central Act, the proviso to section 4 of the State Act and rule 23 of the Madras General Sales Tax Rules, we have to doubt in our mind that it is the appellant who is entitled to get the refund of the sales tax levied under the State Act in respect of the goods in question because it was the appellant who sold the goods in the course of inter-State trade and paid the sales tax under the Central Act on that account.The High Court in turning down the claim of the appellant relied upon its earlier decision in the case of M. A. Khader & Co. ([1970] 25 S.T.C. 104) Perusal of the facts of that case would show that the assessee therein sought a writ of certiorari to quash the assessment made under the Central Act in respect of transactions which were admittedly inter-State sales. The question of asking for the refund of the sales tax paid under the State Act did not arise directly in that case. There were no doubt some observations in the course of that judgment, according to which, refund of the sales tax can be claimed only by the person who himself has earlier paid that tax and not by a person who has not himself paid such tax. So far as those observations are concerned, we are of the opinion that the emphasis in the word "refunded" as used in clause (b) of section 15 of the Central Act and the proviso to section 4 of the State Act is on repayment of the amount. A word can have many meanings. To find out the exact connotation of a word in a statute, we must look to the context in which it is used. The context would quite often provide the key to the meaning of the word and the sense it should carry. Its setting would give colour to it and provide clue to the intention of the legislature in using it. A word, as said by Holmes, is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and the time in which it is used. The context in which the word "refunded" is used shows that such repayment need not be to the person who initially paid the tax. It is indeed for the State Legislature to specify the person to whom such amount is to be repaid either in the statute enacted by it or to make a provision for that purpose in the Rules. The State Legislature has made it clear in the proviso to section 4 of the statute that provision in this respect would be made in the Rules. The Rules which have been framed leave no doubt that the amount has to be paid to the dealer who sells the goods in the course of inter-State trade and who has paid the tax under the Central Act in respect of such sale.There is also no anomaly in paying the amount of the sales tax under the State Act to a dealer who sells declared goods in the course of inter-State trade, even though he did not himself pay the tax under the State Act in respect of those goods. The reason for that is that the price charged from such dealer by the person from whom he purchases the goods would normally take into account the sales tax paid by the sellerAssuming that there was some ambiguity in the language of clause (b) of section 15, as it existed at the relevant time, the matter is made clear by the amendment made in the Central Act by the Central Sales Tax (Amendment) Act, 1972 (Act No. 61 of 1972)The amended provision makes it plain beyond any pale of controversy that the tax levied under the State Act in respect of declared goods has to be reimbursed to the person making sale of those goods in the course of inter-State trade or commerce in such manner and subject to such conditions as may be provided in the law in force in that State. According to the notes explaining the different clauses appended to the statement of objects and reasons of the Bill, which emerged as the amending Act, the amendment made in clause (b) makes it clear that local sales tax would be reimbursed to the person making the sale in the course of inter-State trade and commerce. The amendment made in clause (b) can thus be taken to be an exposition by the legislature itself of its intent contained in the earlier provision. We are not impressed by the argument of the learned Additional Solicitor-General that the amendment made in clause (b) was intended to mark a departure from the position in law as it existed before the amendment. The fact that the amendment of clause (b) of section 15 was not like some other provisions given retrospective effect, would not materially affect the position. As already mentioned above, the legislature as a result of the amendment, clarified what was implicit in the provisions as they existed earlier. An amendment which is by way of clarification of an earlier ambiguous provision can be useful aid in construing the earlier provision, even though such amendment is not given retrospective effectLooking to all the facts, we are of the view that the appellant-firm is entitled to be paid the amount of sales tax levied under the State Act in respect of the goods sold by it in the course of inter-State trade provided the appellant has paid the sales tax under the Central Act in respect of those sales.
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S.K.G. Sugar Limited Vs. State of Bihar and Others | bound by such an agreement and, therefore, the appellant is entitled to resile from the agreement with the farmers at that meeting convened by the State Government. In Jaoras case this court had held thus: "The question is; whether such a higher price has been agreed to be paid to the sugarcane growers, the contract has come into existence between the respondents and the cane growers with the aegis of the appellants? As a facts. except kaluram, all representatives of other factories were present at the time to the agreement dated march 21, 1976. As far as Kaluram is concerned, on the first occasion he was present, but on the second occasion when the meeting was adjorned, he was not present. it has been averred in the counter- affidavit that the Sercretary of the sugracene factories owners Association had contracteed him when he was in the hospital and thereafter, the agreement was entered into. Though, subsequently, an attempt was made by the Secretary to wriggle out form it, the Government have stated that and the sugarcane growers have also agreed for the same, we are of the considered view that he was consenting party and there was consensue ad idem to pay higher price of sugarcane than the minimum price fixed by the Central Government and they acted upon it. There was no prohibition for oral agreement between growers and owners through the service of the Cane Commissioner, a statutory authority to effect such agreement.It would thus be clear that the Cane Commissioner having power to compel the cane growers to supply cane to the factory khandsari unit, he has incidental power and duty bound to ensure payment of the price of the sugarcane supplied by the sugarcane grower. The price fixed or agreed is a statutory price and bears the stamp of statutory first charge on the sugar and assets of the factory over any other contracted liabilities to recover the price of the sugarcane supplied to the factory of Khandsari unit. Thus, it would be seen that the Act regulates the recovery as arrears of land revenue. Accordingly, demand has been for payment of the amount n a sum of Rs. 6, 34, 166/- in CA No. 1813/80, Rs.13, 40, 700/- in CA No. 1814 and Rs. 2, 71, 000/- in CA No.1812/80. Thus, the demands issued against the respondents are in accordance with the provisions of the Act and they are liable to pay the same". 6. It is not in dispute that under Section 31 of the Supply Act, the State Government has power to fix the reserved area, in other words, zone was carved out for the appellant for the supply of sugarcane to the factory. All the farmers who are cultifating the sugarcane within that zone ar bopund the State action to supply sugarcane to the factories within that reserved area. Consequently, the factory also is bound by the actions of the State Government. Obviously, pursuant to the obligation had by the State under the supply Act, the meeting was convened by the state Government whereat the factory owners Association and farmers participated and agreed to fixed the price at Rs.20.50 per quintal of sugarcane. As a consequence, both the cane growers as well as the owners of the factory are bound by the decision. This having been agreed upon, the price fixed by the State Government in excess of the minimum price fixed by the Central Government under Clause 3 of the Order would be the price fixed for upply of sugarcane and the Governemnt would beentitled to enforce the liablity. As a consequence, the Collector was empowered and duty bound to issue a vcertrificate of the dues as arrears of land revenue for recoery under the Revenue Recorvery Act. The certificate obviously relates to the difference between the minimum price fixed by the Central government, i.e., Rs. 13.92 per quintal and the price of Rs.20.50 determined by the agreement between the parties. Under the circumstances, there need not be any sparte agreement to be entered into between the cane growers in the reserved area and the appellants factory to be enforceable. We hold that the cerfificate issued by the Collector is vaild in law. As held earlier, the State Government acted in their statutory capacity to fix the increased price of the sugarcane. There is no need for the growers to file separate suit to recover the difference of the price. The recovery proceedings are the appropriate course of action rightly adopted by the State Government.Shri Giri next sought to contened that the appelahnt - factory was notified to be taken over and denotified for dvestment and in the interretgum sales and purchases have taken place and the consequence thereof requires to be considered. The appellant had crushed the sugarcane though vacuum pan process in producing sugar in the relevant period. So it alone is liable to pay the cane price. We find that the question in this case of sharing the liablity by the State Government does not arise. Therefore, it is unnecessary for us to go into the question in these appeals. 7. By order dated February 29, 1996 passed by this Court, the State Government was directed to work out the amount due and payable to the cane growers in terms of the undertaking given to this court at the time of passing the interim order. Pursuanat thereto, it appears and it is not in dispute that the Government has worked out the dues at Rs. 62, 90, 398.72 and made a demand on March 22, 1996 and in furtherance thereof, the appellant has deposited the amount on April 3, 1996. In view of the above, if there is any other demand than what was directed, the respondents are at liberty to proceed in accordance with law and if there is no demand and the demand has already been satisfied, than it is needless to mention that the respondents may not take any further steps in that behalf. 8. | 0[ds]By order dated February 29, 1996 passed by this Court, the State Government was directed to work out the amount due and payable to the cane growers in terms of the undertaking given to this court at the time of passing the interim order. Pursuanat thereto, it appears and it is not in dispute that the Government has worked out the dues at Rs. 62, 90, 398.72 and made a demand on March 22, 1996 and in furtherance thereof, the appellant has deposited the amount on April 3, 1996. In view of the above, if there is any other demand than what was directed, the respondents are at liberty to proceed in accordance with law and if there is no demand and the demand has already been satisfied, than it is needless to mention that the respondents may not take any further steps in that behalf. | 0 | 2,782 | 165 | ### 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:
bound by such an agreement and, therefore, the appellant is entitled to resile from the agreement with the farmers at that meeting convened by the State Government. In Jaoras case this court had held thus: "The question is; whether such a higher price has been agreed to be paid to the sugarcane growers, the contract has come into existence between the respondents and the cane growers with the aegis of the appellants? As a facts. except kaluram, all representatives of other factories were present at the time to the agreement dated march 21, 1976. As far as Kaluram is concerned, on the first occasion he was present, but on the second occasion when the meeting was adjorned, he was not present. it has been averred in the counter- affidavit that the Sercretary of the sugracene factories owners Association had contracteed him when he was in the hospital and thereafter, the agreement was entered into. Though, subsequently, an attempt was made by the Secretary to wriggle out form it, the Government have stated that and the sugarcane growers have also agreed for the same, we are of the considered view that he was consenting party and there was consensue ad idem to pay higher price of sugarcane than the minimum price fixed by the Central Government and they acted upon it. There was no prohibition for oral agreement between growers and owners through the service of the Cane Commissioner, a statutory authority to effect such agreement.It would thus be clear that the Cane Commissioner having power to compel the cane growers to supply cane to the factory khandsari unit, he has incidental power and duty bound to ensure payment of the price of the sugarcane supplied by the sugarcane grower. The price fixed or agreed is a statutory price and bears the stamp of statutory first charge on the sugar and assets of the factory over any other contracted liabilities to recover the price of the sugarcane supplied to the factory of Khandsari unit. Thus, it would be seen that the Act regulates the recovery as arrears of land revenue. Accordingly, demand has been for payment of the amount n a sum of Rs. 6, 34, 166/- in CA No. 1813/80, Rs.13, 40, 700/- in CA No. 1814 and Rs. 2, 71, 000/- in CA No.1812/80. Thus, the demands issued against the respondents are in accordance with the provisions of the Act and they are liable to pay the same". 6. It is not in dispute that under Section 31 of the Supply Act, the State Government has power to fix the reserved area, in other words, zone was carved out for the appellant for the supply of sugarcane to the factory. All the farmers who are cultifating the sugarcane within that zone ar bopund the State action to supply sugarcane to the factories within that reserved area. Consequently, the factory also is bound by the actions of the State Government. Obviously, pursuant to the obligation had by the State under the supply Act, the meeting was convened by the state Government whereat the factory owners Association and farmers participated and agreed to fixed the price at Rs.20.50 per quintal of sugarcane. As a consequence, both the cane growers as well as the owners of the factory are bound by the decision. This having been agreed upon, the price fixed by the State Government in excess of the minimum price fixed by the Central Government under Clause 3 of the Order would be the price fixed for upply of sugarcane and the Governemnt would beentitled to enforce the liablity. As a consequence, the Collector was empowered and duty bound to issue a vcertrificate of the dues as arrears of land revenue for recoery under the Revenue Recorvery Act. The certificate obviously relates to the difference between the minimum price fixed by the Central government, i.e., Rs. 13.92 per quintal and the price of Rs.20.50 determined by the agreement between the parties. Under the circumstances, there need not be any sparte agreement to be entered into between the cane growers in the reserved area and the appellants factory to be enforceable. We hold that the cerfificate issued by the Collector is vaild in law. As held earlier, the State Government acted in their statutory capacity to fix the increased price of the sugarcane. There is no need for the growers to file separate suit to recover the difference of the price. The recovery proceedings are the appropriate course of action rightly adopted by the State Government.Shri Giri next sought to contened that the appelahnt - factory was notified to be taken over and denotified for dvestment and in the interretgum sales and purchases have taken place and the consequence thereof requires to be considered. The appellant had crushed the sugarcane though vacuum pan process in producing sugar in the relevant period. So it alone is liable to pay the cane price. We find that the question in this case of sharing the liablity by the State Government does not arise. Therefore, it is unnecessary for us to go into the question in these appeals. 7. By order dated February 29, 1996 passed by this Court, the State Government was directed to work out the amount due and payable to the cane growers in terms of the undertaking given to this court at the time of passing the interim order. Pursuanat thereto, it appears and it is not in dispute that the Government has worked out the dues at Rs. 62, 90, 398.72 and made a demand on March 22, 1996 and in furtherance thereof, the appellant has deposited the amount on April 3, 1996. In view of the above, if there is any other demand than what was directed, the respondents are at liberty to proceed in accordance with law and if there is no demand and the demand has already been satisfied, than it is needless to mention that the respondents may not take any further steps in that behalf. 8.
### Response:
0
### Explanation:
By order dated February 29, 1996 passed by this Court, the State Government was directed to work out the amount due and payable to the cane growers in terms of the undertaking given to this court at the time of passing the interim order. Pursuanat thereto, it appears and it is not in dispute that the Government has worked out the dues at Rs. 62, 90, 398.72 and made a demand on March 22, 1996 and in furtherance thereof, the appellant has deposited the amount on April 3, 1996. In view of the above, if there is any other demand than what was directed, the respondents are at liberty to proceed in accordance with law and if there is no demand and the demand has already been satisfied, than it is needless to mention that the respondents may not take any further steps in that behalf.
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SAKETH INDIA LTD Vs. INDIA SECURITIES LTD | in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. x x x 142. Cognizance of offences:- Not with standing anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a)no court shall take cognizance of any offence punishable u/s 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b)such complaint is made within one month of the date on which the cause of action arises under Clause (c)of the proviso to Section 138; (c)no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable u/s 138. (emphasis supplied) 4. Afore-quoted Section 138 of the Act inter alia provides that where any cheque drawn by a person is returned by the bank unpaid, such person shall be deemed to have committed an offence, however, it will apply, if the conditions mentioned in Clauses (a), (b)and (c)are satisfied. Section 142 further provides that the court shall take cognizance of any offence punishable u/s 138 on a written complaint made by the payee or the holder in due course, if such complaint is filed within one month of the date on which the cause of action arises. A month is to be reckoned according to the British calendar as defined in the General Clauses Act, 1897: The question would be, whether for calculating the period of one month which is prescribed u/s 142(b), the period has to be reckoned by excluding the date on which the cause of action arose. 5. Similar contention was considered by. this Court in the case of Haru Das Gupta v. State of West Bengal (1972 (1)SCC 639 )wherein it was held that the rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded; the effect of defining the period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. In the context of that case, the court held that in computing the period of three months from the date of detention, which was 5-2-1971, before the expiration of which the order or decision for confirming the detention order and continuing the detention there under had to be made, the date of the commencement of detention, namely, February 5th has to be excluded; so done, the order of confirmation dated 5-5-1971 was made before the expiration of the period of three months from the date of detention. The court held that there is no reason why the aforesaid rule of construction followed consistently and for so long should not be applied. For the aforesaid principle, the court referred to the principle followed in English courts. The relevant discussion is hereunder. 5. These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for the doing of an act. The rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (Goldsmiths Company v. West Metropolitan Rly. Company (1904)1 KB 1). This rule was followed in Cartwright v. Mac Cormack (1963)1 AH ER 13), where the expression fifteen days from the date of commencement of the policy in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren v. Dawson Bentley & Company (1961)2 QB 135 = (1961)2,A11 ER 270), a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here. 6. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2)of the Limitation Act, 1963. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Similar provision is made in Sub-section (2)for appeal, revision or review. The same principle is also incorporated in Section 9 of the General Clauses Act, 1897 which, inter alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word from and for the purpose of including the last in a series of days or any other period of time, to use the word to. 7. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. | 0[ds]4. Afore-quoted Section 138 of the Act inter alia provides that where any cheque drawn by a person is returned by the bank unpaid, such person shall be deemed to have committed an offence, however, it will apply, if the conditions mentioned in Clauses (a), (b)and (c)are satisfied. Section 142 further provides that the court shall take cognizance of any offence punishable u/s 138 on a written complaint made by the payee or the holder in due course, if such complaint is filed within one month of the date on which the cause of action arises. A month is to be reckoned according to the British calendar as defined in the General Clauses Act, 1897:5. Similar contention was considered by. this Court in the case of Haru Das Gupta v. State of West Bengal (1972 (1)SCC 639 )wherein it was held that the rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded; the effect of defining the period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. In the context of that case, the court held that in computing the period of three months from the date of detention, which was 5-2-1971, before the expiration of which the order or decision for confirming the detention order and continuing the detention there under had to be made, the date of the commencement of detention, namely, February 5th has to be excluded; so done, the order of confirmation dated 5-5-1971 was made before the expiration of the period of three months from the date of detention. The court held that there is no reason why the aforesaid rule of construction followed consistently and for so long should not be applied. For the aforesaid principle, the court referred to the principle followed in English courts. The relevant discussion is hereunder.5. These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for the doing of an act. The rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (Goldsmiths Company v. West Metropolitan Rly. Company (1904)1 KB 1). This rule was followed in Cartwright v. Mac Cormack (1963)1 AH ER 13), where the expression fifteen days from the date of commencement of the policy in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren v. Dawson Bentley & Company (1961)2 QB 135 = (1961)2,A11 ER 270), a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here.6. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2)of the Limitation Act, 1963. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Similar provision is made in Sub-section (2)for appeal, revision or review. The same principle is also incorporated in Section 9 of the General Clauses Act, 1897 which, inter alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word from and for the purpose of including the last in a series of days or any other period of time, to use the word to.7. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. | 0 | 1,685 | 890 | ### 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:
in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. x x x 142. Cognizance of offences:- Not with standing anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a)no court shall take cognizance of any offence punishable u/s 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b)such complaint is made within one month of the date on which the cause of action arises under Clause (c)of the proviso to Section 138; (c)no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable u/s 138. (emphasis supplied) 4. Afore-quoted Section 138 of the Act inter alia provides that where any cheque drawn by a person is returned by the bank unpaid, such person shall be deemed to have committed an offence, however, it will apply, if the conditions mentioned in Clauses (a), (b)and (c)are satisfied. Section 142 further provides that the court shall take cognizance of any offence punishable u/s 138 on a written complaint made by the payee or the holder in due course, if such complaint is filed within one month of the date on which the cause of action arises. A month is to be reckoned according to the British calendar as defined in the General Clauses Act, 1897: The question would be, whether for calculating the period of one month which is prescribed u/s 142(b), the period has to be reckoned by excluding the date on which the cause of action arose. 5. Similar contention was considered by. this Court in the case of Haru Das Gupta v. State of West Bengal (1972 (1)SCC 639 )wherein it was held that the rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded; the effect of defining the period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. In the context of that case, the court held that in computing the period of three months from the date of detention, which was 5-2-1971, before the expiration of which the order or decision for confirming the detention order and continuing the detention there under had to be made, the date of the commencement of detention, namely, February 5th has to be excluded; so done, the order of confirmation dated 5-5-1971 was made before the expiration of the period of three months from the date of detention. The court held that there is no reason why the aforesaid rule of construction followed consistently and for so long should not be applied. For the aforesaid principle, the court referred to the principle followed in English courts. The relevant discussion is hereunder. 5. These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for the doing of an act. The rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (Goldsmiths Company v. West Metropolitan Rly. Company (1904)1 KB 1). This rule was followed in Cartwright v. Mac Cormack (1963)1 AH ER 13), where the expression fifteen days from the date of commencement of the policy in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren v. Dawson Bentley & Company (1961)2 QB 135 = (1961)2,A11 ER 270), a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here. 6. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2)of the Limitation Act, 1963. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Similar provision is made in Sub-section (2)for appeal, revision or review. The same principle is also incorporated in Section 9 of the General Clauses Act, 1897 which, inter alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word from and for the purpose of including the last in a series of days or any other period of time, to use the word to. 7. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last.
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4. Afore-quoted Section 138 of the Act inter alia provides that where any cheque drawn by a person is returned by the bank unpaid, such person shall be deemed to have committed an offence, however, it will apply, if the conditions mentioned in Clauses (a), (b)and (c)are satisfied. Section 142 further provides that the court shall take cognizance of any offence punishable u/s 138 on a written complaint made by the payee or the holder in due course, if such complaint is filed within one month of the date on which the cause of action arises. A month is to be reckoned according to the British calendar as defined in the General Clauses Act, 1897:5. Similar contention was considered by. this Court in the case of Haru Das Gupta v. State of West Bengal (1972 (1)SCC 639 )wherein it was held that the rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded; the effect of defining the period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. In the context of that case, the court held that in computing the period of three months from the date of detention, which was 5-2-1971, before the expiration of which the order or decision for confirming the detention order and continuing the detention there under had to be made, the date of the commencement of detention, namely, February 5th has to be excluded; so done, the order of confirmation dated 5-5-1971 was made before the expiration of the period of three months from the date of detention. The court held that there is no reason why the aforesaid rule of construction followed consistently and for so long should not be applied. For the aforesaid principle, the court referred to the principle followed in English courts. The relevant discussion is hereunder.5. These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for the doing of an act. The rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (Goldsmiths Company v. West Metropolitan Rly. Company (1904)1 KB 1). This rule was followed in Cartwright v. Mac Cormack (1963)1 AH ER 13), where the expression fifteen days from the date of commencement of the policy in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren v. Dawson Bentley & Company (1961)2 QB 135 = (1961)2,A11 ER 270), a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here.6. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2)of the Limitation Act, 1963. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Similar provision is made in Sub-section (2)for appeal, revision or review. The same principle is also incorporated in Section 9 of the General Clauses Act, 1897 which, inter alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word from and for the purpose of including the last in a series of days or any other period of time, to use the word to.7. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last.
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Commissioner of Income Tax, U.P Vs. M/s. Mohd. Shakoor Mohd. Bashir | at Mauranipur to his two sons Mohd. Shakoor and Mohd. Bashir in 1942. Zahur Bux died in 1948. During the assessment years 1945-46 to l956-57, Mohd. Shakoor and Mohd. Bashir submitted their returns of income in respect of the Mauranipur business. Following his earlier decision the Income Tax Officer rejected that return and proceeded to assess all the heirs of Zahur Bux as an Association of persons. He also took into consideration not merely the Mauranipur business but all the assets left by Zahur Bux. In appeal the Appellate Assistant Commissioner came to the conclusion that the assesses, namely, the Association of persons consisting of all the heirs of Zahur Bux, was not liable to be taxed in respect of the Mauranipur business. He came to the conclusion that that business had been gifted to Mohd. Shakoor and Mohd. Bashir in 1948 (1942-?) itself. But he did not find that during the relevant assessment years Mohd. Shakoor and Mohd. Bashir were continuing that business in their own name; nor did he give a finding in respect of any income earned in this business by Mohd. Shakoor and Mohd. Bashir in those years. On the basis of his finding that the assessee -the Association of persons consisting of all heirs of Zahur Bux-is not liable to be taxed in respect of the Mauranipur business, he set aside the order of the Income Tax Officer but directed him to "assess the income from various sources in the hands of the respective persons to whom they arose, bearing in mind the provisions of second proviso to sub-section (3) of Section 34 of the Indian Income-tax Act." Thereafter the Income-tax Officer issued notices to the respondents under Section 34 (1) (a) of the Act. The question for decision is whether those notices are barred by time. It is urged on behalf of the Revenue that in view of the second proviso to Section 34 (3) of the Act, the notices were not barred. The High Court has rejected that contention.4. The first question that calls for decision is:"Whether the Appellate Assistant Commissioner had given any finding as contemplated by the proviso to Section 34 (3);" and the second question that arises for decision is :"Whether the Appellate Assistant Commissioner had given any direction as contemplated under second proviso to Section 34 (3)?"5. This Court in Income-tax Officer, A ward, Sitapur v. Murlidhar Bhagwan Das, (1964) 52 ITR 335 = (AIR 1965 SC 342 ) ruled as to what exactly is the meaning of the words finding as well as direction in the second proviso to Section 34 (3). Dealing with the expression finding, this Court ruled that it meant a finding necessary for giving relief in respect of the assessment for the year in question. A finding therefore could only be that which was necessary for the disposal of the appeal in respect of an assessment of a particular year. In that case the Appellate Assistant Commissioner had come to a finding that the disputed income did not arise or accrue in the concerned assessment year but had arisen in the previous year. The question for decision by this Court was whether the finding the the income arose in the previous year is a finding within the meaning of second proviso to Section 34 (3). This Court held that it is not a finding falling within the meaning of that proviso, though it was a matter considered in the order of the Appellate Assistant Commissioner. In other words this Court ruled that the only finding that can fall within the scope of second proviso to Section 34 (3) is a finding which is absolutely necessary for the disposal of an appeal and not other incidental findings.6. Let us apply that rule to the facts of the present case. The finding of the Appellate Assistant Commissioner that the Association of persons, consisting of all the heirs of Zahur Bux is not liable in respect of the Mauranipur business, is an essential finding; a finding which was absolutely necessary for the disposal of the case. The further finding that that business had been gifted to Mohd. Shakoor and Mohd. Bashir in the year 1942 is only an incidental finding and not a finding necessary for the disposal of the appeal. Further from that conclusion of the Appellate Assistant Commissioner it does not follow that Mohd. Shakoor and Mohd. Bashir continued to be the owners of the Mauranipur business during the relevant assessment years. Hence we agree with the High Court that the Appellate Assistant Commissioner did not find nor was it necessary for him to find that Mohd. Shakoor and Mohd. Bashir were owners of the Mauranipur business during the relevant assessment years.7. Now, coming to the question of direction, in Murlidhar Bhagwan Das case, (1964) 52 ITR 335 = (AIR 1965 SC 342 ) (supra) this Court held that the directions that Appellate Assistant Commissioner can give, are those falling either under Section 31 (3) (b), (c) or (e) or Section 31 (4). Mr Karkhanis concedes that the direction given by the Appellate Assistant Commissioner does not fall within any one of the provisions mentioned above. Hence we must conclude that the direction given by the Appellate Assistant Commissioner is not one that falls within the scope of the second proviso to Section 34 (3).From the above conclusions it follows that these appeals must fail. But Mr. Karkhanis contended that the finding of the Tribunal in this case that the finding given by the Appellate Assistant Commissioner at the earlier stage is a finding necessary for the disposal of the case, is a finding of fact and, therefore, the High Court could not have interfered with that finding. In the first place, no such contention was taken up before the High Court or in the Memorandum of Appeal. That apart, the conclusion of the Tribunal as to the scope of the Appellate Assistant Commissioners finding is not a finding of fact but one of law.8 | 0[ds]7. Now, coming to the question of direction, in Murlidhar Bhagwan Das case, (1964) 52 ITR 335 = (AIR 1965 SC 342 ) (supra) this Court held that the directions that Appellate Assistant Commissioner can give, are those falling either under Section 31 (3) (b), (c) or (e) or Section 31 (4). Mr Karkhanis concedes that the direction given by the Appellate Assistant Commissioner does not fall within any one of the provisions mentioned above. Hence we must conclude that the direction given by the Appellate Assistant Commissioner is not one that falls within the scope of the second proviso to Section 34 (3).From the above conclusions it follows that these appeals must fail. But Mr. Karkhanis contended that the finding of the Tribunal in this case that the finding given by the Appellate Assistant Commissioner at the earlier stage is a finding necessary for the disposal of the case, is a finding of fact and, therefore, the High Court could not have interfered with that finding. In the first place, no such contention was taken up before the High Court or in the Memorandum of Appeal. That apart, the conclusion of the Tribunal as to the scope of the Appellate Assistant Commissioners finding is not a finding of fact but one of law. | 0 | 1,337 | 253 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
at Mauranipur to his two sons Mohd. Shakoor and Mohd. Bashir in 1942. Zahur Bux died in 1948. During the assessment years 1945-46 to l956-57, Mohd. Shakoor and Mohd. Bashir submitted their returns of income in respect of the Mauranipur business. Following his earlier decision the Income Tax Officer rejected that return and proceeded to assess all the heirs of Zahur Bux as an Association of persons. He also took into consideration not merely the Mauranipur business but all the assets left by Zahur Bux. In appeal the Appellate Assistant Commissioner came to the conclusion that the assesses, namely, the Association of persons consisting of all the heirs of Zahur Bux, was not liable to be taxed in respect of the Mauranipur business. He came to the conclusion that that business had been gifted to Mohd. Shakoor and Mohd. Bashir in 1948 (1942-?) itself. But he did not find that during the relevant assessment years Mohd. Shakoor and Mohd. Bashir were continuing that business in their own name; nor did he give a finding in respect of any income earned in this business by Mohd. Shakoor and Mohd. Bashir in those years. On the basis of his finding that the assessee -the Association of persons consisting of all heirs of Zahur Bux-is not liable to be taxed in respect of the Mauranipur business, he set aside the order of the Income Tax Officer but directed him to "assess the income from various sources in the hands of the respective persons to whom they arose, bearing in mind the provisions of second proviso to sub-section (3) of Section 34 of the Indian Income-tax Act." Thereafter the Income-tax Officer issued notices to the respondents under Section 34 (1) (a) of the Act. The question for decision is whether those notices are barred by time. It is urged on behalf of the Revenue that in view of the second proviso to Section 34 (3) of the Act, the notices were not barred. The High Court has rejected that contention.4. The first question that calls for decision is:"Whether the Appellate Assistant Commissioner had given any finding as contemplated by the proviso to Section 34 (3);" and the second question that arises for decision is :"Whether the Appellate Assistant Commissioner had given any direction as contemplated under second proviso to Section 34 (3)?"5. This Court in Income-tax Officer, A ward, Sitapur v. Murlidhar Bhagwan Das, (1964) 52 ITR 335 = (AIR 1965 SC 342 ) ruled as to what exactly is the meaning of the words finding as well as direction in the second proviso to Section 34 (3). Dealing with the expression finding, this Court ruled that it meant a finding necessary for giving relief in respect of the assessment for the year in question. A finding therefore could only be that which was necessary for the disposal of the appeal in respect of an assessment of a particular year. In that case the Appellate Assistant Commissioner had come to a finding that the disputed income did not arise or accrue in the concerned assessment year but had arisen in the previous year. The question for decision by this Court was whether the finding the the income arose in the previous year is a finding within the meaning of second proviso to Section 34 (3). This Court held that it is not a finding falling within the meaning of that proviso, though it was a matter considered in the order of the Appellate Assistant Commissioner. In other words this Court ruled that the only finding that can fall within the scope of second proviso to Section 34 (3) is a finding which is absolutely necessary for the disposal of an appeal and not other incidental findings.6. Let us apply that rule to the facts of the present case. The finding of the Appellate Assistant Commissioner that the Association of persons, consisting of all the heirs of Zahur Bux is not liable in respect of the Mauranipur business, is an essential finding; a finding which was absolutely necessary for the disposal of the case. The further finding that that business had been gifted to Mohd. Shakoor and Mohd. Bashir in the year 1942 is only an incidental finding and not a finding necessary for the disposal of the appeal. Further from that conclusion of the Appellate Assistant Commissioner it does not follow that Mohd. Shakoor and Mohd. Bashir continued to be the owners of the Mauranipur business during the relevant assessment years. Hence we agree with the High Court that the Appellate Assistant Commissioner did not find nor was it necessary for him to find that Mohd. Shakoor and Mohd. Bashir were owners of the Mauranipur business during the relevant assessment years.7. Now, coming to the question of direction, in Murlidhar Bhagwan Das case, (1964) 52 ITR 335 = (AIR 1965 SC 342 ) (supra) this Court held that the directions that Appellate Assistant Commissioner can give, are those falling either under Section 31 (3) (b), (c) or (e) or Section 31 (4). Mr Karkhanis concedes that the direction given by the Appellate Assistant Commissioner does not fall within any one of the provisions mentioned above. Hence we must conclude that the direction given by the Appellate Assistant Commissioner is not one that falls within the scope of the second proviso to Section 34 (3).From the above conclusions it follows that these appeals must fail. But Mr. Karkhanis contended that the finding of the Tribunal in this case that the finding given by the Appellate Assistant Commissioner at the earlier stage is a finding necessary for the disposal of the case, is a finding of fact and, therefore, the High Court could not have interfered with that finding. In the first place, no such contention was taken up before the High Court or in the Memorandum of Appeal. That apart, the conclusion of the Tribunal as to the scope of the Appellate Assistant Commissioners finding is not a finding of fact but one of law.8
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### Explanation:
7. Now, coming to the question of direction, in Murlidhar Bhagwan Das case, (1964) 52 ITR 335 = (AIR 1965 SC 342 ) (supra) this Court held that the directions that Appellate Assistant Commissioner can give, are those falling either under Section 31 (3) (b), (c) or (e) or Section 31 (4). Mr Karkhanis concedes that the direction given by the Appellate Assistant Commissioner does not fall within any one of the provisions mentioned above. Hence we must conclude that the direction given by the Appellate Assistant Commissioner is not one that falls within the scope of the second proviso to Section 34 (3).From the above conclusions it follows that these appeals must fail. But Mr. Karkhanis contended that the finding of the Tribunal in this case that the finding given by the Appellate Assistant Commissioner at the earlier stage is a finding necessary for the disposal of the case, is a finding of fact and, therefore, the High Court could not have interfered with that finding. In the first place, no such contention was taken up before the High Court or in the Memorandum of Appeal. That apart, the conclusion of the Tribunal as to the scope of the Appellate Assistant Commissioners finding is not a finding of fact but one of law.
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Commnr. Of Income Tax, Kanpur Vs. M/S.Sahara India Savings&Invest.Corp.Ltd | amount of deposits according to the terms of contract; (b) "approved securities" means, the securities in which the trustee is authorised to invest trust money by any law for the time being in force in India and bonds or fixed deposits issued by any corporation established or constituted under any Central or State enactments; (c) "public sector banks" means, the State Bank of India, the subsidiary banks and the corresponding new banks referred to in section 45(1) of the Reserve Bank of India Act, 1934 (2 of 1934); (d) "unencumbered approved securities" shall include the approved securities lodged by the company with another institution for advance or any other credit arrangements to the extent to which such securities have not been drawn against or availed of." The object behind issuance of para 6 is to protect the interests of the public who are investing in fixed deposits with the respondent herein. The object is to provide for sufficient capital so that there is no run on such institutions in future if they collapse. Under these Directions, the form of Return is prescribed. It has several parts. We are concerned with Part 5. On reading this Part, it is clear that investments are required to be made by the respondent herein and they are required to be shown in the returns which the respondent herein has to file before the Reserve Bank of India periodically. In this case, there is no dispute as to filing of the returns by the said respondent before the Reserve Bank of India. The point to be noted is that the Directions make it very clear that when respondent herein buys bonds and debentures of approved nature, they constitute investment and they cannot be treated as loans and advances. Therefore, interest on such investment cannot be taxed under the Interest Tax Act, 1974. Before concluding, one aspect needs to be mentioned. One of the question raised by the Department before the Tribunal, though not specifically raised before us, was whether respondent herein was a "credit institution" as defined in section 2(5A) of the Interest Tax Act and, therefore, liable to be taxed under that Act in respect of the Assessment Year 1992-93? To answer the said question, we need to revisit section 2(5A) of the 1974 Act which defined "credit institution" to mean a banking company to which Banking Regulation Act, 1949 applies or a public financial institution as defined in section 4A of the Companies Act, 1956 or a State Financial Corporation established under section 3 or section 3A or an institution notified under section 46 of the State Financial Corporations Act, 1951 or any other financial company. The words " any other financial company" have also been defined under the 1974 Act vide section 2(5B) to mean a company being a hire-purchase finance company or an investment company or a housing finance company or a loan company, or a mutual benefit finance company or a miscellaneous non-banking company. On a bare reading of sections 2(5A) and 2(5B), it is clear that a residuary non- banking company did not figure in section 2(5A) and 2(5B) of 1974 Act. Secondly, para 2 of the 1987 Directions indicates as to what is a residuary non-banking company. We quote herein-below para 2: "These directions shall apply to every residuary non-banking company, that is to say, a non-banking institution, being a company, which receives any deposit under any scheme or arrangement, by whatever name called, in one lump sum or in instalments by way of contributions or subscriptions or by sale of units or certificates or other instruments, or in any other manner and which, according to the definitions contained in the Non-Banking Financial Companies (Reserve Bank) Directions, 1977, or, as the case may be, the Miscellaneous Non-Banking Companies (Reserve Bank) Directions, 1977, is not- (i) an equipment leasing company; (ii) a hire purchase finance company; (iii) a housing finance company; (iv) an insurance company; (v) an investment company; (vi) a loan company; (vii) a mutual benefit financial company; and (viii) miscellaneous non-banking company" On reading para 2 of the 1987 Directions, it becomes clear that a residuary non-banking company is a company which receives deposits under any scheme or arrangement by way of contributions or subscriptions or by sale of units, certificates or other instruments or in any other manner and which, according to the definitions contained in the Non-Banking Financial Companies (Reserve Bank) Directions, 1977, or Miscellaneous Non-Banking Companies (Reserve Bank) Directions, 1977, is not an equipment leasing company, a hire purchase finance company, a house finance company, an insurance company, an investment company, a loan company and a mutual benefit financial company. According to the Department, respondent herein fell under miscellaneous finance company in terms of section 2(5B)(vi) of the 1974 Act. According to the Department, this Finance Act, 1992 operated prospectively and that too w.e.f. 1.4.1993. According to the Department, during the Assessment Year 1992-93, respondent herein stood covered under sub-clause (vi) of section 2(5B). We find no merit in this argument of the Department. Under section 2(5B)(vi), in order to constitute a miscellaneous finance company, it has to be a company which carries on exclusively two or more classes of business referred to in the preceding sub-clauses (i) to (v). In other words, if there is a company which is investment company and also finance company, it can fall under section 2(5B)(vi). Therefore, a residuary non-banking company cannot fall within sub-clause (vi) as contended by the Department as the said sub-clause specifically says that a miscellaneous financial company should carry two or more classes of business referred to in the preceding sub-clauses. Moreover, unlike residuary non-banking companies, none of the companies mentioned in sub-clauses (i) to (v) are empowered to accept deposits. In the circumstances, sub-clause (vi) did not cover residuary non-banking companies prior to 1.4.1993. In the present case, it is not in dispute that after 1.4.1993, respondent herein has been filing its returns under the Interest Tax Act, 1974. For the afore-stat | 0[ds]It is the case of the Department, however, which needs to be addressed at this stage, that prior to 1.10.1991, the word "interest" in section 2(7) was defined so as to include any amount chargeable to income tax under the head "Interest on securities". It is the case of the Department that by an amendment w.e.f. 1.10.1991, the said item, namely, "amount chargeable to income tax under the head Interest on securities" stood deleted and, consequently, "interest on securities" would fall within the definition of the word "interest" under section 2(7). According to the Department, section 2(7) was not exhaustive and with the amendment w.e.f. 1.10.1991 when Interest on securities stood excluded, it (interest on securities) would automatically fall within the purview of the word interest under section 2(7) of the 1974 Act. We find no merit in this argument for two reasons. Firstly, as stated above, section 2(7), read as a whole, focuses only on interests accruing on loans and advances, commitment charges and discount on promissory notes and bills of exchange. It also specifically excludes interest under section 42(1B) of the Reserve Bank of India Act as well as discount on treasury bills. It was very easy for the Parliament to expressly provide for "interest on investments" to fall under section 2(7), but that has not been done. The reason is obvious. As stated above, one of the objects of enacting the 1974 Act is by way of any measure. In an inflationary situation, the cost of borrowing for the Government also increases. One of the ways by which the cost of borrowing can be reduced is to see that companies like the respondent herein are made to invest in bonds and securities so that the Government is able to borrow monies at a cheaper rate as compared to its borrowings in the market. It is precisely for this reason that the Reserve Bank of India, which is a Regulator and which is responsible for the credit management of the economy and which is empowered to issue Directions from time to time not only with the object of regulating the credit but also to control businesses likeg financial companies and residuaryg companies by issuing directions under Chapter IIIB of the Reserve Bank of India Act, issues directions and one of such directions which has been issued in the present case is called as "Residuaryg Companies (Reserve Bank) Directions, 1987. These Directions have been issued under sections 45J and 45K of the Reserve Bank of India Act, 1934On analysing section 45J, as it applies to the relevant period, read with section 45K, it is clear that the Reserve Bank of India insists ong institutions, which collect deposits, to provide for information in specified forms in relation to receipt of deposits including rates of interest payable byg institutions on such deposits as well as the period for which the deposits may be received. Under section 45K(4), if anyg institution fails to comply with any of the directions given by the Bank, the Reserve Bank may even prohibit the acceptance of deposits by thatg institution. These stringent provisions are made in the Reserve Bank of India Act for a reason that companies like respondent herein receives deposits from the public. To safeguard their interests, the Reserve Bank, as a Regulator, insists that every company, including respondent herein which is a nonbanking institution, has to submit its returns in the prescribed form every year and it is in that light that the Reserve Bank of India has specifically issued what is called as Residuaryg Companies (Reserve Bank) Directions, 1987Before concluding, one aspect needs to be mentioned. One of the question raised by the Department before the Tribunal, though not specifically raised before us, was whether respondent herein was a "credit institution" as defined in section 2(5A) of the Interest Tax Act and, therefore, liable to be taxed under that Act in respect of the Assessment Year? To answer the said question, we need to revisit section 2(5A) of the 1974 Act which defined "credit institution" to mean a banking company to which Banking Regulation Act, 1949 applies or a public financial institution as defined in section 4A of the Companies Act, 1956 or a State Financial Corporation established under section 3 or section 3A or an institution notified under section 46 of the State Financial Corporations Act, 1951 or any other financial companyOn reading para 2 of the 1987 Directions, it becomes clear that a residuaryg company is a company which receives deposits under any scheme or arrangement by way of contributions or subscriptions or by sale of units, certificates or other instruments or in any other manner and which, according to the definitions contained in theg Financial Companies (Reserve Bank) Directions, 1977, or Miscellaneousg Companies (Reserve Bank) Directions, 1977, is not an equipment leasing company, a hire purchase finance company, a house finance company, an insurance company, an investment company, a loan company and a mutual benefit financial company. According to the Department, respondent herein fell under miscellaneous finance company in terms of section 2(5B)(vi) of the 1974 Act. According to the Department, this Finance Act, 1992 operated prospectively and that too w.e.f. 1.4.1993. According to the Department, during the Assessment Year, respondent herein stood covered undere (vi) of section 2(5B). We find no merit in this argument of the Department. Under section 2(5B)(vi), in order to constitute a miscellaneous finance company, it has to be a company which carries on exclusively two or more classes of business referred to in the precedings (i) to (v). In other words, if there is a company which is investment company and also finance company, it can fall under section 2(5B)(vi). Therefore, a residuaryg company cannot fall withine (vi) as contended by the Department as the saide specifically says that a miscellaneous financial company should carry two or more classes of business referred to in the preceding. Moreover, unlike residuaryg companies, none of the companies mentioned ins (i) to (v) are empowered to accept deposits. In the circumstances,e (vi) did not cover residuaryg companies prior to 1.4.1993. In the present case, it is not in dispute that after 1.4.1993, respondent herein has been filing its returns under the Interest Tax Act, 1974. | 0 | 5,376 | 1,240 | ### 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:
amount of deposits according to the terms of contract; (b) "approved securities" means, the securities in which the trustee is authorised to invest trust money by any law for the time being in force in India and bonds or fixed deposits issued by any corporation established or constituted under any Central or State enactments; (c) "public sector banks" means, the State Bank of India, the subsidiary banks and the corresponding new banks referred to in section 45(1) of the Reserve Bank of India Act, 1934 (2 of 1934); (d) "unencumbered approved securities" shall include the approved securities lodged by the company with another institution for advance or any other credit arrangements to the extent to which such securities have not been drawn against or availed of." The object behind issuance of para 6 is to protect the interests of the public who are investing in fixed deposits with the respondent herein. The object is to provide for sufficient capital so that there is no run on such institutions in future if they collapse. Under these Directions, the form of Return is prescribed. It has several parts. We are concerned with Part 5. On reading this Part, it is clear that investments are required to be made by the respondent herein and they are required to be shown in the returns which the respondent herein has to file before the Reserve Bank of India periodically. In this case, there is no dispute as to filing of the returns by the said respondent before the Reserve Bank of India. The point to be noted is that the Directions make it very clear that when respondent herein buys bonds and debentures of approved nature, they constitute investment and they cannot be treated as loans and advances. Therefore, interest on such investment cannot be taxed under the Interest Tax Act, 1974. Before concluding, one aspect needs to be mentioned. One of the question raised by the Department before the Tribunal, though not specifically raised before us, was whether respondent herein was a "credit institution" as defined in section 2(5A) of the Interest Tax Act and, therefore, liable to be taxed under that Act in respect of the Assessment Year 1992-93? To answer the said question, we need to revisit section 2(5A) of the 1974 Act which defined "credit institution" to mean a banking company to which Banking Regulation Act, 1949 applies or a public financial institution as defined in section 4A of the Companies Act, 1956 or a State Financial Corporation established under section 3 or section 3A or an institution notified under section 46 of the State Financial Corporations Act, 1951 or any other financial company. The words " any other financial company" have also been defined under the 1974 Act vide section 2(5B) to mean a company being a hire-purchase finance company or an investment company or a housing finance company or a loan company, or a mutual benefit finance company or a miscellaneous non-banking company. On a bare reading of sections 2(5A) and 2(5B), it is clear that a residuary non- banking company did not figure in section 2(5A) and 2(5B) of 1974 Act. Secondly, para 2 of the 1987 Directions indicates as to what is a residuary non-banking company. We quote herein-below para 2: "These directions shall apply to every residuary non-banking company, that is to say, a non-banking institution, being a company, which receives any deposit under any scheme or arrangement, by whatever name called, in one lump sum or in instalments by way of contributions or subscriptions or by sale of units or certificates or other instruments, or in any other manner and which, according to the definitions contained in the Non-Banking Financial Companies (Reserve Bank) Directions, 1977, or, as the case may be, the Miscellaneous Non-Banking Companies (Reserve Bank) Directions, 1977, is not- (i) an equipment leasing company; (ii) a hire purchase finance company; (iii) a housing finance company; (iv) an insurance company; (v) an investment company; (vi) a loan company; (vii) a mutual benefit financial company; and (viii) miscellaneous non-banking company" On reading para 2 of the 1987 Directions, it becomes clear that a residuary non-banking company is a company which receives deposits under any scheme or arrangement by way of contributions or subscriptions or by sale of units, certificates or other instruments or in any other manner and which, according to the definitions contained in the Non-Banking Financial Companies (Reserve Bank) Directions, 1977, or Miscellaneous Non-Banking Companies (Reserve Bank) Directions, 1977, is not an equipment leasing company, a hire purchase finance company, a house finance company, an insurance company, an investment company, a loan company and a mutual benefit financial company. According to the Department, respondent herein fell under miscellaneous finance company in terms of section 2(5B)(vi) of the 1974 Act. According to the Department, this Finance Act, 1992 operated prospectively and that too w.e.f. 1.4.1993. According to the Department, during the Assessment Year 1992-93, respondent herein stood covered under sub-clause (vi) of section 2(5B). We find no merit in this argument of the Department. Under section 2(5B)(vi), in order to constitute a miscellaneous finance company, it has to be a company which carries on exclusively two or more classes of business referred to in the preceding sub-clauses (i) to (v). In other words, if there is a company which is investment company and also finance company, it can fall under section 2(5B)(vi). Therefore, a residuary non-banking company cannot fall within sub-clause (vi) as contended by the Department as the said sub-clause specifically says that a miscellaneous financial company should carry two or more classes of business referred to in the preceding sub-clauses. Moreover, unlike residuary non-banking companies, none of the companies mentioned in sub-clauses (i) to (v) are empowered to accept deposits. In the circumstances, sub-clause (vi) did not cover residuary non-banking companies prior to 1.4.1993. In the present case, it is not in dispute that after 1.4.1993, respondent herein has been filing its returns under the Interest Tax Act, 1974. For the afore-stat
### Response:
0
### Explanation:
under the head "Interest on securities". It is the case of the Department that by an amendment w.e.f. 1.10.1991, the said item, namely, "amount chargeable to income tax under the head Interest on securities" stood deleted and, consequently, "interest on securities" would fall within the definition of the word "interest" under section 2(7). According to the Department, section 2(7) was not exhaustive and with the amendment w.e.f. 1.10.1991 when Interest on securities stood excluded, it (interest on securities) would automatically fall within the purview of the word interest under section 2(7) of the 1974 Act. We find no merit in this argument for two reasons. Firstly, as stated above, section 2(7), read as a whole, focuses only on interests accruing on loans and advances, commitment charges and discount on promissory notes and bills of exchange. It also specifically excludes interest under section 42(1B) of the Reserve Bank of India Act as well as discount on treasury bills. It was very easy for the Parliament to expressly provide for "interest on investments" to fall under section 2(7), but that has not been done. The reason is obvious. As stated above, one of the objects of enacting the 1974 Act is by way of any measure. In an inflationary situation, the cost of borrowing for the Government also increases. One of the ways by which the cost of borrowing can be reduced is to see that companies like the respondent herein are made to invest in bonds and securities so that the Government is able to borrow monies at a cheaper rate as compared to its borrowings in the market. It is precisely for this reason that the Reserve Bank of India, which is a Regulator and which is responsible for the credit management of the economy and which is empowered to issue Directions from time to time not only with the object of regulating the credit but also to control businesses likeg financial companies and residuaryg companies by issuing directions under Chapter IIIB of the Reserve Bank of India Act, issues directions and one of such directions which has been issued in the present case is called as "Residuaryg Companies (Reserve Bank) Directions, 1987. These Directions have been issued under sections 45J and 45K of the Reserve Bank of India Act, 1934On analysing section 45J, as it applies to the relevant period, read with section 45K, it is clear that the Reserve Bank of India insists ong institutions, which collect deposits, to provide for information in specified forms in relation to receipt of deposits including rates of interest payable byg institutions on such deposits as well as the period for which the deposits may be received. Under section 45K(4), if anyg institution fails to comply with any of the directions given by the Bank, the Reserve Bank may even prohibit the acceptance of deposits by thatg institution. These stringent provisions are made in the Reserve Bank of India Act for a reason that companies like respondent herein receives deposits from the public. To safeguard their interests, the Reserve Bank, as a Regulator, insists that every company, including respondent herein which is a nonbanking institution, has to submit its returns in the prescribed form every year and it is in that light that the Reserve Bank of India has specifically issued what is called as Residuaryg Companies (Reserve Bank) Directions, 1987Before concluding, one aspect needs to be mentioned. One of the question raised by the Department before the Tribunal, though not specifically raised before us, was whether respondent herein was a "credit institution" as defined in section 2(5A) of the Interest Tax Act and, therefore, liable to be taxed under that Act in respect of the Assessment Year? To answer the said question, we need to revisit section 2(5A) of the 1974 Act which defined "credit institution" to mean a banking company to which Banking Regulation Act, 1949 applies or a public financial institution as defined in section 4A of the Companies Act, 1956 or a State Financial Corporation established under section 3 or section 3A or an institution notified under section 46 of the State Financial Corporations Act, 1951 or any other financial companyOn reading para 2 of the 1987 Directions, it becomes clear that a residuaryg company is a company which receives deposits under any scheme or arrangement by way of contributions or subscriptions or by sale of units, certificates or other instruments or in any other manner and which, according to the definitions contained in theg Financial Companies (Reserve Bank) Directions, 1977, or Miscellaneousg Companies (Reserve Bank) Directions, 1977, is not an equipment leasing company, a hire purchase finance company, a house finance company, an insurance company, an investment company, a loan company and a mutual benefit financial company. According to the Department, respondent herein fell under miscellaneous finance company in terms of section 2(5B)(vi) of the 1974 Act. According to the Department, this Finance Act, 1992 operated prospectively and that too w.e.f. 1.4.1993. According to the Department, during the Assessment Year, respondent herein stood covered undere (vi) of section 2(5B). We find no merit in this argument of the Department. Under section 2(5B)(vi), in order to constitute a miscellaneous finance company, it has to be a company which carries on exclusively two or more classes of business referred to in the precedings (i) to (v). In other words, if there is a company which is investment company and also finance company, it can fall under section 2(5B)(vi). Therefore, a residuaryg company cannot fall withine (vi) as contended by the Department as the saide specifically says that a miscellaneous financial company should carry two or more classes of business referred to in the preceding. Moreover, unlike residuaryg companies, none of the companies mentioned ins (i) to (v) are empowered to accept deposits. In the circumstances,e (vi) did not cover residuaryg companies prior to 1.4.1993. In the present case, it is not in dispute that after 1.4.1993, respondent herein has been filing its returns under the Interest Tax Act, 1974.
|
U.P. Financial Corpn. Vs. Naini Oxygen & Acetylengens Co. Ltd.&Anr | Company was compelled to file an application for contempt being CMP No. 2715 of 1989. That Contempt Petition is still pending. The Company would, therefore, also be entitled to be compensated for the losses caused to it on account of the non-fulfilment of the undertaking given by the Corporation to the Court. 20. No doubt, there is nothing on record to explain certain events, viz., (i) when on 19th October, 1985 the Corporation had issued to the Company a formal letter communicating to it its acceptance of the rehabilitation package and grant of reliefs and concessions set out therein, what impelled the Corporation to issue recovery notice on 9th January, 1986 which was later on stayed by the Corporation itself on 18th January, 1986; (ii) if on 2nd May, 1986, the Corporation had informed the State-Level Inter-institutional Committee that it had stayed the recovery proceedings, what impelled the Corporation once again to issue the recovery notice on 13th May, 1986; (iii) if the Corporation itself had agreed by its letter on 19th October, 1985 to reschedule the payment of loan from 1987 to 1996, what impelled it to issue the said recovery notice on 13th May, 1986 when admittedly as per the Corporations offer, the payment of loan and interest from the Company was not due and when the entire matter of the rehabilitation of the Company was under active consideration; (iv) what impelled the Corporation on 13th June, 1986 to seal the unit and write to the customers not to pay the bills and not to return the cylinders of the Company; (v) when on 11th August, 1986, the Corporation had written to the Company agreeing to give it back the possession of the unit and to follow the rehabilitation proposal that would be prepared by the IRBI on the condition that the Directors of the Company would give personal guarantee for the payment of the liabilities and the Company had accepted the terms by it letter of 21st August, 1986 and when the Director of Industries had advised the Corporation on 12th August, 1986 to withdraw the recovery notice, why had the Corporation not handed over the possession of the unit to the Company; (vi) why had the Corporation not taken steps to repair the machines, in spite of the undertaking given to this Court and (vii) why had the Corporation not accepted the report of the IRBI submitted on 5th February, 1988 to this Court when the IRBI was prepared to invest term loan of Rs. 1.9 crores for making the unit marginally viable? 21. However, we cannot lose sight of the fact that the Corporation is an independent autonomous statutory body having its own constitution and rules to abide by, and functions and obligations to discharge. As such, in the discharge of its functions, it is free to act according to its own light. The views it forms and the decisions it takes are on the basis of the information in its possession and the advice it receives and according to its own perspective and calculations. Unless its action is malafide, even a wrong decision taken by it is not open to challenge. It is not for the courts for a third party to substitute its decision, however more prudent, commercial or business like it may be, for the decision of the Corporation. Hence, whatever the wisdom (or the lack of it) of the conduct of the Corporation, the same cannot be assailed for making the Corporation liable. 22. It cannot further be forgotten that in the present case, the Company had made persistent defaults in repayment of the loan-instalments with the result that recovery certificate had to be issued against it under Section 3 of the U.P. Public Moneys (Recovery of Dues) Act. The then management had mismanaged the Company and a Company Petition had to be filed seeking its removal on grave charges of manipulation of accounts, reallotment of forfeited shares, etc. The non-discharge of the liabilities of the Company was on account of the said fraudulent practices of the management. By 30th May, 1986, the dues of the Company mounted to Rs. 90,31,102.13 with the result that on 13th June, 1986, the Corporation had to take over its industrial establishment under Section 29 of the Act. The report of the IRBI which was given at the instance of this Court on 29th January, 1988 had stated that the industrial unit could be made only marginally viable provided another Rs. one crore were invested in it and the loan instalments were rescheduled. Between 1981 when the industrial establishment was closed down in 1988 when the IRBI report was submitted, the machinery of the establishment was lying idle and was almost rusty with the result that by 1988, the value of the machinery had gone down considerably, while its liabilities had gone up still further. In the circumstances , if the Corporation thought that the revival of the unit even after giving all concessions and reliefs as per the package deal was problematic and the Corporation will stand to lose whatever little it could retrieve towards its dues, the Corporation could hardly be blamed for the same. 23. We are, therefore, of the view that this is not a matter where the High Court should have stepped in and substituted its judgment of the judgment of the Corporation which should be deemed to know its interests better whatever the sympathies the Court had for the prosperity of the Company. In matters commercial, the courts should not risk their judgments for the judgments of the bodies to whom that task is assigned. 24. If the situation was bad on the date of the impugned judgment, it has become worse today. Between 1988 when the IRBI gave its report and this day, the situation has worsened with the further deterioration of the machinery and the spiralling of the liabilities. To grant any indulgence to the Company at this stage will be akin to flogging a dead horse. | 1[ds]8. As against the aforesaid case of the Corporation, the contention of the Company is that pursuant to the loan sanctioned by the Corporation, the Company imported twocompressors from the U.S.A. and commissioned the Acetylene and Oxygen plants in 1979 and 1980 respectively. On account of the mismanagement of the majority group then dominating the management of the company, the present management which consisted of a minority of shareholders, had to institute proceedings in the High Court under Sections 397 and 398 of the Companies Act, and in Feburary 1984 the High Court under a compromise order got the shares of the then management tramsferred to the present management at the face value of Rs. 10/per share. The equity capital invested by the present management, viz., D.P. Agrawal Group, therefore, became of the order of Rs. 18 lakhs. Thereafter, the present management took various steps to revive the Company which had become sick and brought the plants into running condition after overhauling them at a considerable cost. For the purpose, the present management gave loans of about Rs. 30 lakhs to the Company. On this investment, the total investment of the present management group became of the order of about Rs. 50 lakhs.Both the Acetylene and Oxygen plants, in the meanwhile, were working to full capacity, the same being 24 hour continuous process plants. However, on 13th June, 1986, the Corporation got the factory sealed and the workers were forcibly evicted from the factory. This arbitrary action of the Corporation was criticised by all Government agencies and officers in (written) letter which are on record. They are: IRBIs letter dated 30th June, 1987, Canara Banks letters dated 14th, 16th and 17th June, 1986; letter dated 28th June, 1986 of the Commissioner, Rehabilitation Division and the letter dated 30th June, 1986 of the Additional Director of Industries. The Corporation, however, did not consider the advice given by these institutions and instead wrote to the Companys customers asking them not to pay the dues of the Companys bills and not to return the Companys empty cylinders (about 1000 of the value of about Rs. 20 lakhs). The said cylinders are now not traceable with the lapse of time.It was in these circumstances that the Company was forced to file the writ petition in the High Court on 1st August, 1986. The High Court had, by its impugned judgment, found that the action of the Corporation was very arbitrary and had directed it to restore the possession to the Company forthwith. It had also directed the IRBI to prepare rehabilitation package within four months of the restoration of the possession.At the time the Corporation sealed the unit viz., on 13th June, 1986, according to the Company, the value of its assets was about Rs. 96 lakhs. This valuation had been done at the instance of the Corporation by a registered valuer in the later part of 1985. Under the Rehabilitation Package proposed by the Corporation, the Company was liable to pay to it the principal amount of Rs. 30 lakhs and interest on it is deferred instalments from 1987 to 1993 and without any further interest on the said interest amount in easy instalments from 1987 to 1996. In addition, the liabilities of the Canara Bank had already been quantified at Rs. 12.5 lakhs and the Bank had also to recover the said liabilities in easy instalments. Thus, as against the assets of the Company worth Rs. 96 lakhs, the total liabilities of the Company to the Corporation and the Canara Bank together were between Rs. 75 to 80 lakhs and these liabilities were also to be discharged in easy instalments upto 1996. Hence it is the case of the Company that the impugned judgment of the High Court was perfectly justified.However, the Corporation obtained the stay of the said judgment from this Court which has continued from 1987 to this day. The result has been that the plants have continued to remain closed and the interest has continued to accumulate on the dues of the Corporation and the Canara Bank. The plants have, in the meanwhile become almost a junk, and the cylinders worth Rs. 20 lakhs are not traceable. Today, the total value of the assets including land and buildings has come down to Rs. 42 lakhs from Rs. 96 lakhs in 1986. It is, therefore, the contention of the Company before us that the Corporations appeal should be dismissed and the Company should be restored to the same position in which it had been on the date the stay order was obtained in this appeal. It is contended that if the stay order had not been obtained by the Corporation, the Company would have got the possession of the plants in January 1987 in good condition and its liabilities would have been only between Rs. 75 to 80 lakhs. The Company further prays that the interest which has accrued on the dues of the Corporation should be waived and that on the dues of the Canara Bank should be borne by the Corporation. It is further contended by the Company that as per the order of this Court passed on 5th March, 1987, the IRBI has submitted its report on 5th February, 1988 according to which the unit was found viable. In this connection, the following passages from the said report are relied upon by thespite of the undertaking to carry out the repairs, the Corporation did not do so with the result the Company was compelled to file an application for contempt being CMP No. 2715 of 1989. That Contempt Petition is still pending. The Company would, therefore, also be entitled to be compensated for the losses caused to it on account of theof the undertaking given by the Corporation to the Court.No doubt, there is nothing on record to explain certain events, viz., (i) when on 19th October, 1985 the Corporation had issued to the Company a formal letter communicating to it its acceptance of the rehabilitation package and grant of reliefs and concessions set out therein, what impelled the Corporation to issue recovery notice on 9th January, 1986 which was later on stayed by the Corporation itself on 18th January, 1986; (ii) if on 2nd May, 1986, the Corporation had informed thel Committee that it had stayed the recovery proceedings, what impelled the Corporation once again to issue the recovery notice on 13th May, 1986; (iii) if the Corporation itself had agreed by its letter on 19th October, 1985 to reschedule the payment of loan from 1987 to 1996, what impelled it to issue the said recovery notice on 13th May, 1986 when admittedly as per the Corporations offer, the payment of loan and interest from the Company was not due and when the entire matter of the rehabilitation of the Company was under active consideration; (iv) what impelled the Corporation on 13th June, 1986 to seal the unit and write to the customers not to pay the bills and not to return the cylinders of the Company; (v) when on 11th August, 1986, the Corporation had written to the Company agreeing to give it back the possession of the unit and to follow the rehabilitation proposal that would be prepared by the IRBI on the condition that the Directors of the Company would give personal guarantee for the payment of the liabilities and the Company had accepted the terms by it letter of 21st August, 1986 and when the Director of Industries had advised the Corporation on 12th August, 1986 to withdraw the recovery notice, why had the Corporation not handed over the possession of the unit to the Company; (vi) why had the Corporation not taken steps to repair the machines, in spite of the undertaking given to this Court and (vii) why had the Corporation not accepted the report of the IRBI submitted on 5th February, 1988 to this Court when the IRBI was prepared to invest term loan of Rs. 1.9 crores for making the unit marginallyWe are, therefore, of the view that this is not a matter where the High Court should have stepped in and substituted its judgment of the judgment of the Corporation which should be deemed to know its interests better whatever the sympathies the Court had for the prosperity of the Company. In matters commercial, the courts should not risk their judgments for the judgments of the bodies to whom that task is assigned.If the situation was bad on the date of the impugned judgment, it has become worse today. Between 1988 when the IRBI gave its report and this day, the situation has worsened with the further deterioration of the machinery and the spiralling of the liabilities. To grant any indulgence to the Company at this stage will be akin to flogging a dead horse. | 1 | 4,399 | 1,626 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
Company was compelled to file an application for contempt being CMP No. 2715 of 1989. That Contempt Petition is still pending. The Company would, therefore, also be entitled to be compensated for the losses caused to it on account of the non-fulfilment of the undertaking given by the Corporation to the Court. 20. No doubt, there is nothing on record to explain certain events, viz., (i) when on 19th October, 1985 the Corporation had issued to the Company a formal letter communicating to it its acceptance of the rehabilitation package and grant of reliefs and concessions set out therein, what impelled the Corporation to issue recovery notice on 9th January, 1986 which was later on stayed by the Corporation itself on 18th January, 1986; (ii) if on 2nd May, 1986, the Corporation had informed the State-Level Inter-institutional Committee that it had stayed the recovery proceedings, what impelled the Corporation once again to issue the recovery notice on 13th May, 1986; (iii) if the Corporation itself had agreed by its letter on 19th October, 1985 to reschedule the payment of loan from 1987 to 1996, what impelled it to issue the said recovery notice on 13th May, 1986 when admittedly as per the Corporations offer, the payment of loan and interest from the Company was not due and when the entire matter of the rehabilitation of the Company was under active consideration; (iv) what impelled the Corporation on 13th June, 1986 to seal the unit and write to the customers not to pay the bills and not to return the cylinders of the Company; (v) when on 11th August, 1986, the Corporation had written to the Company agreeing to give it back the possession of the unit and to follow the rehabilitation proposal that would be prepared by the IRBI on the condition that the Directors of the Company would give personal guarantee for the payment of the liabilities and the Company had accepted the terms by it letter of 21st August, 1986 and when the Director of Industries had advised the Corporation on 12th August, 1986 to withdraw the recovery notice, why had the Corporation not handed over the possession of the unit to the Company; (vi) why had the Corporation not taken steps to repair the machines, in spite of the undertaking given to this Court and (vii) why had the Corporation not accepted the report of the IRBI submitted on 5th February, 1988 to this Court when the IRBI was prepared to invest term loan of Rs. 1.9 crores for making the unit marginally viable? 21. However, we cannot lose sight of the fact that the Corporation is an independent autonomous statutory body having its own constitution and rules to abide by, and functions and obligations to discharge. As such, in the discharge of its functions, it is free to act according to its own light. The views it forms and the decisions it takes are on the basis of the information in its possession and the advice it receives and according to its own perspective and calculations. Unless its action is malafide, even a wrong decision taken by it is not open to challenge. It is not for the courts for a third party to substitute its decision, however more prudent, commercial or business like it may be, for the decision of the Corporation. Hence, whatever the wisdom (or the lack of it) of the conduct of the Corporation, the same cannot be assailed for making the Corporation liable. 22. It cannot further be forgotten that in the present case, the Company had made persistent defaults in repayment of the loan-instalments with the result that recovery certificate had to be issued against it under Section 3 of the U.P. Public Moneys (Recovery of Dues) Act. The then management had mismanaged the Company and a Company Petition had to be filed seeking its removal on grave charges of manipulation of accounts, reallotment of forfeited shares, etc. The non-discharge of the liabilities of the Company was on account of the said fraudulent practices of the management. By 30th May, 1986, the dues of the Company mounted to Rs. 90,31,102.13 with the result that on 13th June, 1986, the Corporation had to take over its industrial establishment under Section 29 of the Act. The report of the IRBI which was given at the instance of this Court on 29th January, 1988 had stated that the industrial unit could be made only marginally viable provided another Rs. one crore were invested in it and the loan instalments were rescheduled. Between 1981 when the industrial establishment was closed down in 1988 when the IRBI report was submitted, the machinery of the establishment was lying idle and was almost rusty with the result that by 1988, the value of the machinery had gone down considerably, while its liabilities had gone up still further. In the circumstances , if the Corporation thought that the revival of the unit even after giving all concessions and reliefs as per the package deal was problematic and the Corporation will stand to lose whatever little it could retrieve towards its dues, the Corporation could hardly be blamed for the same. 23. We are, therefore, of the view that this is not a matter where the High Court should have stepped in and substituted its judgment of the judgment of the Corporation which should be deemed to know its interests better whatever the sympathies the Court had for the prosperity of the Company. In matters commercial, the courts should not risk their judgments for the judgments of the bodies to whom that task is assigned. 24. If the situation was bad on the date of the impugned judgment, it has become worse today. Between 1988 when the IRBI gave its report and this day, the situation has worsened with the further deterioration of the machinery and the spiralling of the liabilities. To grant any indulgence to the Company at this stage will be akin to flogging a dead horse.
### Response:
1
### Explanation:
at the instance of the Corporation by a registered valuer in the later part of 1985. Under the Rehabilitation Package proposed by the Corporation, the Company was liable to pay to it the principal amount of Rs. 30 lakhs and interest on it is deferred instalments from 1987 to 1993 and without any further interest on the said interest amount in easy instalments from 1987 to 1996. In addition, the liabilities of the Canara Bank had already been quantified at Rs. 12.5 lakhs and the Bank had also to recover the said liabilities in easy instalments. Thus, as against the assets of the Company worth Rs. 96 lakhs, the total liabilities of the Company to the Corporation and the Canara Bank together were between Rs. 75 to 80 lakhs and these liabilities were also to be discharged in easy instalments upto 1996. Hence it is the case of the Company that the impugned judgment of the High Court was perfectly justified.However, the Corporation obtained the stay of the said judgment from this Court which has continued from 1987 to this day. The result has been that the plants have continued to remain closed and the interest has continued to accumulate on the dues of the Corporation and the Canara Bank. The plants have, in the meanwhile become almost a junk, and the cylinders worth Rs. 20 lakhs are not traceable. Today, the total value of the assets including land and buildings has come down to Rs. 42 lakhs from Rs. 96 lakhs in 1986. It is, therefore, the contention of the Company before us that the Corporations appeal should be dismissed and the Company should be restored to the same position in which it had been on the date the stay order was obtained in this appeal. It is contended that if the stay order had not been obtained by the Corporation, the Company would have got the possession of the plants in January 1987 in good condition and its liabilities would have been only between Rs. 75 to 80 lakhs. The Company further prays that the interest which has accrued on the dues of the Corporation should be waived and that on the dues of the Canara Bank should be borne by the Corporation. It is further contended by the Company that as per the order of this Court passed on 5th March, 1987, the IRBI has submitted its report on 5th February, 1988 according to which the unit was found viable. In this connection, the following passages from the said report are relied upon by thespite of the undertaking to carry out the repairs, the Corporation did not do so with the result the Company was compelled to file an application for contempt being CMP No. 2715 of 1989. That Contempt Petition is still pending. The Company would, therefore, also be entitled to be compensated for the losses caused to it on account of theof the undertaking given by the Corporation to the Court.No doubt, there is nothing on record to explain certain events, viz., (i) when on 19th October, 1985 the Corporation had issued to the Company a formal letter communicating to it its acceptance of the rehabilitation package and grant of reliefs and concessions set out therein, what impelled the Corporation to issue recovery notice on 9th January, 1986 which was later on stayed by the Corporation itself on 18th January, 1986; (ii) if on 2nd May, 1986, the Corporation had informed thel Committee that it had stayed the recovery proceedings, what impelled the Corporation once again to issue the recovery notice on 13th May, 1986; (iii) if the Corporation itself had agreed by its letter on 19th October, 1985 to reschedule the payment of loan from 1987 to 1996, what impelled it to issue the said recovery notice on 13th May, 1986 when admittedly as per the Corporations offer, the payment of loan and interest from the Company was not due and when the entire matter of the rehabilitation of the Company was under active consideration; (iv) what impelled the Corporation on 13th June, 1986 to seal the unit and write to the customers not to pay the bills and not to return the cylinders of the Company; (v) when on 11th August, 1986, the Corporation had written to the Company agreeing to give it back the possession of the unit and to follow the rehabilitation proposal that would be prepared by the IRBI on the condition that the Directors of the Company would give personal guarantee for the payment of the liabilities and the Company had accepted the terms by it letter of 21st August, 1986 and when the Director of Industries had advised the Corporation on 12th August, 1986 to withdraw the recovery notice, why had the Corporation not handed over the possession of the unit to the Company; (vi) why had the Corporation not taken steps to repair the machines, in spite of the undertaking given to this Court and (vii) why had the Corporation not accepted the report of the IRBI submitted on 5th February, 1988 to this Court when the IRBI was prepared to invest term loan of Rs. 1.9 crores for making the unit marginallyWe are, therefore, of the view that this is not a matter where the High Court should have stepped in and substituted its judgment of the judgment of the Corporation which should be deemed to know its interests better whatever the sympathies the Court had for the prosperity of the Company. In matters commercial, the courts should not risk their judgments for the judgments of the bodies to whom that task is assigned.If the situation was bad on the date of the impugned judgment, it has become worse today. Between 1988 when the IRBI gave its report and this day, the situation has worsened with the further deterioration of the machinery and the spiralling of the liabilities. To grant any indulgence to the Company at this stage will be akin to flogging a dead horse.
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UNION OF INDIA Vs. SHYAMAL CHAKRAVARTY | 1. Leave granted. 2. We have heard the learned counsels for the parties. 3. The challenge in these appeals by the Union of India and the State of Jharkhand is to an order of the High Court of Jharkhand by which the charges framed against the accused respondents under Sections 120B, 420, 477A of the Indian Penal Code, 1860 and Section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 has been quashed. 4. Charges, as aforesaid, against the accused respondents were framed by an order dated 8th March, 2013. The learned trial Court had rejected the application for discharge filed by the accused. The said order dated 8th March, 2013 was challenged before the High Court. During the pendency of the said challenge before the High Court, in the absence of any interim order, the learned trial Court framed charges, as aforesaid, by order dated 29th April, 2013 which was also called into question. The High Court having accepted the challenge, the Union of India as well as the State of Jharkhand are before this Court. 5. We have perused the materials on record and have considered the submissions advanced at the bar. We have specifically taken note of the findings of the learned trial Court recorded in the order dated 8th March, 2013 refusing to discharge the accused respondents. We do not find any consideration of the aforesaid findings of the learned trial Court in its order dated 8th March, 2013 in the impugned judgment and order of the High Court. The principal basis on which the High Court seems to have proceeded is that in the absence of any allegations against the company of which the respondent Nos. 2 to 5 (Bhalotias) were the Directors, the criminal proceedings against the said respondents would not be maintainable. Insofar as the accused respondent No.1 - Shyamal Chakravarty is concerned the High Court recorded the view that apart from submitting bids on behalf of three firms with antedated cheques there is no other allegation against the accused respondent No.1. 6. We do not consider it proper to record any finding on the aforesaid views expressed by the High Court and the contentions advanced at the bar, save and except to say that we do not agree with the High Court that the case merited interdiction at the threshold as has been done. It is our considered view that having regard to the materials on record the proceedings against the accused respondents should have been allowed to continue and the truth should have been permitted to be unravelled in the course of the full-fledged trial. | 1[ds]5. We have perused the materials on record and have considered the submissions advanced at the bar. We have specifically taken note of the findings of the learned trial Court recorded in the order dated 8th March, 2013 refusing to discharge the accused respondents. We do not find any consideration of the aforesaid findings of the learned trial Court in its order dated 8th March, 2013 in the impugned judgment and order of the High Court. The principal basis on which the High Court seems to have proceeded is that in the absence of any allegations against the company of which the respondent Nos. 2 to 5 (Bhalotias) were the Directors, the criminal proceedings against the said respondents would not be maintainable. Insofar as the accused respondent No.1 - Shyamal Chakravarty is concerned the High Court recorded the view that apart from submitting bids on behalf of three firms with antedated cheques there is no other allegation against the accused respondent No.1.6. We do not consider it proper to record any finding on the aforesaid views expressed by the High Court and the contentions advanced at the bar, save and except to say that we do not agree with the High Court that the case merited interdiction at the threshold as has been done. It is our considered view that having regard to the materials on record the proceedings against the accused respondents should have been allowed to continue and the truth should have been permitted to be unravelled in the course of the full-fledged trial. | 1 | 488 | 275 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
1. Leave granted. 2. We have heard the learned counsels for the parties. 3. The challenge in these appeals by the Union of India and the State of Jharkhand is to an order of the High Court of Jharkhand by which the charges framed against the accused respondents under Sections 120B, 420, 477A of the Indian Penal Code, 1860 and Section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 has been quashed. 4. Charges, as aforesaid, against the accused respondents were framed by an order dated 8th March, 2013. The learned trial Court had rejected the application for discharge filed by the accused. The said order dated 8th March, 2013 was challenged before the High Court. During the pendency of the said challenge before the High Court, in the absence of any interim order, the learned trial Court framed charges, as aforesaid, by order dated 29th April, 2013 which was also called into question. The High Court having accepted the challenge, the Union of India as well as the State of Jharkhand are before this Court. 5. We have perused the materials on record and have considered the submissions advanced at the bar. We have specifically taken note of the findings of the learned trial Court recorded in the order dated 8th March, 2013 refusing to discharge the accused respondents. We do not find any consideration of the aforesaid findings of the learned trial Court in its order dated 8th March, 2013 in the impugned judgment and order of the High Court. The principal basis on which the High Court seems to have proceeded is that in the absence of any allegations against the company of which the respondent Nos. 2 to 5 (Bhalotias) were the Directors, the criminal proceedings against the said respondents would not be maintainable. Insofar as the accused respondent No.1 - Shyamal Chakravarty is concerned the High Court recorded the view that apart from submitting bids on behalf of three firms with antedated cheques there is no other allegation against the accused respondent No.1. 6. We do not consider it proper to record any finding on the aforesaid views expressed by the High Court and the contentions advanced at the bar, save and except to say that we do not agree with the High Court that the case merited interdiction at the threshold as has been done. It is our considered view that having regard to the materials on record the proceedings against the accused respondents should have been allowed to continue and the truth should have been permitted to be unravelled in the course of the full-fledged trial.
### Response:
1
### Explanation:
5. We have perused the materials on record and have considered the submissions advanced at the bar. We have specifically taken note of the findings of the learned trial Court recorded in the order dated 8th March, 2013 refusing to discharge the accused respondents. We do not find any consideration of the aforesaid findings of the learned trial Court in its order dated 8th March, 2013 in the impugned judgment and order of the High Court. The principal basis on which the High Court seems to have proceeded is that in the absence of any allegations against the company of which the respondent Nos. 2 to 5 (Bhalotias) were the Directors, the criminal proceedings against the said respondents would not be maintainable. Insofar as the accused respondent No.1 - Shyamal Chakravarty is concerned the High Court recorded the view that apart from submitting bids on behalf of three firms with antedated cheques there is no other allegation against the accused respondent No.1.6. We do not consider it proper to record any finding on the aforesaid views expressed by the High Court and the contentions advanced at the bar, save and except to say that we do not agree with the High Court that the case merited interdiction at the threshold as has been done. It is our considered view that having regard to the materials on record the proceedings against the accused respondents should have been allowed to continue and the truth should have been permitted to be unravelled in the course of the full-fledged trial.
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THE GREATER MOHALI AREA DEVELOPMENT AUTHORITY Vs. ARMINDERJIT KAUR | Abhay Manohar Sapre, J.1. Leave granted.2. These appeals are filed against the interim orders passed by the High Court of Punjab and Haryana at Chandigarh on dated 01.02.2018 in C.M. No.7303-CI of 2017 in R.F.A. No.3096 of 2017, C.M. No.8310-CI of 2017 in R.F.A. No.3536 of 2017 and dated 03.04.2018 in C.M. No.709-CI of 2018 in R.F.A. No.1172 of 2017.3. These appeals involve a short point as would be clear from a few facts mentioned hereinbelow.4. The proceedings arise out of land acquisition proceedings. The Land Acquisition Officer offered the compensation to the landowners (respondents herein) for their acquired land in question at the rate of Rs.1.36 crore per acre.5. However, the Civil Court (Reference Court) in reference proceedings filed at the instance of the landowners against the award of Land Acquisition Officer enhanced the rate of compensation payable to the landowners at Rs.3,8686925/- crores per acre. The figure of enhancement, however, varies marginally in other connected cases.6. The appellant-Authority as also the landowners have filed their respective first appeals in the High Court of Punjab & Haryana at Chandigarh against the award of the Civil Court (Reference Court).7. The appellant in their appeal has claimed reduction of the amount awarded by the Civil Court whereas the respondents (landowners) have claimed further enhancement in the rate of compensation awarded by the Reference Court. The appeals are pending for their final disposal.8. By impugned interim orders, the High Court disposed of the stay applications (CM No. 7303-CI of 2017 and others) filed by the appellant (Greater Mohali Area Development Authority- GMADA) in their pending first appeals (RFA No. 3096 of 2017 and connected matters) filed against the award dated 14.02.2017 passed by Additional District Judge, SAS Nagar, Mohali in LAC No. 00052/2014 and other connected matters.9. The operative part of the impugned order reads as under :?Keeping in view the above, the appellants shall deposit the sum of Rs.3.50 crores per acre within 3 months along with statutory benefits and the landowners will be entitled to withdraw the same in the above terms also.Applications stand disposed of. However, it is made clear that in case the amount is not deposited, the stay shall automatically stand vacated.?10. The appellant felt aggrieved by the aforesaid interim order of the High Court and has filed the present appeals by way of special leave in this Court questioning its legality and correctness.11. Heard Ms. Rachna Joshi Issar, learned counsel for the appellant, Mr. V.Giri, Mr. V.K. Garg, learned senior counsel and Ms. Kaveeta Wadia, learned counsel for the respondents.12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dispose of these appeals by passing following order.13. The appellant shall deposit the entire awarded sum, which is the subject matter of these appeals in the High Court within 3 months. | 1[ds]12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dispose of these appeals by passing following order.13. The appellant shall deposit the entire awarded sum, which is the subject matter of these appeals in the High Court within 3 months. | 1 | 541 | 62 | ### 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:
Abhay Manohar Sapre, J.1. Leave granted.2. These appeals are filed against the interim orders passed by the High Court of Punjab and Haryana at Chandigarh on dated 01.02.2018 in C.M. No.7303-CI of 2017 in R.F.A. No.3096 of 2017, C.M. No.8310-CI of 2017 in R.F.A. No.3536 of 2017 and dated 03.04.2018 in C.M. No.709-CI of 2018 in R.F.A. No.1172 of 2017.3. These appeals involve a short point as would be clear from a few facts mentioned hereinbelow.4. The proceedings arise out of land acquisition proceedings. The Land Acquisition Officer offered the compensation to the landowners (respondents herein) for their acquired land in question at the rate of Rs.1.36 crore per acre.5. However, the Civil Court (Reference Court) in reference proceedings filed at the instance of the landowners against the award of Land Acquisition Officer enhanced the rate of compensation payable to the landowners at Rs.3,8686925/- crores per acre. The figure of enhancement, however, varies marginally in other connected cases.6. The appellant-Authority as also the landowners have filed their respective first appeals in the High Court of Punjab & Haryana at Chandigarh against the award of the Civil Court (Reference Court).7. The appellant in their appeal has claimed reduction of the amount awarded by the Civil Court whereas the respondents (landowners) have claimed further enhancement in the rate of compensation awarded by the Reference Court. The appeals are pending for their final disposal.8. By impugned interim orders, the High Court disposed of the stay applications (CM No. 7303-CI of 2017 and others) filed by the appellant (Greater Mohali Area Development Authority- GMADA) in their pending first appeals (RFA No. 3096 of 2017 and connected matters) filed against the award dated 14.02.2017 passed by Additional District Judge, SAS Nagar, Mohali in LAC No. 00052/2014 and other connected matters.9. The operative part of the impugned order reads as under :?Keeping in view the above, the appellants shall deposit the sum of Rs.3.50 crores per acre within 3 months along with statutory benefits and the landowners will be entitled to withdraw the same in the above terms also.Applications stand disposed of. However, it is made clear that in case the amount is not deposited, the stay shall automatically stand vacated.?10. The appellant felt aggrieved by the aforesaid interim order of the High Court and has filed the present appeals by way of special leave in this Court questioning its legality and correctness.11. Heard Ms. Rachna Joshi Issar, learned counsel for the appellant, Mr. V.Giri, Mr. V.K. Garg, learned senior counsel and Ms. Kaveeta Wadia, learned counsel for the respondents.12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dispose of these appeals by passing following order.13. The appellant shall deposit the entire awarded sum, which is the subject matter of these appeals in the High Court within 3 months.
### Response:
1
### Explanation:
12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dispose of these appeals by passing following order.13. The appellant shall deposit the entire awarded sum, which is the subject matter of these appeals in the High Court within 3 months.
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Gunjan Girishbhai Mehta Vs. Director of Investigation and Ors | 1. Heard the learned Counsel for the parties and perused the relevant material. Delay condoned. 2. Notice Under Section 132 of the IT Act, 1961 (for short the Act) was issued in the name of a dead person. The said notice was duly received by the present Petitioner as the legal heir of the dead person. Notice of assessment Under Section 158BC of the Act was issued and in the assessment proceedings, where the income was declared to be nil, the present Petitioner as the legal heir had participated. Thereafter, notice Under Section 158BD of the Act was issued to the present Petitioner on the basis of information coming to light in the course of search. Aggrieved, the Petitioner moved the High Court and on dismissal of the writ petition filed, the present special leave petition has been instituted. 3. The point urged before us, shortly put, is that if the original search warrant is invalid the consequential action Under Section 158BD would also be invalid. We do not agree. The issue of invalidity of the search warrant was not raised at any point of time prior to the notice Under Section 158BD. In fact, the Petitioner had participated in the proceedings of assessment initiated Under Section 158BC of the Act. The information discovered in the course of the search, if capable of generating the satisfaction for issuing a notice Under Section 158BD, cannot altogether become irrelevant for further action Under Section 158BD of the Act. 4. The reliance placed on the decision of the High Court of Punjab & Haryana in CIT v. Rakesh Kumar, Mukesh Kumar L/H of Late Mohar Singh (2008) 219 CTR (P & H) 494 : (2008) 13 DTR (P & H) 209 : (2009) 178 Taxman 224 (P & H) : (2009) 313 ITR 305 (P & H) against which Special Leave Petition [SLP(C) No. ..CC 3623 of 2009] has been dismissed by this Court and the decision of this Court in Asstt. CIT v. A.R. Enterprises (2013) 256 CTR (SC) 1 : (2013) 82 DTR (SC) 97 : (2013) 350 ITR 489 (SC) are on entirely different facts. 5. In Rakesh Kumar, Mukesh Kumar (supra) the challenge was to the proceedings of assessment Under Section 158BC of the Act on the basis of a search warrant issued in the name of a dead person. The issue in A.R. Enterprises (supra) has no similarity to the issue in hand, namely, the validity of the proceedings Under Section 158BD of the Act. | 0[ds]We do not agree. The issue of invalidity of the search warrant was not raised at any point of time prior to the notice Under Section 158BD. In fact, the Petitioner had participated in the proceedings of assessment initiated Under Section 158BC of the Act. The information discovered in the course of the search, if capable of generating the satisfaction for issuing a notice Under Section 158BD, cannot altogether become irrelevant for further action Under Section 158BD of the Act.4. The reliance placed on the decision of the High Court of Punjab & Haryana in CIT v. Rakesh Kumar, Mukesh Kumar L/H of Late Mohar Singh (2008) 219 CTR (P & H) 494 : (2008) 13 DTR (P & H) 209 : (2009) 178 Taxman 224 (P & H) : (2009) 313 ITR 305 (P & H) against which Special Leave Petition [SLP(C) No. ..CC 3623 of 2009] has been dismissed by this Court and the decision of this Court in Asstt. CIT v. A.R. Enterprises (2013) 256 CTR (SC) 1 : (2013) 82 DTR (SC) 97 : (2013) 350 ITR 489 (SC) are on entirely different facts.5. In Rakesh Kumar, Mukesh Kumar (supra) the challenge was to the proceedings of assessment Under Section 158BC of the Act on the basis of a search warrant issued in the name of a dead person. The issue in A.R. Enterprises (supra) has no similarity to the issue in hand, namely, the validity of the proceedings Under Section 158BD of the Act. | 0 | 497 | 310 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
1. Heard the learned Counsel for the parties and perused the relevant material. Delay condoned. 2. Notice Under Section 132 of the IT Act, 1961 (for short the Act) was issued in the name of a dead person. The said notice was duly received by the present Petitioner as the legal heir of the dead person. Notice of assessment Under Section 158BC of the Act was issued and in the assessment proceedings, where the income was declared to be nil, the present Petitioner as the legal heir had participated. Thereafter, notice Under Section 158BD of the Act was issued to the present Petitioner on the basis of information coming to light in the course of search. Aggrieved, the Petitioner moved the High Court and on dismissal of the writ petition filed, the present special leave petition has been instituted. 3. The point urged before us, shortly put, is that if the original search warrant is invalid the consequential action Under Section 158BD would also be invalid. We do not agree. The issue of invalidity of the search warrant was not raised at any point of time prior to the notice Under Section 158BD. In fact, the Petitioner had participated in the proceedings of assessment initiated Under Section 158BC of the Act. The information discovered in the course of the search, if capable of generating the satisfaction for issuing a notice Under Section 158BD, cannot altogether become irrelevant for further action Under Section 158BD of the Act. 4. The reliance placed on the decision of the High Court of Punjab & Haryana in CIT v. Rakesh Kumar, Mukesh Kumar L/H of Late Mohar Singh (2008) 219 CTR (P & H) 494 : (2008) 13 DTR (P & H) 209 : (2009) 178 Taxman 224 (P & H) : (2009) 313 ITR 305 (P & H) against which Special Leave Petition [SLP(C) No. ..CC 3623 of 2009] has been dismissed by this Court and the decision of this Court in Asstt. CIT v. A.R. Enterprises (2013) 256 CTR (SC) 1 : (2013) 82 DTR (SC) 97 : (2013) 350 ITR 489 (SC) are on entirely different facts. 5. In Rakesh Kumar, Mukesh Kumar (supra) the challenge was to the proceedings of assessment Under Section 158BC of the Act on the basis of a search warrant issued in the name of a dead person. The issue in A.R. Enterprises (supra) has no similarity to the issue in hand, namely, the validity of the proceedings Under Section 158BD of the Act.
### Response:
0
### Explanation:
We do not agree. The issue of invalidity of the search warrant was not raised at any point of time prior to the notice Under Section 158BD. In fact, the Petitioner had participated in the proceedings of assessment initiated Under Section 158BC of the Act. The information discovered in the course of the search, if capable of generating the satisfaction for issuing a notice Under Section 158BD, cannot altogether become irrelevant for further action Under Section 158BD of the Act.4. The reliance placed on the decision of the High Court of Punjab & Haryana in CIT v. Rakesh Kumar, Mukesh Kumar L/H of Late Mohar Singh (2008) 219 CTR (P & H) 494 : (2008) 13 DTR (P & H) 209 : (2009) 178 Taxman 224 (P & H) : (2009) 313 ITR 305 (P & H) against which Special Leave Petition [SLP(C) No. ..CC 3623 of 2009] has been dismissed by this Court and the decision of this Court in Asstt. CIT v. A.R. Enterprises (2013) 256 CTR (SC) 1 : (2013) 82 DTR (SC) 97 : (2013) 350 ITR 489 (SC) are on entirely different facts.5. In Rakesh Kumar, Mukesh Kumar (supra) the challenge was to the proceedings of assessment Under Section 158BC of the Act on the basis of a search warrant issued in the name of a dead person. The issue in A.R. Enterprises (supra) has no similarity to the issue in hand, namely, the validity of the proceedings Under Section 158BD of the Act.
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M/s. Amritsar Sugar Mills Co. Ltd Vs. Commissioner of Sales Tax, Uttar Pradesh | a contract that despatch instructions would be furnished later necessarily means that the seller undertakes to comply with them. If under a contract itself something is to be settled later, what is settled later becomes as much binding under the contract itself as the terms already settled under the contract. Still, I do not think that the sales in those cases in which the contracts provided for despatch instructions to be given later became sales for delivery outside Uttar Pradesh merely because the despatch instructions were that they should be despatched outside Uttar Pradesh. All that can be said is that the sales were for "delivery in accordance with despatch instructions" and a sale for "delivery in accordance with despatch instructions" is not necessarily a sale for "delivery outside Uttar Pradesh."He seemed to be of the view that in order to come within the expression "delivery outside Uttar Pradesh" it must be one of the terms settled at the time of the formation of the contract itself that the goods will be delivered outside Uttar Pradesh, and if this is not so settled and all that is settled is that they will be delivered in accordance with despatch instructions the sale would neither be a sale for delivery outside Uttar Pradesh nor a sale for delivery inside Uttar Pradesh. He was clearly of the view that despatch instructions were not a part of the contract when it was formed and did not get incorporated into it or become a part of it when given. Pathak, J., in a concurring judgment, was of the view that it must be in the contemplation of the parties at the time of entering into the contract that the goods which were the subject of sale must be delivered outside Uttar Pradesh. He observed that "there is a distinction between settling and determining the terms of a contract and complying with the terms of that contract. The former relates to the formation of the contract, the latter to its execution."7. The first question which arises in these appeals is whether the word "delivery" in the expression "sales of such goods for delivery outside Uttar Pradesh" occurring in S. 5 of the Act means actual delivery or constructive delivery. If it means constructive delivery then there is no doubt that on the facts as stated by the Judge (Revisions) the contract provided for constructive delivery inside Uttar Pradesh and the assessee mills would not be entitled to rebate under S. 5.8. the Madras High Court had occasion to consider a similar question in India Coffee and Tea Distributing Co. Ltd. v. State of Madras, 1959-10 STC 359 (Mad). It held that the word "delivery" in S. 5 of the Madras General Sales Tax Act, 1939, which exempts from taxation sales of tea "if the sale is for delivery outside the State and delivery actually was made" did not include anything which the law deemed "delivery" but was restricted to physical delivery of the thing sold. In coming to this conclusion, Subrahmanyam, J., observed:"In deciding whether the word "delivery" in S. 5 (v) includes delivery in law, we have regard to the objects of the Legislature in enacting S. 5 (v). The object obviously was the promotion of the export of tea. The Legislature intended that where tea was exported from the State for being delivered outside the State, the sale which resulted in such export should be exempt from taxation. That object would not be wholly achieved if we hold that delivery of documents of title in the State of Madras would make the sale liable to taxation."9. We agree with the view expressed by the Madras High Court. It seems to us that the object underlying S. 5 is to encourage export of goods manufactured in Uttar Pradesh and notified under S. 5. The course of trade adopted by the Indian Sugar Syndicate Ltd. and the assessee mills shows that if the word "delivery" is interpreted to mean constructive delivery very few export sales, if we may use the expression, would enjoy rebate under S. 5. As long a s the contract evinces an intention to export and actual delivery is given to effectuate that intention the object of the Legislature to ensure that only real export sales enjoy the rebate would be fulfilled. It seems to us that in the context of S. 5 the word delivery occurring in S. 5 means actual delivery.10. The next question that arises is whether the sales by the assessee mills were for actual delivery outside Uttar Pradesh. The answer to this problem depends on the answer to the question whether despatch instructions contemplated by Cl. 2 and Cl. 3 of the contract were part of the contract entered into by the assessee mills. It seems to us that they were. The contract by the assessee mills was to actually deliver at a place to be communicated. This view is reinforced by what is contained in Cl. 11 of the contract. This clause contemplated a destination in spite of constructive delivery having been contracted be made at Rohana Kalan Station. Further, the contract was not to actually deliver at some place to be chosen or assented to by the assessee mills but at any place without restrictions. The contract required nothing more for completion than a mention of the place.When the despatch instructions were given, it was not a case of performing the contract but specifying a term of the contract. If the place of actual delivery had been specified and it was a question merely of communicating the route by which the goods were to be delivered this would perhaps relate to the mode of performance of the contract. But communication of the place where actual delivery is to be given does not relate to the mode of performance but formation of the contract. It seems to us, with respect, that the High Court erred in relating despatch instructions to the mode of performance of the contract.11 | 1[ds]9. We agree with the view expressed by the Madras High Court. It seems to us that the object underlying S. 5 is to encourage export of goods manufactured in Uttar Pradesh and notified under S. 5. The course of trade adopted by the Indian Sugar Syndicate Ltd. and the assessee mills shows that if the word "delivery" is interpreted to mean constructive delivery very few export sales, if we may use the expression, would enjoy rebate under S. 5. As long a s the contract evinces an intention to export and actual delivery is given to effectuate that intention the object of the Legislature to ensure that only real export sales enjoy the rebate would be fulfilled. It seems to us that in the context of S. 5 the word delivery occurring in S. 5 means actualanswer to this problem depends on the answer to the question whether despatch instructions contemplated by Cl. 2 and Cl. 3 of the contract were part of the contract entered into by the assessee mills. It seems to us that they were. The contract by the assessee mills was to actually deliver at a place to be communicated. This view is reinforced by what is contained in Cl. 11 of the contract. This clause contemplated a destination in spite of constructive delivery having been contracted be made at Rohana Kalan Station. Further, the contract was not to actually deliver at some place to be chosen or assented to by the assessee mills but at any place without restrictions. The contract required nothing more for completion than a mention of the place.When the despatch instructions were given, it was not a case of performing the contract but specifying a term of the contract. If the place of actual delivery had been specified and it was a question merely of communicating the route by which the goods were to be delivered this would perhaps relate to the mode of performance of the contract. But communication of the place where actual delivery is to be given does not relate to the mode of performance but formation of the contract. It seems to us, with respect, that the High Court erred in relating despatch instructions to the mode of performance of the contract.e next question that arises is whether the sales by the assessee mills were for actual delivery outside Uttar Pradesh.answer to this problem depends on the answer to the question whether despatch instructions contemplated by Cl. 2 and Cl. 3 of the contract were part of the contract entered into by the assessee mills. It seems to us that they were. The contract by the assessee mills was to actually deliver at a place to be communicated. This view is reinforced by what is contained in Cl. 11 of the contract. This clause contemplated a destination in spite of constructive delivery having been contracted be made at Rohana Kalan Station. Further, the contract was not to actually deliver at some place to be chosen or assented to by the assessee mills but at any place without restrictions. The contract required nothing more for completion than a mention of the place.When the despatch instructions were given, it was not a case of performing the contract but specifying a term of the contract. If the place of actual delivery had been specified and it was a question merely of communicating the route by which the goods were to be delivered this would perhaps relate to the mode of performance of the contract. But communication of the place where actual delivery is to be given does not relate to the mode of performance but formation of the contract. It seems to us, with respect, that the High Court erred in relating despatch instructions to the mode of performance of the contract. | 1 | 3,444 | 679 | ### 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:
a contract that despatch instructions would be furnished later necessarily means that the seller undertakes to comply with them. If under a contract itself something is to be settled later, what is settled later becomes as much binding under the contract itself as the terms already settled under the contract. Still, I do not think that the sales in those cases in which the contracts provided for despatch instructions to be given later became sales for delivery outside Uttar Pradesh merely because the despatch instructions were that they should be despatched outside Uttar Pradesh. All that can be said is that the sales were for "delivery in accordance with despatch instructions" and a sale for "delivery in accordance with despatch instructions" is not necessarily a sale for "delivery outside Uttar Pradesh."He seemed to be of the view that in order to come within the expression "delivery outside Uttar Pradesh" it must be one of the terms settled at the time of the formation of the contract itself that the goods will be delivered outside Uttar Pradesh, and if this is not so settled and all that is settled is that they will be delivered in accordance with despatch instructions the sale would neither be a sale for delivery outside Uttar Pradesh nor a sale for delivery inside Uttar Pradesh. He was clearly of the view that despatch instructions were not a part of the contract when it was formed and did not get incorporated into it or become a part of it when given. Pathak, J., in a concurring judgment, was of the view that it must be in the contemplation of the parties at the time of entering into the contract that the goods which were the subject of sale must be delivered outside Uttar Pradesh. He observed that "there is a distinction between settling and determining the terms of a contract and complying with the terms of that contract. The former relates to the formation of the contract, the latter to its execution."7. The first question which arises in these appeals is whether the word "delivery" in the expression "sales of such goods for delivery outside Uttar Pradesh" occurring in S. 5 of the Act means actual delivery or constructive delivery. If it means constructive delivery then there is no doubt that on the facts as stated by the Judge (Revisions) the contract provided for constructive delivery inside Uttar Pradesh and the assessee mills would not be entitled to rebate under S. 5.8. the Madras High Court had occasion to consider a similar question in India Coffee and Tea Distributing Co. Ltd. v. State of Madras, 1959-10 STC 359 (Mad). It held that the word "delivery" in S. 5 of the Madras General Sales Tax Act, 1939, which exempts from taxation sales of tea "if the sale is for delivery outside the State and delivery actually was made" did not include anything which the law deemed "delivery" but was restricted to physical delivery of the thing sold. In coming to this conclusion, Subrahmanyam, J., observed:"In deciding whether the word "delivery" in S. 5 (v) includes delivery in law, we have regard to the objects of the Legislature in enacting S. 5 (v). The object obviously was the promotion of the export of tea. The Legislature intended that where tea was exported from the State for being delivered outside the State, the sale which resulted in such export should be exempt from taxation. That object would not be wholly achieved if we hold that delivery of documents of title in the State of Madras would make the sale liable to taxation."9. We agree with the view expressed by the Madras High Court. It seems to us that the object underlying S. 5 is to encourage export of goods manufactured in Uttar Pradesh and notified under S. 5. The course of trade adopted by the Indian Sugar Syndicate Ltd. and the assessee mills shows that if the word "delivery" is interpreted to mean constructive delivery very few export sales, if we may use the expression, would enjoy rebate under S. 5. As long a s the contract evinces an intention to export and actual delivery is given to effectuate that intention the object of the Legislature to ensure that only real export sales enjoy the rebate would be fulfilled. It seems to us that in the context of S. 5 the word delivery occurring in S. 5 means actual delivery.10. The next question that arises is whether the sales by the assessee mills were for actual delivery outside Uttar Pradesh. The answer to this problem depends on the answer to the question whether despatch instructions contemplated by Cl. 2 and Cl. 3 of the contract were part of the contract entered into by the assessee mills. It seems to us that they were. The contract by the assessee mills was to actually deliver at a place to be communicated. This view is reinforced by what is contained in Cl. 11 of the contract. This clause contemplated a destination in spite of constructive delivery having been contracted be made at Rohana Kalan Station. Further, the contract was not to actually deliver at some place to be chosen or assented to by the assessee mills but at any place without restrictions. The contract required nothing more for completion than a mention of the place.When the despatch instructions were given, it was not a case of performing the contract but specifying a term of the contract. If the place of actual delivery had been specified and it was a question merely of communicating the route by which the goods were to be delivered this would perhaps relate to the mode of performance of the contract. But communication of the place where actual delivery is to be given does not relate to the mode of performance but formation of the contract. It seems to us, with respect, that the High Court erred in relating despatch instructions to the mode of performance of the contract.11
### Response:
1
### Explanation:
9. We agree with the view expressed by the Madras High Court. It seems to us that the object underlying S. 5 is to encourage export of goods manufactured in Uttar Pradesh and notified under S. 5. The course of trade adopted by the Indian Sugar Syndicate Ltd. and the assessee mills shows that if the word "delivery" is interpreted to mean constructive delivery very few export sales, if we may use the expression, would enjoy rebate under S. 5. As long a s the contract evinces an intention to export and actual delivery is given to effectuate that intention the object of the Legislature to ensure that only real export sales enjoy the rebate would be fulfilled. It seems to us that in the context of S. 5 the word delivery occurring in S. 5 means actualanswer to this problem depends on the answer to the question whether despatch instructions contemplated by Cl. 2 and Cl. 3 of the contract were part of the contract entered into by the assessee mills. It seems to us that they were. The contract by the assessee mills was to actually deliver at a place to be communicated. This view is reinforced by what is contained in Cl. 11 of the contract. This clause contemplated a destination in spite of constructive delivery having been contracted be made at Rohana Kalan Station. Further, the contract was not to actually deliver at some place to be chosen or assented to by the assessee mills but at any place without restrictions. The contract required nothing more for completion than a mention of the place.When the despatch instructions were given, it was not a case of performing the contract but specifying a term of the contract. If the place of actual delivery had been specified and it was a question merely of communicating the route by which the goods were to be delivered this would perhaps relate to the mode of performance of the contract. But communication of the place where actual delivery is to be given does not relate to the mode of performance but formation of the contract. It seems to us, with respect, that the High Court erred in relating despatch instructions to the mode of performance of the contract.e next question that arises is whether the sales by the assessee mills were for actual delivery outside Uttar Pradesh.answer to this problem depends on the answer to the question whether despatch instructions contemplated by Cl. 2 and Cl. 3 of the contract were part of the contract entered into by the assessee mills. It seems to us that they were. The contract by the assessee mills was to actually deliver at a place to be communicated. This view is reinforced by what is contained in Cl. 11 of the contract. This clause contemplated a destination in spite of constructive delivery having been contracted be made at Rohana Kalan Station. Further, the contract was not to actually deliver at some place to be chosen or assented to by the assessee mills but at any place without restrictions. The contract required nothing more for completion than a mention of the place.When the despatch instructions were given, it was not a case of performing the contract but specifying a term of the contract. If the place of actual delivery had been specified and it was a question merely of communicating the route by which the goods were to be delivered this would perhaps relate to the mode of performance of the contract. But communication of the place where actual delivery is to be given does not relate to the mode of performance but formation of the contract. It seems to us, with respect, that the High Court erred in relating despatch instructions to the mode of performance of the contract.
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Bapusaheb Chimasaheb Naik-Nimbalkr(Dead Through Lrs.) Vs. Mahesh Vijaysinha Rajebhosale | cause of action that had arisen to plaintiff on the death of her mother on 2.9.1968, obviously under Article 65(b) but the same was again a case where mother was having a life interest. In the instant matter, as Shakuntalabai was not having a life interest, Article 65(b) of the Act has no application.12. Article 65(b) applies where the female was a `limited owner with regard to the disputed property. Hence, if the sale is not for legal purposes, it would not be binding on the estate, the husbands heirs who would be entitled to inherit the estate after the widows death, would be entitled on such death to sue for the recovery of the property from the purchaser. As their right would be one derived from the husband and not from the widow, it would be independent of the widow and they would be the persons "entitled to sue for possession of the property on the death of the widow" within the meaning of Explanation (b) to Article 65. Hence, the above Explanation will apply to their suit and they would be entitled to a period of 12 years from the widows death within which to bring the suit as held by Full Bench verdicts in Amar Singh & Ors. v. Sewa Ram & Ors. AIR 1960 Punjab 530, Harak Singh v. Kailash Singh and Anr. AIR 1958 Pat. 581 ; and Mt. Lukai W/o Katikram and Ors. v. Niranjan Dayaram and Ors. AIR 1958 MP 160 .13. In the instant case possession never became adverse to the plaintiffs. There is concurrent finding recorded that the plaintiffs were in joint possession of the disputed land on the date of filing of the suit. The defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of Shakuntalabai but they have not been able to prove their adverse possession. On the contrary the finding is that Chimasaheb admitted the title of Anandibai. The finding is that till 1976, Chimasaheb never denied the title of Anandibai. Be that as it may. As adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation.14. Coming to the second question raised on behalf of the appellants as to the suit being barred by Order 2, Rule 2 of the CPC, suffice it to say that the earlier suit based on different cause of action for a declaration for one-half of the share in certain other properties was filed by Anandibai in the year 1963. At that time the property in question was not included in the suit. It had been found by courts below, the suit of 1963 was based on different cause of action on the basis of deed of 1957 whereas in the instant case, cause of action is different. It is on the basis of death of absolute owner Shakuntalabai in the year 1962, Anandibai became owner and plaintiffs had in turn inherited from Anandibai. Thus the cause of action of the suit in the present case for partition is different and dispute as to mutation had been subsequently decided. Thus, the suit for partition as filed, could not be said to be barred by Order 2, Rule 2 CPC. The defendants were trying to sell the property in the year 1979 as such the plaintiffs in the suit prayed for partition and separate possession. Plaintiffs could not have claimed interest in the land in the life-time of Anandibai and the cause of action in the previous suit for declaration of title filed by Anandibai was materially different.15. Rule 2 Order 2 CPC does not apply if the cause of action in the subsequent suit is different from that of the former suit as held by this Court in State of M.P. v. State of Maharashtra (1977) 2 SCC 288. In State of Maharashtra v. National Construction Co. (1996) 1 SCC 735 , when the first suit was filed to enforce bank guarantee whereas second suit to claim damages for breach of underlying contract, this Court laid down that the subsequent suit was not barred by Order 2, Rule 2 CPC. In the case of continuing or recurring wrong there would be corresponding continuing or recurring causes of action when the first suit was based on infringement of plaintiffs trade mark, second suit was on the continuing act or infringement of its trade mark and continuous passing of action subsequent to filing of the earlier suit, in Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. (1997) 1 SCC 99 , it was held that the cause of actions in two suits were different as such the bar of Order 2, Rule 2 CPC was not attracted. The essential requirement for applicability of Order 2, Rule 2 CPC is to establish the identity of causes of action in the previous suit and the subsequent suit so as to attract the bar as held in Deva Ram v. Ishwar Chand 1995(3) R.R.R. 717 : (1995) 6 SCC 733 and Gurbux Singh v. Bhooralal AIR 1964 SC 1810 .16. In the instant case it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit plaintiff was not entitled to more than one relief. Hence, it could not be said that the plaintiff has omitted to sue for relief for which second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order 2, Rule 2 CPC. Submission to the contrary is too tenuous to be accepted. | 0[ds]We are unable to accept the submission as Explanation (b) to Article 65 of the Act is applicable only in the case where property is not claimed through the female but independently of woman who has died. The word "entitled" contained in Explanation (b) to Article 65 clearly means a person is entitled independently of the right of the Hindu or Mohammedan female. In case she is absolute owner Article 65(b) will have no application. In other words, it is necessary to trace the right to someone else and not to the Hindu or Mohammedan female, as the case may be. In the instant case, Shakuntalabai, daughter of Shankara Rao became absolute owner of the property on 6.2.1958 and on her death on 1.10.1962, the right accrued to Anandibai on the basis of inheritance made from Shakuntalabai who was the owner of the ½ share in question. When the property is claimed from a woman, Hindu or Mohammedan, who was the full owner, it could not be said that Anandibai or the plaintiffs became entitled to the property independently of the rights of female i.e. Shakuntalabai. Thus the suit filed by such heir of female for separate possession/partition would not be governed by Explanation (b) to Article 65. In such a case limitation would not commence as per Explanation (b) to Article 65 on death of female Hindu. However, the starting point of limitation for computation of 12 years would be the date of start of adverse possession otherwise.In the instant case possession never became adverse to the plaintiffs. There is concurrent finding recorded that the plaintiffs were in joint possession of the disputed land on the date of filing of the suit. The defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of Shakuntalabai but they have not been able to prove their adverse possession. On the contrary the finding is that Chimasaheb admitted the title of Anandibai. The finding is that till 1976, Chimasaheb never denied the title of Anandibai. Be that as it may. As adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation.14. Coming to the second question raised on behalf of the appellants as to the suit being barred by Order 2, Rule 2 of the CPC, suffice it to say that the earlier suit based on different cause of action for a declaration for one-half of the share in certain other properties was filed by Anandibai in the year 1963. At that time the property in question was not included in the suit. It had been found by courts below, the suit of 1963 was based on different cause of action on the basis of deed of 1957 whereas in the instant case, cause of action is different. It is on the basis of death of absolute owner Shakuntalabai in the year 1962, Anandibai became owner and plaintiffs had in turn inherited from Anandibai. Thus the cause of action of the suit in the present case for partition is different and dispute as to mutation had been subsequently decided. Thus, the suit for partition as filed, could not be said to be barred by Order 2, Rule 2 CPC. The defendants were trying to sell the property in the year 1979 as such the plaintiffs in the suit prayed for partition and separate possession. Plaintiffs could not have claimed interest in the land in the life-time of Anandibai and the cause of action in the previous suit for declaration of title filed by Anandibai was materially different.15. Rule 2 Order 2 CPC does not apply if the cause of action in the subsequent suit is different from that of the former suit as held by this Court in State of M.P. v. State of Maharashtra (1977) 2 SCC 288. In State of Maharashtra v. National Construction Co. (1996) 1 SCC 735 , when the first suit was filed to enforce bank guarantee whereas second suit to claim damages for breach of underlying contract, this Court laid down that the subsequent suit was not barred by Order 2, Rule 2 CPC. In the case of continuing or recurring wrong there would be corresponding continuing or recurring causes of action when the first suit was based on infringement of plaintiffs trade mark, second suit was on the continuing act or infringement of its trade mark and continuous passing of action subsequent to filing of the earlier suit, in Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. (1997) 1 SCC 99 , it was held that the cause of actions in two suits were different as such the bar of Order 2, Rule 2 CPC was not attracted. The essential requirement for applicability of Order 2, Rule 2 CPC is to establish the identity of causes of action in the previous suit and the subsequent suit so as to attract the bar as held in Deva Ram v. Ishwar Chand 1995(3) R.R.R. 717 : (1995) 6 SCC 733 and Gurbux Singh v. Bhooralal AIR 1964 SC 1810 .16. In the instant case it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit plaintiff was not entitled to more than one relief. Hence, it could not be said that the plaintiff has omitted to sue for relief for which second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order 2, Rule 2 CPC. Submission to the contrary is too tenuous to be accepted. | 0 | 4,003 | 1,092 | ### 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:
cause of action that had arisen to plaintiff on the death of her mother on 2.9.1968, obviously under Article 65(b) but the same was again a case where mother was having a life interest. In the instant matter, as Shakuntalabai was not having a life interest, Article 65(b) of the Act has no application.12. Article 65(b) applies where the female was a `limited owner with regard to the disputed property. Hence, if the sale is not for legal purposes, it would not be binding on the estate, the husbands heirs who would be entitled to inherit the estate after the widows death, would be entitled on such death to sue for the recovery of the property from the purchaser. As their right would be one derived from the husband and not from the widow, it would be independent of the widow and they would be the persons "entitled to sue for possession of the property on the death of the widow" within the meaning of Explanation (b) to Article 65. Hence, the above Explanation will apply to their suit and they would be entitled to a period of 12 years from the widows death within which to bring the suit as held by Full Bench verdicts in Amar Singh & Ors. v. Sewa Ram & Ors. AIR 1960 Punjab 530, Harak Singh v. Kailash Singh and Anr. AIR 1958 Pat. 581 ; and Mt. Lukai W/o Katikram and Ors. v. Niranjan Dayaram and Ors. AIR 1958 MP 160 .13. In the instant case possession never became adverse to the plaintiffs. There is concurrent finding recorded that the plaintiffs were in joint possession of the disputed land on the date of filing of the suit. The defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of Shakuntalabai but they have not been able to prove their adverse possession. On the contrary the finding is that Chimasaheb admitted the title of Anandibai. The finding is that till 1976, Chimasaheb never denied the title of Anandibai. Be that as it may. As adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation.14. Coming to the second question raised on behalf of the appellants as to the suit being barred by Order 2, Rule 2 of the CPC, suffice it to say that the earlier suit based on different cause of action for a declaration for one-half of the share in certain other properties was filed by Anandibai in the year 1963. At that time the property in question was not included in the suit. It had been found by courts below, the suit of 1963 was based on different cause of action on the basis of deed of 1957 whereas in the instant case, cause of action is different. It is on the basis of death of absolute owner Shakuntalabai in the year 1962, Anandibai became owner and plaintiffs had in turn inherited from Anandibai. Thus the cause of action of the suit in the present case for partition is different and dispute as to mutation had been subsequently decided. Thus, the suit for partition as filed, could not be said to be barred by Order 2, Rule 2 CPC. The defendants were trying to sell the property in the year 1979 as such the plaintiffs in the suit prayed for partition and separate possession. Plaintiffs could not have claimed interest in the land in the life-time of Anandibai and the cause of action in the previous suit for declaration of title filed by Anandibai was materially different.15. Rule 2 Order 2 CPC does not apply if the cause of action in the subsequent suit is different from that of the former suit as held by this Court in State of M.P. v. State of Maharashtra (1977) 2 SCC 288. In State of Maharashtra v. National Construction Co. (1996) 1 SCC 735 , when the first suit was filed to enforce bank guarantee whereas second suit to claim damages for breach of underlying contract, this Court laid down that the subsequent suit was not barred by Order 2, Rule 2 CPC. In the case of continuing or recurring wrong there would be corresponding continuing or recurring causes of action when the first suit was based on infringement of plaintiffs trade mark, second suit was on the continuing act or infringement of its trade mark and continuous passing of action subsequent to filing of the earlier suit, in Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. (1997) 1 SCC 99 , it was held that the cause of actions in two suits were different as such the bar of Order 2, Rule 2 CPC was not attracted. The essential requirement for applicability of Order 2, Rule 2 CPC is to establish the identity of causes of action in the previous suit and the subsequent suit so as to attract the bar as held in Deva Ram v. Ishwar Chand 1995(3) R.R.R. 717 : (1995) 6 SCC 733 and Gurbux Singh v. Bhooralal AIR 1964 SC 1810 .16. In the instant case it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit plaintiff was not entitled to more than one relief. Hence, it could not be said that the plaintiff has omitted to sue for relief for which second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order 2, Rule 2 CPC. Submission to the contrary is too tenuous to be accepted.
### Response:
0
### Explanation:
Explanation (b) to Article 65 of the Act is applicable only in the case where property is not claimed through the female but independently of woman who has died. The word "entitled" contained in Explanation (b) to Article 65 clearly means a person is entitled independently of the right of the Hindu or Mohammedan female. In case she is absolute owner Article 65(b) will have no application. In other words, it is necessary to trace the right to someone else and not to the Hindu or Mohammedan female, as the case may be. In the instant case, Shakuntalabai, daughter of Shankara Rao became absolute owner of the property on 6.2.1958 and on her death on 1.10.1962, the right accrued to Anandibai on the basis of inheritance made from Shakuntalabai who was the owner of the ½ share in question. When the property is claimed from a woman, Hindu or Mohammedan, who was the full owner, it could not be said that Anandibai or the plaintiffs became entitled to the property independently of the rights of female i.e. Shakuntalabai. Thus the suit filed by such heir of female for separate possession/partition would not be governed by Explanation (b) to Article 65. In such a case limitation would not commence as per Explanation (b) to Article 65 on death of female Hindu. However, the starting point of limitation for computation of 12 years would be the date of start of adverse possession otherwise.In the instant case possession never became adverse to the plaintiffs. There is concurrent finding recorded that the plaintiffs were in joint possession of the disputed land on the date of filing of the suit. The defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of Shakuntalabai but they have not been able to prove their adverse possession. On the contrary the finding is that Chimasaheb admitted the title of Anandibai. The finding is that till 1976, Chimasaheb never denied the title of Anandibai. Be that as it may. As adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation.14. Coming to the second question raised on behalf of the appellants as to the suit being barred by Order 2, Rule 2 of the CPC, suffice it to say that the earlier suit based on different cause of action for a declaration for one-half of the share in certain other properties was filed by Anandibai in the year 1963. At that time the property in question was not included in the suit. It had been found by courts below, the suit of 1963 was based on different cause of action on the basis of deed of 1957 whereas in the instant case, cause of action is different. It is on the basis of death of absolute owner Shakuntalabai in the year 1962, Anandibai became owner and plaintiffs had in turn inherited from Anandibai. Thus the cause of action of the suit in the present case for partition is different and dispute as to mutation had been subsequently decided. Thus, the suit for partition as filed, could not be said to be barred by Order 2, Rule 2 CPC. The defendants were trying to sell the property in the year 1979 as such the plaintiffs in the suit prayed for partition and separate possession. Plaintiffs could not have claimed interest in the land in the life-time of Anandibai and the cause of action in the previous suit for declaration of title filed by Anandibai was materially different.15. Rule 2 Order 2 CPC does not apply if the cause of action in the subsequent suit is different from that of the former suit as held by this Court in State of M.P. v. State of Maharashtra (1977) 2 SCC 288. In State of Maharashtra v. National Construction Co. (1996) 1 SCC 735 , when the first suit was filed to enforce bank guarantee whereas second suit to claim damages for breach of underlying contract, this Court laid down that the subsequent suit was not barred by Order 2, Rule 2 CPC. In the case of continuing or recurring wrong there would be corresponding continuing or recurring causes of action when the first suit was based on infringement of plaintiffs trade mark, second suit was on the continuing act or infringement of its trade mark and continuous passing of action subsequent to filing of the earlier suit, in Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. (1997) 1 SCC 99 , it was held that the cause of actions in two suits were different as such the bar of Order 2, Rule 2 CPC was not attracted. The essential requirement for applicability of Order 2, Rule 2 CPC is to establish the identity of causes of action in the previous suit and the subsequent suit so as to attract the bar as held in Deva Ram v. Ishwar Chand 1995(3) R.R.R. 717 : (1995) 6 SCC 733 and Gurbux Singh v. Bhooralal AIR 1964 SC 1810 .16. In the instant case it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit plaintiff was not entitled to more than one relief. Hence, it could not be said that the plaintiff has omitted to sue for relief for which second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order 2, Rule 2 CPC. Submission to the contrary is too tenuous to be accepted.
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Ajantha Transports Private Limited Coimbatore & Another Vs. M/s. T.V.K. Transports, Pulampattti, Coimbatore, Distt. & Others | categories of public interest including those laid down by valid rules. Clause (F) of sub-rule (3) of Rule 155-A. set out above, should therefore, have been taken into account, and, unless there was good enough reason to depart from it, the rule should have been followed. Had this been done, it is clear that every additional stage carriage upto four would give an applicant an additional mark so as to help him to make up the "Viable Unit" of five. A recent grant could not, considered by itself and singly, be converted into a demerit as the Appellate Tribunal seems to us to have done. Inasmuch as disposal of the claims before the Appellate Tribunal seems to us to have taken place in a rather mechanical fashion by ignoring clause (F) of sub-rule (3) of Rule 155A and without showing the correlationship of facts mentioned by it to any of the categories of public interest found in Section 47 (1) of the Act or to Constitutional guarantees contained in Articles 14 and 19 (1) (g) of the Constitution, the observance of which must also be presumed to be in public interest, the order of the Appellate Tribunal was, in our opinion, vitiated by a material irregularity. The High Court should, therefore, have interfered even in the exercise of its power under Section 115, Civil Procedure Code which has been made applicable to such cases.33. In Civil Appeal No. 2254 of 1969, a preliminary objection was taken to the grant of a certificate of fitness of the case under Article 133 (1) (c) of the Constitution in such a case when there was no final order passed by the High Court. Reliance was placed upon M/s. Raman and Raman (P.) Ltd. Kumbakonam v. Sri Rama Vilas Service Ltd. Kumbakonam, C. A. No.995 of 1965 D/- 3-5-1968 (SC) where this Court said :"We are of the view that the High Court was in error in granting the certificate when nothing was decided by their judgment. The order was not final. The order of the High Court did not determine the rights and obligations of the parties: it merely set aside the order of the Appellate Tribunal and directed the Tribunal to deal with and dispose of the question according to law. The appeal is liable to fail on that limited ground alone".No satisfactory answer has been given to the preliminary objection. But, as we could, if the case deserved it, grant special leave to appeal, even at this stage, we will refer to the merits also.34. In this case, we find that the Division Bench of Madras High Court had only sent back the case to the Tribunal for disposal after determining the impact of considerations placed before the Tribunal on public interest. The relative merits of rival claimants must be compared after testing the very criterion of merit adopted on the anvil of public interest. The High Court only held that the fact that an applicant is a recent grantee may be a relevant consideration. As we have pointed out, the relevance or irrelevance of such a consideration will depend upon the totality of facts and circumstances which must correlate such a ground to public interest. It was contended, not without force, that the Appellate Tribunal had discussed all the relevant facts and circumstances sufficiently to indicate the impact of each of these upon public interest without expressly saying so and that the Division Bench need have done no more than to have pointed out that the observation of the learned Single Judge, to the effect that the question of a recent grant of a permit in favour of an applicant was extraneous to the considerations contained in Section 47 of the Act was incorrect, or, to have explained that what this really meant was that, without showing other facts and circumstances connecting a recent grant with public interest, a recent grant of a permit was not material. However, as the Division Bench had sent back the case so the Appellate Tribunal, without determining - the rights of the parties, we do not think that the mere fact that two views could be taken on the advisability of such a course would not, in our opinion, justify interference by us under Article 136 of the Constitution. Therefore, we are not disposed to grant special leave at this stage on the question raised. The question whether the order is a final one determining the rights of the parties is material even when considering the question of propriety of interference under Article 136 of the Constitution. We have no doubt that, in view of the clarification of the law by us here, the Tribunal will dispose of the case in accordance with law and deal with all the facts and circumstances which have a bearing on public interest, including facts and circumstances which may have come into existence between the time when the grant was made and the time when the Tribunal reconsiders the claims to which the case is confined.35. In Civil Appeals Nos. 1481-1483 of 1970, we find that the High Court has given good enough grounds to justify reconsideration of the claims by the State Transport Appellate Tribunal. The High Court seems to us to have rightly hinted that, where the results of exercise of power to grant permit shows that permits are, without sufficient grounds for a discrimination or preference based on an appraisement of merits or requirements of public interest, being invariably granted to one particular party the powers are not fairly or impartially exercised. Quasi-judicial powers have to be exercised fairly, reasonably, and impartially. Capricious or dishonest preferences on purely personal grounds are necessarily excluded here. We have no doubt that the Tribunal will reconsider claims in conformity with needs of public interest as they exist at the time of reconsideration by the Tribunal. We do not think that these cases justify interference by this Court in exercise of its power under Art. 136 of the Constitution. | 1[ds]20. What the Andhra Pradesh High Court seems to have meant was that powers contained in Section 47 of the Act as well as the rule-making powers of the State must be exercised conformably with the Constitutional guarantees given to citizens by Articles 14 and 19 (1) (g) of the Constitution which are certainly not mentioned specifically anywhere in the Act. All powers conferred by the Act, including those given by Sec. 47, must be deemed to be confined to the limits imposed by Constitutional guarantees to citizens. Hence, the manner in which a grant would affect guaranteed fundamental rights of citizens could also be considered. If this is all that is meant by laying down that even matters not specified in Section 47 of the Act can be taken into account, we think that the view is unobjectionable. Even where powers to be exercised by authorities, which are organs of the State, are not clearly defined, the Constitutional guarantees contained in Articles 14 and 19 (1) (g) of the Constitution would certainly limit the scope and regulate the exercise of such powers.Thus, decisions of this Court have made it clear that an exercise of the permit issuing power, under Section 47 of the Act, must rest on facts and circumstances relevant for decision on the question of public interest, which has to be always placed in the fore-front in considering applications for grant of permits. Consideration of matters, which are not relevant to or are foreign to the scope of powers conferred by Sec. 47 will vitiate the grant of a permit under Section 47. A fact which, in certain circumstances, is relevant for a decision on what the public interest demands may become irrelevant where it is not connected with such public interest. Indeed, every class of consideration specified in Section 47 (1) of the Act seems correlated to the interests of the public generally. It appears that Section 47 (1) (a) gives the dominant purpose and Section 47 (1) (b) to (f) are only its sub-categories or illustrations.If any matter taken into consideration is not shown to be correlated to the dominant purpose or, the relationship or the effect of a particular fact, which has operated in favour of a grant is such as to show that it is opposed, on the face of it, to public interest, the grant will be bad. The power to grant permits under Section 47 of the Act is limited to the purposes for which it is meant to be exercised. Considerations which are relevant for applying Articles 14 and 19 (1) (g) of the Constitution could not be foreign to the scope of Sec. 47 (1) (a) which is fairly wide.24. Where the power to grant permits shows that its exercise is meant to be judged on the touchstone of the interests of the public generally, the test being broad enough to take in applications of Articles 14 and 19 (1) (g), read with the relevant proviso, which require a just and reasonable balancing and reconciliation of general and individual interests, we think that it would not be correct to hold that the power contained in Sec. 47 can go beyond it or against it, because, to take such a view, would make the provision itself constitutionally invalid. Therefore, we hold that permits issuing power under Section 47 is restricted to service of interests of the public generally in a broad enough sense to include due respect for guaranteed fundamental rights of citizens. Indeed, service of interests of the public generally is the expressed object of even Section 68C in Chapter IVA of the Act authorising framing of schemes of nationalization of transport services. Such an object underlies the whole machinery of regulation by issue of permits for plying motor vehicles on hire.25. It should be clear, when the main object, to which other considerations must yield in cases of conflict, of the permit issuing powers under Section 47 of the Act is the service of interests of the public generally, that any particular fact or circumstance, such as a previous recent grant in favour of an applicant or the holding of other permits by an operator, cannot by itself, indicate how it is related to this object. Unless, there are other facts and circumstance which link it with this object the nexus will not be established. For instance, an applicant may be a recent grantee whose capacity to operate a transport service efficiently remains to be tested so that a fresh grant to him may be premature. In such a case, another applicant of tested efficiency may be preferred. On the other hand, a fresh grantee may have, within a short period, disclosed such superiority or efficiency or offer such amenities to passengers that a recent grant in his favour may be no obstacle in his way at all. Again, the fact that an applicant is operating other motor vehicles on other permits may, in one case indicate that he had exceeded the optimum, or, has a position comparable to a monopolist, but, in another case, it may enable the applicant to achieve better efficiency by moving towards the optimum which seems to be described as a "Viable Unit" in the rules framed in Madras in 1968. Thus, it will be seen that, by itself, a recent grant or the possession of other permits is neither a qualification nor a disqualification divorced from other circumstances which could indicate how such a fact is related to the interests of the public generally. It is only if there are other facts establishing the correlationship and indicate its advantages or disadvantages to the public generally that it will become a relevant circumstance. But, in cases where everything else is absolutely equal as between two applicants which will rarely be the case, it could be said that an application of principle of equality of opportunity, which could be covered by Article 14, may enable a person who is not a fresh grantee to obtain a preference. Such a consideration, as we have indicated above could not be said to be outside the broad view of the interest of the public generally which we are taking so as to include within its purview application of tests underlying provisions giving fundamental rights to citizens under Articles 14 and l9 of the Constitution., decisions of this Court have made it clear that an exercise of the permit issuing power, under Section 47 of the Act, must rest on facts and circumstances relevant for decision on the question of public interest, which has to be always placed in the fore-front in considering applications for grant of permits. Consideration of matters, which are not relevant to or are foreign to the scope of powers conferred by Sec. 47 will vitiate the grant of a permit under Section 47. A fact which, in certain circumstances, is relevant for a decision on what the public interest demands may become irrelevant where it is not connected with such public interest. Indeed, every class of consideration specified in Section 47 (1) of the Act seems correlated to the interests of the public generally. It appears that Section 47 (1) (a) gives the dominant purpose and Section 47 (1) (b) to (f) are only its sub-categories or illustrations.If any matter taken into consideration is not shown to be correlated to the dominant purpose or, the relationship or the effect of a particular fact, which has operated in favour of a grant is such as to show that it is opposed, on the face of it, to public interest, the grant will be bad. The power to grant permits under Section 47 of the Act is limited to the purposes for which it is meant to be exercised. Considerations which are relevant for applying Articles 14 and 19 (1) (g) of the Constitution could not be foreign to the scope of Sec. 47 (1) (a) which is fairly wide.24. Where the power to grant permits shows that its exercise is meant to be judged on the touchstone of the interests of the public generally, the test being broad enough to take in applications of Articles 14 and 19 (1) (g), read with the relevant proviso, which require a just and reasonable balancing and reconciliation of general and individual interests, we think that it would not be correct to hold that the power contained in Sec. 47 can go beyond it or against it, because, to take such a view, would make the provision itself constitutionally invalid. Therefore, we hold that permits issuing power under Section 47 is restricted to service of interests of the public generally in a broad enough sense to include due respect for guaranteed fundamental rights of citizens. Indeed, service of interests of the public generally is the expressed object of even Section 68C in Chapter IVA of the Act authorising framing of schemes of nationalization of transport services. Such an object underlies the whole machinery of regulation by issue of permits for plying motor vehicles on hire.25. It should be clear, when the main object, to which other considerations must yield in cases of conflict, of the permit issuing powers under Section 47 of the Act is the service of interests of the public generally, that any particular fact or circumstance, such as a previous recent grant in favour of an applicant or the holding of other permits by an operator, cannot by itself, indicate how it is related to this object. Unless, there are other facts and circumstance which link it with this object the nexus will not be established. For instance, an applicant may be a recent grantee whose capacity to operate a transport service efficiently remains to be tested so that a fresh grant to him may be premature. In such a case, another applicant of tested efficiency may be preferred. On the other hand, a fresh grantee may have, within a short period, disclosed such superiority or efficiency or offer such amenities to passengers that a recent grant in his favour may be no obstacle in his way at all. Again, the fact that an applicant is operating other motor vehicles on other permits may, in one case indicate that he had exceeded the optimum, or, has a position comparable to a monopolist, but, in another case, it may enable the applicant to achieve better efficiency by moving towards the optimum which seems to be described as a "Viable Unit" in the rules framed in Madras in 1968. Thus, it will be seen that, by itself, a recent grant or the possession of other permits is neither a qualification nor a disqualification divorced from other circumstances which could indicate how such a fact is related to the interests of the public generally. It is only if there are other facts establishing the correlationship and indicate its advantages or disadvantages to the public generally that it will become a relevant circumstance. But, in cases where everything else is absolutely equal as between two applicants which will rarely be the case, it could be said that an application of principle of equality of opportunity, which could be covered by Article 14, may enable a person who is not a fresh grantee to obtain a preference. Such a consideration, as we have indicated above could not be said to be outside the broad view of the interest of the public generally which we are taking so as to include within its purview application of tests underlying provisions giving fundamental rights to citizens under Articles 14 and l9 of the Constitution.In Civil Appeal No. 1402 of 1974, Mr. Chitaley, appearing for the appellant, contended that, as S. 47 (1) (e) was omitted altogether by a Madras State amendment, at the relevant time, the State Appellate Tribunal should not have taken into account the alleged disadvantage, almost raised to the level of a disqualification, of a recent or previous grant of a permit.30. We, therefore, examined the provisions of the Motor Vehicles Tamil Nadu (Amendment) Acts l0 and 16 of 1971 and found that they do not omit Section 47 (1) (e) at all, although there were two ordinances Nos. 4 and 6 of 1971 which had substituted amended provisions of Section 47 from which Section 47 (1) (e) was omitted. But, the ordinances were repealed by the Tamil Nadu Acts 10 and 16 of 1971 so that the provisions of Section 47 (1) (e) of the Act in their application to Madras were intact at the time of the grant. The contention was, therefore, unsound.31. It was then contended, in Civil Appeal No. 1402 of 1974, that the State Transport Appellate Tribunal had held two extraneous or irrelevant circumstances to be decisive. These were: that the respondent grantee before it was a recent grantee and that he held three permits altogether whereas the second appellant before it, to which the permit was granted by it, held only one permit. It was urged that these considerations were applied mechanically without showing their correlationship at all with the interests of the public generally as though the Appellate Tribunal was entrusted with the task of distributing favours and had to do this equitably on grounds which, however, laudable, are extraneous to the purposes of Section 47 of the Act. Furthermore, it was pointed out that, at the relevant time, certain rules had been validly framed by the State Government under Section 133 (1) of the Act the effect of which was inter alia that possession of more than one vehicle was an item, so to say, on the credit side instead of an item on the debit side of the balance sheet prepared on the basis of marks. The grievance was that the Tribunal had converted into a demerit what was according to the rules, an additional ground to support a grant.In reply, it was pointed out that, although Rule 4 required that the applicants shall be ranked according to the total numbers of marks obtained by them, yet "the application shall be disposed of in accordance with the provisions of sub-section (1) of Section 47." This contention pre-supposes an indication of the relevance of any fact taken into account to matters all of which seem to us to be covered by the broad class of "interests of public generally." On the view we are adopting, Section 47 (1) (a) is wide enough to include all categories of public interest including those laid down by valid rules. Clause (F) of sub-rule (3) of Rule 155-A. set out above, should therefore, have been taken into account, and, unless there was good enough reason to depart from it, the rule should have been followed. Had this been done, it is clear that every additional stage carriage upto four would give an applicant an additional mark so as to help him to make up the "Viable Unit" of five. A recent grant could not, considered by itself and singly, be converted into a demerit as the Appellate Tribunal seems to us to have done. Inasmuch as disposal of the claims before the Appellate Tribunal seems to us to have taken place in a rather mechanical fashion by ignoring clause (F) of sub-rule (3) of Rule 155A and without showing the correlationship of facts mentioned by it to any of the categories of public interest found in Section 47 (1) of the Act or to Constitutional guarantees contained in Articles 14 and 19 (1) (g) of the Constitution, the observance of which must also be presumed to be in public interest, the order of the Appellate Tribunal was, in our opinion, vitiated by a material irregularity. The High Court should, therefore, have interfered even in the exercise of its power under Section 115, Civil Procedure Code which has been made applicable to such cases.In this case, we find that the Division Bench of Madras High Court had only sent back the case to the Tribunal for disposal after determining the impact of considerations placed before the Tribunal on public interest. The relative merits of rival claimants must be compared after testing the very criterion of merit adopted on the anvil of public interest. The High Court only held that the fact that an applicant is a recent grantee may be a relevant consideration. As we have pointed out, the relevance or irrelevance of such a consideration will depend upon the totality of facts and circumstances which must correlate such a ground to public interest. It was contended, not without force, that the Appellate Tribunal had discussed all the relevant facts and circumstances sufficiently to indicate the impact of each of these upon public interest without expressly saying so and that the Division Bench need have done no more than to have pointed out that the observation of the learned Single Judge, to the effect that the question of a recent grant of a permit in favour of an applicant was extraneous to the considerations contained in Section 47 of the Act was incorrect, or, to have explained that what this really meant was that, without showing other facts and circumstances connecting a recent grant with public interest, a recent grant of a permit was not material. However, as the Division Bench had sent back the case so the Appellate Tribunal, without determining - the rights of the parties, we do not think that the mere fact that two views could be taken on the advisability of such a course would not, in our opinion, justify interference by us under Article 136 of the Constitution. Therefore, we are not disposed to grant special leave at this stage on the question raised. The question whether the order is a final one determining the rights of the parties is material even when considering the question of propriety of interference under Article 136 of the Constitution. We have no doubt that, in view of the clarification of the law by us here, the Tribunal will dispose of the case in accordance with law and deal with all the facts and circumstances which have a bearing on public interest, including facts and circumstances which may have come into existence between the time when the grant was made and the time when the Tribunal reconsiders the claims to which the case is confined.35. In Civil Appeals Nos. 1481-1483 of 1970, we find that the High Court has given good enough grounds to justify reconsideration of the claims by the State Transport Appellate Tribunal. The High Court seems to us to have rightly hinted that, where the results of exercise of power to grant permit shows that permits are, without sufficient grounds for a discrimination or preference based on an appraisement of merits or requirements of public interest, being invariably granted to one particular party the powers are not fairly or impartially exercised. Quasi-judicial powers have to be exercised fairly, reasonably, and impartially. Capricious or dishonest preferences on purely personal grounds are necessarily excluded here. We have no doubt that the Tribunal will reconsider claims in conformity with needs of public interest as they exist at the time of reconsideration by the Tribunal. We do not think that these cases justify interference by this Court in exercise of its power under Art. 136 of the Constitution. | 1 | 7,909 | 3,590 | ### Instruction:
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categories of public interest including those laid down by valid rules. Clause (F) of sub-rule (3) of Rule 155-A. set out above, should therefore, have been taken into account, and, unless there was good enough reason to depart from it, the rule should have been followed. Had this been done, it is clear that every additional stage carriage upto four would give an applicant an additional mark so as to help him to make up the "Viable Unit" of five. A recent grant could not, considered by itself and singly, be converted into a demerit as the Appellate Tribunal seems to us to have done. Inasmuch as disposal of the claims before the Appellate Tribunal seems to us to have taken place in a rather mechanical fashion by ignoring clause (F) of sub-rule (3) of Rule 155A and without showing the correlationship of facts mentioned by it to any of the categories of public interest found in Section 47 (1) of the Act or to Constitutional guarantees contained in Articles 14 and 19 (1) (g) of the Constitution, the observance of which must also be presumed to be in public interest, the order of the Appellate Tribunal was, in our opinion, vitiated by a material irregularity. The High Court should, therefore, have interfered even in the exercise of its power under Section 115, Civil Procedure Code which has been made applicable to such cases.33. In Civil Appeal No. 2254 of 1969, a preliminary objection was taken to the grant of a certificate of fitness of the case under Article 133 (1) (c) of the Constitution in such a case when there was no final order passed by the High Court. Reliance was placed upon M/s. Raman and Raman (P.) Ltd. Kumbakonam v. Sri Rama Vilas Service Ltd. Kumbakonam, C. A. No.995 of 1965 D/- 3-5-1968 (SC) where this Court said :"We are of the view that the High Court was in error in granting the certificate when nothing was decided by their judgment. The order was not final. The order of the High Court did not determine the rights and obligations of the parties: it merely set aside the order of the Appellate Tribunal and directed the Tribunal to deal with and dispose of the question according to law. The appeal is liable to fail on that limited ground alone".No satisfactory answer has been given to the preliminary objection. But, as we could, if the case deserved it, grant special leave to appeal, even at this stage, we will refer to the merits also.34. In this case, we find that the Division Bench of Madras High Court had only sent back the case to the Tribunal for disposal after determining the impact of considerations placed before the Tribunal on public interest. The relative merits of rival claimants must be compared after testing the very criterion of merit adopted on the anvil of public interest. The High Court only held that the fact that an applicant is a recent grantee may be a relevant consideration. As we have pointed out, the relevance or irrelevance of such a consideration will depend upon the totality of facts and circumstances which must correlate such a ground to public interest. It was contended, not without force, that the Appellate Tribunal had discussed all the relevant facts and circumstances sufficiently to indicate the impact of each of these upon public interest without expressly saying so and that the Division Bench need have done no more than to have pointed out that the observation of the learned Single Judge, to the effect that the question of a recent grant of a permit in favour of an applicant was extraneous to the considerations contained in Section 47 of the Act was incorrect, or, to have explained that what this really meant was that, without showing other facts and circumstances connecting a recent grant with public interest, a recent grant of a permit was not material. However, as the Division Bench had sent back the case so the Appellate Tribunal, without determining - the rights of the parties, we do not think that the mere fact that two views could be taken on the advisability of such a course would not, in our opinion, justify interference by us under Article 136 of the Constitution. Therefore, we are not disposed to grant special leave at this stage on the question raised. The question whether the order is a final one determining the rights of the parties is material even when considering the question of propriety of interference under Article 136 of the Constitution. We have no doubt that, in view of the clarification of the law by us here, the Tribunal will dispose of the case in accordance with law and deal with all the facts and circumstances which have a bearing on public interest, including facts and circumstances which may have come into existence between the time when the grant was made and the time when the Tribunal reconsiders the claims to which the case is confined.35. In Civil Appeals Nos. 1481-1483 of 1970, we find that the High Court has given good enough grounds to justify reconsideration of the claims by the State Transport Appellate Tribunal. The High Court seems to us to have rightly hinted that, where the results of exercise of power to grant permit shows that permits are, without sufficient grounds for a discrimination or preference based on an appraisement of merits or requirements of public interest, being invariably granted to one particular party the powers are not fairly or impartially exercised. Quasi-judicial powers have to be exercised fairly, reasonably, and impartially. Capricious or dishonest preferences on purely personal grounds are necessarily excluded here. We have no doubt that the Tribunal will reconsider claims in conformity with needs of public interest as they exist at the time of reconsideration by the Tribunal. We do not think that these cases justify interference by this Court in exercise of its power under Art. 136 of the Constitution.
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47 of the Act. Furthermore, it was pointed out that, at the relevant time, certain rules had been validly framed by the State Government under Section 133 (1) of the Act the effect of which was inter alia that possession of more than one vehicle was an item, so to say, on the credit side instead of an item on the debit side of the balance sheet prepared on the basis of marks. The grievance was that the Tribunal had converted into a demerit what was according to the rules, an additional ground to support a grant.In reply, it was pointed out that, although Rule 4 required that the applicants shall be ranked according to the total numbers of marks obtained by them, yet "the application shall be disposed of in accordance with the provisions of sub-section (1) of Section 47." This contention pre-supposes an indication of the relevance of any fact taken into account to matters all of which seem to us to be covered by the broad class of "interests of public generally." On the view we are adopting, Section 47 (1) (a) is wide enough to include all categories of public interest including those laid down by valid rules. Clause (F) of sub-rule (3) of Rule 155-A. set out above, should therefore, have been taken into account, and, unless there was good enough reason to depart from it, the rule should have been followed. Had this been done, it is clear that every additional stage carriage upto four would give an applicant an additional mark so as to help him to make up the "Viable Unit" of five. A recent grant could not, considered by itself and singly, be converted into a demerit as the Appellate Tribunal seems to us to have done. Inasmuch as disposal of the claims before the Appellate Tribunal seems to us to have taken place in a rather mechanical fashion by ignoring clause (F) of sub-rule (3) of Rule 155A and without showing the correlationship of facts mentioned by it to any of the categories of public interest found in Section 47 (1) of the Act or to Constitutional guarantees contained in Articles 14 and 19 (1) (g) of the Constitution, the observance of which must also be presumed to be in public interest, the order of the Appellate Tribunal was, in our opinion, vitiated by a material irregularity. The High Court should, therefore, have interfered even in the exercise of its power under Section 115, Civil Procedure Code which has been made applicable to such cases.In this case, we find that the Division Bench of Madras High Court had only sent back the case to the Tribunal for disposal after determining the impact of considerations placed before the Tribunal on public interest. The relative merits of rival claimants must be compared after testing the very criterion of merit adopted on the anvil of public interest. The High Court only held that the fact that an applicant is a recent grantee may be a relevant consideration. As we have pointed out, the relevance or irrelevance of such a consideration will depend upon the totality of facts and circumstances which must correlate such a ground to public interest. It was contended, not without force, that the Appellate Tribunal had discussed all the relevant facts and circumstances sufficiently to indicate the impact of each of these upon public interest without expressly saying so and that the Division Bench need have done no more than to have pointed out that the observation of the learned Single Judge, to the effect that the question of a recent grant of a permit in favour of an applicant was extraneous to the considerations contained in Section 47 of the Act was incorrect, or, to have explained that what this really meant was that, without showing other facts and circumstances connecting a recent grant with public interest, a recent grant of a permit was not material. However, as the Division Bench had sent back the case so the Appellate Tribunal, without determining - the rights of the parties, we do not think that the mere fact that two views could be taken on the advisability of such a course would not, in our opinion, justify interference by us under Article 136 of the Constitution. Therefore, we are not disposed to grant special leave at this stage on the question raised. The question whether the order is a final one determining the rights of the parties is material even when considering the question of propriety of interference under Article 136 of the Constitution. We have no doubt that, in view of the clarification of the law by us here, the Tribunal will dispose of the case in accordance with law and deal with all the facts and circumstances which have a bearing on public interest, including facts and circumstances which may have come into existence between the time when the grant was made and the time when the Tribunal reconsiders the claims to which the case is confined.35. In Civil Appeals Nos. 1481-1483 of 1970, we find that the High Court has given good enough grounds to justify reconsideration of the claims by the State Transport Appellate Tribunal. The High Court seems to us to have rightly hinted that, where the results of exercise of power to grant permit shows that permits are, without sufficient grounds for a discrimination or preference based on an appraisement of merits or requirements of public interest, being invariably granted to one particular party the powers are not fairly or impartially exercised. Quasi-judicial powers have to be exercised fairly, reasonably, and impartially. Capricious or dishonest preferences on purely personal grounds are necessarily excluded here. We have no doubt that the Tribunal will reconsider claims in conformity with needs of public interest as they exist at the time of reconsideration by the Tribunal. We do not think that these cases justify interference by this Court in exercise of its power under Art. 136 of the Constitution.
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Mangal Singh & Ors Vs. Shrimati Rattno & Anr | to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S. 14 of the Act."In that case, it will be noticed that the widow died, while the suit for partition was still pending, and she was not in actual physical or constructive possession of the property which was held to be possessed by her at the time of her death. Only a preliminary decree declaring her right to the share had been passed. That decree was passed before the Act came into force and the widow died after the Act came into force. On these facts, the Court came to the finding that the disputed property was possessed by the widow; and this finding was given despite the circumstance that she was not in actual possession or constructive possession of the property, but had merely obtained the right to the property under the preliminary decree. The principle laid down in that case, thus, supports the broader meaning given to the expression "possessed by" indicated by us earlier.12. The last case of this Court brought to our notice is Eramma v. Veerupana, AIR 1966 SC: 1879. That was a converse case in which the female Hindu, in fact, did not possess any legal right or title to the property, though she was actually in physical possession of it. It was held:"The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to S. 14 (1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title however restricted the nature of her interest may be. The words "as full owner thereof and not as a limited owner" as given in the last portion of sub-section (1) of S. 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words S. 14 (1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called "limited estate" or widows estate" in Hindu Law and to make a Hindu woman, who, under the old law, would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder."In the concluding part, it was held:"It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words, the provisions of S. 14 (1) of the Act cannot be attracted in the case of a Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property."This case also, thus, clarifies that the expression "possessed by" is not intended to apply to a case of mere possession without title, and that the legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question. Even mere physical possession of the property without the right of ownership will not attract the provisions of this section. This case also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership and, while the Hindu female possesses the rights of ownership, she would become full owner if the other conditions mentioned in the section are fulfilled The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could? in no manner, exercise her rights of ownership in that property any longer.13. In this view that we have taken. it does not appear to be necessary for us to refer to the decisions of the various High Courts which were cited before us by learned counsel, for the appellants. The cases mentioned were: Patelin v. Satvabati Naikani, AIR 1958 Ori 75 ; Ganesh Mahanta v. Sukria Bewa, AIR 1963 Ori 167 ; Harak Singh v. Kailash Singh. AIR 1958 Pat 581 Ram Gulam Singh v. Palakdhari Singh, AIR 1961 Pat 60 , Nathuni Prasad Singh v. Mst. Kachnar Kuer, AIR 1965 Pat 160 and Mst. Mukhtiar Kaur v. Mst. Kartar Kaur, AIR 1966 Punj 31. All these were cases relating to situations where the widow had made some alienation of her rights in the property and none of them was concerned with a case where the female Hindu might have been dispossessed by a trespasser. The reasons given by the High Courts in those cases are, therefore, of no assistance in deciding the applicability of S. 14 (1) of the Act to a case of the nature before us.14. On the interpretation of S. 14 (1) of the Act that we have accepted above, it must be held that the property involved in the present suit was possessed by Smt. Harnam Kaur when she died in the year 1958 and, consequently, Smt. Rattno and, after her, the present respondents must be deemed to have succeeded to those rights.We have already mentioned above that it was not disputed that, if it is held that Smt. Harnam Kaur had become full owner of this property, it would pass on her death to Smt. Rattno. As a result, the decision given by the High Court must be upheld. | 0[ds]4. On merits, we are of the opinion that the decision given by the High Court against the defendants-appellants must be upheld. The first appellate Court, which was the final Court for deciding questions of fact, clearly recorded a finding that the Karewa marriage alleged to have been entered into by the plaintiff, Smt. Harnam Kaur, with Ishar Singh, defendant No. 4, was not proved. That finding of fact was binding on the High Court and was rightly accepted by it. It is no longer open to the appellants to challenge that finding of fact in this CourtOn this Finding, it has to he held that the rights to the land, to which Smt. Harnam Kaur had succeeded as widow of Labhu were not lost by her until her death, and that her dispossession by defendants 1 to 3 in the year 1954 was illegal. They had no right to this land in preference to Smt. Harnammay be mentioned that there was no dispute in the High Court, nor was it disputed before us that, if it be held that S.14 of the Act had become applicable and Smt. Harnam Kaur became full owner of this land, her rights would pass on her death to Smt. Rattno and, subsequently, Oil the latters death, to the present respondents in thisdo not think that any such interpretation can be placed on the words used by this Court. Section 14 (1) covers any property possessed by a female Hindu, whether acquired before or after the commencement of the Act. On the face of it, property acquired after the commencement of the Act by a female Hindu could not possibly be possessed by her at the commencement of the Act. This Court when it made the comments relied upon by learned counsel, was in fact. concerned with a case of a female Hindu, who had acquired the right to the property before the commencement of the Act, but was alleged to be no longer possessed of it because of having adopted a son before the commencement of the Act. It was in these circumstances that the Court in that particular case was concerned with the question whether the female Hindu was possessed of the property in dispute or not at the time the Act came into force. The Court was not laying down any general principle that S. 14 (1) will not be attracted at all to cases where the female Hindu was not possessed of the property at the date of the commencement of the Act. In fact, there are no words used in S. 14 (1) which would lead to the interpretation that the property must be possessed by the female Hindu at the date of the commencement of the Act. It appears to us that the relevant date, on which the female Hindu should be possessed of the property in dispute must be the date on which the question of applying the provisions of S. 14 (1) arises. If, on that date, when the provisions of this section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and not merely a limited owner. Such a question may arise in her own lifetime, or may arise subsequently when succession to her property opens on her death. The case before us falls in the second category, because Smt. Harnam Kaur was a limited owner of the property before the commencement of the Act, and the question that has arisen is whether Smt Rattno was entitled to succeed to her rights in this disputed property on her death which took place in the year 1958 after the commencement of thecase, thus, explains why, in cases of alienation or a gift made by a widow, even though that alienation or gift may not be binding on a reversioner, the property will not be held to be possessed by the widow, because the alienation or the gift would be binding on her for her life-time and she, a least, would not possess any such rights under which she could obtain actual or constructive possession from her transferee or donee. Having completely parted with her legal rights in the property, she could not be said to be possessed of that property anycase also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership and, while the Hindu female possesses the rights of ownership, she would become full owner if the other conditions mentioned in the section are fulfilled The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could? in no manner, exercise her rights of ownership in that property anythese were cases relating to situations where the widow had made some alienation of her rights in the property and none of them was concerned with a case where the female Hindu might have been dispossessed by a trespasser. The reasons given by the High Courts in those cases are, therefore, of no assistance in deciding the applicability of S. 14 (1) of the Act to a case of the nature before us.14. On the interpretation of S. 14 (1) of the Act that we have accepted above, it must be held that the property involved in the present suit was possessed by Smt. Harnam Kaur when she died in the year 1958 and, consequently, Smt. Rattno and, after her, the present respondents must be deemed to have succeeded to those rights.We have already mentioned above that it was not disputed that, if it is held that Smt. Harnam Kaur had become full owner of this property, it would pass on her death to Smt. Rattno. As a result, the decision given by the High Court must behowever, appears that, on the pleadings of parties and the nature of the dispute that came to be settled by the lower Courts, it cannot be held that this appeal must abate as a whole, or must fail because of its abatement against Ishar Singh on his death. We have already mentioned that, though the plaintiff, Smt. Harnam Kaur, had come forward with the allegation that she had been dispossessed by all the four defendants 1 to 4, Ishar Singh, defendant No. 4, in his written statement repudiated this claim. He put forward the plea that he had not dispossessed the plaintiff and, further, supported the claim of the plaintiff by pleading that there had been no karewa marriage between them. The suit was dismissed by the trial Court. It was decreed by the first appellate Court only against defendants 1 to 3, treating Ishar Singh as a pro forma defendant. In these circumstances, it is obvious that, when the case came up before the High Court, the dispute was confined between Smt. Rattno, legal representative of the original plaintiff on the one side, and defendants 1 to 3 on the other. Defendants 1 to 3 sought vacation of the decree for possession which had been granted against them in favour of Smt. Rattno. Ishar Singh, against whom the suit had not been decreed at all, thus became an unnecessary party. In these circumstances, even if Ishar Singh had not been impleaded as respondent in the High Court, the relief claimed by defendants 1 to 3 in that Court against Smt. Rattno could have been granted without bringing into effect any contradictory decrees. In the appeal in this Court also, in these circumstances, Ishar Singh was an unnecessary party and, consequently, the failure to implead his legal representatives as respondents in the appeal after his death does not affect the right of defendants 1 to 3 to claim the relief for which they have come up to this Court in appeal. The preliminary objection, therefore, fails and isuse of the expression "possessed by" instead of the expression "in possession of", in our opinion, was intended to enlarge the meaning of thisappears to us that the expression used in S. 14 (1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other cases of actual or constructive possession. On the language of S. 14 (1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property.The third case of this Court brought to our notice is that of S. S. Munna Lal v. S. S. Rajkumar, 1962 Supp (3) SCR 418: (AIR 1962 SC 1493 ). In that case, a Digamber Jain of the Porwal sect died in 1934 leaving behind his widow, his son and threeHis son died in 1939. In 1952 a son of one of the grandsons filed a suit for partition of the joint family properties, while the widow was still alive. While the suit was still pending, the widow died. Amongst other questions arising in the partition suit one question that arose was whether the 1/4th share of the widow declared in the preliminary decree was possessed by her and whether, on her death, it descended to her grandsons in accordance with the provisions of Sections 15 and 16 of the Act. Dealing with this question, this Court explained the scope of S. 14 (1) by stating that, by S. 14 (1), the Legislature sought to convert the interest of a Hindu female which, under the Sastric Hindu law, would have been regarded as a limited interest into an absolute interest. It was held that, by S. 14 (1), manifestly, it was intended to convert the interest, which a Hindu female has in property, however restricted the nature of that interest under the Sastric Hindu law may be, into absolute estate. It was also noticedthe Sastric Hindu law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance, and she was not entitled to claim partition. But the Legislature, by enacting the Hindu Womens Right to Property Act, 1937, made a significant departure in that branch of the law the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned, she became owner in severally of her share, subject, of course, to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual orthese principles to the facts of that case, it wasthe light of the scheme of the Act and its avowed purpose, it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If, under a preliminary decree, the right in favour of a Hindu male, be regarded as property, the right declared in favour of a Hindu female must also be regarded as property. The High Court was, therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S. 14 of thethat case, it will be noticed that the widow died, while the suit for partition was still pending, and she was not in actual physical or constructive possession of the property which was held to be possessed by her at the time of her death. Only a preliminary decree declaring her right to the share had been passed. That decree was passed before the Act came into force and the widow died after the Act came into force. On these facts, the Court came to the finding that the disputed property was possessed by the widow; and this finding was given despite the circumstance that she was not in actual possession or constructive possession of the property, but had merely obtained the right to the property under the preliminary decree. The principle laid down in that case, thus, supports the broader meaning given to the expression "possessed by" indicated by us earlier.In this view that we have taken. it does not appear to be necessary for us to refer to the decisions of the various High Courts which were cited before us by learned counsel, for the appellants. The cases mentioned were: Patelin v. Satvabati Naikani, AIR 1958 Ori 75 ; Ganesh Mahanta v. Sukria Bewa, AIR 1963 Ori 167 ; Harak Singh v. Kailash Singh. AIR 1958 Pat 581 Ram Gulam Singh v. Palakdhari Singh, AIR 1961 Pat 60 , Nathuni Prasad Singh v. Mst. Kachnar Kuer, AIR 1965 Pat 160 and Mst. Mukhtiar Kaur v. Mst. Kartar Kaur, AIR 1966 Punj 31. Allthese were cases relating to situations where the widow had made some alienation of her rights in the property and none of them was concerned with a case where the female Hindu might have been dispossessed by a trespasser. The reasons given by the High Courts in those cases are, therefore, of no assistance in deciding the applicability of S. 14 (1) of the Act to a case of the nature before us. | 0 | 6,315 | 2,518 | ### Instruction:
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to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S. 14 of the Act."In that case, it will be noticed that the widow died, while the suit for partition was still pending, and she was not in actual physical or constructive possession of the property which was held to be possessed by her at the time of her death. Only a preliminary decree declaring her right to the share had been passed. That decree was passed before the Act came into force and the widow died after the Act came into force. On these facts, the Court came to the finding that the disputed property was possessed by the widow; and this finding was given despite the circumstance that she was not in actual possession or constructive possession of the property, but had merely obtained the right to the property under the preliminary decree. The principle laid down in that case, thus, supports the broader meaning given to the expression "possessed by" indicated by us earlier.12. The last case of this Court brought to our notice is Eramma v. Veerupana, AIR 1966 SC: 1879. That was a converse case in which the female Hindu, in fact, did not possess any legal right or title to the property, though she was actually in physical possession of it. It was held:"The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to S. 14 (1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title however restricted the nature of her interest may be. The words "as full owner thereof and not as a limited owner" as given in the last portion of sub-section (1) of S. 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words S. 14 (1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called "limited estate" or widows estate" in Hindu Law and to make a Hindu woman, who, under the old law, would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder."In the concluding part, it was held:"It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words, the provisions of S. 14 (1) of the Act cannot be attracted in the case of a Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property."This case also, thus, clarifies that the expression "possessed by" is not intended to apply to a case of mere possession without title, and that the legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question. Even mere physical possession of the property without the right of ownership will not attract the provisions of this section. This case also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership and, while the Hindu female possesses the rights of ownership, she would become full owner if the other conditions mentioned in the section are fulfilled The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could? in no manner, exercise her rights of ownership in that property any longer.13. In this view that we have taken. it does not appear to be necessary for us to refer to the decisions of the various High Courts which were cited before us by learned counsel, for the appellants. The cases mentioned were: Patelin v. Satvabati Naikani, AIR 1958 Ori 75 ; Ganesh Mahanta v. Sukria Bewa, AIR 1963 Ori 167 ; Harak Singh v. Kailash Singh. AIR 1958 Pat 581 Ram Gulam Singh v. Palakdhari Singh, AIR 1961 Pat 60 , Nathuni Prasad Singh v. Mst. Kachnar Kuer, AIR 1965 Pat 160 and Mst. Mukhtiar Kaur v. Mst. Kartar Kaur, AIR 1966 Punj 31. All these were cases relating to situations where the widow had made some alienation of her rights in the property and none of them was concerned with a case where the female Hindu might have been dispossessed by a trespasser. The reasons given by the High Courts in those cases are, therefore, of no assistance in deciding the applicability of S. 14 (1) of the Act to a case of the nature before us.14. On the interpretation of S. 14 (1) of the Act that we have accepted above, it must be held that the property involved in the present suit was possessed by Smt. Harnam Kaur when she died in the year 1958 and, consequently, Smt. Rattno and, after her, the present respondents must be deemed to have succeeded to those rights.We have already mentioned above that it was not disputed that, if it is held that Smt. Harnam Kaur had become full owner of this property, it would pass on her death to Smt. Rattno. As a result, the decision given by the High Court must be upheld.
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also, in these circumstances, Ishar Singh was an unnecessary party and, consequently, the failure to implead his legal representatives as respondents in the appeal after his death does not affect the right of defendants 1 to 3 to claim the relief for which they have come up to this Court in appeal. The preliminary objection, therefore, fails and isuse of the expression "possessed by" instead of the expression "in possession of", in our opinion, was intended to enlarge the meaning of thisappears to us that the expression used in S. 14 (1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other cases of actual or constructive possession. On the language of S. 14 (1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property.The third case of this Court brought to our notice is that of S. S. Munna Lal v. S. S. Rajkumar, 1962 Supp (3) SCR 418: (AIR 1962 SC 1493 ). In that case, a Digamber Jain of the Porwal sect died in 1934 leaving behind his widow, his son and threeHis son died in 1939. In 1952 a son of one of the grandsons filed a suit for partition of the joint family properties, while the widow was still alive. While the suit was still pending, the widow died. Amongst other questions arising in the partition suit one question that arose was whether the 1/4th share of the widow declared in the preliminary decree was possessed by her and whether, on her death, it descended to her grandsons in accordance with the provisions of Sections 15 and 16 of the Act. Dealing with this question, this Court explained the scope of S. 14 (1) by stating that, by S. 14 (1), the Legislature sought to convert the interest of a Hindu female which, under the Sastric Hindu law, would have been regarded as a limited interest into an absolute interest. It was held that, by S. 14 (1), manifestly, it was intended to convert the interest, which a Hindu female has in property, however restricted the nature of that interest under the Sastric Hindu law may be, into absolute estate. It was also noticedthe Sastric Hindu law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance, and she was not entitled to claim partition. But the Legislature, by enacting the Hindu Womens Right to Property Act, 1937, made a significant departure in that branch of the law the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned, she became owner in severally of her share, subject, of course, to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual orthese principles to the facts of that case, it wasthe light of the scheme of the Act and its avowed purpose, it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If, under a preliminary decree, the right in favour of a Hindu male, be regarded as property, the right declared in favour of a Hindu female must also be regarded as property. The High Court was, therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S. 14 of thethat case, it will be noticed that the widow died, while the suit for partition was still pending, and she was not in actual physical or constructive possession of the property which was held to be possessed by her at the time of her death. Only a preliminary decree declaring her right to the share had been passed. That decree was passed before the Act came into force and the widow died after the Act came into force. On these facts, the Court came to the finding that the disputed property was possessed by the widow; and this finding was given despite the circumstance that she was not in actual possession or constructive possession of the property, but had merely obtained the right to the property under the preliminary decree. The principle laid down in that case, thus, supports the broader meaning given to the expression "possessed by" indicated by us earlier.In this view that we have taken. it does not appear to be necessary for us to refer to the decisions of the various High Courts which were cited before us by learned counsel, for the appellants. The cases mentioned were: Patelin v. Satvabati Naikani, AIR 1958 Ori 75 ; Ganesh Mahanta v. Sukria Bewa, AIR 1963 Ori 167 ; Harak Singh v. Kailash Singh. AIR 1958 Pat 581 Ram Gulam Singh v. Palakdhari Singh, AIR 1961 Pat 60 , Nathuni Prasad Singh v. Mst. Kachnar Kuer, AIR 1965 Pat 160 and Mst. Mukhtiar Kaur v. Mst. Kartar Kaur, AIR 1966 Punj 31. Allthese were cases relating to situations where the widow had made some alienation of her rights in the property and none of them was concerned with a case where the female Hindu might have been dispossessed by a trespasser. The reasons given by the High Courts in those cases are, therefore, of no assistance in deciding the applicability of S. 14 (1) of the Act to a case of the nature before us.
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Patel Kantilal Parshottamdas (D) Vs. Jitendrakumar Nanjibhai Mistry .(D) Th.Lrs &Ors | law. It would be open to the parties to amend the pleadings accordingly and to lead the evidence - if the parties are so advised - in addition to the evidence already on record. It is clarified that it would also be open for the parties and the trial court to refer to and rely upon the evidence already on record. Since the suit is very old, it is expected that trial court would dispose of the suit as expeditiously as possible."6. It is this outcome which is unpalatable to the legal heirs of Kanti, who have filed the special leave petition which has been converted into appeal after grant of leave therein.7. Before adverting to the arguments of the learned counsel for the parties, we deem it appropriate to record that insofar as suit filed by Jitender for specific performance of the contract is concerned, a plea of part performance of the contract was taken in the said suit which was predicated on the averment that on an execution of the Agreement to Sell, possession of the suit property was handed over to the purchaser. The trial court held that it was not so as the possession was not given consequent upon entering upon the said agreement but on account of relationship between the parties. The High Court termed this finding as erroneous and held that parting with possession of the suit property was pursuant to the Agreement to Sell entered into between the parties. However, appeal of Jitender against the judgment of the trial court for specific performance has been dismissed on the ground that even if such a possession was taken, it did not absolve the purchaser for his obligation to comply with the requirement of showing his readiness and willingness to execute the sale deed and that Section 53A of the Transfer of Property Act, 1882 could be used as a shield and not as a sword. The High Court also affirmed the finding of the trial court that the suit filed by Jitender, in any case, was barred by limitation and, therefore, Jitender could not avoid the inevitable result, merely by relying on Section 53A of Transfer of Property Act, 1882. The result is that suit for specific performance filed by Jitender stands dismissed and the judgment of the High Court has attained finality as there is no appeal by the respondents (legal heirs of Jitender).8. In this hue, we now revert back to the decision of the High Court in respect of suit filed by Kanti (predecessor of appellant) which is remanded back to the trial court as noted above. We are of the opinion that the aforesaid course of action adopted by the High Court in respect of relief claimed by Kanti in a suit is not appropriate. In the suit filed by him, Kanti had pleaded that after the execution of the agreement, Jitender failed to perform his obligation contained therein as he defaulted in making the payment of balance consideration within the time stipulated. On that basis, the prayer made in the suit was that the amount of earnest money under the agreement stood forfeited as the agreement had become non-effective, null and void and consequently possession of part of suit property held by Jitender was illegal which should be handed over to the plaintiff. Mesne profit was also claimed. Second suit filed by Kanti was specifically for mesne profit and for possession. No case was set up by Kanti that agreement was void because of the reason that he was only a lessee in the suit property which was given to him by the original owner Jeevandas for a period of 99 years and as he had not become the owner thereof, the agreement was in the nature of `contingent contract. Obviously, no evidence was led by any of the parties to this effect in the absence of pleadings. Therefore, High Court could not, of its own, set up a new case which was not a case pleaded by any of the parties. The liberty to amend the pleadings which is given is in the nature of allowing the appellant to come out with altogether a new case not even pleaded or argued before the High Court. Such an amendment could not have been allowed even if an application under Order VI Rule 17 CPC was filed for amending the plaint. In fact, the appellant had not even sought this remedy. The decree passed by the High Court on this ground and direction to the trial court to dispose of the case afresh after allowing amendment in the pleadings and leading further evidence on amended pleadings is, therefore, clearly erroneous in law. We, thus, set aside this direction.9. In the suit filed by Kanti (predecessor in interest of the appellant), his main reliefs were to declare agreement to sell as void and for possession-cum-mesne profit. Insofar as the first relief is concerned, this result stands achieved on the dismissal of the suit filed by Jitender for specific performance and in view of the findings of the courts below that Jitender failed to fulfill his obligations under the said agreement and could not establish that he was ready and willing to perform his part of the contract. The only question is as to whether the relief of possession could have been decreed. The trial court had decreed the suit to this effect. Against this decree, respondents had filed the appeal. The High Court has not dealt with that aspect and instead remitted the case back for fresh consideration, which direction has been set aside by us.Though, this issue was argued before us, however, we are of the opinion that it may not be proper for this Court to consider this aspect inasmuch as this issue had arisen in the appeal of the respondents in the High Court and respondents are not in appeal before us. It would, therefore, be more appropriate if the aforesaid issue is decided by the High Court. | 1[ds]8. In this hue, we now revert back to the decision of the High Court in respect of suit filed by Kanti (predecessor of appellant) which is remanded back to the trial court as noted above. We are of the opinion that the aforesaid course of action adopted by the High Court in respect of relief claimed by Kanti in a suit is not appropriate. In the suit filed by him, Kanti had pleaded that after the execution of the agreement, Jitender failed to perform his obligation contained therein as he defaulted in making the payment of balance consideration within the time stipulated. On that basis, the prayer made in the suit was that the amount of earnest money under the agreement stood forfeited as the agreement had becomenull and void and consequently possession of part of suit property held by Jitender was illegal which should be handed over to the plaintiff. Mesne profit was also claimed. Second suit filed by Kanti was specifically for mesne profit and for possession. No case was set up by Kanti that agreement was void because of the reason that he was only a lessee in the suit property which was given to him by the original owner Jeevandas for a period of 99 years and as he had not become the owner thereof, the agreement was in the nature of `contingent contract. Obviously, no evidence was led by any of the parties to this effect in the absence of pleadings. Therefore, High Court could not, of its own, set up a new case which was not a case pleaded by any of the parties. The liberty to amend the pleadings which is given is in the nature of allowing the appellant to come out with altogether a new case not even pleaded or argued before the High Court. Such an amendment could not have been allowed even if an application under Order VI Rule 17 CPC was filed for amending the plaint. In fact, the appellant had not even sought this remedy. The decree passed by the High Court on this ground and direction to the trial court to dispose of the case afresh after allowing amendment in the pleadings and leading further evidence on amended pleadings is, therefore, clearly erroneous in law. We, thus, set aside this direction.9. In the suit filed by Kanti (predecessor in interest of the appellant), his main reliefs were to declare agreement to sell as void and forprofit. Insofar as the first relief is concerned, this result stands achieved on the dismissal of the suit filed by Jitender for specific performance and in view of the findings of the courts below that Jitender failed to fulfill his obligations under the said agreement and could not establish that he was ready and willing to perform his part of the contract. The only question is as to whether the relief of possession could have been decreed. The trial court had decreed the suit to this effect. Against this decree, respondents had filed the appeal. The High Court has not dealt with that aspect and instead remitted the case back for fresh consideration, which direction has been set aside by us.Though, this issue was argued before us, however, we are of the opinion that it may not be proper for this Court to consider this aspect inasmuch as this issue had arisen in the appeal of the respondents in the High Court and respondents are not in appeal before us. It would, therefore, be more appropriate if the aforesaid issue is decided by the High Court. | 1 | 2,276 | 650 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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law. It would be open to the parties to amend the pleadings accordingly and to lead the evidence - if the parties are so advised - in addition to the evidence already on record. It is clarified that it would also be open for the parties and the trial court to refer to and rely upon the evidence already on record. Since the suit is very old, it is expected that trial court would dispose of the suit as expeditiously as possible."6. It is this outcome which is unpalatable to the legal heirs of Kanti, who have filed the special leave petition which has been converted into appeal after grant of leave therein.7. Before adverting to the arguments of the learned counsel for the parties, we deem it appropriate to record that insofar as suit filed by Jitender for specific performance of the contract is concerned, a plea of part performance of the contract was taken in the said suit which was predicated on the averment that on an execution of the Agreement to Sell, possession of the suit property was handed over to the purchaser. The trial court held that it was not so as the possession was not given consequent upon entering upon the said agreement but on account of relationship between the parties. The High Court termed this finding as erroneous and held that parting with possession of the suit property was pursuant to the Agreement to Sell entered into between the parties. However, appeal of Jitender against the judgment of the trial court for specific performance has been dismissed on the ground that even if such a possession was taken, it did not absolve the purchaser for his obligation to comply with the requirement of showing his readiness and willingness to execute the sale deed and that Section 53A of the Transfer of Property Act, 1882 could be used as a shield and not as a sword. The High Court also affirmed the finding of the trial court that the suit filed by Jitender, in any case, was barred by limitation and, therefore, Jitender could not avoid the inevitable result, merely by relying on Section 53A of Transfer of Property Act, 1882. The result is that suit for specific performance filed by Jitender stands dismissed and the judgment of the High Court has attained finality as there is no appeal by the respondents (legal heirs of Jitender).8. In this hue, we now revert back to the decision of the High Court in respect of suit filed by Kanti (predecessor of appellant) which is remanded back to the trial court as noted above. We are of the opinion that the aforesaid course of action adopted by the High Court in respect of relief claimed by Kanti in a suit is not appropriate. In the suit filed by him, Kanti had pleaded that after the execution of the agreement, Jitender failed to perform his obligation contained therein as he defaulted in making the payment of balance consideration within the time stipulated. On that basis, the prayer made in the suit was that the amount of earnest money under the agreement stood forfeited as the agreement had become non-effective, null and void and consequently possession of part of suit property held by Jitender was illegal which should be handed over to the plaintiff. Mesne profit was also claimed. Second suit filed by Kanti was specifically for mesne profit and for possession. No case was set up by Kanti that agreement was void because of the reason that he was only a lessee in the suit property which was given to him by the original owner Jeevandas for a period of 99 years and as he had not become the owner thereof, the agreement was in the nature of `contingent contract. Obviously, no evidence was led by any of the parties to this effect in the absence of pleadings. Therefore, High Court could not, of its own, set up a new case which was not a case pleaded by any of the parties. The liberty to amend the pleadings which is given is in the nature of allowing the appellant to come out with altogether a new case not even pleaded or argued before the High Court. Such an amendment could not have been allowed even if an application under Order VI Rule 17 CPC was filed for amending the plaint. In fact, the appellant had not even sought this remedy. The decree passed by the High Court on this ground and direction to the trial court to dispose of the case afresh after allowing amendment in the pleadings and leading further evidence on amended pleadings is, therefore, clearly erroneous in law. We, thus, set aside this direction.9. In the suit filed by Kanti (predecessor in interest of the appellant), his main reliefs were to declare agreement to sell as void and for possession-cum-mesne profit. Insofar as the first relief is concerned, this result stands achieved on the dismissal of the suit filed by Jitender for specific performance and in view of the findings of the courts below that Jitender failed to fulfill his obligations under the said agreement and could not establish that he was ready and willing to perform his part of the contract. The only question is as to whether the relief of possession could have been decreed. The trial court had decreed the suit to this effect. Against this decree, respondents had filed the appeal. The High Court has not dealt with that aspect and instead remitted the case back for fresh consideration, which direction has been set aside by us.Though, this issue was argued before us, however, we are of the opinion that it may not be proper for this Court to consider this aspect inasmuch as this issue had arisen in the appeal of the respondents in the High Court and respondents are not in appeal before us. It would, therefore, be more appropriate if the aforesaid issue is decided by the High Court.
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8. In this hue, we now revert back to the decision of the High Court in respect of suit filed by Kanti (predecessor of appellant) which is remanded back to the trial court as noted above. We are of the opinion that the aforesaid course of action adopted by the High Court in respect of relief claimed by Kanti in a suit is not appropriate. In the suit filed by him, Kanti had pleaded that after the execution of the agreement, Jitender failed to perform his obligation contained therein as he defaulted in making the payment of balance consideration within the time stipulated. On that basis, the prayer made in the suit was that the amount of earnest money under the agreement stood forfeited as the agreement had becomenull and void and consequently possession of part of suit property held by Jitender was illegal which should be handed over to the plaintiff. Mesne profit was also claimed. Second suit filed by Kanti was specifically for mesne profit and for possession. No case was set up by Kanti that agreement was void because of the reason that he was only a lessee in the suit property which was given to him by the original owner Jeevandas for a period of 99 years and as he had not become the owner thereof, the agreement was in the nature of `contingent contract. Obviously, no evidence was led by any of the parties to this effect in the absence of pleadings. Therefore, High Court could not, of its own, set up a new case which was not a case pleaded by any of the parties. The liberty to amend the pleadings which is given is in the nature of allowing the appellant to come out with altogether a new case not even pleaded or argued before the High Court. Such an amendment could not have been allowed even if an application under Order VI Rule 17 CPC was filed for amending the plaint. In fact, the appellant had not even sought this remedy. The decree passed by the High Court on this ground and direction to the trial court to dispose of the case afresh after allowing amendment in the pleadings and leading further evidence on amended pleadings is, therefore, clearly erroneous in law. We, thus, set aside this direction.9. In the suit filed by Kanti (predecessor in interest of the appellant), his main reliefs were to declare agreement to sell as void and forprofit. Insofar as the first relief is concerned, this result stands achieved on the dismissal of the suit filed by Jitender for specific performance and in view of the findings of the courts below that Jitender failed to fulfill his obligations under the said agreement and could not establish that he was ready and willing to perform his part of the contract. The only question is as to whether the relief of possession could have been decreed. The trial court had decreed the suit to this effect. Against this decree, respondents had filed the appeal. The High Court has not dealt with that aspect and instead remitted the case back for fresh consideration, which direction has been set aside by us.Though, this issue was argued before us, however, we are of the opinion that it may not be proper for this Court to consider this aspect inasmuch as this issue had arisen in the appeal of the respondents in the High Court and respondents are not in appeal before us. It would, therefore, be more appropriate if the aforesaid issue is decided by the High Court.
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Bilquis Vs. The State of Maharashtra and Ors | them have also deposed supporting the case of the claimant. Though these witnesses were cross-examined in detail on behalf of the State Government, we do not find any credible material so as to discard the evidence of these witnesses.8. The only witness examined on behalf of the State was a Talathi (inferior revenue officer in the village). He has admitted that he has not personally visited the land at survey No. 32, and that he has given evidence about the assessment as per the record. He also admits that the assessment was determined in the year 1927 and the same was continuing so far. He has also clearly admitted that prior to 1988, generally the people were executing sale deeds showing lesser price than the market price to save stamp duty. He had not brought even the revenue assessment record before the Court at the time of deposing. In the light of such evidence adduced by the State and in the light of the fact that no relevant records were produced by the State, there is no reason as to why the evidence put forth on behalf of the Appellant which has almost remained unrebutted should be ignored by the High Court.9. There is ample material on record to show that the claimants land is situated at a distance of five kilometers from Karanja town, which is having about a population of 50,000 to 60,000, and is having an Agriculture Produce market. Though the Special Land Acquisition Officer has shown only 4 to 6 hectares as irrigated land, the panchanama prepared by the Tahsildar clearly shows that the claimants acquired land contained 8 hectares of irrigated land out of total extent of about 9 hectares. Be that as it may, there cannot be any doubt that a major portion of the land (i.e. about 85% to 90%) of the claimant was irrigated land and the land was being fed with water drawn from the well situated in that very land. Based on the record, the Reference Court also found that the well was having a perennial source of water, the same was being drawn with the electric motor pump set, and the water was sufficient to irrigate the whole extent of the claimants land. It is also borne out from the order of the Reference Court that the underground pipe line is in four hectares of land and the land was fully surrounded by barbed fencing. The records of the acquisition including the panchanama by the authorities at the time of taking possession clearly reveal that there were more than 300-325 orange trees which were about 4 to 5 years old. The documents also reveal the existence of babul trees on the boundary of the land acquired. The price of babul trees is also found in the valuation report. Though, the Reference Court has relied upon certain sale statistics of lands, we find that all those sale statistics are pertaining to the post acquisition period and hence we do not propose to rely upon such sale statistics.10. Though the High Court has clearly observed that there were more than 300 orange trees which were about 4 to 5 years old, it has strangely not awarded any compensation in respect of orange trees. The High Court has also totally ignored the income from the crops grown over the land.11. It is not in dispute that generally, the orange trees would start yielding fruits from the fifth year. Since the orange plants were about 4 to 5 years old, the Reference Court was justified in observing that the orange trees had just then started yielding fruits to the claimant. Even otherwise, this Court cannot ignore the fact that the trees were very much ripe for yielding orange fruits. Therefore, in our considered opinion, the Reference Court was justified in awarding compensation in respect of the orange trees. The Reference Court on facts has determined price of each orange tree at Rs. 60 which will remain undisturbed. However, in our considered opinion, the Reference Court was not justified in adopting twenty years purchase as a multiplier while qualifying the market value of each orange tree. Rather, in the facts and circumstances of the case, it would have been proper had the Reference Court used the ten years purchase as a multiplier. Thus, in our considered opinion, the claimant would be entitled to Rs. 600/- (60 x 10 = 600) per orange tree, instead of Rs. 1200/- (60 x 20 = 1200) awarded by the reference Court. Therefore, the total compensation in respect of 325 orange trees would be Rs. 1,95,000/- (600 x 325 = 1,95,000).12. The High Court has ignored the higher revenue assessment of the land of the claimant. The revenue assessment of the land of the claimant is about Rs. 30. As mentioned supra, the Special Land Acquisition Officer has shown 4 to 6 hectares of the land in question as irrigated land, but the panchanama, Exhibit 26 prepared by the Tahsildar shows 8 hectares of the land of the claimant as irrigated land. Thus, it is clear that as on the date of taking possession, 85%-90% of the acquired land was irrigated land. It is also clear from the record that one well having perennial source of water and an electric motor pump was installed for the same. The land acquired was being used for growing varieties of crops in different years including chilli crops and cotton. Since irrigation facilities were available to the claimant for 12 months in a year, the Court may take notice of the fact that there was sufficient agricultural income from the land in question. Since the land in question is irrigated land having perennial source of water for 12 months, the High Court, in our considered opinion, is not justified in awarding compensation of Rs. 50,000/- per hectare for irrigated land and Rs. 9,500/- for dry land. In our considered opinion, the Reference Court has assigned certain valid reasons for coming to the conclusion. | 1[ds]Evidence of PW-3-Vimal Dongaokar also fully supports the evidence of PWs 1 and 2 to the effect that there was a well and the same was used for irrigating the land with the assistance of motor pump and pipe line. He has also deposed about the barbed fencing abound the land and about the situation of babul trees on the boundaries. PWs 4, 5 and 6 are the neighbouring land owners. All of them have also deposed supporting the case of the claimant. Though these witnesses were cross-examined in detail on behalf of the State Government, we do not find any credible material so as to discard the evidence of these witnesses8. The only witness examined on behalf of the State was a Talathi (inferior revenue officer in the village). He has admitted that he has not personally visited the land at survey No. 32, and that he has given evidence about the assessment as per the record. He also admits that the assessment was determined in the year 1927 and the same was continuing so far. He has also clearly admitted that prior to 1988, generally the people were executing sale deeds showing lesser price than the market price to save stamp duty. He had not brought even the revenue assessment record before the Court at the time of deposing. In the light of such evidence adduced by the State and in the light of the fact that no relevant records were produced by the State, there is no reason as to why the evidence put forth on behalf of the Appellant which has almost remained unrebutted should be ignored by the High Court9. There is ample material on record to show that the claimants land is situated at a distance of five kilometers from Karanja town, which is having about a population of 50,000 to 60,000, and is having an Agriculture Produce market. Though the Special Land Acquisition Officer has shown only 4 to 6 hectares as irrigated land, the panchanama prepared by the Tahsildar clearly shows that the claimants acquired land contained 8 hectares of irrigated land out of total extent of about 9 hectares. Be that as it may, there cannot be any doubt that a major portion of the land (i.e. about 85% to 90%) of the claimant was irrigated land and the land was being fed with water drawn from the well situated in that very land. Based on the record, the Reference Court also found that the well was having a perennial source of water, the same was being drawn with the electric motor pump set, and the water was sufficient to irrigate the whole extent of the claimants land. It is also borne out from the order of the Reference Court that the underground pipe line is in four hectares of land and the land was fully surrounded by barbed fencing. The records of the acquisition including the panchanama by the authorities at the time of taking possession clearly reveal that there were more than 300-325 orange trees which were about 4 to 5 years old. The documents also reveal the existence of babul trees on the boundary of the land acquired. The price of babul trees is also found in the valuation report. Though, the Reference Court has relied upon certain sale statistics of lands, we find that all those sale statistics are pertaining to the post acquisition period and hence we do not propose to rely upon such sale statistics10. Though the High Court has clearly observed that there were more than 300 orange trees which were about 4 to 5 years old, it has strangely not awarded any compensation in respect of orange trees. The High Court has also totally ignored the income from the crops grown over the land11. It is not in dispute that generally, the orange trees would start yielding fruits from the fifth year. Since the orange plants were about 4 to 5 years old, the Reference Court was justified in observing that the orange trees had just then started yielding fruits to the claimant. Even otherwise, this Court cannot ignore the fact that the trees were very much ripe for yielding orange fruits. Therefore, in our considered opinion, the Reference Court was justified in awarding compensation in respect of the orange trees. The Reference Court on facts has determined price of each orange tree at Rs. 60 which will remain undisturbed. However, in our considered opinion, the Reference Court was not justified in adopting twenty years purchase as a multiplier while qualifying the market value of each orange tree. Rather, in the facts and circumstances of the case, it would have been proper had the Reference Court used the ten years purchase as a multiplier. Thus, in our considered opinion, the claimant would be entitled to Rs. 600/- (60 x 10 = 600) per orange tree, instead of Rs. 1200/- (60 x 20 = 1200) awarded by the reference Court. Therefore, the total compensation in respect of 325 orange trees would be Rs. 1,95,000/- (600 x 325 = 1,95,000)12. The High Court has ignored the higher revenue assessment of the land of the claimant. The revenue assessment of the land of the claimant is about Rs. 30. As mentioned supra, the Special Land Acquisition Officer has shown 4 to 6 hectares of the land in question as irrigated land, but the panchanama, Exhibit 26 prepared by the Tahsildar shows 8 hectares of the land of the claimant as irrigated land. Thus, it is clear that as on the date of taking possession, 85%-90% of the acquired land was irrigated land. It is also clear from the record that one well having perennial source of water and an electric motor pump was installed for the same. The land acquired was being used for growing varieties of crops in different years including chilli crops and cotton. Since irrigation facilities were available to the claimant for 12 months in a year, the Court may take notice of the fact that there was sufficient agricultural income from the land in question. Since the land in question is irrigated land having perennial source of water for 12 months, the High Court, in our considered opinion, is not justified in awarding compensation of Rs. 50,000/- per hectare for irrigated land and Rs. 9,500/- for dry land. In our considered opinion, the Reference Court has assigned certain valid reasons for coming to the conclusion. | 1 | 2,170 | 1,182 | ### 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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them have also deposed supporting the case of the claimant. Though these witnesses were cross-examined in detail on behalf of the State Government, we do not find any credible material so as to discard the evidence of these witnesses.8. The only witness examined on behalf of the State was a Talathi (inferior revenue officer in the village). He has admitted that he has not personally visited the land at survey No. 32, and that he has given evidence about the assessment as per the record. He also admits that the assessment was determined in the year 1927 and the same was continuing so far. He has also clearly admitted that prior to 1988, generally the people were executing sale deeds showing lesser price than the market price to save stamp duty. He had not brought even the revenue assessment record before the Court at the time of deposing. In the light of such evidence adduced by the State and in the light of the fact that no relevant records were produced by the State, there is no reason as to why the evidence put forth on behalf of the Appellant which has almost remained unrebutted should be ignored by the High Court.9. There is ample material on record to show that the claimants land is situated at a distance of five kilometers from Karanja town, which is having about a population of 50,000 to 60,000, and is having an Agriculture Produce market. Though the Special Land Acquisition Officer has shown only 4 to 6 hectares as irrigated land, the panchanama prepared by the Tahsildar clearly shows that the claimants acquired land contained 8 hectares of irrigated land out of total extent of about 9 hectares. Be that as it may, there cannot be any doubt that a major portion of the land (i.e. about 85% to 90%) of the claimant was irrigated land and the land was being fed with water drawn from the well situated in that very land. Based on the record, the Reference Court also found that the well was having a perennial source of water, the same was being drawn with the electric motor pump set, and the water was sufficient to irrigate the whole extent of the claimants land. It is also borne out from the order of the Reference Court that the underground pipe line is in four hectares of land and the land was fully surrounded by barbed fencing. The records of the acquisition including the panchanama by the authorities at the time of taking possession clearly reveal that there were more than 300-325 orange trees which were about 4 to 5 years old. The documents also reveal the existence of babul trees on the boundary of the land acquired. The price of babul trees is also found in the valuation report. Though, the Reference Court has relied upon certain sale statistics of lands, we find that all those sale statistics are pertaining to the post acquisition period and hence we do not propose to rely upon such sale statistics.10. Though the High Court has clearly observed that there were more than 300 orange trees which were about 4 to 5 years old, it has strangely not awarded any compensation in respect of orange trees. The High Court has also totally ignored the income from the crops grown over the land.11. It is not in dispute that generally, the orange trees would start yielding fruits from the fifth year. Since the orange plants were about 4 to 5 years old, the Reference Court was justified in observing that the orange trees had just then started yielding fruits to the claimant. Even otherwise, this Court cannot ignore the fact that the trees were very much ripe for yielding orange fruits. Therefore, in our considered opinion, the Reference Court was justified in awarding compensation in respect of the orange trees. The Reference Court on facts has determined price of each orange tree at Rs. 60 which will remain undisturbed. However, in our considered opinion, the Reference Court was not justified in adopting twenty years purchase as a multiplier while qualifying the market value of each orange tree. Rather, in the facts and circumstances of the case, it would have been proper had the Reference Court used the ten years purchase as a multiplier. Thus, in our considered opinion, the claimant would be entitled to Rs. 600/- (60 x 10 = 600) per orange tree, instead of Rs. 1200/- (60 x 20 = 1200) awarded by the reference Court. Therefore, the total compensation in respect of 325 orange trees would be Rs. 1,95,000/- (600 x 325 = 1,95,000).12. The High Court has ignored the higher revenue assessment of the land of the claimant. The revenue assessment of the land of the claimant is about Rs. 30. As mentioned supra, the Special Land Acquisition Officer has shown 4 to 6 hectares of the land in question as irrigated land, but the panchanama, Exhibit 26 prepared by the Tahsildar shows 8 hectares of the land of the claimant as irrigated land. Thus, it is clear that as on the date of taking possession, 85%-90% of the acquired land was irrigated land. It is also clear from the record that one well having perennial source of water and an electric motor pump was installed for the same. The land acquired was being used for growing varieties of crops in different years including chilli crops and cotton. Since irrigation facilities were available to the claimant for 12 months in a year, the Court may take notice of the fact that there was sufficient agricultural income from the land in question. Since the land in question is irrigated land having perennial source of water for 12 months, the High Court, in our considered opinion, is not justified in awarding compensation of Rs. 50,000/- per hectare for irrigated land and Rs. 9,500/- for dry land. In our considered opinion, the Reference Court has assigned certain valid reasons for coming to the conclusion.
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them have also deposed supporting the case of the claimant. Though these witnesses were cross-examined in detail on behalf of the State Government, we do not find any credible material so as to discard the evidence of these witnesses8. The only witness examined on behalf of the State was a Talathi (inferior revenue officer in the village). He has admitted that he has not personally visited the land at survey No. 32, and that he has given evidence about the assessment as per the record. He also admits that the assessment was determined in the year 1927 and the same was continuing so far. He has also clearly admitted that prior to 1988, generally the people were executing sale deeds showing lesser price than the market price to save stamp duty. He had not brought even the revenue assessment record before the Court at the time of deposing. In the light of such evidence adduced by the State and in the light of the fact that no relevant records were produced by the State, there is no reason as to why the evidence put forth on behalf of the Appellant which has almost remained unrebutted should be ignored by the High Court9. There is ample material on record to show that the claimants land is situated at a distance of five kilometers from Karanja town, which is having about a population of 50,000 to 60,000, and is having an Agriculture Produce market. Though the Special Land Acquisition Officer has shown only 4 to 6 hectares as irrigated land, the panchanama prepared by the Tahsildar clearly shows that the claimants acquired land contained 8 hectares of irrigated land out of total extent of about 9 hectares. Be that as it may, there cannot be any doubt that a major portion of the land (i.e. about 85% to 90%) of the claimant was irrigated land and the land was being fed with water drawn from the well situated in that very land. Based on the record, the Reference Court also found that the well was having a perennial source of water, the same was being drawn with the electric motor pump set, and the water was sufficient to irrigate the whole extent of the claimants land. It is also borne out from the order of the Reference Court that the underground pipe line is in four hectares of land and the land was fully surrounded by barbed fencing. The records of the acquisition including the panchanama by the authorities at the time of taking possession clearly reveal that there were more than 300-325 orange trees which were about 4 to 5 years old. The documents also reveal the existence of babul trees on the boundary of the land acquired. The price of babul trees is also found in the valuation report. Though, the Reference Court has relied upon certain sale statistics of lands, we find that all those sale statistics are pertaining to the post acquisition period and hence we do not propose to rely upon such sale statistics10. Though the High Court has clearly observed that there were more than 300 orange trees which were about 4 to 5 years old, it has strangely not awarded any compensation in respect of orange trees. The High Court has also totally ignored the income from the crops grown over the land11. It is not in dispute that generally, the orange trees would start yielding fruits from the fifth year. Since the orange plants were about 4 to 5 years old, the Reference Court was justified in observing that the orange trees had just then started yielding fruits to the claimant. Even otherwise, this Court cannot ignore the fact that the trees were very much ripe for yielding orange fruits. Therefore, in our considered opinion, the Reference Court was justified in awarding compensation in respect of the orange trees. The Reference Court on facts has determined price of each orange tree at Rs. 60 which will remain undisturbed. However, in our considered opinion, the Reference Court was not justified in adopting twenty years purchase as a multiplier while qualifying the market value of each orange tree. Rather, in the facts and circumstances of the case, it would have been proper had the Reference Court used the ten years purchase as a multiplier. Thus, in our considered opinion, the claimant would be entitled to Rs. 600/- (60 x 10 = 600) per orange tree, instead of Rs. 1200/- (60 x 20 = 1200) awarded by the reference Court. Therefore, the total compensation in respect of 325 orange trees would be Rs. 1,95,000/- (600 x 325 = 1,95,000)12. The High Court has ignored the higher revenue assessment of the land of the claimant. The revenue assessment of the land of the claimant is about Rs. 30. As mentioned supra, the Special Land Acquisition Officer has shown 4 to 6 hectares of the land in question as irrigated land, but the panchanama, Exhibit 26 prepared by the Tahsildar shows 8 hectares of the land of the claimant as irrigated land. Thus, it is clear that as on the date of taking possession, 85%-90% of the acquired land was irrigated land. It is also clear from the record that one well having perennial source of water and an electric motor pump was installed for the same. The land acquired was being used for growing varieties of crops in different years including chilli crops and cotton. Since irrigation facilities were available to the claimant for 12 months in a year, the Court may take notice of the fact that there was sufficient agricultural income from the land in question. Since the land in question is irrigated land having perennial source of water for 12 months, the High Court, in our considered opinion, is not justified in awarding compensation of Rs. 50,000/- per hectare for irrigated land and Rs. 9,500/- for dry land. In our considered opinion, the Reference Court has assigned certain valid reasons for coming to the conclusion.
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P. SATYANARAYANA Vs. NANDYALA RAMA KRISHNA REDDY | out: (i) that the predecessor of the respondentplaintiff was issued a certificate under Exhibit P-21 dated 16.12.1975 under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950; (ii) that the said certificate is proof enough to show the passing of title in favour of the predecessor of the respondent-plaintiff; (iii) that Exhibit P-17, which is Form 1-B (Record of Rights) showed that prima facie the respondent was in possession of the land on the date of institution of the suit; and (iv) that therefore, the person in possession was entitled to an interim order of protection. 11. The High Court also found Exhibit R-6 filed by the petitionerdefendant which is the Occupancy Right Certificate issued on 08.04.1996, to be unbelievable, as the predecessor in title of the respondent-plaintiff had already been issued a certificate under Section 38-E of the aforesaid Act way back on 16.12.1975. The High Court pointed out that the person under whom the defendant claimed title, namely Gopamma Yadaiah, could not have acquired any right, under the sale deed dated 08.07.1980, after the issue of the certificate under Section 38-E of the Act in favour of the predecessor of the respondentplaintiff on 16.12.1975. 12. Insofar as the prior suit filed by the vendor of the respondent plaintiff is concerned, the High Court pointed out that it was only a suit for permanent injunction and that the dismissal of the application for injunction without recording any finding relating to possession was of no consequence. The relevant portion of the impugned order of the High Court reads as follows: 52. It also seems to have misread the order passed on 11.08.2015 in I.A. No. 510 of 2015 in O.S. No. 603 of 2015 (Ex. R10). In the said order, the Principal Senior Civil Judge, Ranga Reddy District observed merely that the photographs filed by the appellants vendor show that the land is open land without any construction and so also was the property of the respondent, and easementery rights of air and light are prescriptive rights, and the appellants vendor has to prove acquisition of the said rights for the prescribed period. There is no mention therein about lack of possession and enjoyment of the appellants vendor. The above finding as recorded by the trial court also contradicts the claim of the respondent of constructing a compound wall around Acs. 2.00 gts. of land and possessed by him as stated in para no.4 in Written Statement filed in O.S. No. 603 of 2015. 13. The High Court took note of the fact that under Exhibit P-22, which is the Pahani for the year 2003-2004, there was a sub-division of the land in Survey No.272 into Survey No. 272/A and 272/AA and that the Pahanis of all subsequent years in respect of Survey no.272/A were in favour of predecessors-in-title of the respondent-plaintiff. On the basis of these findings, the High Court reversed the Order of the trial Court and granted an interim injunction in favour of the respondentplaintiff. Therefore, we do not think that this is a case warranting interference under Article 136 of the Constitution. 14. At the time when this Court ordered notice in the above special leave petition on 2.08.2021, this Court was impressed prima facie with the argument that the withdrawal of the prior suit by the vendor of the respondent-plaintiff would have a serious bearing upon the prayer for interim injunction in the present suit. Therefore, this Court, while ordering notice on 2.08.2021 recorded as follows: Learned counsel for the petitioner contends that the predecessor of the plaintiff filed O.S. No.603 of 2015 claiming permanent injunction in respect of land measuring 1 acre comprising Survey No.272 ad measuring 2 acres. Such suit was dismissed as not pressed on 02.03.2016. The plaintiff has purchased the property comprising in Survey No.272 on 09.12.2015. The purchaser filed a suit after purchase of the land in respect of which predecessor of the plaintiff has withdrawn suit. Therefore, the suit of the 2 plaintiff was not maintainable. Notice, returnable within four weeks. In the meantime, parties to maintain status quo regarding possession. 15. On the basis of the above order, it was contended by Mr. Shyam Divan, learned senior counsel for the petitioner that the respondentplaintiff was a purchaser pendente lite and that when his suit itself is barred by law, he cannot be rewarded with an interim injunction. 16. But we are not impressed with the said submission. We have already extracted paragraph 52 of the Order of the High Court which records reasons as to why the High Court thought that the previous proceeding will not be an impediment in the way of the respondentplaintiff filing the present suit and seeking an injunction. As rightly observed by the High Court, the dismissal of the application for injunction in the prior suit, was on account of the fact that the photographs showed the land to be an open vacant land. 17. In Thota Sridhar Reddy and Ors. vs. Mandala Ramulamma and Others 2021 SCC Online SC 851 , this Court had an occasion to consider in extenso the rights conferred by Section 38-E of the Tenancy Act. 18. Paragraph 48 of the said decision which reads as follows actually supports the view taken by the High Court in paragraph 49 of the impugned order. The appeals allegedly filed by the protected tenant against the grant of occupancy rights certificate and subsequently being withdrawn is wholly inconsequential as after the grant of ownership certificate in terms of Section 38-E of the Tenancy Act, the protected tenants are deemed to be owners. Once the protected tenants are deemed to be owners, there could not be any occupancy rights certificate as the purchasers were divested of their ownership by virtue of the grant of ownership certificate under Section 38-E of the Tenancy Act. Such certificate was also not disputed by the purchasers. Therefore, title of the protected tenants is complete and the ownership unambiguously vests with them. | 0[ds]16. But we are not impressed with the said submission. We have already extracted paragraph 52 of the Order of the High Court which records reasons as to why the High Court thought that the previous proceeding will not be an impediment in the way of the respondentplaintiff filing the present suit and seeking an injunction. As rightly observed by the High Court, the dismissal of the application for injunction in the prior suit, was on account of the fact that the photographs showed the land to be an open vacant land.17. In Thota Sridhar Reddy and Ors. vs. Mandala Ramulamma and Others 2021 SCC Online SC 851 , this Court had an occasion to consider in extenso the rights conferred by Section 38-E of the Tenancy Act.18. Paragraph 48 of the said decision which reads as follows actually supports the view taken by the High Court in paragraph 49 of the impugned order.The appeals allegedly filed by the protected tenant against the grant of occupancy rights certificate and subsequently being withdrawn is wholly inconsequential as after the grant of ownership certificate in terms of Section 38-E of the Tenancy Act, the protected tenants are deemed to be owners. Once the protected tenants are deemed to be owners, there could not be any occupancy rights certificate as the purchasers were divested of their ownership by virtue of the grant of ownership certificate under Section 38-E of the Tenancy Act. Such certificate was also not disputed by the purchasers. Therefore, title of the protected tenants is complete and the ownership unambiguously vests with them. | 0 | 2,150 | 282 | ### 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:
out: (i) that the predecessor of the respondentplaintiff was issued a certificate under Exhibit P-21 dated 16.12.1975 under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950; (ii) that the said certificate is proof enough to show the passing of title in favour of the predecessor of the respondent-plaintiff; (iii) that Exhibit P-17, which is Form 1-B (Record of Rights) showed that prima facie the respondent was in possession of the land on the date of institution of the suit; and (iv) that therefore, the person in possession was entitled to an interim order of protection. 11. The High Court also found Exhibit R-6 filed by the petitionerdefendant which is the Occupancy Right Certificate issued on 08.04.1996, to be unbelievable, as the predecessor in title of the respondent-plaintiff had already been issued a certificate under Section 38-E of the aforesaid Act way back on 16.12.1975. The High Court pointed out that the person under whom the defendant claimed title, namely Gopamma Yadaiah, could not have acquired any right, under the sale deed dated 08.07.1980, after the issue of the certificate under Section 38-E of the Act in favour of the predecessor of the respondentplaintiff on 16.12.1975. 12. Insofar as the prior suit filed by the vendor of the respondent plaintiff is concerned, the High Court pointed out that it was only a suit for permanent injunction and that the dismissal of the application for injunction without recording any finding relating to possession was of no consequence. The relevant portion of the impugned order of the High Court reads as follows: 52. It also seems to have misread the order passed on 11.08.2015 in I.A. No. 510 of 2015 in O.S. No. 603 of 2015 (Ex. R10). In the said order, the Principal Senior Civil Judge, Ranga Reddy District observed merely that the photographs filed by the appellants vendor show that the land is open land without any construction and so also was the property of the respondent, and easementery rights of air and light are prescriptive rights, and the appellants vendor has to prove acquisition of the said rights for the prescribed period. There is no mention therein about lack of possession and enjoyment of the appellants vendor. The above finding as recorded by the trial court also contradicts the claim of the respondent of constructing a compound wall around Acs. 2.00 gts. of land and possessed by him as stated in para no.4 in Written Statement filed in O.S. No. 603 of 2015. 13. The High Court took note of the fact that under Exhibit P-22, which is the Pahani for the year 2003-2004, there was a sub-division of the land in Survey No.272 into Survey No. 272/A and 272/AA and that the Pahanis of all subsequent years in respect of Survey no.272/A were in favour of predecessors-in-title of the respondent-plaintiff. On the basis of these findings, the High Court reversed the Order of the trial Court and granted an interim injunction in favour of the respondentplaintiff. Therefore, we do not think that this is a case warranting interference under Article 136 of the Constitution. 14. At the time when this Court ordered notice in the above special leave petition on 2.08.2021, this Court was impressed prima facie with the argument that the withdrawal of the prior suit by the vendor of the respondent-plaintiff would have a serious bearing upon the prayer for interim injunction in the present suit. Therefore, this Court, while ordering notice on 2.08.2021 recorded as follows: Learned counsel for the petitioner contends that the predecessor of the plaintiff filed O.S. No.603 of 2015 claiming permanent injunction in respect of land measuring 1 acre comprising Survey No.272 ad measuring 2 acres. Such suit was dismissed as not pressed on 02.03.2016. The plaintiff has purchased the property comprising in Survey No.272 on 09.12.2015. The purchaser filed a suit after purchase of the land in respect of which predecessor of the plaintiff has withdrawn suit. Therefore, the suit of the 2 plaintiff was not maintainable. Notice, returnable within four weeks. In the meantime, parties to maintain status quo regarding possession. 15. On the basis of the above order, it was contended by Mr. Shyam Divan, learned senior counsel for the petitioner that the respondentplaintiff was a purchaser pendente lite and that when his suit itself is barred by law, he cannot be rewarded with an interim injunction. 16. But we are not impressed with the said submission. We have already extracted paragraph 52 of the Order of the High Court which records reasons as to why the High Court thought that the previous proceeding will not be an impediment in the way of the respondentplaintiff filing the present suit and seeking an injunction. As rightly observed by the High Court, the dismissal of the application for injunction in the prior suit, was on account of the fact that the photographs showed the land to be an open vacant land. 17. In Thota Sridhar Reddy and Ors. vs. Mandala Ramulamma and Others 2021 SCC Online SC 851 , this Court had an occasion to consider in extenso the rights conferred by Section 38-E of the Tenancy Act. 18. Paragraph 48 of the said decision which reads as follows actually supports the view taken by the High Court in paragraph 49 of the impugned order. The appeals allegedly filed by the protected tenant against the grant of occupancy rights certificate and subsequently being withdrawn is wholly inconsequential as after the grant of ownership certificate in terms of Section 38-E of the Tenancy Act, the protected tenants are deemed to be owners. Once the protected tenants are deemed to be owners, there could not be any occupancy rights certificate as the purchasers were divested of their ownership by virtue of the grant of ownership certificate under Section 38-E of the Tenancy Act. Such certificate was also not disputed by the purchasers. Therefore, title of the protected tenants is complete and the ownership unambiguously vests with them.
### Response:
0
### Explanation:
16. But we are not impressed with the said submission. We have already extracted paragraph 52 of the Order of the High Court which records reasons as to why the High Court thought that the previous proceeding will not be an impediment in the way of the respondentplaintiff filing the present suit and seeking an injunction. As rightly observed by the High Court, the dismissal of the application for injunction in the prior suit, was on account of the fact that the photographs showed the land to be an open vacant land.17. In Thota Sridhar Reddy and Ors. vs. Mandala Ramulamma and Others 2021 SCC Online SC 851 , this Court had an occasion to consider in extenso the rights conferred by Section 38-E of the Tenancy Act.18. Paragraph 48 of the said decision which reads as follows actually supports the view taken by the High Court in paragraph 49 of the impugned order.The appeals allegedly filed by the protected tenant against the grant of occupancy rights certificate and subsequently being withdrawn is wholly inconsequential as after the grant of ownership certificate in terms of Section 38-E of the Tenancy Act, the protected tenants are deemed to be owners. Once the protected tenants are deemed to be owners, there could not be any occupancy rights certificate as the purchasers were divested of their ownership by virtue of the grant of ownership certificate under Section 38-E of the Tenancy Act. Such certificate was also not disputed by the purchasers. Therefore, title of the protected tenants is complete and the ownership unambiguously vests with them.
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SAI BABU Vs. CLARIYA STEELS PVT. LTD | 1. The sole arbitrator who was appointed in this case terminated proceedings under Section 32(2)(c) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as Act), by order dated 04.05.2017. However, on an application dated 05.05.2017 to recall the aforesaid order, the learned arbitrator passed an order on 18.05.2017 stating that, as good reasons had been made out in the affidavit for recall, he was inclined to recall the order even though under the Act, in law, it may be difficult to do so. A revision filed against the aforesaid order was dismissed by the High Court on 14.06.2017. 2. Having heard learned counsel for the parties, we are of the view that the matter is no longer res integra. In SREI Infrastructure Finance Limited v. Tuff Drilling Private Limited, (2018) 11 SCC 470 , this Court held: 22. Section 32 contains a heading Termination of Proceedings. Sub-section (1) provides that the arbitral proceedings shall be terminated by the final arbitral award or by an order of the Arbitral Tribunal under sub-section (2). Sub-section (2) enumerates the circumstances when the Arbitral Tribunal shall issue an order for the termination of the arbitral proceedings. The situation as contemplated under Sections 32(2)(a) and 32(2)(b) are not attracted in the facts of this case. Whether termination of proceedings in the present case can be treated to be covered by Section 32(2)(c) is the question to be considered. Clause (c) contemplates two grounds for termination i.e. (i) the Arbitral Tribunal finds that the continuation of the proceedings has for any other reason become unnecessary, or (ii) impossible. The eventuality as contemplated under Section 32 shall arise only when the claim is not terminated under Section 25(a) and proceeds further. The words unnecessary or impossible as used in clause (c) of Section 32(2), cannot be said to be covering a situation where proceedings are terminated in default of the claimant. The words unnecessary or impossible has been used in different contexts than to one of default as contemplated under Section 25(a). Subsection (3) of Section 32 further provides that the mandate of the Arbitral Tribunal shall terminate with the termination of the arbitral proceedings subject to Section 33 and sub-section (4) of Section 34. Section 33 is the power of the Arbitral Tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature or to give an interpretation of a specific point or part of the award. Section 34(4) reserves the power of the court to adjourn the proceedings in order to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award. On the termination of proceedings under Sections 32(2) and 33(1), Section 33(3) further contemplates termination of the mandate of the Arbitral Tribunal, whereas the aforesaid words are missing in Section 25. When the legislature has used the phrase the mandate of the Arbitral Tribunal shall terminate in Section 32(3), non-use of such phrase in Section 25(a) has to be treated with a purpose and object. The purpose and object can only be that if the claimant shows sufficient cause, the proceedings can be recommenced. 3. It is clear, therefore, that a distinction was made by this Court between the mandate terminating under section 32 and proceedings coming to an end under section 25. This Court has clearly held that no recall application would, therefore, lie in cases covered by section 32(3). | 1[ds]2. Having heard learned counsel for the parties, we are of the view that the matter is no longer res integra. In SREI Infrastructure Finance Limited v. Tuff Drilling Private Limited, (2018) 11 SCC 470 , this Court held:22. Section 32 contains a heading Termination of Proceedings. Sub-section (1) provides that the arbitral proceedings shall be terminated by the final arbitral award or by an order of the Arbitral Tribunal under sub-section (2). Sub-section (2) enumerates the circumstances when the Arbitral Tribunal shall issue an order for the termination of the arbitral proceedings. The situation as contemplated under Sections 32(2)(a) and 32(2)(b) are not attracted in the facts of this case. Whether termination of proceedings in the present case can be treated to be covered by Section 32(2)(c) is the question to be considered. Clause (c) contemplates two grounds for termination i.e. (i) the Arbitral Tribunal finds that the continuation of the proceedings has for any other reason become unnecessary, or (ii) impossible. The eventuality as contemplated under Section 32 shall arise only when the claim is not terminated under Section 25(a) and proceeds further. The words unnecessary or impossible as used in clause (c) of Section 32(2), cannot be said to be covering a situation where proceedings are terminated in default of the claimant. The words unnecessary or impossible has been used in different contexts than to one of default as contemplated under Section 25(a). Subsection (3) of Section 32 further provides that the mandate of the Arbitral Tribunal shall terminate with the termination of the arbitral proceedings subject to Section 33 and sub-section (4) of Section 34. Section 33 is the power of the Arbitral Tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature or to give an interpretation of a specific point or part of the award. Section 34(4) reserves the power of the court to adjourn the proceedings in order to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award. On the termination of proceedings under Sections 32(2) and 33(1), Section 33(3) further contemplates termination of the mandate of the Arbitral Tribunal, whereas the aforesaid words are missing in Section 25. When the legislature has used the phrase the mandate of the Arbitral Tribunal shall terminate in Section 32(3), non-use of such phrase in Section 25(a) has to be treated with a purpose and object. The purpose and object can only be that if the claimant shows sufficient cause, the proceedings can be recommenced.3. It is clear, therefore, that a distinction was made by this Court between the mandate terminating under section 32 and proceedings coming to an end under section 25. This Court has clearly held that no recall application would, therefore, lie in cases covered by section 32(3). | 1 | 717 | 597 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
1. The sole arbitrator who was appointed in this case terminated proceedings under Section 32(2)(c) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as Act), by order dated 04.05.2017. However, on an application dated 05.05.2017 to recall the aforesaid order, the learned arbitrator passed an order on 18.05.2017 stating that, as good reasons had been made out in the affidavit for recall, he was inclined to recall the order even though under the Act, in law, it may be difficult to do so. A revision filed against the aforesaid order was dismissed by the High Court on 14.06.2017. 2. Having heard learned counsel for the parties, we are of the view that the matter is no longer res integra. In SREI Infrastructure Finance Limited v. Tuff Drilling Private Limited, (2018) 11 SCC 470 , this Court held: 22. Section 32 contains a heading Termination of Proceedings. Sub-section (1) provides that the arbitral proceedings shall be terminated by the final arbitral award or by an order of the Arbitral Tribunal under sub-section (2). Sub-section (2) enumerates the circumstances when the Arbitral Tribunal shall issue an order for the termination of the arbitral proceedings. The situation as contemplated under Sections 32(2)(a) and 32(2)(b) are not attracted in the facts of this case. Whether termination of proceedings in the present case can be treated to be covered by Section 32(2)(c) is the question to be considered. Clause (c) contemplates two grounds for termination i.e. (i) the Arbitral Tribunal finds that the continuation of the proceedings has for any other reason become unnecessary, or (ii) impossible. The eventuality as contemplated under Section 32 shall arise only when the claim is not terminated under Section 25(a) and proceeds further. The words unnecessary or impossible as used in clause (c) of Section 32(2), cannot be said to be covering a situation where proceedings are terminated in default of the claimant. The words unnecessary or impossible has been used in different contexts than to one of default as contemplated under Section 25(a). Subsection (3) of Section 32 further provides that the mandate of the Arbitral Tribunal shall terminate with the termination of the arbitral proceedings subject to Section 33 and sub-section (4) of Section 34. Section 33 is the power of the Arbitral Tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature or to give an interpretation of a specific point or part of the award. Section 34(4) reserves the power of the court to adjourn the proceedings in order to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award. On the termination of proceedings under Sections 32(2) and 33(1), Section 33(3) further contemplates termination of the mandate of the Arbitral Tribunal, whereas the aforesaid words are missing in Section 25. When the legislature has used the phrase the mandate of the Arbitral Tribunal shall terminate in Section 32(3), non-use of such phrase in Section 25(a) has to be treated with a purpose and object. The purpose and object can only be that if the claimant shows sufficient cause, the proceedings can be recommenced. 3. It is clear, therefore, that a distinction was made by this Court between the mandate terminating under section 32 and proceedings coming to an end under section 25. This Court has clearly held that no recall application would, therefore, lie in cases covered by section 32(3).
### Response:
1
### Explanation:
2. Having heard learned counsel for the parties, we are of the view that the matter is no longer res integra. In SREI Infrastructure Finance Limited v. Tuff Drilling Private Limited, (2018) 11 SCC 470 , this Court held:22. Section 32 contains a heading Termination of Proceedings. Sub-section (1) provides that the arbitral proceedings shall be terminated by the final arbitral award or by an order of the Arbitral Tribunal under sub-section (2). Sub-section (2) enumerates the circumstances when the Arbitral Tribunal shall issue an order for the termination of the arbitral proceedings. The situation as contemplated under Sections 32(2)(a) and 32(2)(b) are not attracted in the facts of this case. Whether termination of proceedings in the present case can be treated to be covered by Section 32(2)(c) is the question to be considered. Clause (c) contemplates two grounds for termination i.e. (i) the Arbitral Tribunal finds that the continuation of the proceedings has for any other reason become unnecessary, or (ii) impossible. The eventuality as contemplated under Section 32 shall arise only when the claim is not terminated under Section 25(a) and proceeds further. The words unnecessary or impossible as used in clause (c) of Section 32(2), cannot be said to be covering a situation where proceedings are terminated in default of the claimant. The words unnecessary or impossible has been used in different contexts than to one of default as contemplated under Section 25(a). Subsection (3) of Section 32 further provides that the mandate of the Arbitral Tribunal shall terminate with the termination of the arbitral proceedings subject to Section 33 and sub-section (4) of Section 34. Section 33 is the power of the Arbitral Tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature or to give an interpretation of a specific point or part of the award. Section 34(4) reserves the power of the court to adjourn the proceedings in order to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award. On the termination of proceedings under Sections 32(2) and 33(1), Section 33(3) further contemplates termination of the mandate of the Arbitral Tribunal, whereas the aforesaid words are missing in Section 25. When the legislature has used the phrase the mandate of the Arbitral Tribunal shall terminate in Section 32(3), non-use of such phrase in Section 25(a) has to be treated with a purpose and object. The purpose and object can only be that if the claimant shows sufficient cause, the proceedings can be recommenced.3. It is clear, therefore, that a distinction was made by this Court between the mandate terminating under section 32 and proceedings coming to an end under section 25. This Court has clearly held that no recall application would, therefore, lie in cases covered by section 32(3).
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Kishanlal Haricharan Vs. Income Tax Officer, Nizamabad | Jaganmohan Reddy, J. 1. This is an appeal by certificate against the judgment of the Andhra Pradesh High Court refusing to interfere with the order of the Income-tax Officer made under Sec. 35 (5) of the Indian Income-tax Act, 1922 (hereinafter called the Act). 2. The appellant was assessed in the status of Hindu joint family for the years 1949-50 and 1950-51. In the course of the assessment proceedings for 1950-51 it was represented to the Income-tax Officer that the petitioner had an eight annas share in the firm of M/s. Sriram Harichandras at Bombay. The Income-tax Officer therefore while completing the assessment for the said year on October 30, 1953, specifically mentioned therein that the assessment order was subject to rectification under Section 35 of the Act. The assessment of the firm of M/s. Sriram Harichandradas, Bombay, was subsequently completed on November 30, 1954. That assessment, it appears, was based on best judgment estimate under Section 23 (4) of the Act and the firm charged on an income of Rs. 26 lakhs. Against that assessment a revision was filed by the firm before the Commissioner under Section 33-A (2). The Commissioner held that as the petitioner had filed his application for reconsideration under S. 27 out of time which application had been rejected by the Income-tax Officer, he could not interfere with that order. Nonetheless the Commissioner held that the Income-tax Officer had not adopted a proper basis as he had no information regarding the scope of the business done during the year and that it was also possible that the estimate made by him was excessive. In this view, he remanded the matter to the Income-tax Officer with the direction that he should call for the books of the assessee and arrive at an estimate of the income after taking into account the information contained therein and to "substitute such estimate for the income already assessed and modify the assessment accordingly." Thereafter the Income-tax Officer pursuant to the orders of the Commissioner, called upon the assessee to produce his account books, but it appears that the assessee did not co-operate with the Income-tax Officer, who after giving him several opportunities ultimately fixed January 16, 1963 as the final date for production of books. On that date the assessee did not appear at all. As a consequence on January 29, 1963, he passed a final order estimating the total income of the firm of M/s. Sriram Harichandradas at Rs. 26 lakhs. The Income-tax Officer thereafter passed the rectification order under Section 35 (5) of the Act on March 16, 1965 against the appellant by including an income of Rs. 13 lakhs as his share of the income derived from the firm. The validity of this order was challenged in the writ petition in which it was contended that the assessment under Section 35 (5) of the Act was barred inasmuch as the rectification was made after four years from the date of the final order under Section 33-A (2). Before the High Court two questions were raised, namely : (1) that inasmuch as the notice under Section 35 (5) of the Income-tax Act, 1922 was issued on 28-8-1964 after the Income-tax Act, 1961 came into force, the proceedings under Section 35 of the 1922 Act were not saved by the repealing Section 297 of the 1961 Act and consequently the proceedings under Section 35 of the old Act are void ab initio; and (2) that the rectification order made under Section 35 is barred by limitation. The first question was, however, given up having regard to the decision of this Court in S. Sankappa v. Income-tax Officer, 68 ITR 760 = (AIR 1968 SC 816 ). The High Court rejected the petitioners contention on the second question that the rectification order made under Section 35 of the Act was barred by limitation. 3. Before us the learned advocate for the appellant contends that the final order which is referred to under S. 35 (5) is an order of the Commissioner made under Section 33-A (2) on August 31, 1955 and the limitation for rectification of the mistake should be computed as from that date. As we have seen earlier, the order of the Commissioner under Section 33-A (2) of the Act could not be the final order because it required the Income-tax Officer to look into the books of account and make an estimate in the light of the material based on those books. The order of the Commissioner, as already pointed out specifically directed that the Income-tax Officer should substitute his estimate for the income already assessed and modify the assessment accordingly. This order could not be the final order because the Commissioner having set aside the estimate made by the Income-tax Officer already had not himself substituted any estimate for the estimate made by the Income-tax Officer. In pursuance of that order the Income-tax Officer had by his order dated January 29, 1963, substituted his estimate which though was the same was nonetheless a fresh order. The final order, therefore, is not the one, as contended by the learned advocate, made on August 31, 1955 but the one made by the Income-tax Officer on January 29, 1963.In this view the four years period which is prescribed under Section 35 (5) of the Act is to be computed from the final order made by the Income-tax Officer on January 29, 1963. If so, the rectification under Section 35 (5) of the Act on March 16, 1965 is within time. | 0[ds]3. Before us the learned advocate for the appellant contends that the final order which is referred to under S. 35 (5) is an order of the Commissioner made under SectionA (2) on August 31, 1955 and the limitation for rectification of the mistake should be computed as from that date.As we have seen earlier,the order of theCommissioner under SectionA (2) of the Act could not be the final order because it required thex Officer to look into the books of account and make an estimate in the light of the material based on those books. The order of the Commissioner, as already pointed out specifically directed that thex Officer should substitute his estimate for the income already assessed and modify the assessment accordingly. This order could not be the final order because the Commissioner having set aside the estimate made by thex Officer already had not himself substituted any estimate for the estimate made by thex Officer. In pursuance of that order thex Officer had by his order dated January 29, 1963, substituted his estimate which though was the same was nonetheless a fresh order. The final order, therefore, is not the one, as contended by the learned advocate, made on August 31, 1955 but the one made by thex Officer on January 29, 1963.In this view the four years period which is prescribed under Section 35 (5) of the Act is to be computed from the final order made by thex Officer on January 29, 1963. If so, the rectification under Section 35 (5) of the Act on March 16, 1965 is within time. | 0 | 1,030 | 302 | ### 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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Jaganmohan Reddy, J. 1. This is an appeal by certificate against the judgment of the Andhra Pradesh High Court refusing to interfere with the order of the Income-tax Officer made under Sec. 35 (5) of the Indian Income-tax Act, 1922 (hereinafter called the Act). 2. The appellant was assessed in the status of Hindu joint family for the years 1949-50 and 1950-51. In the course of the assessment proceedings for 1950-51 it was represented to the Income-tax Officer that the petitioner had an eight annas share in the firm of M/s. Sriram Harichandras at Bombay. The Income-tax Officer therefore while completing the assessment for the said year on October 30, 1953, specifically mentioned therein that the assessment order was subject to rectification under Section 35 of the Act. The assessment of the firm of M/s. Sriram Harichandradas, Bombay, was subsequently completed on November 30, 1954. That assessment, it appears, was based on best judgment estimate under Section 23 (4) of the Act and the firm charged on an income of Rs. 26 lakhs. Against that assessment a revision was filed by the firm before the Commissioner under Section 33-A (2). The Commissioner held that as the petitioner had filed his application for reconsideration under S. 27 out of time which application had been rejected by the Income-tax Officer, he could not interfere with that order. Nonetheless the Commissioner held that the Income-tax Officer had not adopted a proper basis as he had no information regarding the scope of the business done during the year and that it was also possible that the estimate made by him was excessive. In this view, he remanded the matter to the Income-tax Officer with the direction that he should call for the books of the assessee and arrive at an estimate of the income after taking into account the information contained therein and to "substitute such estimate for the income already assessed and modify the assessment accordingly." Thereafter the Income-tax Officer pursuant to the orders of the Commissioner, called upon the assessee to produce his account books, but it appears that the assessee did not co-operate with the Income-tax Officer, who after giving him several opportunities ultimately fixed January 16, 1963 as the final date for production of books. On that date the assessee did not appear at all. As a consequence on January 29, 1963, he passed a final order estimating the total income of the firm of M/s. Sriram Harichandradas at Rs. 26 lakhs. The Income-tax Officer thereafter passed the rectification order under Section 35 (5) of the Act on March 16, 1965 against the appellant by including an income of Rs. 13 lakhs as his share of the income derived from the firm. The validity of this order was challenged in the writ petition in which it was contended that the assessment under Section 35 (5) of the Act was barred inasmuch as the rectification was made after four years from the date of the final order under Section 33-A (2). Before the High Court two questions were raised, namely : (1) that inasmuch as the notice under Section 35 (5) of the Income-tax Act, 1922 was issued on 28-8-1964 after the Income-tax Act, 1961 came into force, the proceedings under Section 35 of the 1922 Act were not saved by the repealing Section 297 of the 1961 Act and consequently the proceedings under Section 35 of the old Act are void ab initio; and (2) that the rectification order made under Section 35 is barred by limitation. The first question was, however, given up having regard to the decision of this Court in S. Sankappa v. Income-tax Officer, 68 ITR 760 = (AIR 1968 SC 816 ). The High Court rejected the petitioners contention on the second question that the rectification order made under Section 35 of the Act was barred by limitation. 3. Before us the learned advocate for the appellant contends that the final order which is referred to under S. 35 (5) is an order of the Commissioner made under Section 33-A (2) on August 31, 1955 and the limitation for rectification of the mistake should be computed as from that date. As we have seen earlier, the order of the Commissioner under Section 33-A (2) of the Act could not be the final order because it required the Income-tax Officer to look into the books of account and make an estimate in the light of the material based on those books. The order of the Commissioner, as already pointed out specifically directed that the Income-tax Officer should substitute his estimate for the income already assessed and modify the assessment accordingly. This order could not be the final order because the Commissioner having set aside the estimate made by the Income-tax Officer already had not himself substituted any estimate for the estimate made by the Income-tax Officer. In pursuance of that order the Income-tax Officer had by his order dated January 29, 1963, substituted his estimate which though was the same was nonetheless a fresh order. The final order, therefore, is not the one, as contended by the learned advocate, made on August 31, 1955 but the one made by the Income-tax Officer on January 29, 1963.In this view the four years period which is prescribed under Section 35 (5) of the Act is to be computed from the final order made by the Income-tax Officer on January 29, 1963. If so, the rectification under Section 35 (5) of the Act on March 16, 1965 is within time.
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0
### Explanation:
3. Before us the learned advocate for the appellant contends that the final order which is referred to under S. 35 (5) is an order of the Commissioner made under SectionA (2) on August 31, 1955 and the limitation for rectification of the mistake should be computed as from that date.As we have seen earlier,the order of theCommissioner under SectionA (2) of the Act could not be the final order because it required thex Officer to look into the books of account and make an estimate in the light of the material based on those books. The order of the Commissioner, as already pointed out specifically directed that thex Officer should substitute his estimate for the income already assessed and modify the assessment accordingly. This order could not be the final order because the Commissioner having set aside the estimate made by thex Officer already had not himself substituted any estimate for the estimate made by thex Officer. In pursuance of that order thex Officer had by his order dated January 29, 1963, substituted his estimate which though was the same was nonetheless a fresh order. The final order, therefore, is not the one, as contended by the learned advocate, made on August 31, 1955 but the one made by thex Officer on January 29, 1963.In this view the four years period which is prescribed under Section 35 (5) of the Act is to be computed from the final order made by thex Officer on January 29, 1963. If so, the rectification under Section 35 (5) of the Act on March 16, 1965 is within time.
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Commissioner of Income Tax Vs. Manoharlal Gupta and Company | in the negative, i.e., in favour of the assessee and against the Revenue Whether, on the facts and in the circumstances of the case, the tribunal was justified in holding that the assessment of the assessee as an unregistered firm for the Assessment Year 1961-62 was proper ? 2. The assessee is a firm. The assessment in question relates to Assessment Year 1961-62, governed by Indian Income Tax Act, 1922. Since it did not apply for registration, the Income Tax Officer completed the assessment treating the assessee as an unregistered firm. He computed the total income at Rs 59, 623 which included the sum of Rs 50, 000 as income from other sources which was agreed to by the assessee (See para 3 of statement of case). The assessees appeal to Appellate Assistant Commissioner was dismissed and so was the further appeal to the tribunal. The main and only contention of the assessee before both appeal to the tribunal. The main and only contention of the assessee before both the appellate authorities was : inasmuch as a partner of the assessee-firm, Shri Manoharlal has been assessed on 31-1-1966 including his share income from the assessee-firm in his asset, the assessment made on assessee-firm on 23-3-1966 was not permissible. Both the appellate authorities rejected this contention. They pointed out that while the assessment of Manoharlal-partner was made by Income Tax Officer A Ward, Howrah, the assessment on the assessee-firm was made by the Income Tax Officer C Ward. Howrah. They held that since the assessments on the partner and the firm were made by different Income Tax Officers and further because the Income Tax Officer making the assessment on the partner mentioned clearly that he would rectify the assessment when he receives the share income report of the said partner from the Income Tax Officer assessing the firm, it cannot be said that the Income Tax Officer has exercised the discretion to tax the partner (as was permitted by the 1922 Act) or that the assessment on the firm was invalid in law on that account. The High Court has answered the question in favour of the assessee merely following their earlier decision in Hindustan Mill Stores Supply Co. v. CIT [ITR No. 10 of 1973]. Though the High Court has noted elaborately the contentions of the counsel for both sides, it rested its decision exclusively on the aforesaid earlier (unreported) decision of that Court. Unfortunately, a copy of the said unreported decision is not made available to us. We are, therefore, unable to ascertain the precise reasoning on the basis of which the question has been answered by the High Court in the negative. We have, however, heard counsel for both the parties and we presume that in the opinion of the High Court, the assessment on the firm is invalid for the reason that the share income of a partner was included in his individual assessment which means that the Income Tax Officer has exercised the discretion, the opinion, available to him under the 1922 Act 3. In ITO v. Atchaiah [ 1966 (1) SCC 417], this Court has dealt with the position of law relevant in this behalf both under the 1922 Act and the present Act. Under the 1922 Act, the Income Tax Officer had an option either to tax the partners of a firm or the firm with respect to the income of the firm but once he exercised his opinion one way, he could not obviously bring the same amount to tax in the hands of the other. Under the present Act, however, no such option is available to him. This appeal is governed by the 1922 Act, which means that the Income Tax Officer did have an option. The only question is whether he had exercised that option. We think not. The assessment on the partner was completed earlier, i.e., on 31-1-1966. That was done by the Income Tax Officer A Ward while the assessment on the firm was made by the Income Tax Officer C Ward, on 23-3-1966. The order of assessment dated 31-1-1966 on partner reads Return filed. Notice under Section 143(2) complied with. It is stated by the assessee that all this business income is taken over by the firm M/s. Manoharlal Gupta & Company and his individual income is from that firm only. Assessee has shown his income at Rs 982. This is accepted for the time being. It will be rectified when the report from the ITO concerned is received. 4. The order of assessment on the firm made by Income Tax Officer C Ward (at pp. 8 to 10 of the paper-book) does not in any manner indicate that the assessing officer was aware, even distantly, that the partners of the firm have been already assessed with respect to their share income from this firm. Indeed the tribunal has said that it has no information whether or when any other partner was assessed. Coupled with this is the express recital in the assessment order relating to the partner referred to above. In the light of the above circumstances, we are of the opinion that the tribunal was justified in concluding that the opinion contemplated by Section 3 of the 1922 Act was not exercised by the Income Tax Officer in this case and hence the assessment made on the firm was not invalid. (The partner, Manoharlal, could have applied for rectification of his assessment order as provided expressly in the order of assessment itself.) 5. Certain decisions were brought to our notice but it is not necessary to deal with them since they turn on their own facts. The question arising herein is really one of inference to be drawn from the facts found by the tribunal. We find tribunals opinion sound and valid. The High Court has not disturbed the facts found by the tribunal. The reasoning on the basis of which it has disagreed with the tribunal is not evident from the order, as mentioned hereinbefore | 1[ds]Though the High Court has noted elaborately the contentions of the counsel for both sides, it rested its decision exclusively on the aforesaid earlier (unreported) decision of that Court. Unfortunately, a copy of the said unreported decision is not made available to us. We are, therefore, unable to ascertain the precise reasoning on the basis of which the question has been answered by the High Court in the negative. We have, however, heard counsel for both the parties and we presume that in the opinion of the High Court, the assessment on the firm is invalid for the reason that the share income of a partner was included in his individual assessment which means that the Income Tax Officer has exercised the discretion, the opinion, available to him under the 1922 Act3. In ITO v. Atchaiah [ 1966 (1) SCC 417], this Court has dealt with the position of law relevant in this behalf both under the 1922 Act and the present Act. Under the 1922 Act, the Income Tax Officer had an option either to tax the partners of a firm or the firm with respect to the income of the firm but once he exercised his opinion one way, he could not obviously bring the same amount to tax in the hands of the other. Under the present Act, however, no such option is available to him. This appeal is governed by the 1922 Act, which means that the Income Tax Officer did have an option.The only question is whether he had exercised that option.We think not. The assessment on the partner was completed earlier, i.e., on 31-1-1966. That was done by the Income Tax Officer A Ward while the assessment on the firm was made by the Income Tax Officer C Ward, on 23-3-1966.. The order of assessment on the firm made by Income Tax Officer C Ward (at pp. 8 to 10 of the paper-book) does not in any manner indicate that the assessing officer was aware, even distantly, that the partners of the firm have been already assessed with respect to their share income from this firm. Indeed the tribunal has said that it has no information whether or when any other partner was assessed. Coupled with this is the express recital in the assessment order relating to the partner referred to above. In the light of the above circumstances, we are of the opinion that the tribunal was justified in concluding that the opinion contemplated by Section 3 of the 1922 Act was not exercised by the Income Tax Officer in this case and hence the assessment made on the firm was not invalid.5. Certain decisions were brought to our notice but it is not necessary to deal with them since they turn on their own facts. The question arising herein is really one of inference to be drawn from the facts found by the tribunal. We find tribunals opinion sound and valid. The High Court has not disturbed the facts found by the tribunal. The reasoning on the basis of which it has disagreed with the tribunal is not evident from the order, as mentioned hereinbefore | 1 | 1,122 | 575 | ### 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:
in the negative, i.e., in favour of the assessee and against the Revenue Whether, on the facts and in the circumstances of the case, the tribunal was justified in holding that the assessment of the assessee as an unregistered firm for the Assessment Year 1961-62 was proper ? 2. The assessee is a firm. The assessment in question relates to Assessment Year 1961-62, governed by Indian Income Tax Act, 1922. Since it did not apply for registration, the Income Tax Officer completed the assessment treating the assessee as an unregistered firm. He computed the total income at Rs 59, 623 which included the sum of Rs 50, 000 as income from other sources which was agreed to by the assessee (See para 3 of statement of case). The assessees appeal to Appellate Assistant Commissioner was dismissed and so was the further appeal to the tribunal. The main and only contention of the assessee before both appeal to the tribunal. The main and only contention of the assessee before both the appellate authorities was : inasmuch as a partner of the assessee-firm, Shri Manoharlal has been assessed on 31-1-1966 including his share income from the assessee-firm in his asset, the assessment made on assessee-firm on 23-3-1966 was not permissible. Both the appellate authorities rejected this contention. They pointed out that while the assessment of Manoharlal-partner was made by Income Tax Officer A Ward, Howrah, the assessment on the assessee-firm was made by the Income Tax Officer C Ward. Howrah. They held that since the assessments on the partner and the firm were made by different Income Tax Officers and further because the Income Tax Officer making the assessment on the partner mentioned clearly that he would rectify the assessment when he receives the share income report of the said partner from the Income Tax Officer assessing the firm, it cannot be said that the Income Tax Officer has exercised the discretion to tax the partner (as was permitted by the 1922 Act) or that the assessment on the firm was invalid in law on that account. The High Court has answered the question in favour of the assessee merely following their earlier decision in Hindustan Mill Stores Supply Co. v. CIT [ITR No. 10 of 1973]. Though the High Court has noted elaborately the contentions of the counsel for both sides, it rested its decision exclusively on the aforesaid earlier (unreported) decision of that Court. Unfortunately, a copy of the said unreported decision is not made available to us. We are, therefore, unable to ascertain the precise reasoning on the basis of which the question has been answered by the High Court in the negative. We have, however, heard counsel for both the parties and we presume that in the opinion of the High Court, the assessment on the firm is invalid for the reason that the share income of a partner was included in his individual assessment which means that the Income Tax Officer has exercised the discretion, the opinion, available to him under the 1922 Act 3. In ITO v. Atchaiah [ 1966 (1) SCC 417], this Court has dealt with the position of law relevant in this behalf both under the 1922 Act and the present Act. Under the 1922 Act, the Income Tax Officer had an option either to tax the partners of a firm or the firm with respect to the income of the firm but once he exercised his opinion one way, he could not obviously bring the same amount to tax in the hands of the other. Under the present Act, however, no such option is available to him. This appeal is governed by the 1922 Act, which means that the Income Tax Officer did have an option. The only question is whether he had exercised that option. We think not. The assessment on the partner was completed earlier, i.e., on 31-1-1966. That was done by the Income Tax Officer A Ward while the assessment on the firm was made by the Income Tax Officer C Ward, on 23-3-1966. The order of assessment dated 31-1-1966 on partner reads Return filed. Notice under Section 143(2) complied with. It is stated by the assessee that all this business income is taken over by the firm M/s. Manoharlal Gupta & Company and his individual income is from that firm only. Assessee has shown his income at Rs 982. This is accepted for the time being. It will be rectified when the report from the ITO concerned is received. 4. The order of assessment on the firm made by Income Tax Officer C Ward (at pp. 8 to 10 of the paper-book) does not in any manner indicate that the assessing officer was aware, even distantly, that the partners of the firm have been already assessed with respect to their share income from this firm. Indeed the tribunal has said that it has no information whether or when any other partner was assessed. Coupled with this is the express recital in the assessment order relating to the partner referred to above. In the light of the above circumstances, we are of the opinion that the tribunal was justified in concluding that the opinion contemplated by Section 3 of the 1922 Act was not exercised by the Income Tax Officer in this case and hence the assessment made on the firm was not invalid. (The partner, Manoharlal, could have applied for rectification of his assessment order as provided expressly in the order of assessment itself.) 5. Certain decisions were brought to our notice but it is not necessary to deal with them since they turn on their own facts. The question arising herein is really one of inference to be drawn from the facts found by the tribunal. We find tribunals opinion sound and valid. The High Court has not disturbed the facts found by the tribunal. The reasoning on the basis of which it has disagreed with the tribunal is not evident from the order, as mentioned hereinbefore
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1
### Explanation:
Though the High Court has noted elaborately the contentions of the counsel for both sides, it rested its decision exclusively on the aforesaid earlier (unreported) decision of that Court. Unfortunately, a copy of the said unreported decision is not made available to us. We are, therefore, unable to ascertain the precise reasoning on the basis of which the question has been answered by the High Court in the negative. We have, however, heard counsel for both the parties and we presume that in the opinion of the High Court, the assessment on the firm is invalid for the reason that the share income of a partner was included in his individual assessment which means that the Income Tax Officer has exercised the discretion, the opinion, available to him under the 1922 Act3. In ITO v. Atchaiah [ 1966 (1) SCC 417], this Court has dealt with the position of law relevant in this behalf both under the 1922 Act and the present Act. Under the 1922 Act, the Income Tax Officer had an option either to tax the partners of a firm or the firm with respect to the income of the firm but once he exercised his opinion one way, he could not obviously bring the same amount to tax in the hands of the other. Under the present Act, however, no such option is available to him. This appeal is governed by the 1922 Act, which means that the Income Tax Officer did have an option.The only question is whether he had exercised that option.We think not. The assessment on the partner was completed earlier, i.e., on 31-1-1966. That was done by the Income Tax Officer A Ward while the assessment on the firm was made by the Income Tax Officer C Ward, on 23-3-1966.. The order of assessment on the firm made by Income Tax Officer C Ward (at pp. 8 to 10 of the paper-book) does not in any manner indicate that the assessing officer was aware, even distantly, that the partners of the firm have been already assessed with respect to their share income from this firm. Indeed the tribunal has said that it has no information whether or when any other partner was assessed. Coupled with this is the express recital in the assessment order relating to the partner referred to above. In the light of the above circumstances, we are of the opinion that the tribunal was justified in concluding that the opinion contemplated by Section 3 of the 1922 Act was not exercised by the Income Tax Officer in this case and hence the assessment made on the firm was not invalid.5. Certain decisions were brought to our notice but it is not necessary to deal with them since they turn on their own facts. The question arising herein is really one of inference to be drawn from the facts found by the tribunal. We find tribunals opinion sound and valid. The High Court has not disturbed the facts found by the tribunal. The reasoning on the basis of which it has disagreed with the tribunal is not evident from the order, as mentioned hereinbefore
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Committee For Protection Of Rights Of Ongcemployees And Ors Vs. Oil And Natural Gas Commission Through Itschairman--Tel Bha | from claiming pension to which they were entitled before the introduction of the Contributory Provident Fund in the Commission. In support of the aforesaid submission, Shri Ramamurthi has placed reliance on the decision of this Court in Som Prakash Rekhi v. Union of India ( 1981 (1) SCC 449 11. Section 12 of the Provident fund Act, provides as under: "12. No employer in relation to an establishment to which any Scheme or the Insurance Scheme applies shall, by reason only of his liability for the payment of any contribution to the Fund or the Insurance Fund or any charges under this Act or the Scheme or the Insurance Scheme reduce, whether directly or indirectly, the wages of any employee to whom the Scheme or the Insurance Scheme applies or the total quantum of benefits in the nature of old age pension, gratuity, provident fund or life insurance to which the employee is entitled under the terms of his employment, express or implied." * 13. The said provision in our view is not applicable in the present case. The Provident Fund Act has been enacted with the object of providing social security to the employees in factories and other establishments covered by the said Act, after their retirement. In the Statement of Objects and Reasons for the said enactment it was mentioned as under: "The question of making some provision for the future of the industrial worker after he retires, or for his dependants in case of his early death, has been under consideration for some years. The ideal way would have been provisions through old age and survivors pensions as has been done in the industrially advanced countries. But in the prevailing conditions in India, the institution of a pension scheme cannot be visualised in the bear future. Another alternative may be for provision of gratuities after a prescribed period of service. The main defect of a gratuity scheme, however, is that the amount paid to a worker or his dependants would be small, as the worker would not himself be making any contribution to the fund. Taking into account the various difficulties, financial and administrative, the most appropriate course appears to be the institution compulsorily of contributory provident fund in which both the worker and the employer would contribute. Apart from other advantages, there is the obvious one of cultivating among the workers a spirit of saving something regularly." * 14. This indicates that the scheme of Contributory Provident Fund, by way of retiral benefit, envisaged by the Provident Fund Act, is in the nature of a substitute for old age pension because it was felt that in the prevailing conditions in India, the institution of a pension scheme could not be visualised in the near future. It was not the intention of Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits. Section 12 of the Provident Fund Act seeks to protect the wages of an employee to whom the scheme framed under the said Act applies as well as the total quantum of certain specified benefits to which he is entitled under the terms of his employment. With the end in view, Section 12 prohibits an employer from reducing, whether directly or indirectly, the wages of an employee to whom the Scheme applies or the total quantum of benefits in the nature of old age pension, gratuity, provident fund or life insurance to which the employee is entitled under the terms of his employment express or implied. The said section proceeds on the basis that if an employee is entitled to any benefit in the nature of old age pension under the terms of his employment the said benefit would not be denied to him on the application of the Scheme. It is not the case of the petitioners that on June 30, 1961, when the Provident Fund Scheme was made applicable to the Commission, the petitioners had become permanent and were entitled to pension. It cannot, therefore, be said that on the date of the application of the Provident Fund Scheme to the Commission, the petitioners were entitled to pension under the terms of their employment. They cannot, therefore, invoke the provisions of Section 12 of the Provident Fund Act. 15. In Som Prakash Rekhi v. Union of India ( 1981 (1) SCC 449 on which reliance has been placed by Shri Ramamurthi, the petitioner before this Court was employed as a clerk in Burmah Shell Oil Storage Ltd. The undertaking of that company was statutorily acquired by the Government of India under the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, and subsequently the said undertaking was vested by the Central Government in the Bharat Petroleum Corporation Limited, a government company. In the Burmah Shell, there was a voluntary retirement scheme in force which was governed by the terms of a trust deed of 1950. The said petitions was receiving pension under the said scheme. Certain deductions were made from the pension paid to the petitioner on account of Employees Provident Fund and Gratuity paid to him. This Court held that in view of Section 12 of the Provident Fund Act, such deductions were not permissible and that the entire amount of pension should be paid to the petitioner without deduction. This decision has no application to the instant case because in that case the petitioner before this Court was entitled to receive pension under the voluntary retirement scheme at the time when the provisions of the Provident Fund Act became applicable to Burmah Shell and the right to receive pension was part of the terms of employment of the said petitioner. In the present case it cannot be said that on the date of the application of the Provident Fund Scheme to the Commission on June 30, 1961, the petitioners were entitled to receive pension and the benefit of pension was a part of the terms of employment of the petitioners on that date. 16. | 0[ds]In the present case, the petitioners were employed on temporary basis at the time when the Commission was established as a statutory body under the ONGC Act and on that date they were not entitled to claim pension because under the relevant Rules pension was not payable to a person employed on temporary basis. The petitioners, therefore, cannot claim that on the date of their becoming the employees of the Commission established under the ONGC Act in 1959, they had a right to pension which has been protected under sub-section (1) of Section 13 and clause (2) of Regulation 3 of the Regulations. The petitioners cannot also claim protection of the aforesaid provisions on the basis that right to receive pension was part of their condition of service on the date of their becoming the employees of the Commission under sub-section (1) of Section 13 of the ONGC Act, inasmuch as under the relevant service rules applicable to them, they could either claim pension or the benefit of the Contributory Provident Fund and they could not avail both the benefits.Since the petitioners are entitled to the benefit of the Contributory Provident Fund under the Provident Fund Act and the Provident Fund Scheme and have availed the said benefit for the past 28 years, they should be taken to have opted for said benefit and they cannot invoke the service rules with regard to pension and claim the right to receive pension as part of their conditions of service. We are, therefore, unable to accept the contention of Shri Ramamurthi, based on the provisions of sub-section (1) of Section 13 of the ONGC Act and clause (2) of Regulation 3 of the Regulations, that the petitioners are entitled to claim pension in addition to the Provident Fund payable to them under the Provident Fund Act and the Provident FundIn Som Prakash Rekhi v. Union of India ( 1981 (1) SCC 449 on which reliance has been placed by Shri Ramamurthi, the petitioner before this Court was employed as a clerk in Burmah Shell Oil Storage Ltd. The undertaking of that company was statutorily acquired by the Government of India underthe Burmah Shell (Acquisition of Undertakings in India) Act, 1976, and subsequently the said undertaking was vested by the Central Government in the Bharat Petroleum Corporation Limited, a government company. In the Burmah Shell, there was a voluntary retirement scheme in force which was governed by the terms of a trust deed of 1950. The said petitions was receiving pension under the said scheme. Certain deductions were made from the pension paid to the petitioner on account of Employees Provident Fund and Gratuity paid to him. This Court held that in view of Section 12 of the Provident Fund Act, such deductions were not permissible and that the entire amount of pension should be paid to the petitioner without deduction. This decision has no application to the instant case because in that case the petitioner before this Court was entitled to receive pension under the voluntary retirement scheme at the time when the provisions of the Provident Fund Act became applicable to Burmah Shell and the right to receive pension was part of the terms of employment of the said petitioner. In the present case it cannot be said that on the date of the application of the Provident Fund Scheme to the Commission on June 30, 1961, the petitioners were entitled to receive pension and the benefit of pension was a part of the terms of employment of the petitioners on that date | 0 | 3,802 | 643 | ### 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:
from claiming pension to which they were entitled before the introduction of the Contributory Provident Fund in the Commission. In support of the aforesaid submission, Shri Ramamurthi has placed reliance on the decision of this Court in Som Prakash Rekhi v. Union of India ( 1981 (1) SCC 449 11. Section 12 of the Provident fund Act, provides as under: "12. No employer in relation to an establishment to which any Scheme or the Insurance Scheme applies shall, by reason only of his liability for the payment of any contribution to the Fund or the Insurance Fund or any charges under this Act or the Scheme or the Insurance Scheme reduce, whether directly or indirectly, the wages of any employee to whom the Scheme or the Insurance Scheme applies or the total quantum of benefits in the nature of old age pension, gratuity, provident fund or life insurance to which the employee is entitled under the terms of his employment, express or implied." * 13. The said provision in our view is not applicable in the present case. The Provident Fund Act has been enacted with the object of providing social security to the employees in factories and other establishments covered by the said Act, after their retirement. In the Statement of Objects and Reasons for the said enactment it was mentioned as under: "The question of making some provision for the future of the industrial worker after he retires, or for his dependants in case of his early death, has been under consideration for some years. The ideal way would have been provisions through old age and survivors pensions as has been done in the industrially advanced countries. But in the prevailing conditions in India, the institution of a pension scheme cannot be visualised in the bear future. Another alternative may be for provision of gratuities after a prescribed period of service. The main defect of a gratuity scheme, however, is that the amount paid to a worker or his dependants would be small, as the worker would not himself be making any contribution to the fund. Taking into account the various difficulties, financial and administrative, the most appropriate course appears to be the institution compulsorily of contributory provident fund in which both the worker and the employer would contribute. Apart from other advantages, there is the obvious one of cultivating among the workers a spirit of saving something regularly." * 14. This indicates that the scheme of Contributory Provident Fund, by way of retiral benefit, envisaged by the Provident Fund Act, is in the nature of a substitute for old age pension because it was felt that in the prevailing conditions in India, the institution of a pension scheme could not be visualised in the near future. It was not the intention of Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits. Section 12 of the Provident Fund Act seeks to protect the wages of an employee to whom the scheme framed under the said Act applies as well as the total quantum of certain specified benefits to which he is entitled under the terms of his employment. With the end in view, Section 12 prohibits an employer from reducing, whether directly or indirectly, the wages of an employee to whom the Scheme applies or the total quantum of benefits in the nature of old age pension, gratuity, provident fund or life insurance to which the employee is entitled under the terms of his employment express or implied. The said section proceeds on the basis that if an employee is entitled to any benefit in the nature of old age pension under the terms of his employment the said benefit would not be denied to him on the application of the Scheme. It is not the case of the petitioners that on June 30, 1961, when the Provident Fund Scheme was made applicable to the Commission, the petitioners had become permanent and were entitled to pension. It cannot, therefore, be said that on the date of the application of the Provident Fund Scheme to the Commission, the petitioners were entitled to pension under the terms of their employment. They cannot, therefore, invoke the provisions of Section 12 of the Provident Fund Act. 15. In Som Prakash Rekhi v. Union of India ( 1981 (1) SCC 449 on which reliance has been placed by Shri Ramamurthi, the petitioner before this Court was employed as a clerk in Burmah Shell Oil Storage Ltd. The undertaking of that company was statutorily acquired by the Government of India under the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, and subsequently the said undertaking was vested by the Central Government in the Bharat Petroleum Corporation Limited, a government company. In the Burmah Shell, there was a voluntary retirement scheme in force which was governed by the terms of a trust deed of 1950. The said petitions was receiving pension under the said scheme. Certain deductions were made from the pension paid to the petitioner on account of Employees Provident Fund and Gratuity paid to him. This Court held that in view of Section 12 of the Provident Fund Act, such deductions were not permissible and that the entire amount of pension should be paid to the petitioner without deduction. This decision has no application to the instant case because in that case the petitioner before this Court was entitled to receive pension under the voluntary retirement scheme at the time when the provisions of the Provident Fund Act became applicable to Burmah Shell and the right to receive pension was part of the terms of employment of the said petitioner. In the present case it cannot be said that on the date of the application of the Provident Fund Scheme to the Commission on June 30, 1961, the petitioners were entitled to receive pension and the benefit of pension was a part of the terms of employment of the petitioners on that date. 16.
### Response:
0
### Explanation:
In the present case, the petitioners were employed on temporary basis at the time when the Commission was established as a statutory body under the ONGC Act and on that date they were not entitled to claim pension because under the relevant Rules pension was not payable to a person employed on temporary basis. The petitioners, therefore, cannot claim that on the date of their becoming the employees of the Commission established under the ONGC Act in 1959, they had a right to pension which has been protected under sub-section (1) of Section 13 and clause (2) of Regulation 3 of the Regulations. The petitioners cannot also claim protection of the aforesaid provisions on the basis that right to receive pension was part of their condition of service on the date of their becoming the employees of the Commission under sub-section (1) of Section 13 of the ONGC Act, inasmuch as under the relevant service rules applicable to them, they could either claim pension or the benefit of the Contributory Provident Fund and they could not avail both the benefits.Since the petitioners are entitled to the benefit of the Contributory Provident Fund under the Provident Fund Act and the Provident Fund Scheme and have availed the said benefit for the past 28 years, they should be taken to have opted for said benefit and they cannot invoke the service rules with regard to pension and claim the right to receive pension as part of their conditions of service. We are, therefore, unable to accept the contention of Shri Ramamurthi, based on the provisions of sub-section (1) of Section 13 of the ONGC Act and clause (2) of Regulation 3 of the Regulations, that the petitioners are entitled to claim pension in addition to the Provident Fund payable to them under the Provident Fund Act and the Provident FundIn Som Prakash Rekhi v. Union of India ( 1981 (1) SCC 449 on which reliance has been placed by Shri Ramamurthi, the petitioner before this Court was employed as a clerk in Burmah Shell Oil Storage Ltd. The undertaking of that company was statutorily acquired by the Government of India underthe Burmah Shell (Acquisition of Undertakings in India) Act, 1976, and subsequently the said undertaking was vested by the Central Government in the Bharat Petroleum Corporation Limited, a government company. In the Burmah Shell, there was a voluntary retirement scheme in force which was governed by the terms of a trust deed of 1950. The said petitions was receiving pension under the said scheme. Certain deductions were made from the pension paid to the petitioner on account of Employees Provident Fund and Gratuity paid to him. This Court held that in view of Section 12 of the Provident Fund Act, such deductions were not permissible and that the entire amount of pension should be paid to the petitioner without deduction. This decision has no application to the instant case because in that case the petitioner before this Court was entitled to receive pension under the voluntary retirement scheme at the time when the provisions of the Provident Fund Act became applicable to Burmah Shell and the right to receive pension was part of the terms of employment of the said petitioner. In the present case it cannot be said that on the date of the application of the Provident Fund Scheme to the Commission on June 30, 1961, the petitioners were entitled to receive pension and the benefit of pension was a part of the terms of employment of the petitioners on that date
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FUJIFILM INDIA PVT. LTD Vs. COMMISSIONER OF CUSTOMS (IMPORT) NHAVA SHEVA | 1. This appeal arises out of the final order No.A/1653/14/CSTB/C-I dated 29.10.2014 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai in Appeal No.C/192/12-MUM.2. We have heard the learned counsels for the parties.3. The issue before the learned Tribunal was with regard to classification of Imaging Plates, IP Cassettes and FCR Capsula.4. There was an order dated 20.02.2013 of the same Tribunal in the case of M/s. Jindal Photo India Pvt. Ltd. vs. Commissioner of Customs (Import), Nahva Sheva [Order No. 12/1237/13/CSTB/C-I in Appeal No.C/415/12-Mum] holding that Imaging Plates and IP Cassettes to be classifiable under Chapter 90 CTH 90189099 and, therefore, entitled to the benefit of notification No.21/2002 dated 01.03.2002. The classification of FCR Capsula was also decided in Jindal Photo India Pvt. Ltd. (supra) in a manner adverse to the assessee. No issue on the said classification was raised by the assessee in the present case wherein the issue of classification of Imaging Plates, IP Cassettes was alone contested.5. In the impugned order, the learned Tribunal did not accept the decision of the coordinate Bench in Jindal Photo India Pvt. Ltd. (supra) and took the view that the two items were more appropriately classifiable under Chapter 37 CTH 370110.6. As benefit under the notification No.21/2002-Cus dated 01.03.2002 was allowable in respect of Imaging Plates and IP Cassettes even if the same is to be classified under Chapter 37, the learned Tribunal, by the impugned order, held that the said two items will be eligible to the benefit of notification No.21/2002 dated 01.03.2002.7. Notwithstanding the above, as the appellant-assessee would be liable for payment of additional duty of customs by virtue of the notification under Serial No.357B, the present appeal has been filed.8. If the learned Tribunal was not in a position to accept the correctness of the decision of a coordinate Bench of Jindal Photo India Pvt. Ltd. (supra), the correct course of action would have been to seek the views of a larger Bench. Judicial discipline demanded the quasi judicial authority i.e. the learned Tribunal to act in such a manner. That apart, the learned Tribunal seems to have found a case which was not even urged by any of the parties before it, namely, that Imaging Plates and IP Cassettes merit classification under Chapter 37. | 1[ds]8. If the learned Tribunal was not in a position to accept the correctness of the decision of a coordinate Bench of Jindal Photo India Pvt. Ltd. (supra), the correct course of action would have been to seek the views of a larger Bench. Judicial discipline demanded the quasi judicial authority i.e. the learned Tribunal to act in such a manner. That apart, the learned Tribunal seems to have found a case which was not even urged by any of the parties before it, namely, that Imaging Plates and IP Cassettes merit classification under Chapter 37. | 1 | 432 | 112 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
1. This appeal arises out of the final order No.A/1653/14/CSTB/C-I dated 29.10.2014 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai in Appeal No.C/192/12-MUM.2. We have heard the learned counsels for the parties.3. The issue before the learned Tribunal was with regard to classification of Imaging Plates, IP Cassettes and FCR Capsula.4. There was an order dated 20.02.2013 of the same Tribunal in the case of M/s. Jindal Photo India Pvt. Ltd. vs. Commissioner of Customs (Import), Nahva Sheva [Order No. 12/1237/13/CSTB/C-I in Appeal No.C/415/12-Mum] holding that Imaging Plates and IP Cassettes to be classifiable under Chapter 90 CTH 90189099 and, therefore, entitled to the benefit of notification No.21/2002 dated 01.03.2002. The classification of FCR Capsula was also decided in Jindal Photo India Pvt. Ltd. (supra) in a manner adverse to the assessee. No issue on the said classification was raised by the assessee in the present case wherein the issue of classification of Imaging Plates, IP Cassettes was alone contested.5. In the impugned order, the learned Tribunal did not accept the decision of the coordinate Bench in Jindal Photo India Pvt. Ltd. (supra) and took the view that the two items were more appropriately classifiable under Chapter 37 CTH 370110.6. As benefit under the notification No.21/2002-Cus dated 01.03.2002 was allowable in respect of Imaging Plates and IP Cassettes even if the same is to be classified under Chapter 37, the learned Tribunal, by the impugned order, held that the said two items will be eligible to the benefit of notification No.21/2002 dated 01.03.2002.7. Notwithstanding the above, as the appellant-assessee would be liable for payment of additional duty of customs by virtue of the notification under Serial No.357B, the present appeal has been filed.8. If the learned Tribunal was not in a position to accept the correctness of the decision of a coordinate Bench of Jindal Photo India Pvt. Ltd. (supra), the correct course of action would have been to seek the views of a larger Bench. Judicial discipline demanded the quasi judicial authority i.e. the learned Tribunal to act in such a manner. That apart, the learned Tribunal seems to have found a case which was not even urged by any of the parties before it, namely, that Imaging Plates and IP Cassettes merit classification under Chapter 37.
### Response:
1
### Explanation:
8. If the learned Tribunal was not in a position to accept the correctness of the decision of a coordinate Bench of Jindal Photo India Pvt. Ltd. (supra), the correct course of action would have been to seek the views of a larger Bench. Judicial discipline demanded the quasi judicial authority i.e. the learned Tribunal to act in such a manner. That apart, the learned Tribunal seems to have found a case which was not even urged by any of the parties before it, namely, that Imaging Plates and IP Cassettes merit classification under Chapter 37.
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M/s. Mecleod and Company Limited Vs. State of Orissa and Others | a legal test.DomicileThe place of registration is like-wise the domicile of a company, and this domicile clings to it throughout its existence. It is, however, possible that by operation of the law of the Companys domicile, another system of law may be substituted for the law of the place of registration.Unlike an individual, a company cannot have a domicile of choice.Residence8.11 The residence of a company is not as easily established as its nationality or its domicile. The test of residence is mainly used if questions pertaining to taxation, the character of the company as an overseas trading corporation, service of process on the company and attribution of enemy character to the company arise. In these cases, the residence of the company is not determined by the application of a uniform test but a different meaning is given to those words in each of them. Moreover, a company-like an individual-may have several residences at the same time, whereas it can have one domicile and one nationality only. Tax Law8.12 In tax law a company is ordinarily resident where the actual management of the company is carried on, even though it ought to be managed elsewhere according to its constitution. If this is done at several places, the company has a dual residence (or possibly even more residences), but in that case at least some part of the superior and directing authority of the company must be present in the country in which it is sought to establish the residence of the company.From what is stated above it will be clear that so far as law of taxation is concerned-and in the instant case we are concerned with tax law, namely, the Orissa Taxation Act ordinarily the residence of a company win be at the place where the actual management of the company is carried on and that if this is done at several places it may have a dual residence but in that case at least some part of the superior and directing authority of the company must be present at the place where its residence is sought to be established.In Buckly on the Companies Act (14th Edn.), Vol.1 at page 299 the following passage occurs.For the purpose of the Income Tax Acts, the place of registration of a company is not, any more than the birth place of an individual, conclusive as to its residence. A company registered here (in England), with a registered office here, (in England) and governed by a board which meets here, is no doubt resident here. But also a company registered abroad, whose head office and directors meeting are here, is resident here. The test of residence is not registration, but where the company does its real business, where the central management and control abides. It is the actual place of management of the company and not the place where it ought to be managed which fixes its residence." The underlined portion in the passage quoted from Buckley is based on the decision of the House of Lords in the leading case of Egyptian Delta Land and Investment Co. v. Todd. In that case the company was incorporated in England, had its registered office in England and fulfilled its statutory obligations in that country but 1) had transferred the whole of its business to Egypt which was entirely controlled and managed from Cairo where the director and the secretary permanently resided and the question arose whether for the purposes of Income Tax Acts the company could be regarded as a resident: in Eng land. After exhaustive survey of the earlier case law on the point the House of Lord took the view that the incorporation under the Companies. Acts, with the attendant statutory obligations did not in itself, as a matter of law, constitute a British company a person residing in the United Kingdom within the meaning of the Income Tax Acts; that it was merely a factor to be considered in determining residence, and was a matter for the Commissioners to decide. It also took the view that it was settled by authority that the residence of a company, whether British or foreign, for income tax purposes was, preponderantly and if not exclusively, determined by the place where its real business was carried on and since the whole of the companys business was controlled from Cairo the company was not resident in England and it upheld the Commissioners decision of discharging the assessments. In taking the aforesaid view the House of Lords approved and followed the criteria that had been laid down in an earlier decision in the case of De Beers Consolidated Mines v. Howe to the effect "the test of residence is not registration but where the company does its real business, where the central management and control abides." Applying the aforesaid criteria to the facts of the present case it was not disputed before us that both the principals (the jute companies) had their registered offices in Calcutta (West Bengal), that their principal businesses were carried on in Calcutta (West Bengal) and that the central management and control of the businesses was done from Calcutta It is true that these two jute companies had storage equipment and godowns at Kendupatna in the State of Orissa but on their awn showing (vide certificates of Registration? at Kendupatna they had additional places of businesses. It was not even the appellant companys case that the central management and the control of the two jute companies businesses was in the State of Orissa. The test laid down in the House of Lords decision does not suggest that at every place where some business of the company is carried on it shall have its residence there. As pointed out above, the central management and control of the two companies businesses obtained in Calcutta (West Bengal) and that being the position the two jute companies would be nonresident dealers in the State of Orissa. The second contention of the counsel for the appellant company, therefore, fails.5 | 0[ds]For the purpose of the Income Tax Acts, the place of registration of a company is not, any more than the birth place of an individual, conclusive as to its residence. A company registered here (in England), with a registered office here, (in England) and governed by a board which meets here, is no doubt resident here. But also a company registered abroad, whose head office and directors meeting are here, is resident here. The test of residence is not registration, but where the company does its real business, where the central management and control abides. It is the actual place of management of the company and not the place where it ought to be managed which fixes itsunderlined portion in the passage quoted from Buckley is based on the decision of the House of Lords in the leading case of Egyptian Delta Land and Investment Co. v. Todd. In that case the company was incorporated in England, had its registered office in England and fulfilled its statutory obligations in that country but 1) had transferred the whole of its business to Egypt which was entirely controlled and managed from Cairo where the director and the secretary permanently resided and the question arose whether for the purposes of Income Tax Acts the company could be regarded as a resident: in Eng land. After exhaustive survey of the earlier case law on the point the House of Lord took the view that the incorporation under the Companies. Acts, with the attendant statutory obligations did not in itself, as a matter of law, constitute a British company a person residing in the United Kingdom within the meaning of the Income Tax Acts; that it was merely a factor to be considered in determining residence, and was a matter for the Commissioners to decide. It also took the view that it was settled by authority that the residence of a company, whether British or foreign, for income tax purposes was, preponderantly and if not exclusively, determined by the place where its real business was carried on and since the whole of the companys business was controlled from Cairo the company was not resident in England and it upheld the Commissioners decision of discharging the assessments. In taking the aforesaid view the House of Lords approved and followed the criteria that had been laid down in an earlier decision in the case of De Beers Consolidated Mines v. Howe to the effect "the test of residence is not registration but where the company does its real business, where the central management and controlthe aforesaid criteria to the facts of the present case it was not disputed before us that both the principals (the jute companies) had their registered offices in Calcutta (West Bengal), that their principal businesses were carried on in Calcutta (West Bengal) and that the central management and control of the businesses was done from Calcutta It is true that these two jute companies had storage equipment and godowns at Kendupatna in the State of Orissa but on their awn showing (vide certificates of Registration? at Kendupatna they had additional places of businesses. It was not even the appellant companys case that the central management and the control of the two jute companies businesses was in the State of Orissa. The test laid down in the House of Lords decision does not suggest that at every place where some business of the company is carried on it shall have its residence there. As pointed out above, the central management and control of the two companies businesses obtained in Calcutta (West Bengal) and that being the position the two jute companies would be nonresident dealers in the State of Orissa. The second contention of the counsel for the appellant company, therefore, fails. | 0 | 3,964 | 689 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
a legal test.DomicileThe place of registration is like-wise the domicile of a company, and this domicile clings to it throughout its existence. It is, however, possible that by operation of the law of the Companys domicile, another system of law may be substituted for the law of the place of registration.Unlike an individual, a company cannot have a domicile of choice.Residence8.11 The residence of a company is not as easily established as its nationality or its domicile. The test of residence is mainly used if questions pertaining to taxation, the character of the company as an overseas trading corporation, service of process on the company and attribution of enemy character to the company arise. In these cases, the residence of the company is not determined by the application of a uniform test but a different meaning is given to those words in each of them. Moreover, a company-like an individual-may have several residences at the same time, whereas it can have one domicile and one nationality only. Tax Law8.12 In tax law a company is ordinarily resident where the actual management of the company is carried on, even though it ought to be managed elsewhere according to its constitution. If this is done at several places, the company has a dual residence (or possibly even more residences), but in that case at least some part of the superior and directing authority of the company must be present in the country in which it is sought to establish the residence of the company.From what is stated above it will be clear that so far as law of taxation is concerned-and in the instant case we are concerned with tax law, namely, the Orissa Taxation Act ordinarily the residence of a company win be at the place where the actual management of the company is carried on and that if this is done at several places it may have a dual residence but in that case at least some part of the superior and directing authority of the company must be present at the place where its residence is sought to be established.In Buckly on the Companies Act (14th Edn.), Vol.1 at page 299 the following passage occurs.For the purpose of the Income Tax Acts, the place of registration of a company is not, any more than the birth place of an individual, conclusive as to its residence. A company registered here (in England), with a registered office here, (in England) and governed by a board which meets here, is no doubt resident here. But also a company registered abroad, whose head office and directors meeting are here, is resident here. The test of residence is not registration, but where the company does its real business, where the central management and control abides. It is the actual place of management of the company and not the place where it ought to be managed which fixes its residence." The underlined portion in the passage quoted from Buckley is based on the decision of the House of Lords in the leading case of Egyptian Delta Land and Investment Co. v. Todd. In that case the company was incorporated in England, had its registered office in England and fulfilled its statutory obligations in that country but 1) had transferred the whole of its business to Egypt which was entirely controlled and managed from Cairo where the director and the secretary permanently resided and the question arose whether for the purposes of Income Tax Acts the company could be regarded as a resident: in Eng land. After exhaustive survey of the earlier case law on the point the House of Lord took the view that the incorporation under the Companies. Acts, with the attendant statutory obligations did not in itself, as a matter of law, constitute a British company a person residing in the United Kingdom within the meaning of the Income Tax Acts; that it was merely a factor to be considered in determining residence, and was a matter for the Commissioners to decide. It also took the view that it was settled by authority that the residence of a company, whether British or foreign, for income tax purposes was, preponderantly and if not exclusively, determined by the place where its real business was carried on and since the whole of the companys business was controlled from Cairo the company was not resident in England and it upheld the Commissioners decision of discharging the assessments. In taking the aforesaid view the House of Lords approved and followed the criteria that had been laid down in an earlier decision in the case of De Beers Consolidated Mines v. Howe to the effect "the test of residence is not registration but where the company does its real business, where the central management and control abides." Applying the aforesaid criteria to the facts of the present case it was not disputed before us that both the principals (the jute companies) had their registered offices in Calcutta (West Bengal), that their principal businesses were carried on in Calcutta (West Bengal) and that the central management and control of the businesses was done from Calcutta It is true that these two jute companies had storage equipment and godowns at Kendupatna in the State of Orissa but on their awn showing (vide certificates of Registration? at Kendupatna they had additional places of businesses. It was not even the appellant companys case that the central management and the control of the two jute companies businesses was in the State of Orissa. The test laid down in the House of Lords decision does not suggest that at every place where some business of the company is carried on it shall have its residence there. As pointed out above, the central management and control of the two companies businesses obtained in Calcutta (West Bengal) and that being the position the two jute companies would be nonresident dealers in the State of Orissa. The second contention of the counsel for the appellant company, therefore, fails.5
### Response:
0
### Explanation:
For the purpose of the Income Tax Acts, the place of registration of a company is not, any more than the birth place of an individual, conclusive as to its residence. A company registered here (in England), with a registered office here, (in England) and governed by a board which meets here, is no doubt resident here. But also a company registered abroad, whose head office and directors meeting are here, is resident here. The test of residence is not registration, but where the company does its real business, where the central management and control abides. It is the actual place of management of the company and not the place where it ought to be managed which fixes itsunderlined portion in the passage quoted from Buckley is based on the decision of the House of Lords in the leading case of Egyptian Delta Land and Investment Co. v. Todd. In that case the company was incorporated in England, had its registered office in England and fulfilled its statutory obligations in that country but 1) had transferred the whole of its business to Egypt which was entirely controlled and managed from Cairo where the director and the secretary permanently resided and the question arose whether for the purposes of Income Tax Acts the company could be regarded as a resident: in Eng land. After exhaustive survey of the earlier case law on the point the House of Lord took the view that the incorporation under the Companies. Acts, with the attendant statutory obligations did not in itself, as a matter of law, constitute a British company a person residing in the United Kingdom within the meaning of the Income Tax Acts; that it was merely a factor to be considered in determining residence, and was a matter for the Commissioners to decide. It also took the view that it was settled by authority that the residence of a company, whether British or foreign, for income tax purposes was, preponderantly and if not exclusively, determined by the place where its real business was carried on and since the whole of the companys business was controlled from Cairo the company was not resident in England and it upheld the Commissioners decision of discharging the assessments. In taking the aforesaid view the House of Lords approved and followed the criteria that had been laid down in an earlier decision in the case of De Beers Consolidated Mines v. Howe to the effect "the test of residence is not registration but where the company does its real business, where the central management and controlthe aforesaid criteria to the facts of the present case it was not disputed before us that both the principals (the jute companies) had their registered offices in Calcutta (West Bengal), that their principal businesses were carried on in Calcutta (West Bengal) and that the central management and control of the businesses was done from Calcutta It is true that these two jute companies had storage equipment and godowns at Kendupatna in the State of Orissa but on their awn showing (vide certificates of Registration? at Kendupatna they had additional places of businesses. It was not even the appellant companys case that the central management and the control of the two jute companies businesses was in the State of Orissa. The test laid down in the House of Lords decision does not suggest that at every place where some business of the company is carried on it shall have its residence there. As pointed out above, the central management and control of the two companies businesses obtained in Calcutta (West Bengal) and that being the position the two jute companies would be nonresident dealers in the State of Orissa. The second contention of the counsel for the appellant company, therefore, fails.
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Dasrathlal Chandulal Joshi Vs. State of Gujarat | Fazal Ali, J.1. This is an appeal by special leave directed against the judgment of the High Court of Gujarat dated January 19, 1973, by which the High Court reversed the order of the trial Court acquitting two accused persons Manubhai Chhaganbhai Patel and Dasrathlal Chandulal Joshi and convicted them under Sections 420/34 and 471/34. The petition for special leave filed by petitioner 1 Manubhai Chhaganlal Patel, was dismissed by this Court and leave was granted only to the appellant Dasrathlal Chandulal Joshi. A detailed narrative of the prosecution case is to be found in the judgment of the High Court and that of the trial Court and it is not necessary for us to repeat the same all over again. In order to under stand the charge against the appellant certain admitted facts may be mentioned : It appears that Sadachar Samiti had printed a number of receipts which were given to different authorised persons for collection of funds on behalf of the Committee in aid of a famine relief fund organised by the Bansakathe Famine Relief Committee. This fund was meant to give relief to the famine-stricken people of Bansakathe district. It was alleged by the prosecution that accused 1 forged a number of receipts starting from series No. 5000 and passed the same as genuine and collected donation from various persons of whom PWs 1 to 8 have been examine as prosecution witnesses. There is absolutely no allegation that either when the receipts were printed by accused 1 or at any other time the appellant was taken into confidence and had any knowledge that the receipts had been actually forged by the accused, nor is there any evidence that the appellant got and money or derived any profits from the amounts realised by accused 1. The only limited role played by the appellant was that he accompanied accused 1 wherever he went for collecting donations. The trail Court after considering the evidence came to a clear finding that there was no evidence to show that the appellant had any knowledge regarding the activity of accused 1. In this connection the trail Court observed as follows :I may further state that it was stated by all the witnesses that it was accused 1 and accused 2 did not speak anything at all. There is also no evidence to show that accused 2 had knowledge regarding the activity of accused 1. I would have therefore, even if I had come to the conclusion that accused 1 had issued the receipts in question to the witnesses, given benefit of doubt to accused 2 and acquitted him of the charge levelled against him.2. We have gone through the judgment of the High Court and we find that it has not given any convincing reason for displacing this finding of the learned Sessions Judge which led to the acquittal of the appellant. The High Court seems to have relied on three circumstances in order to convict the appellant, first that the appellant accompanied accused I wherever he went for collecting donations; second, that accused I had granted receipts which were forged; and, thirdly, that there were certain entries in the Red Book which were contrary to the contents of the receipt granted by accused I and the appellant did not object to the same. These circumstances by themselves were not sufficient to bring home the charge against the appellant. It was the duty of the prosecution, before the appellant could be convicted under Sections 420/34 or 471/34 to prove that the appellant knew from before that the receipts used by accused I were forged. Secondly, it must also be proved that accused I had shared the fraudulent intention with accused 1 in passing as genuine forged receipts and obtaining donations from various persons on false pretexts. There is, however, not an iota of evidence on the record to prove these facts. To begin with, the appellant was an outsider and a stranger and was picked up by accused 1 from a hotel and asked to accompany him. No witness says that at the time when accused 1 made certain representations while collecting the money the appellant endorsed his stand or made any statement to indicate that he was aware that the receipts were not genuine and still supported the activities of accused 1. Under these circumstances, therefore, it will be difficult for the prosecution to substantiate the charge against the appellant merely on the ground that the appellant accompanied accused 1 wherever he went to collect donations. Mr. Sharma appearing for the State frankly conceded that apart from the evidence that the appellant had accompanied accused 1 there was no evidence of any overt act to show that the appellant endorsed the stand of accused 1. It was further argued by Mr. Sharma that in some cross-entries there was a discrepancy between the amount mentioned in the Red Book and the receipt and, therefore, the appellant must be presumed to know that this discrepancy was there. We are, however, unable to accept this argument in the absence of any evidence to show that the appellant had been shown the Red Book previously and had compared it with the receipts so as to have clear knowledge of the discrepancy and still he kept quiet when accused I was collecting donations from various persons. We have gone through the evidence of PWs 1 to 8 and we are unable to find that they in any way show that the appellant was a party to the forgery committed by accused I.3. For these reasons we are satisfied that there is no legal evidence against the appellant and the High Court was wrong in law in reversing the acquittal of the appellant. We fully agree with the finding and the reasoning of the trial Court, a portion of which has been extracted above by which the trial Court acquitted the appellant.4. | 1[ds]Under these circumstances, therefore, it will be difficult for the prosecution to substantiate the charge against the appellant merely on the ground that the appellant accompanied accused 1 wherever he went to collect donations. Mr. Sharma appearing for the State frankly conceded that apart from the evidence that the appellant had accompanied accused 1 there was no evidence of any overt act to show that the appellant endorsed the stand of accused 1. It was further argued by Mr. Sharma that in somethere was a discrepancy between the amount mentioned in the Red Book and the receipt and, therefore, the appellant must be presumed to know that this discrepancy was there. We are, however, unable to accept this argument in the absence of any evidence to show that the appellant had been shown the Red Book previously and had compared it with the receipts so as to have clear knowledge of the discrepancy and still he kept quiet when accused I was collecting donations from various persons. We have gone through the evidence of PWs 1 to 8 and we are unable to find that they in any way show that the appellant was a party to the forgery committed by accused I.For these reasons we are satisfied that there is no legal evidence against the appellant and the High Court was wrong in law in reversing the acquittal of the appellant. We fully agree with the finding and the reasoning of the trial Court, a portion of which has been extracted above by which the trial Court acquitted the appellant. | 1 | 1,040 | 278 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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Fazal Ali, J.1. This is an appeal by special leave directed against the judgment of the High Court of Gujarat dated January 19, 1973, by which the High Court reversed the order of the trial Court acquitting two accused persons Manubhai Chhaganbhai Patel and Dasrathlal Chandulal Joshi and convicted them under Sections 420/34 and 471/34. The petition for special leave filed by petitioner 1 Manubhai Chhaganlal Patel, was dismissed by this Court and leave was granted only to the appellant Dasrathlal Chandulal Joshi. A detailed narrative of the prosecution case is to be found in the judgment of the High Court and that of the trial Court and it is not necessary for us to repeat the same all over again. In order to under stand the charge against the appellant certain admitted facts may be mentioned : It appears that Sadachar Samiti had printed a number of receipts which were given to different authorised persons for collection of funds on behalf of the Committee in aid of a famine relief fund organised by the Bansakathe Famine Relief Committee. This fund was meant to give relief to the famine-stricken people of Bansakathe district. It was alleged by the prosecution that accused 1 forged a number of receipts starting from series No. 5000 and passed the same as genuine and collected donation from various persons of whom PWs 1 to 8 have been examine as prosecution witnesses. There is absolutely no allegation that either when the receipts were printed by accused 1 or at any other time the appellant was taken into confidence and had any knowledge that the receipts had been actually forged by the accused, nor is there any evidence that the appellant got and money or derived any profits from the amounts realised by accused 1. The only limited role played by the appellant was that he accompanied accused 1 wherever he went for collecting donations. The trail Court after considering the evidence came to a clear finding that there was no evidence to show that the appellant had any knowledge regarding the activity of accused 1. In this connection the trail Court observed as follows :I may further state that it was stated by all the witnesses that it was accused 1 and accused 2 did not speak anything at all. There is also no evidence to show that accused 2 had knowledge regarding the activity of accused 1. I would have therefore, even if I had come to the conclusion that accused 1 had issued the receipts in question to the witnesses, given benefit of doubt to accused 2 and acquitted him of the charge levelled against him.2. We have gone through the judgment of the High Court and we find that it has not given any convincing reason for displacing this finding of the learned Sessions Judge which led to the acquittal of the appellant. The High Court seems to have relied on three circumstances in order to convict the appellant, first that the appellant accompanied accused I wherever he went for collecting donations; second, that accused I had granted receipts which were forged; and, thirdly, that there were certain entries in the Red Book which were contrary to the contents of the receipt granted by accused I and the appellant did not object to the same. These circumstances by themselves were not sufficient to bring home the charge against the appellant. It was the duty of the prosecution, before the appellant could be convicted under Sections 420/34 or 471/34 to prove that the appellant knew from before that the receipts used by accused I were forged. Secondly, it must also be proved that accused I had shared the fraudulent intention with accused 1 in passing as genuine forged receipts and obtaining donations from various persons on false pretexts. There is, however, not an iota of evidence on the record to prove these facts. To begin with, the appellant was an outsider and a stranger and was picked up by accused 1 from a hotel and asked to accompany him. No witness says that at the time when accused 1 made certain representations while collecting the money the appellant endorsed his stand or made any statement to indicate that he was aware that the receipts were not genuine and still supported the activities of accused 1. Under these circumstances, therefore, it will be difficult for the prosecution to substantiate the charge against the appellant merely on the ground that the appellant accompanied accused 1 wherever he went to collect donations. Mr. Sharma appearing for the State frankly conceded that apart from the evidence that the appellant had accompanied accused 1 there was no evidence of any overt act to show that the appellant endorsed the stand of accused 1. It was further argued by Mr. Sharma that in some cross-entries there was a discrepancy between the amount mentioned in the Red Book and the receipt and, therefore, the appellant must be presumed to know that this discrepancy was there. We are, however, unable to accept this argument in the absence of any evidence to show that the appellant had been shown the Red Book previously and had compared it with the receipts so as to have clear knowledge of the discrepancy and still he kept quiet when accused I was collecting donations from various persons. We have gone through the evidence of PWs 1 to 8 and we are unable to find that they in any way show that the appellant was a party to the forgery committed by accused I.3. For these reasons we are satisfied that there is no legal evidence against the appellant and the High Court was wrong in law in reversing the acquittal of the appellant. We fully agree with the finding and the reasoning of the trial Court, a portion of which has been extracted above by which the trial Court acquitted the appellant.4.
### Response:
1
### Explanation:
Under these circumstances, therefore, it will be difficult for the prosecution to substantiate the charge against the appellant merely on the ground that the appellant accompanied accused 1 wherever he went to collect donations. Mr. Sharma appearing for the State frankly conceded that apart from the evidence that the appellant had accompanied accused 1 there was no evidence of any overt act to show that the appellant endorsed the stand of accused 1. It was further argued by Mr. Sharma that in somethere was a discrepancy between the amount mentioned in the Red Book and the receipt and, therefore, the appellant must be presumed to know that this discrepancy was there. We are, however, unable to accept this argument in the absence of any evidence to show that the appellant had been shown the Red Book previously and had compared it with the receipts so as to have clear knowledge of the discrepancy and still he kept quiet when accused I was collecting donations from various persons. We have gone through the evidence of PWs 1 to 8 and we are unable to find that they in any way show that the appellant was a party to the forgery committed by accused I.For these reasons we are satisfied that there is no legal evidence against the appellant and the High Court was wrong in law in reversing the acquittal of the appellant. We fully agree with the finding and the reasoning of the trial Court, a portion of which has been extracted above by which the trial Court acquitted the appellant.
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F. Hoffmann-La Roche & Co. Ltd Vs. Geoffrey Manners & Co. Pvt. Ltd | and the corresponding letters P and "T" in "PROTOVIT" cannot possibly be slurred over in pronunciation and the words are so dissimilar that there is no reasonable probability of confusion between the words either from the visual or phonetic point of view.13. In the High Court, counsel for the respondent made a statement that the respondent was willing that the Court should direct in exercise of its powers under Section 56 (2) that the Registrar should limit the respondents trade mark "DROPOVIT" to medicinal and pharmaceutical preparations and substances containing principally vitamins and that the appeal should be decided on this basis. The question of deceptive similarity must therefore be decided on the basis of the class of goods to which the two trade marks apply subject to the limitation agreed to by the respondent. From the nature of the goods it is likely that most of the customers would obtain a prescription from a doctor and show it to the chemist before the purchase. In such a case, except in the event of the handwriting of the doctor being very bad or illegible the chance of confusion is remote. As we have already observed the evidence shows that there are as many as 57 trade marks in the Register of Trade Marks with the suffix "VIT". Therefore, even an average customer would know that in respect of Vitamin preparations the word "VIT" occurs in large number of trade marks and because of this he would naturally be on his guard and take special care against making a mistake. In this connection the provisions of the Drug Rules, 1945 are also relevant. Under Rule 61 (2) vitamin preparations would be covered by Item 5 in Schedule C (1) to the Rules and a licence would be required to stock such vitamin preparations and to sell them retail. The question of confusion must hence be determined on the basis that the goods with one of the two rival trade marks would be sold only by such a licensed dealer and would not be available in any other shop. The fact that the vendor would be a licensed dealer also reduces the possibility of confusion to a considerable extent.14. Having taken into account all circumstances of the present case we are of the opinion that the High Court and the Joint Registrar of Trade Marks were right in holding that there was no real tangible danger of confusion if respondents trade mark was allowed to continue to remain on the Register and the application for rectification made by the appellant should be dismissed.15. The question was also argued in the appeal whether the word "DROPOVIT" was not an invented word and whether it was a descriptive word. Section 9 (1) of the Act states -"A trade mark shall not be registered in Part A of the register unless it contains or consists of at least one of the following essential particulars, namely :-* * * * * *(c) one or more invented words;(d) one or more words having no direct reference to the character or quality of the goods and not being according to its ordinary signification, a geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India."16. It is contended on behalf of the appellant that "DROPOVIT" meant only "DROP OF VITAMIN" with the word of being misspelled as o. VIT being used to denote "Vitamins", and the three separate words are joined together to make "DROPOVIT" as one word. It was said that the word "DROPOVIT" was simply a combination of three common words in English language and cannot, therefore, be said to be an invented word. In Diabolo case, (1908) 25 RPC 265 Parker J., has explained the meaning of "invented word" as follows:"To be an invented word within the meaning of the Act a word must not only be newly coined, in the sense of not being already current in the English language, but must be such as not to convey any meaning, or, at any rate, any obvious meaning to ordinary Englishmen. It must be a word having no meaning or no obvious meaning until one has been assigned to it."17. In the case of De Cordova v. Vick Chemical Co. (1951) 68 RPC 103, the Privy Council referred to that interpretation of Parker J., as "the best standing interpretation". The question arising in this case is whether the word "DROPOVIT" would strike an ordinary person knowing English as meaning "DROP OF VITAMIN". In this connection the High Court has pointed out that the original application for rectification did not contain the ground that the word "DROPOVIT" was descriptive. It was, therefore legitimate to draw the inference that the word "DROPOVIT" did not strike even Messrs. Depenning and Depenning the legal advisers of the appellant as being descriptive. It was also pointed out that in his judgment Mr. Justice Tarkunde has remarked that when the case was opened before him he did not understand that the word "DROPOVIT" meant "DROP OF VITAMIN" till the explanation of that word was given to him. We see no reason, therefore, to differ from the reasoning of the High Court on this aspect of the case. If the word "DROPOVIT" is not a descriptive word it must be held to be an invented word. It is true that the word "DROPOVIT" is coined out of words commonly used by and known to ordinary persons knowing English. But the resulting combination produces a new word, a newly coined word which does not remind an ordinary person knowing English of the original words out of which it is coined unless he is so told or unless at least he devotes some thought to it. It follows that the word "DROPOVIT" being an invented word was entitled to be registered as a trade mark and is not liable to be removed from the Register on which it already exists. | 0[ds]The tests for comparison of the two word-marks were formulated by Lord Parker in Pianotist Co., Ltd.,s application (1906) 23 RPC 774 at p.is necessary to apply both the visual and phoneticis also important that the marks must be compared as whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding period of the word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark.In order to decide whether the word "DROPOVIT" is deceptively similar to the word "PROTOVIT" each of the two words must, therefore, be taken as a whole word. Each of the two words consists of eight letters the last three letters are common, and in the uncommon part the first two are consonants, the next is the same vowel o, the next is a consonant and the fifth is again a common vowel o. The combined effect is to produce anis apparent that the terminal syllable "VIT" in the two marks is both descriptive and common to the trade. If greater regard is paid to the uncommon element in these two words, it is difficult to hold that one will be mistaken for or confused with the other. The letters D and P in "DROPOVIT" and the corresponding letters P and "T" in "PROTOVIT" cannot possibly be slurred over in pronunciation and the words are so dissimilar that there is no reasonable probability of confusion between the words either from the visual or phonetic point ofeven an average customer would know that in respect of Vitamin preparations the word "VIT" occurs in large number of trade marks and because of this he would naturally be on his guard and take special care against making a mistake. In this connection the provisions of the Drug Rules, 1945 are also relevant. Under Rule 61 (2) vitamin preparations would be covered by Item 5 in Schedule C (1) to the Rules and a licence would be required to stock such vitamin preparations and to sell them retail. The question of confusion must hence be determined on the basis that the goods with one of the two rival trade marks would be sold only by such a licensed dealer and would not be available in any other shop. The fact that the vendor would be a licensed dealer also reduces the possibility of confusion to a considerableHaving taken into account all circumstances of the present case we are of the opinion that the High Court and the Joint Registrar of Trade Marks were right in holding that there was no real tangible danger of confusion if respondents trade mark was allowed to continue to remain on the Register and the application for rectification made by the appellant should bethis connection the High Court has pointed out that the original application for rectification did not contain the ground that the word "DROPOVIT" was descriptive. It was, therefore legitimate to draw the inference that the word "DROPOVIT" did not strike even Messrs. Depenning and Depenning the legal advisers of the appellant as being descriptive. It was also pointed out that in his judgment Mr. Justice Tarkunde has remarked that when the case was opened before him he did not understand that the word "DROPOVIT" meant "DROP OF VITAMIN" till the explanation of that word was given to him. We see no reason, therefore, to differ from the reasoning of the High Court on this aspect of the case. If the word "DROPOVIT" is not a descriptive word it must be held to be an invented word. It is true that the word "DROPOVIT" is coined out of words commonly used by and known to ordinary persons knowing English. But the resulting combination produces a new word, a newly coined word which does not remind an ordinary person knowing English of the original words out of which it is coined unless he is so told or unless at least he devotes some thought to it. It follows that the word "DROPOVIT" being an invented word was entitled to be registered as a trade mark and is not liable to be removed from the Register on which it already exists. | 0 | 3,219 | 810 | ### 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 the corresponding letters P and "T" in "PROTOVIT" cannot possibly be slurred over in pronunciation and the words are so dissimilar that there is no reasonable probability of confusion between the words either from the visual or phonetic point of view.13. In the High Court, counsel for the respondent made a statement that the respondent was willing that the Court should direct in exercise of its powers under Section 56 (2) that the Registrar should limit the respondents trade mark "DROPOVIT" to medicinal and pharmaceutical preparations and substances containing principally vitamins and that the appeal should be decided on this basis. The question of deceptive similarity must therefore be decided on the basis of the class of goods to which the two trade marks apply subject to the limitation agreed to by the respondent. From the nature of the goods it is likely that most of the customers would obtain a prescription from a doctor and show it to the chemist before the purchase. In such a case, except in the event of the handwriting of the doctor being very bad or illegible the chance of confusion is remote. As we have already observed the evidence shows that there are as many as 57 trade marks in the Register of Trade Marks with the suffix "VIT". Therefore, even an average customer would know that in respect of Vitamin preparations the word "VIT" occurs in large number of trade marks and because of this he would naturally be on his guard and take special care against making a mistake. In this connection the provisions of the Drug Rules, 1945 are also relevant. Under Rule 61 (2) vitamin preparations would be covered by Item 5 in Schedule C (1) to the Rules and a licence would be required to stock such vitamin preparations and to sell them retail. The question of confusion must hence be determined on the basis that the goods with one of the two rival trade marks would be sold only by such a licensed dealer and would not be available in any other shop. The fact that the vendor would be a licensed dealer also reduces the possibility of confusion to a considerable extent.14. Having taken into account all circumstances of the present case we are of the opinion that the High Court and the Joint Registrar of Trade Marks were right in holding that there was no real tangible danger of confusion if respondents trade mark was allowed to continue to remain on the Register and the application for rectification made by the appellant should be dismissed.15. The question was also argued in the appeal whether the word "DROPOVIT" was not an invented word and whether it was a descriptive word. Section 9 (1) of the Act states -"A trade mark shall not be registered in Part A of the register unless it contains or consists of at least one of the following essential particulars, namely :-* * * * * *(c) one or more invented words;(d) one or more words having no direct reference to the character or quality of the goods and not being according to its ordinary signification, a geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India."16. It is contended on behalf of the appellant that "DROPOVIT" meant only "DROP OF VITAMIN" with the word of being misspelled as o. VIT being used to denote "Vitamins", and the three separate words are joined together to make "DROPOVIT" as one word. It was said that the word "DROPOVIT" was simply a combination of three common words in English language and cannot, therefore, be said to be an invented word. In Diabolo case, (1908) 25 RPC 265 Parker J., has explained the meaning of "invented word" as follows:"To be an invented word within the meaning of the Act a word must not only be newly coined, in the sense of not being already current in the English language, but must be such as not to convey any meaning, or, at any rate, any obvious meaning to ordinary Englishmen. It must be a word having no meaning or no obvious meaning until one has been assigned to it."17. In the case of De Cordova v. Vick Chemical Co. (1951) 68 RPC 103, the Privy Council referred to that interpretation of Parker J., as "the best standing interpretation". The question arising in this case is whether the word "DROPOVIT" would strike an ordinary person knowing English as meaning "DROP OF VITAMIN". In this connection the High Court has pointed out that the original application for rectification did not contain the ground that the word "DROPOVIT" was descriptive. It was, therefore legitimate to draw the inference that the word "DROPOVIT" did not strike even Messrs. Depenning and Depenning the legal advisers of the appellant as being descriptive. It was also pointed out that in his judgment Mr. Justice Tarkunde has remarked that when the case was opened before him he did not understand that the word "DROPOVIT" meant "DROP OF VITAMIN" till the explanation of that word was given to him. We see no reason, therefore, to differ from the reasoning of the High Court on this aspect of the case. If the word "DROPOVIT" is not a descriptive word it must be held to be an invented word. It is true that the word "DROPOVIT" is coined out of words commonly used by and known to ordinary persons knowing English. But the resulting combination produces a new word, a newly coined word which does not remind an ordinary person knowing English of the original words out of which it is coined unless he is so told or unless at least he devotes some thought to it. It follows that the word "DROPOVIT" being an invented word was entitled to be registered as a trade mark and is not liable to be removed from the Register on which it already exists.
### Response:
0
### Explanation:
The tests for comparison of the two word-marks were formulated by Lord Parker in Pianotist Co., Ltd.,s application (1906) 23 RPC 774 at p.is necessary to apply both the visual and phoneticis also important that the marks must be compared as whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding period of the word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark.In order to decide whether the word "DROPOVIT" is deceptively similar to the word "PROTOVIT" each of the two words must, therefore, be taken as a whole word. Each of the two words consists of eight letters the last three letters are common, and in the uncommon part the first two are consonants, the next is the same vowel o, the next is a consonant and the fifth is again a common vowel o. The combined effect is to produce anis apparent that the terminal syllable "VIT" in the two marks is both descriptive and common to the trade. If greater regard is paid to the uncommon element in these two words, it is difficult to hold that one will be mistaken for or confused with the other. The letters D and P in "DROPOVIT" and the corresponding letters P and "T" in "PROTOVIT" cannot possibly be slurred over in pronunciation and the words are so dissimilar that there is no reasonable probability of confusion between the words either from the visual or phonetic point ofeven an average customer would know that in respect of Vitamin preparations the word "VIT" occurs in large number of trade marks and because of this he would naturally be on his guard and take special care against making a mistake. In this connection the provisions of the Drug Rules, 1945 are also relevant. Under Rule 61 (2) vitamin preparations would be covered by Item 5 in Schedule C (1) to the Rules and a licence would be required to stock such vitamin preparations and to sell them retail. The question of confusion must hence be determined on the basis that the goods with one of the two rival trade marks would be sold only by such a licensed dealer and would not be available in any other shop. The fact that the vendor would be a licensed dealer also reduces the possibility of confusion to a considerableHaving taken into account all circumstances of the present case we are of the opinion that the High Court and the Joint Registrar of Trade Marks were right in holding that there was no real tangible danger of confusion if respondents trade mark was allowed to continue to remain on the Register and the application for rectification made by the appellant should bethis connection the High Court has pointed out that the original application for rectification did not contain the ground that the word "DROPOVIT" was descriptive. It was, therefore legitimate to draw the inference that the word "DROPOVIT" did not strike even Messrs. Depenning and Depenning the legal advisers of the appellant as being descriptive. It was also pointed out that in his judgment Mr. Justice Tarkunde has remarked that when the case was opened before him he did not understand that the word "DROPOVIT" meant "DROP OF VITAMIN" till the explanation of that word was given to him. We see no reason, therefore, to differ from the reasoning of the High Court on this aspect of the case. If the word "DROPOVIT" is not a descriptive word it must be held to be an invented word. It is true that the word "DROPOVIT" is coined out of words commonly used by and known to ordinary persons knowing English. But the resulting combination produces a new word, a newly coined word which does not remind an ordinary person knowing English of the original words out of which it is coined unless he is so told or unless at least he devotes some thought to it. It follows that the word "DROPOVIT" being an invented word was entitled to be registered as a trade mark and is not liable to be removed from the Register on which it already exists.
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State Of Saurashtra Vs. Jamadar Mohamad Abdulla And Ors | against the State before the coming into force of the Constitution but enquired into and rejected by Government after the coming into force of the Constitution, it was held that unless the new sovereign had expressly or impliedly admitted the claims, the municipal courts had no jurisdiction in the matter.22. We consider it unnecessary to give our decision on these submissions, because it is obvious that before the Dominion of India assumed de jure sovereignty over Junagadh, the respondents were not in a position to call to their aid the provisions of S. 299 of the Government of India Act, 1935.23. In the appeals before us we are dealing with orders made by the Administrator before the act of State was complete. The action taken by the impugned orders arose out of and during an act of State. That being the position, it is clear that the muncipal tribunals had no authority to give a remedy in respect of such action.24. It remains now to consider the last argument advanced on behalf of the respondents. As was observed in 1960-1 SCR 537 ; (AIR 1959 SC 1383 ) an act of State is an exercise of sovereign power against an alien and is neither intended nor purports to be legally founded. On behalf of the respondents it has been contended that the Administrator purported to cancel or resume the grants under consideration in these appeals in pursuance of law; therefore, it was not open to the appellant - State to take up fine plea of an act of State. We do not think that there is any substance in this argument. Learned counsel for the respondents in Civil Appeal No. 349 of 1958 has drawn our attention to the pleadings, particularly to para. 8 of the written statement filed on behalf of the appellant-State. In that paragraph it was stated that the order of resumption dated January 8, 1949, was legal and the Administrator had authority to resume such inam grant. On the basis of this paragraph it has been contended that inasmuch as the Administrator purported to act under authority of law, it was not open to the appellant-State to raise the plea of an act of State. In this connection we must also refer to para. 17 of the written statement where the appellant-State specifically pleaded that the plaintiff-respondent had no right to bring the suit against Government. In the trial court a specific issue was struck on the question as to whether the court had jurisdiction to hear and determine the suit, and under this issue the argument advanced was that the order of resumption war an act of State not justiciable in the municipal courts. It appears, however, that the appellant-State also took a plea in the alternative that the order of resumption was justified under the rules in force in the Junagadh State. The that court held that the order of resumption was not an act of State. It further held that the order of resumption was not justified by the rules in force in the Junagadh State. In these circumstances it cannot be said that the appellant-State did not plead an act of State; nor can it be said that it was not open to the appellant-State to raise that plea. In the High Court also the same plea of act of State was urged on behalf of the appellant - State but was rejected by the High Court on the basis of its decision in AIR 1953 Sau 180. That decision, we have stated earlier, was overruled by this Court in 1960-l SCR 537: (AIR 1959 SC 1383).25. Learned counsel for the respondents then referred us to an order dated February 9, 1949, in which it was stated that inam grants were resumable at the pleasure of Government and therefore the orders passed on January 8, 1949, could not be cancelled. Apparently the order dated February 9, 1949, was passed on some representation made at the instance of the plaintiffs-respondents. We have to read the two orders, one dated January 8, 1949 and the other dated February 9, 1949 together. If so read, it is clear that the order dated January 8, 1949 was made by the Administrator not under the authority of any law but as an act of State.26. Learned counsel for the respondents relied on the decision in Forester v. Secretary of State 18 Suth WR 349 (PC). In that case, the Privy Council, upon a construction of the treaty or agreement made by the British Government in August, 1805 with Begum Sumroo, held that the Begum was not a sovereign princess but a mere Jagirdar under obligation to keep up, a body of troops to be employed when called upon in the service of the sovereign. On that finding it was held that the resumption of the lands by the British Government upon the death of the Begum was not an act of State but an act done under legal title. We do not think that the principle of that decision applies to the facts of these cases. In Vajesinghji Joravarsingji v. Secretary of State 51 Ind App 357 : (AIR 1924 PC 216 ) Lord Dunedin said that no plea specifically using the words "act of State" was required and the moment cession of territory was admitted, the onus was on the plaintiffs-respondents to prove that the right which they claim had been expressly or tacitly recognised by the new sovereign. If there was no such recognition and none was pleaded in these cases, the municipal courts would have no jurisdiction to give any relief. In this view of the matter it was not open to the courts below to enquire into the powers of the Nawab to resume or derogate from the grants made and whether similar powers were inherited by the Dominion Government or its agents. The action being an act of State was, not justicible in the municipal courts, even if the same were arbitrary. | 1[ds]The problem is really one of State succession; namely succession to International Persons as understood in International law. Such a succession takes place when one or more Internationa1 Persons take the place of another International Person in consequence of certain changes in the latters condition; there may be universal succession or partial succession. In the case before us, as long as Junagadh State continued as such, there was no such succession and even though the Dominion of India took over the administration of Junagadh and exercised control therein, it did not assume de jure sovereignty over it. Therefore, the act of State did not terminate till January 20, 1949, when the Dominion of India assumed de jure sovereignty over Junagadh by its integration into the United State of Saurashtra.We do not think that these observations help to establish the contention of learned counsel for the respondents that any exercise of administrative control in acquired territory must mean at once that there is an assumption of sovereignty by the in-coming State so as to terminate the act of State. The observations made by Lord Sumner merely show that with regard to territory which the Crown has conquered, the Crowns intention can be manifested in more than one way, and not necessarily by a proclamation. In the case before us a proclamation was issued by the Administrator, but that merely announced that he had assumed charge of the administration of Junagadh State under orders of the Government of India. It made no announcement as to assumption of sovereignty.In our view, the only conclusion which follows from the facts which we have earlier stated is that there was no assumption of sovereignty by the Dominion of India over Junagadh before January 20,is indeed true that the people of Junagadh voted for accession to the Dominion of India; but no accession actually took place, and later there was a merger in the United State of Saurashtra with the consent of the people of Junagadh and the Government of India. Till such merger there was no "cession" of territory in the legal sense either with or without the consent of theIn view of our finding that the act of State did not terminate till the process of acquisition was complete on January 20, 1949, it becomes unnecessary to consider this second step in the argument of learned counsel. But perhaps it is necessary to add that the decision in 1955-1 SCR 415 : (AIR 1954 SC 447 ) was based on the special circumstances mentioned therein which led to the making of the Constitution of India. The learned Attorney-General appearing for the appellant-State has submitted that the principle of Virendra Singhs case, 1955-1 SCR 415 : (AIR 1954 SC 447 ) cannot be extended to the entirely different set of circumstances in whichthe Government of India Act, 1935 was made and S. 299 thereof did not affect the doctrine that municipal tribunals have no authority to give a remedy in respect of actions arising from an act of State. He also drew our attention to a decision of this Court in Jagannath Agarwala v. Slate of Orissa, Civil Appeals Nos. 666 and 667 of 1957 D/- 8-3-1961 : (AIR 1961 SC 1361 ) in which in respect of some claims made against the State before the coming into force of the Constitution but enquired into and rejected by Government after the coming into force of the Constitution, it was held that unless the new sovereign had expressly or impliedly admitted the claims, the municipal courts had no jurisdiction in thethe trial court a specific issue was struck on the question as to whether the court had jurisdiction to hear and determine the suit, and under this issue the argument advanced was that the order of resumption war an act of State not justiciable in the municipal courts. It appears, however, that the appellant-State also took a plea in the alternative that the order of resumption was justified under the rules in force in the Junagadh State. The that court held that the order of resumption was not an act of State. It further held that the order of resumption was not justified by the rules in force in the Junagadh State. In these circumstances it cannot be said that the appellant-State did not plead an act of State; nor can it be said that it was not open to the appellant-State to raise that plea. In the High Court also the same plea of act of State was urged on behalf of the appellant - State but was rejected by the High Court on the basis of its decision in AIR 1953 Sau 180. That decision, we have stated earlier, was overruled by this Court in 1960-l SCR 537: (AIR 1959 SCthis view of the matter it was not open to the courts below to enquire into the powers of the Nawab to resume or derogate from the grants made and whether similar powers were inherited by the Dominion Government or its agents. The action being an act of State was, not justicible in the municipal courts, even if the same were arbitrary. | 1 | 7,918 | 921 | ### Instruction:
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against the State before the coming into force of the Constitution but enquired into and rejected by Government after the coming into force of the Constitution, it was held that unless the new sovereign had expressly or impliedly admitted the claims, the municipal courts had no jurisdiction in the matter.22. We consider it unnecessary to give our decision on these submissions, because it is obvious that before the Dominion of India assumed de jure sovereignty over Junagadh, the respondents were not in a position to call to their aid the provisions of S. 299 of the Government of India Act, 1935.23. In the appeals before us we are dealing with orders made by the Administrator before the act of State was complete. The action taken by the impugned orders arose out of and during an act of State. That being the position, it is clear that the muncipal tribunals had no authority to give a remedy in respect of such action.24. It remains now to consider the last argument advanced on behalf of the respondents. As was observed in 1960-1 SCR 537 ; (AIR 1959 SC 1383 ) an act of State is an exercise of sovereign power against an alien and is neither intended nor purports to be legally founded. On behalf of the respondents it has been contended that the Administrator purported to cancel or resume the grants under consideration in these appeals in pursuance of law; therefore, it was not open to the appellant - State to take up fine plea of an act of State. We do not think that there is any substance in this argument. Learned counsel for the respondents in Civil Appeal No. 349 of 1958 has drawn our attention to the pleadings, particularly to para. 8 of the written statement filed on behalf of the appellant-State. In that paragraph it was stated that the order of resumption dated January 8, 1949, was legal and the Administrator had authority to resume such inam grant. On the basis of this paragraph it has been contended that inasmuch as the Administrator purported to act under authority of law, it was not open to the appellant-State to raise the plea of an act of State. In this connection we must also refer to para. 17 of the written statement where the appellant-State specifically pleaded that the plaintiff-respondent had no right to bring the suit against Government. In the trial court a specific issue was struck on the question as to whether the court had jurisdiction to hear and determine the suit, and under this issue the argument advanced was that the order of resumption war an act of State not justiciable in the municipal courts. It appears, however, that the appellant-State also took a plea in the alternative that the order of resumption was justified under the rules in force in the Junagadh State. The that court held that the order of resumption was not an act of State. It further held that the order of resumption was not justified by the rules in force in the Junagadh State. In these circumstances it cannot be said that the appellant-State did not plead an act of State; nor can it be said that it was not open to the appellant-State to raise that plea. In the High Court also the same plea of act of State was urged on behalf of the appellant - State but was rejected by the High Court on the basis of its decision in AIR 1953 Sau 180. That decision, we have stated earlier, was overruled by this Court in 1960-l SCR 537: (AIR 1959 SC 1383).25. Learned counsel for the respondents then referred us to an order dated February 9, 1949, in which it was stated that inam grants were resumable at the pleasure of Government and therefore the orders passed on January 8, 1949, could not be cancelled. Apparently the order dated February 9, 1949, was passed on some representation made at the instance of the plaintiffs-respondents. We have to read the two orders, one dated January 8, 1949 and the other dated February 9, 1949 together. If so read, it is clear that the order dated January 8, 1949 was made by the Administrator not under the authority of any law but as an act of State.26. Learned counsel for the respondents relied on the decision in Forester v. Secretary of State 18 Suth WR 349 (PC). In that case, the Privy Council, upon a construction of the treaty or agreement made by the British Government in August, 1805 with Begum Sumroo, held that the Begum was not a sovereign princess but a mere Jagirdar under obligation to keep up, a body of troops to be employed when called upon in the service of the sovereign. On that finding it was held that the resumption of the lands by the British Government upon the death of the Begum was not an act of State but an act done under legal title. We do not think that the principle of that decision applies to the facts of these cases. In Vajesinghji Joravarsingji v. Secretary of State 51 Ind App 357 : (AIR 1924 PC 216 ) Lord Dunedin said that no plea specifically using the words "act of State" was required and the moment cession of territory was admitted, the onus was on the plaintiffs-respondents to prove that the right which they claim had been expressly or tacitly recognised by the new sovereign. If there was no such recognition and none was pleaded in these cases, the municipal courts would have no jurisdiction to give any relief. In this view of the matter it was not open to the courts below to enquire into the powers of the Nawab to resume or derogate from the grants made and whether similar powers were inherited by the Dominion Government or its agents. The action being an act of State was, not justicible in the municipal courts, even if the same were arbitrary.
### Response:
1
### Explanation:
The problem is really one of State succession; namely succession to International Persons as understood in International law. Such a succession takes place when one or more Internationa1 Persons take the place of another International Person in consequence of certain changes in the latters condition; there may be universal succession or partial succession. In the case before us, as long as Junagadh State continued as such, there was no such succession and even though the Dominion of India took over the administration of Junagadh and exercised control therein, it did not assume de jure sovereignty over it. Therefore, the act of State did not terminate till January 20, 1949, when the Dominion of India assumed de jure sovereignty over Junagadh by its integration into the United State of Saurashtra.We do not think that these observations help to establish the contention of learned counsel for the respondents that any exercise of administrative control in acquired territory must mean at once that there is an assumption of sovereignty by the in-coming State so as to terminate the act of State. The observations made by Lord Sumner merely show that with regard to territory which the Crown has conquered, the Crowns intention can be manifested in more than one way, and not necessarily by a proclamation. In the case before us a proclamation was issued by the Administrator, but that merely announced that he had assumed charge of the administration of Junagadh State under orders of the Government of India. It made no announcement as to assumption of sovereignty.In our view, the only conclusion which follows from the facts which we have earlier stated is that there was no assumption of sovereignty by the Dominion of India over Junagadh before January 20,is indeed true that the people of Junagadh voted for accession to the Dominion of India; but no accession actually took place, and later there was a merger in the United State of Saurashtra with the consent of the people of Junagadh and the Government of India. Till such merger there was no "cession" of territory in the legal sense either with or without the consent of theIn view of our finding that the act of State did not terminate till the process of acquisition was complete on January 20, 1949, it becomes unnecessary to consider this second step in the argument of learned counsel. But perhaps it is necessary to add that the decision in 1955-1 SCR 415 : (AIR 1954 SC 447 ) was based on the special circumstances mentioned therein which led to the making of the Constitution of India. The learned Attorney-General appearing for the appellant-State has submitted that the principle of Virendra Singhs case, 1955-1 SCR 415 : (AIR 1954 SC 447 ) cannot be extended to the entirely different set of circumstances in whichthe Government of India Act, 1935 was made and S. 299 thereof did not affect the doctrine that municipal tribunals have no authority to give a remedy in respect of actions arising from an act of State. He also drew our attention to a decision of this Court in Jagannath Agarwala v. Slate of Orissa, Civil Appeals Nos. 666 and 667 of 1957 D/- 8-3-1961 : (AIR 1961 SC 1361 ) in which in respect of some claims made against the State before the coming into force of the Constitution but enquired into and rejected by Government after the coming into force of the Constitution, it was held that unless the new sovereign had expressly or impliedly admitted the claims, the municipal courts had no jurisdiction in thethe trial court a specific issue was struck on the question as to whether the court had jurisdiction to hear and determine the suit, and under this issue the argument advanced was that the order of resumption war an act of State not justiciable in the municipal courts. It appears, however, that the appellant-State also took a plea in the alternative that the order of resumption was justified under the rules in force in the Junagadh State. The that court held that the order of resumption was not an act of State. It further held that the order of resumption was not justified by the rules in force in the Junagadh State. In these circumstances it cannot be said that the appellant-State did not plead an act of State; nor can it be said that it was not open to the appellant-State to raise that plea. In the High Court also the same plea of act of State was urged on behalf of the appellant - State but was rejected by the High Court on the basis of its decision in AIR 1953 Sau 180. That decision, we have stated earlier, was overruled by this Court in 1960-l SCR 537: (AIR 1959 SCthis view of the matter it was not open to the courts below to enquire into the powers of the Nawab to resume or derogate from the grants made and whether similar powers were inherited by the Dominion Government or its agents. The action being an act of State was, not justicible in the municipal courts, even if the same were arbitrary.
|
M. SRIKANTH Vs. THE STATE OF TELANGANA | no reference with regard to the other proceedings. Accused No. 4 has been impleaded as a party-defendant in O.S. No. 506 of 2001 only on 30.10.2009. 22. O.S. No. 239 of 2004 has already been filed by the complainant against her brother, accused No. 1 and her three sisters inter alia for partition and separate possession which is stated to be pending. As such, the documents alleged to be fraudulent in the complaint will fall for consideration in the said suit. A possibility of contradictory finding in civil proceeding as against criminal proceedings cannot be ruled out. Though, the complainant had filed Writ Petition Nos. 23017/2009 and 23672/2009 to restrain construction on the plot in question, the same was dismissed on 28.10.2009. However, there is no mention with regard to the same in the complaint. This Court in Sardool Singh vs. Nasib Kaur (1987) Supp. SCC 146 observed as follows: ?2. A civil suit between the parties is pending wherein the contention of the respondent is that no will was executed whereas the contention of the appellants is that a will has been executed by the testator. A case for grant of probate is also pending in the court of learned District Judge, Rampur. The civil court is therefore seized of the question as regards the validity of the will. The matter is sub judice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the will is a forged one. That question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the will is being tested before a civil court. We, therefore, allow the appeal, set aside the order of the High Court, and quash the criminal proceedings pending in the Court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt Nasib Kaur v. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the will is a forged one. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wide open before the lower courts.? 23. It is further to be noted, that the complainant and her sisters executed an agreement of sale¬cum-irrevocable specific power of attorney on 20.03.2015 in favour of one Mohd. Khalid Shareef. Various litigations have also been filed with regard to the installation of the petrol pump and grant of N.O.C. etc. The complaint was sent to the police for registration of an FIR and investigation under Section 156(3) of the Cr.P.C. on 24.11.2010. In its final report dated 30.08.2017, the police has opined that no material had surfaced to show any conspiracy during investigation. 24. The learned Judge himself in Paragraph 8, after observing that it is nobodies case that the signatures on the documents in question are forged or anybody has impersonated for the purpose of cheating, goes on to observe thus: ?8…..The allegation in nutshell in this regard is that accused No. 1 is not the absolute owner of the properties, but for one of the co¬owner or co-sharer along with the de facto complainant and other sisters of them and he falsely claimed as if he is the owner for purpose of cheating by using as if genuine forged and fabricated documents of so called will and so called deed of confirmation. The so called will is of the year 1950 and the so called deed of confirmation is of year 1989¬1990 and the alleged oral gift prior to that is of 1966….? 25. We fail to understand, as to how after observing the aforesaid, the learned Judge could have refused to quash the proceedings against accused No. 4. Not only that, but on the basis of the said observations, the learned Judge himself has observed that it will not be in the interest of justice to permit the Police authorities to arrest the accused for the purposes of investigation. We are of the considered view, that the learned Judge, having found that the entire allegations with regard to forgery and fabrication and accused No. 1 executing the lease deed on the basis of the said forged and fabricated documents were only against accused No. 1, ought to have exercised his jurisdiction to quash the proceedings qua accused No. 4 also. We find that the learned Judge ought to have applied the same parameters to the present accused No. 4, which had been applied to the other accused whose applications were allowed. 26. Insofar as the criminal appeals arising out of the special leave petitions filed by the original complainant is concerned, we absolutely find no merit in the appeals. The learned single Judge has rightly found that there was no material to proceed against accused No. 5 – HPCL and its officers accused Nos. 6 and 9 as also accused Nos. 7 and 8, who have been roped in, only because they were the attesting witnesses. The learned single Judge has rightly exercised his jurisdiction under Section 482 of the Cr.P.C. 27. Insofar as original accused No. 4 is concerned, we have no hesitation to hold, that his case is covered by categories (1) and (3) carved out by this Court in the case of Bhajan Lal (supra). As already discussed hereinabove, even if the allegations in the complaint are taken on its face value, there is no material to proceed further against accused No. 4. We are of the considered view, that continuation of criminal proceedings against accused No. 4, M. Srikanth, would amount to nothing else but an abuse of process of law. As such, his appeal deserves to be allowed. | 1[ds]19. The complaint filed by respondent No. 2 runs into 26 pages and 26 paragraphs. As already discussed hereinabove, it reveals a disputed property claim based on inheritance between the complainant, her sisters and her brother, accused No. 1. A perusal of the complaint would further reveal, that the complainant also disputes with regard to the area of the property including the manner of its devolution upon the parents of the complainant and her competing interest with that of her siblings. There is not even a whisper in the complaint that the present appellant, i.e., accused No. 4 was fully aware that accused No. 1 was not the sole beneficiary by inheritance and that the property had devolved upon the complainant and her sisters. Also there is nothing to show that knowing this he has collusively entered into the lease agreement with accused No. 1, by creating a false and fabricated will. Though, there is a mention with regard to conspiracy, but there is not even a suggestion with regard to manner of such conspiracy.Upon perusal of the complaint itself, it would reveal that the father of the complainant and accused No. 3 had himself entered into a development agreement which subsequently came to be cancelled during his lifetime. It would also reveal, that only after the lease in question was executed in favour of the appellant, the complainant has raised all these issues. We are of the considered view, that the issues raised reflect a civil dispute with regard to inheritance amongst the legal heirs. We fail to understand as to how a dispute with regard to the inheritance under a will and deed of confirmation can be decided in a criminal proceeding. We find, that the same can be done only in an appropriate civil proceeding. Not only that, the civil proceedings with that regard are already instituted by various parties including the complainant.It will be relevant to refer that though in the complaint, the complainant had mentioned about pendency of O.S. No. 1989 of 1996 against accused No. 3 and O.S. No. 1403 of 1999 against M/s Banjara Construction Pvt. Ltd., there is no reference with regard to the other proceedings. Accused No. 4 has been impleaded as a party-defendant in O.S. No. 506 of 2001 only on 30.10.2009.O.S. No. 239 of 2004 has already been filed by the complainant against her brother, accused No. 1 and her three sisters inter alia for partition and separate possession which is stated to be pending. As such, the documents alleged to be fraudulent in the complaint will fall for consideration in the said suit. A possibility of contradictory finding in civil proceeding as against criminal proceedings cannot be ruled out. Though, the complainant had filed Writ Petition Nos. 23017/2009 and 23672/2009 to restrain construction on the plot in question, the same was dismissed on 28.10.2009. However, there is no mention with regard to the same in the complaint.It is further to be noted, that the complainant and her sisters executed an agreement of sale¬cum-irrevocable specific power of attorney on 20.03.2015 in favour of one Mohd. Khalid Shareef. Various litigations have also been filed with regard to the installation of the petrol pump and grant of N.O.C. etc. The complaint was sent to the police for registration of an FIR and investigation under Section 156(3) of the Cr.P.C. on 24.11.2010. In its final report dated 30.08.2017, the police has opined that no material had surfaced to show any conspiracy during investigation.We fail to understand, as to how after observing the aforesaid, the learned Judge could have refused to quash the proceedings against accused No. 4. Not only that, but on the basis of the said observations, the learned Judge himself has observed that it will not be in the interest of justice to permit the Police authorities to arrest the accused for the purposes of investigation. We are of the considered view, that the learned Judge, having found that the entire allegations with regard to forgery and fabrication and accused No. 1 executing the lease deed on the basis of the said forged and fabricated documents were only against accused No. 1, ought to have exercised his jurisdiction to quash the proceedings qua accused No. 4 also. We find that the learned Judge ought to have applied the same parameters to the present accused No. 4, which had been applied to the other accused whose applications were allowed.Insofar as the criminal appeals arising out of the special leave petitions filed by the original complainant is concerned, we absolutely find no merit in the appeals. The learned single Judge has rightly found that there was no material to proceed against accused No. 5 – HPCL and its officers accused Nos. 6 and 9 as also accused Nos. 7 and 8, who have been roped in, only because they were the attesting witnesses. The learned single Judge has rightly exercised his jurisdiction under Section 482 of the Cr.P.C.Insofar as original accused No. 4 is concerned, we have no hesitation to hold, that his case is covered by categories (1) and (3) carved out by this Court in the case of Bhajan Lal (supra). As already discussed hereinabove, even if the allegations in the complaint are taken on its face value, there is no material to proceed further against accused No. 4. We are of the considered view, that continuation of criminal proceedings against accused No. 4, M. Srikanth, would amount to nothing else but an abuse of process of law. As such, his appeal deserves to be allowed.This Court, in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors. 1992 Supp (1) SCC 335 after considering all its earlier judgments, has laid down principles which are required to be taken into consideration by the High Court while exercising its jurisdiction under Section 482 of the Cr.P.C. for quashing the proceedings.It could thus be seen, that this Court has held, that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute a case against the accused, the High Court would be justified in quashing the proceedings. Further, it has been held that where the uncontroverted allegations in the FIR and the evidence collected in support of the same do not disclose any offence and make out a case against the accused, the court would be justified in quashing the proceedings. | 1 | 4,722 | 1,212 | ### Instruction:
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no reference with regard to the other proceedings. Accused No. 4 has been impleaded as a party-defendant in O.S. No. 506 of 2001 only on 30.10.2009. 22. O.S. No. 239 of 2004 has already been filed by the complainant against her brother, accused No. 1 and her three sisters inter alia for partition and separate possession which is stated to be pending. As such, the documents alleged to be fraudulent in the complaint will fall for consideration in the said suit. A possibility of contradictory finding in civil proceeding as against criminal proceedings cannot be ruled out. Though, the complainant had filed Writ Petition Nos. 23017/2009 and 23672/2009 to restrain construction on the plot in question, the same was dismissed on 28.10.2009. However, there is no mention with regard to the same in the complaint. This Court in Sardool Singh vs. Nasib Kaur (1987) Supp. SCC 146 observed as follows: ?2. A civil suit between the parties is pending wherein the contention of the respondent is that no will was executed whereas the contention of the appellants is that a will has been executed by the testator. A case for grant of probate is also pending in the court of learned District Judge, Rampur. The civil court is therefore seized of the question as regards the validity of the will. The matter is sub judice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the will is a forged one. That question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the will is being tested before a civil court. We, therefore, allow the appeal, set aside the order of the High Court, and quash the criminal proceedings pending in the Court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt Nasib Kaur v. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the will is a forged one. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wide open before the lower courts.? 23. It is further to be noted, that the complainant and her sisters executed an agreement of sale¬cum-irrevocable specific power of attorney on 20.03.2015 in favour of one Mohd. Khalid Shareef. Various litigations have also been filed with regard to the installation of the petrol pump and grant of N.O.C. etc. The complaint was sent to the police for registration of an FIR and investigation under Section 156(3) of the Cr.P.C. on 24.11.2010. In its final report dated 30.08.2017, the police has opined that no material had surfaced to show any conspiracy during investigation. 24. The learned Judge himself in Paragraph 8, after observing that it is nobodies case that the signatures on the documents in question are forged or anybody has impersonated for the purpose of cheating, goes on to observe thus: ?8…..The allegation in nutshell in this regard is that accused No. 1 is not the absolute owner of the properties, but for one of the co¬owner or co-sharer along with the de facto complainant and other sisters of them and he falsely claimed as if he is the owner for purpose of cheating by using as if genuine forged and fabricated documents of so called will and so called deed of confirmation. The so called will is of the year 1950 and the so called deed of confirmation is of year 1989¬1990 and the alleged oral gift prior to that is of 1966….? 25. We fail to understand, as to how after observing the aforesaid, the learned Judge could have refused to quash the proceedings against accused No. 4. Not only that, but on the basis of the said observations, the learned Judge himself has observed that it will not be in the interest of justice to permit the Police authorities to arrest the accused for the purposes of investigation. We are of the considered view, that the learned Judge, having found that the entire allegations with regard to forgery and fabrication and accused No. 1 executing the lease deed on the basis of the said forged and fabricated documents were only against accused No. 1, ought to have exercised his jurisdiction to quash the proceedings qua accused No. 4 also. We find that the learned Judge ought to have applied the same parameters to the present accused No. 4, which had been applied to the other accused whose applications were allowed. 26. Insofar as the criminal appeals arising out of the special leave petitions filed by the original complainant is concerned, we absolutely find no merit in the appeals. The learned single Judge has rightly found that there was no material to proceed against accused No. 5 – HPCL and its officers accused Nos. 6 and 9 as also accused Nos. 7 and 8, who have been roped in, only because they were the attesting witnesses. The learned single Judge has rightly exercised his jurisdiction under Section 482 of the Cr.P.C. 27. Insofar as original accused No. 4 is concerned, we have no hesitation to hold, that his case is covered by categories (1) and (3) carved out by this Court in the case of Bhajan Lal (supra). As already discussed hereinabove, even if the allegations in the complaint are taken on its face value, there is no material to proceed further against accused No. 4. We are of the considered view, that continuation of criminal proceedings against accused No. 4, M. Srikanth, would amount to nothing else but an abuse of process of law. As such, his appeal deserves to be allowed.
### Response:
1
### Explanation:
siblings. There is not even a whisper in the complaint that the present appellant, i.e., accused No. 4 was fully aware that accused No. 1 was not the sole beneficiary by inheritance and that the property had devolved upon the complainant and her sisters. Also there is nothing to show that knowing this he has collusively entered into the lease agreement with accused No. 1, by creating a false and fabricated will. Though, there is a mention with regard to conspiracy, but there is not even a suggestion with regard to manner of such conspiracy.Upon perusal of the complaint itself, it would reveal that the father of the complainant and accused No. 3 had himself entered into a development agreement which subsequently came to be cancelled during his lifetime. It would also reveal, that only after the lease in question was executed in favour of the appellant, the complainant has raised all these issues. We are of the considered view, that the issues raised reflect a civil dispute with regard to inheritance amongst the legal heirs. We fail to understand as to how a dispute with regard to the inheritance under a will and deed of confirmation can be decided in a criminal proceeding. We find, that the same can be done only in an appropriate civil proceeding. Not only that, the civil proceedings with that regard are already instituted by various parties including the complainant.It will be relevant to refer that though in the complaint, the complainant had mentioned about pendency of O.S. No. 1989 of 1996 against accused No. 3 and O.S. No. 1403 of 1999 against M/s Banjara Construction Pvt. Ltd., there is no reference with regard to the other proceedings. Accused No. 4 has been impleaded as a party-defendant in O.S. No. 506 of 2001 only on 30.10.2009.O.S. No. 239 of 2004 has already been filed by the complainant against her brother, accused No. 1 and her three sisters inter alia for partition and separate possession which is stated to be pending. As such, the documents alleged to be fraudulent in the complaint will fall for consideration in the said suit. A possibility of contradictory finding in civil proceeding as against criminal proceedings cannot be ruled out. Though, the complainant had filed Writ Petition Nos. 23017/2009 and 23672/2009 to restrain construction on the plot in question, the same was dismissed on 28.10.2009. However, there is no mention with regard to the same in the complaint.It is further to be noted, that the complainant and her sisters executed an agreement of sale¬cum-irrevocable specific power of attorney on 20.03.2015 in favour of one Mohd. Khalid Shareef. Various litigations have also been filed with regard to the installation of the petrol pump and grant of N.O.C. etc. The complaint was sent to the police for registration of an FIR and investigation under Section 156(3) of the Cr.P.C. on 24.11.2010. In its final report dated 30.08.2017, the police has opined that no material had surfaced to show any conspiracy during investigation.We fail to understand, as to how after observing the aforesaid, the learned Judge could have refused to quash the proceedings against accused No. 4. Not only that, but on the basis of the said observations, the learned Judge himself has observed that it will not be in the interest of justice to permit the Police authorities to arrest the accused for the purposes of investigation. We are of the considered view, that the learned Judge, having found that the entire allegations with regard to forgery and fabrication and accused No. 1 executing the lease deed on the basis of the said forged and fabricated documents were only against accused No. 1, ought to have exercised his jurisdiction to quash the proceedings qua accused No. 4 also. We find that the learned Judge ought to have applied the same parameters to the present accused No. 4, which had been applied to the other accused whose applications were allowed.Insofar as the criminal appeals arising out of the special leave petitions filed by the original complainant is concerned, we absolutely find no merit in the appeals. The learned single Judge has rightly found that there was no material to proceed against accused No. 5 – HPCL and its officers accused Nos. 6 and 9 as also accused Nos. 7 and 8, who have been roped in, only because they were the attesting witnesses. The learned single Judge has rightly exercised his jurisdiction under Section 482 of the Cr.P.C.Insofar as original accused No. 4 is concerned, we have no hesitation to hold, that his case is covered by categories (1) and (3) carved out by this Court in the case of Bhajan Lal (supra). As already discussed hereinabove, even if the allegations in the complaint are taken on its face value, there is no material to proceed further against accused No. 4. We are of the considered view, that continuation of criminal proceedings against accused No. 4, M. Srikanth, would amount to nothing else but an abuse of process of law. As such, his appeal deserves to be allowed.This Court, in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors. 1992 Supp (1) SCC 335 after considering all its earlier judgments, has laid down principles which are required to be taken into consideration by the High Court while exercising its jurisdiction under Section 482 of the Cr.P.C. for quashing the proceedings.It could thus be seen, that this Court has held, that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute a case against the accused, the High Court would be justified in quashing the proceedings. Further, it has been held that where the uncontroverted allegations in the FIR and the evidence collected in support of the same do not disclose any offence and make out a case against the accused, the court would be justified in quashing the proceedings.
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M/s. Orient Trading Company Limited Vs. Commissioner of Income Tax, Calcutta | point of view from which it ought to be looked at, and looking at it from that point of view the company is right. It has done with the investments in the companies. They have disappeared. It is known exactly in money. It is known now exactly what their holding of them has meant to the company. They will never more go up or down. What will go up or down now are the different shares in the new companies, altogether different investments really, and therefore I think that the old investment is closed and realised and a new investment is started." * 9. Similarly in Californian Copper Syndicate Ltd. v. Inland Revenue (Harris, Surveyor of Taxes) [5 TC 159], decided by the Court of Exchequer in Scotland, Lord Trayner has said : (TC p. 167) "But it was said that the profit - if it was profit - was not realised profit and, therefore, not taxable. I think the profit was realised. A profit is realised when the seller gets the prince he had bargained for. No doubt here the price took the form of fully paid shares in another company, but, if there can be no realised profits, except when that is paid in cash, the shares were realisable and could have been turned into cash, if the appellants had been pleased to do so. I cannot think that income tax is due or not according to the manner in which the person making the profits pleases to deal with it." * 10. These observations have been quoted with approval by this Court in Raja Mohan Raja Bahadur v. CIT. In that case, the assessee, carrying on business of moneylending, had obtained a decree against a debtor and had received Encumbered Estate Bonds of U. P. Government in part satisfaction of the liability of the debtor. The said Bonds were sold by the appellant in the year relevant to the assessment year subsequent to the year in which they were received. It was held that the Bonds were a fresh security, the liability of the original debtor having been substituted by an obligation by the State and since the Bonds were convertible in terms of money, income was realised by the assessee when the bonds were received 11. The subsequent decision of the House of lords in British South Africa Co. v. Varty (Inspector of Taxes) 1966 AC 381 : 1965 (2) All(ER) 395: 1965 (3) WLR 47] does not lend assistance to the submission of Shri Puri. In that case the appellant-company in 1953 had lent 200, 000 pounds to a gold mining company and in return had received, inter alia, an option to subscribe for 100, 000 shares in the mining company at 1 pound per share, the value of the shares then being 19 Sh. 6 d a share. In 1954 when the value of the shares had gone up to 43 Sh. 6 d a share the appellant exercised the option and obtained shares worth 217, 500 pounds for which they paid 100, 000 pounds. The company was assessed for income tax on a profit of 11, 75, 000 pounds. On behalf of the company it was urged that upon the exercise of the option there was a realisation because the option which was a "trading asset" or an item of "stock-in-trade" was exchanged for or was replaced by a different item of stock-in-trade which had a value in moneys worth. The said contention was rejected by the House of Lords (Lord Guest, dissenting). It was held that the appellant-company never, in fact, realised their motion in the sense of passing it on for a consideration to someone else and that there was neither a sale of the option or its exchange for something else and that when the company exercised their option or used or availed themselves of their rights they did not make the end of the trading transaction and that there was merely the end of the beginning of a trading transaction. It was emphasised that there was no element of exchange as there was in Royal Insurance Co. Ltd. v. Stephen [(1928) 14 TC 22 : 44 TLR 630] and in Westminster Bank Ltd. v. Osler (Inspector of Taxes) [HL]. (See Lord Morris of Borth-Y-Gest at pp. 394-395.) Lord Guest, in his dissenting judgment, however felt that the option was a trading asset of the appellant-company and, applying the principles laid down in Royal Insurance Co. Ltd. v. Stephen [(1928) 14 TC 22 : 44 TLR 630] and Westminster Bank Ltd. v. Osler (Inspector of Taxes) [HL], held that the exercise of option amounted to a realisation of the option which resulted in a trading profit of 11, 75, 000 pounds. This would show that the principles laid down in Royal Insurance Co. Ltd. v. Stephen [(1928) 14 TC 22 : 44 TLR 630] and Westminster Bank Ltd. v. Osler (Inspector of Taxes) [HL] have been affirmed by all the Law Lords and the difference amongst them was only as regards the applicability of the said principles to the facts of that case 12. CIT v. Motors & General Stores (P) Ltd. relates to the interpretation of the word "sale" in Section 10(2) (vii) of the Income Tax Act, 1922. The said decision has no bearing on the present case 13. Having regard to the principles laid down in the decisions aforementioned, it must be held that the High Court has rightly taken the view that as a result of their having taken the shares in the second company in exchange of the shares of the first company the assessee had made realisation of the value of the shares of the first company and the difference between the price of the shares of the first company and the second company on the date such exchange, i.e., Rs. 4, 06, 000, has to be treated as a profit of the assessee and has been rightly assessed as income of the assessee. | 0[ds]13. Having regard to the principles laid down in the decisions aforementioned, it must be held that the High Court has rightly taken the view that as a result of their having taken the shares in the second company in exchange of the shares of the first company theassesseehad made realisation of the value of the shares of the first company and the difference between the price of the shares of the first company and the second company on the date such exchange, i.e., Rs. 4, 06, 000, has to be treated as a profit of theassesseeand has been rightly assessed as income of the | 0 | 2,866 | 117 | ### 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:
point of view from which it ought to be looked at, and looking at it from that point of view the company is right. It has done with the investments in the companies. They have disappeared. It is known exactly in money. It is known now exactly what their holding of them has meant to the company. They will never more go up or down. What will go up or down now are the different shares in the new companies, altogether different investments really, and therefore I think that the old investment is closed and realised and a new investment is started." * 9. Similarly in Californian Copper Syndicate Ltd. v. Inland Revenue (Harris, Surveyor of Taxes) [5 TC 159], decided by the Court of Exchequer in Scotland, Lord Trayner has said : (TC p. 167) "But it was said that the profit - if it was profit - was not realised profit and, therefore, not taxable. I think the profit was realised. A profit is realised when the seller gets the prince he had bargained for. No doubt here the price took the form of fully paid shares in another company, but, if there can be no realised profits, except when that is paid in cash, the shares were realisable and could have been turned into cash, if the appellants had been pleased to do so. I cannot think that income tax is due or not according to the manner in which the person making the profits pleases to deal with it." * 10. These observations have been quoted with approval by this Court in Raja Mohan Raja Bahadur v. CIT. In that case, the assessee, carrying on business of moneylending, had obtained a decree against a debtor and had received Encumbered Estate Bonds of U. P. Government in part satisfaction of the liability of the debtor. The said Bonds were sold by the appellant in the year relevant to the assessment year subsequent to the year in which they were received. It was held that the Bonds were a fresh security, the liability of the original debtor having been substituted by an obligation by the State and since the Bonds were convertible in terms of money, income was realised by the assessee when the bonds were received 11. The subsequent decision of the House of lords in British South Africa Co. v. Varty (Inspector of Taxes) 1966 AC 381 : 1965 (2) All(ER) 395: 1965 (3) WLR 47] does not lend assistance to the submission of Shri Puri. In that case the appellant-company in 1953 had lent 200, 000 pounds to a gold mining company and in return had received, inter alia, an option to subscribe for 100, 000 shares in the mining company at 1 pound per share, the value of the shares then being 19 Sh. 6 d a share. In 1954 when the value of the shares had gone up to 43 Sh. 6 d a share the appellant exercised the option and obtained shares worth 217, 500 pounds for which they paid 100, 000 pounds. The company was assessed for income tax on a profit of 11, 75, 000 pounds. On behalf of the company it was urged that upon the exercise of the option there was a realisation because the option which was a "trading asset" or an item of "stock-in-trade" was exchanged for or was replaced by a different item of stock-in-trade which had a value in moneys worth. The said contention was rejected by the House of Lords (Lord Guest, dissenting). It was held that the appellant-company never, in fact, realised their motion in the sense of passing it on for a consideration to someone else and that there was neither a sale of the option or its exchange for something else and that when the company exercised their option or used or availed themselves of their rights they did not make the end of the trading transaction and that there was merely the end of the beginning of a trading transaction. It was emphasised that there was no element of exchange as there was in Royal Insurance Co. Ltd. v. Stephen [(1928) 14 TC 22 : 44 TLR 630] and in Westminster Bank Ltd. v. Osler (Inspector of Taxes) [HL]. (See Lord Morris of Borth-Y-Gest at pp. 394-395.) Lord Guest, in his dissenting judgment, however felt that the option was a trading asset of the appellant-company and, applying the principles laid down in Royal Insurance Co. Ltd. v. Stephen [(1928) 14 TC 22 : 44 TLR 630] and Westminster Bank Ltd. v. Osler (Inspector of Taxes) [HL], held that the exercise of option amounted to a realisation of the option which resulted in a trading profit of 11, 75, 000 pounds. This would show that the principles laid down in Royal Insurance Co. Ltd. v. Stephen [(1928) 14 TC 22 : 44 TLR 630] and Westminster Bank Ltd. v. Osler (Inspector of Taxes) [HL] have been affirmed by all the Law Lords and the difference amongst them was only as regards the applicability of the said principles to the facts of that case 12. CIT v. Motors & General Stores (P) Ltd. relates to the interpretation of the word "sale" in Section 10(2) (vii) of the Income Tax Act, 1922. The said decision has no bearing on the present case 13. Having regard to the principles laid down in the decisions aforementioned, it must be held that the High Court has rightly taken the view that as a result of their having taken the shares in the second company in exchange of the shares of the first company the assessee had made realisation of the value of the shares of the first company and the difference between the price of the shares of the first company and the second company on the date such exchange, i.e., Rs. 4, 06, 000, has to be treated as a profit of the assessee and has been rightly assessed as income of the assessee.
### Response:
0
### Explanation:
13. Having regard to the principles laid down in the decisions aforementioned, it must be held that the High Court has rightly taken the view that as a result of their having taken the shares in the second company in exchange of the shares of the first company theassesseehad made realisation of the value of the shares of the first company and the difference between the price of the shares of the first company and the second company on the date such exchange, i.e., Rs. 4, 06, 000, has to be treated as a profit of theassesseeand has been rightly assessed as income of the
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Commissioner of Income Tax (Central) Calcutta Vs. Daulat Ram Rawatmull | present case is concerned, we cannot be oblivious of the fact that Biswanath offered security for the overdraft facility to a firm of which his father was a partner. In the circumstances, the, fact that Biswanath received no consideration for offering the fixed deposit receipt a s security for the overdraft facility would not result in any inference against the respondent.Although the proceedings under section 34 of the Act in the present case were started in 1955, after the lapse of about nine years since the time Biswanath had offered the fixed deposit receipt as security for the overdraft facility to the respondent firm, no material was brought on the record to show that the aforesaid sum of Rs. 5, 00, 000 in the name of Biswanath went to the coffers of the respondent firm or was adjusted towards its liability as was done in respect of the amount of Rs. 5, 00, 000 which had been deposited in the name of Raghunath Prasad. Had the sum of Rs. 5, 00, 000 deposited in the name of Biswanath been ultimately utilised by the respondent firm, the income tax authorities must have brought material on record about that.12. The onus to prove that the apparent is not the real is on the party who claims it to be so. As it was the department which claimed that the amount of fixed deposit receipt belonged to the respondent firm even though the receipt had been issued in the name of Biswanath, the burden lay on the department to prove that the respondent was the owner of the amount despite the fact that the receipt was in the name of Biswanath. A simple way of discharging the onus and resolving the controversy was to trace the source and origin of the amount and find out its ultimate destination. So far as the source is concerned, there is no material on the record to show that the amount came from the coffers of the respondent firm or that it was tendered in Burrabazar Calcutta branch of the Central Bank on November 15, 1944 on behalf of the respondent. As regards the destination of the amount, it has already been mentioned that there is nothing to show that it went to the coffers of the respondent. On the contrary, there is positive evidence that the amount was received by Biswanath on January 22, 1946. It would thus follow that both as regards the source as well as the destination of the amount. the material on the record gives no support to the. claim of the department.Learned Additional Solicitor General has urged that the close proximity of time between the transfer of the amount of Rs. 5, 00, 000 from Calcutta for the issue of fixed deposit receipt in the name of Biswanath at Jamnagar and the opening of overdraft account of respondent firm in Calcutta with the said fixed deposit receipt constituting security f or the overdraft account would show that the said amount in fact belonged to the respondent. We find it difficult to accede to this submission because the benefit received by the respondent by the use of the said receipt as a collateral security for overdraft facility was only of a temporary nature. The receipt remained in the name of Biswanath and it was he who got the amount of the receipt on January 22, 1946.13. Reference was also made by the Additional Solicitor General to the order of the Appellate Assistant Commissioner. It is stated that the said order is much more elaborate and the Tribunal has made note of this fact. In this respect we find that the order of the Appellate Assistant Commissioner is vitiated by two factual inaccuracies. According to the said order, the amount of the fixed deposit receipt in the name of Biswanath was received in Calcutta on November 25, 1946 and was transferred to the credit of the respondent firm against the overdraft with the Bank. This observation was incorrect because there is ample material on record to show that the amount of the fixed deposit receipt was received, as mentioned earlier, on January 22, 1946 by Biswanath himself. He also, it would app ear, got the interest due on the said amount.14. The other factual inaccuracy which crept into the order of the, Appellate Assistant Commissioner was his assumption that the shares of the two groups of Nopanys and Bhuwalkas were equal. It was observed by the Appellate Assistant Commissioner:"The appellant firm itself consists of two groups of partners Nopany and Bhuwalka. Each group had equal shares. Raghunath Prasad belongs to the Nopany group and Biswanath to the Bhuwalka group. The amount offered for fixed deposits therefore corresponds to the profit sharing proportion of each group. This mass of evidence and circumstances could not be upset merely because the fixed deposits stood in two particular names."15. The above factual assumption regarding the equality of shares- of the two groups was incorrect because it is the common case of the parties that the share of Bhuwalka group was 10 annas in a rupee and that of Nopany was 6 annas in a rupee.16. The Appellate Assistant Commissioner also took into account the fact that the office of the Central Bank in Burrabazar Calcutta is in the same building in which there are the business premises of the respondent firm. This was, in our opinion, a wholly extraneous and irrelevant circumstance for determining the ownership of Rs. 5, 00, 000 which had been deposited in fixed deposit in the name of Biswanath. There should, in our opinion, be some direct nexus between the conclusion of fact arrived at by the authority concerned and the primary facts upon which that conclusion is based. The use of extraneous and irrelevant material in arriving at that conclusion would vitiate the conclusion of fact because it is difficult to predicate as to what extent the extraneous and irrelevant material has influenced the authority in Arriving at the conclusion of fact.17 | 0[ds]The onus to prove that the apparent is not the real is on the party who claims it to be so. As it was the department which claimed that the amount of fixed deposit receipt belonged to the respondent firm even though the receipt had been issued in the name of Biswanath, the burden lay on the department to prove that the respondent was the owner of the amount despite the fact that the receipt was in the name of Biswanath. A simple way of discharging the onus and resolving the controversy was to trace the source and origin of the amount and find out its ultimate destination. So far as the source is concerned, there is no material on the record to show that the amount came from the coffers of the respondent firm or that it was tendered in Burrabazar Calcutta branch of the Central Bank on November 15, 1944 on behalf of the respondent. As regards the destination of the amount, it has already been mentioned that there is nothing to show that it went to the coffers of the respondent. On the contrary, there is positive evidence that the amount was received by Biswanath on January 22, 1946. It would thus follow that both as regards the source as well as the destination of the amount. the material on the record gives no support to the. claim of the department.Learned Additional Solicitor General has urged that the close proximity of time between the transfer of the amount of Rs. 5, 00, 000 from Calcutta for the issue of fixed deposit receipt in the name of Biswanath at Jamnagar and the opening of overdraft account of respondent firm in Calcutta with the said fixed deposit receipt constituting security f or the overdraft account would show that the said amount in fact belonged to the respondent. We find it difficult to accede to this submission because the benefit received by the respondent by the use of the said receipt as a collateral security for overdraft facility was only of a temporary nature. The receipt remained in the name of Biswanath and it was he who got the amount of the receipt on January 22,was also made by the Additional Solicitor General to the order of the Appellate Assistant Commissioner. It is stated that the said order is much more elaborate and the Tribunal has made note of this fact. In this respect we find that the order of the Appellate Assistant Commissioner is vitiated by two factual inaccuracies. According to the said order, the amount of the fixed deposit receipt in the name of Biswanath was received in Calcutta on November 25, 1946 and was transferred to the credit of the respondent firm against the overdraft with the Bank. This observation was incorrect because there is ample material on record to show that the amount of the fixed deposit receipt was received, as mentioned earlier, on January 22, 1946 by Biswanath himself. He also, it would app ear, got the interest due on the saidother factual inaccuracy which crept into the order of the, Appellate Assistant Commissioner was his assumption that the shares of the two groups of Nopanys and Bhuwalkas were equal. It was observed by the Appellate Assistant Commissioner:"The appellant firm itself consists of two groups of partners Nopany and Bhuwalka. Each group had equal shares. Raghunath Prasad belongs to the Nopany group and Biswanath to the Bhuwalka group. The amount offered for fixed deposits therefore corresponds to the profit sharing proportion of each group. This mass of evidence and circumstances could not be upset merely because the fixed deposits stood in two particularabove factual assumption regarding the equality of shares- of the two groups was incorrect because it is the common case of the parties that the share of Bhuwalka group was 10 annas in a rupee and that of Nopany was 6 annas in aAppellate Assistant Commissioner also took into account the fact that the office of the Central Bank in Burrabazar Calcutta is in the same building in which there are the business premises of the respondent firm. This was, in our opinion, a wholly extraneous and irrelevant circumstance for determining the ownership of Rs. 5, 00, 000 which had been deposited in fixed deposit in the name of Biswanath. There should, in our opinion, be some direct nexus between the conclusion of fact arrived at by the authority concerned and the primary facts upon which that conclusion is based. The use of extraneous and irrelevant material in arriving at that conclusion would vitiate the conclusion of fact because it is difficult to predicate as to what extent the extraneous and irrelevant material has influenced the authority in Arriving at the conclusion of fact. | 0 | 5,722 | 848 | ### 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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present case is concerned, we cannot be oblivious of the fact that Biswanath offered security for the overdraft facility to a firm of which his father was a partner. In the circumstances, the, fact that Biswanath received no consideration for offering the fixed deposit receipt a s security for the overdraft facility would not result in any inference against the respondent.Although the proceedings under section 34 of the Act in the present case were started in 1955, after the lapse of about nine years since the time Biswanath had offered the fixed deposit receipt as security for the overdraft facility to the respondent firm, no material was brought on the record to show that the aforesaid sum of Rs. 5, 00, 000 in the name of Biswanath went to the coffers of the respondent firm or was adjusted towards its liability as was done in respect of the amount of Rs. 5, 00, 000 which had been deposited in the name of Raghunath Prasad. Had the sum of Rs. 5, 00, 000 deposited in the name of Biswanath been ultimately utilised by the respondent firm, the income tax authorities must have brought material on record about that.12. The onus to prove that the apparent is not the real is on the party who claims it to be so. As it was the department which claimed that the amount of fixed deposit receipt belonged to the respondent firm even though the receipt had been issued in the name of Biswanath, the burden lay on the department to prove that the respondent was the owner of the amount despite the fact that the receipt was in the name of Biswanath. A simple way of discharging the onus and resolving the controversy was to trace the source and origin of the amount and find out its ultimate destination. So far as the source is concerned, there is no material on the record to show that the amount came from the coffers of the respondent firm or that it was tendered in Burrabazar Calcutta branch of the Central Bank on November 15, 1944 on behalf of the respondent. As regards the destination of the amount, it has already been mentioned that there is nothing to show that it went to the coffers of the respondent. On the contrary, there is positive evidence that the amount was received by Biswanath on January 22, 1946. It would thus follow that both as regards the source as well as the destination of the amount. the material on the record gives no support to the. claim of the department.Learned Additional Solicitor General has urged that the close proximity of time between the transfer of the amount of Rs. 5, 00, 000 from Calcutta for the issue of fixed deposit receipt in the name of Biswanath at Jamnagar and the opening of overdraft account of respondent firm in Calcutta with the said fixed deposit receipt constituting security f or the overdraft account would show that the said amount in fact belonged to the respondent. We find it difficult to accede to this submission because the benefit received by the respondent by the use of the said receipt as a collateral security for overdraft facility was only of a temporary nature. The receipt remained in the name of Biswanath and it was he who got the amount of the receipt on January 22, 1946.13. Reference was also made by the Additional Solicitor General to the order of the Appellate Assistant Commissioner. It is stated that the said order is much more elaborate and the Tribunal has made note of this fact. In this respect we find that the order of the Appellate Assistant Commissioner is vitiated by two factual inaccuracies. According to the said order, the amount of the fixed deposit receipt in the name of Biswanath was received in Calcutta on November 25, 1946 and was transferred to the credit of the respondent firm against the overdraft with the Bank. This observation was incorrect because there is ample material on record to show that the amount of the fixed deposit receipt was received, as mentioned earlier, on January 22, 1946 by Biswanath himself. He also, it would app ear, got the interest due on the said amount.14. The other factual inaccuracy which crept into the order of the, Appellate Assistant Commissioner was his assumption that the shares of the two groups of Nopanys and Bhuwalkas were equal. It was observed by the Appellate Assistant Commissioner:"The appellant firm itself consists of two groups of partners Nopany and Bhuwalka. Each group had equal shares. Raghunath Prasad belongs to the Nopany group and Biswanath to the Bhuwalka group. The amount offered for fixed deposits therefore corresponds to the profit sharing proportion of each group. This mass of evidence and circumstances could not be upset merely because the fixed deposits stood in two particular names."15. The above factual assumption regarding the equality of shares- of the two groups was incorrect because it is the common case of the parties that the share of Bhuwalka group was 10 annas in a rupee and that of Nopany was 6 annas in a rupee.16. The Appellate Assistant Commissioner also took into account the fact that the office of the Central Bank in Burrabazar Calcutta is in the same building in which there are the business premises of the respondent firm. This was, in our opinion, a wholly extraneous and irrelevant circumstance for determining the ownership of Rs. 5, 00, 000 which had been deposited in fixed deposit in the name of Biswanath. There should, in our opinion, be some direct nexus between the conclusion of fact arrived at by the authority concerned and the primary facts upon which that conclusion is based. The use of extraneous and irrelevant material in arriving at that conclusion would vitiate the conclusion of fact because it is difficult to predicate as to what extent the extraneous and irrelevant material has influenced the authority in Arriving at the conclusion of fact.17
### Response:
0
### Explanation:
The onus to prove that the apparent is not the real is on the party who claims it to be so. As it was the department which claimed that the amount of fixed deposit receipt belonged to the respondent firm even though the receipt had been issued in the name of Biswanath, the burden lay on the department to prove that the respondent was the owner of the amount despite the fact that the receipt was in the name of Biswanath. A simple way of discharging the onus and resolving the controversy was to trace the source and origin of the amount and find out its ultimate destination. So far as the source is concerned, there is no material on the record to show that the amount came from the coffers of the respondent firm or that it was tendered in Burrabazar Calcutta branch of the Central Bank on November 15, 1944 on behalf of the respondent. As regards the destination of the amount, it has already been mentioned that there is nothing to show that it went to the coffers of the respondent. On the contrary, there is positive evidence that the amount was received by Biswanath on January 22, 1946. It would thus follow that both as regards the source as well as the destination of the amount. the material on the record gives no support to the. claim of the department.Learned Additional Solicitor General has urged that the close proximity of time between the transfer of the amount of Rs. 5, 00, 000 from Calcutta for the issue of fixed deposit receipt in the name of Biswanath at Jamnagar and the opening of overdraft account of respondent firm in Calcutta with the said fixed deposit receipt constituting security f or the overdraft account would show that the said amount in fact belonged to the respondent. We find it difficult to accede to this submission because the benefit received by the respondent by the use of the said receipt as a collateral security for overdraft facility was only of a temporary nature. The receipt remained in the name of Biswanath and it was he who got the amount of the receipt on January 22,was also made by the Additional Solicitor General to the order of the Appellate Assistant Commissioner. It is stated that the said order is much more elaborate and the Tribunal has made note of this fact. In this respect we find that the order of the Appellate Assistant Commissioner is vitiated by two factual inaccuracies. According to the said order, the amount of the fixed deposit receipt in the name of Biswanath was received in Calcutta on November 25, 1946 and was transferred to the credit of the respondent firm against the overdraft with the Bank. This observation was incorrect because there is ample material on record to show that the amount of the fixed deposit receipt was received, as mentioned earlier, on January 22, 1946 by Biswanath himself. He also, it would app ear, got the interest due on the saidother factual inaccuracy which crept into the order of the, Appellate Assistant Commissioner was his assumption that the shares of the two groups of Nopanys and Bhuwalkas were equal. It was observed by the Appellate Assistant Commissioner:"The appellant firm itself consists of two groups of partners Nopany and Bhuwalka. Each group had equal shares. Raghunath Prasad belongs to the Nopany group and Biswanath to the Bhuwalka group. The amount offered for fixed deposits therefore corresponds to the profit sharing proportion of each group. This mass of evidence and circumstances could not be upset merely because the fixed deposits stood in two particularabove factual assumption regarding the equality of shares- of the two groups was incorrect because it is the common case of the parties that the share of Bhuwalka group was 10 annas in a rupee and that of Nopany was 6 annas in aAppellate Assistant Commissioner also took into account the fact that the office of the Central Bank in Burrabazar Calcutta is in the same building in which there are the business premises of the respondent firm. This was, in our opinion, a wholly extraneous and irrelevant circumstance for determining the ownership of Rs. 5, 00, 000 which had been deposited in fixed deposit in the name of Biswanath. There should, in our opinion, be some direct nexus between the conclusion of fact arrived at by the authority concerned and the primary facts upon which that conclusion is based. The use of extraneous and irrelevant material in arriving at that conclusion would vitiate the conclusion of fact because it is difficult to predicate as to what extent the extraneous and irrelevant material has influenced the authority in Arriving at the conclusion of fact.
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State Of Bihar Vs. Deokaran Nenshi | the distance from the front of the building on the opposite side of the street without the consent of the London County Council and imposed penalties for offences against the Act and a further penalty for every day during which such offence should continue after notice from the County Council. The Court construed Section 85 to have laid down two offences : (1) building to a prohibited height, and (2) continuing such a structure already built after receiving a notice from the County Council. The latter offence was a continuing offence applying to any one who was guilty of continuing the building at the prohibited height after notice from the County Council. (The London Country Council, v. Worley, 1894 (2) Q. B. 826)8. In Emperor v. Karsandas, AIR 1942 Bom 326 the question was as to the proper construction of Section 390 Sub-s. (1) of the Bombay City Municipal Act, 1888. The sub-sec. provided that no person shall newly establish in any premises any factory in which it was intended that steam, water or other mechanical power should be employed, without the previous permission of the Commissioner, nor shall any person work or allow to be worked any such factory without such permission. The sub-section thus laid down two distinct offences : (1) establishing a new factory in which mechanical power was intended to be used without the permission, and (2) working such a factory in which mechanical power was intended to be used without permission.The High Court held that the first offence would be completed when a new factory was established without permission, an offence completed once and for all, while the other offence would be committed whenever such a factory without the permission was worked, that is, on every day that it was worked without the permission. The High Court observed that though the expression continuing offence was not a very happy expression, it was very often used. A person may not continuously work such a factory. He might work it one day and not work it the next day, and then resume its working once again. Therefore, the proper meaning to be attached to such an offence was that whenever he worked such a factory he committed an offence. The distinction between the two kinds of offences lay between an act which constituted an offence once and for all and an act which continued, and therefore, constituted a fresh offence every time on which it continued. Similarly, in State v. Bhiwandiwala, ILR (1955) Bom. 192 = (AIR 1955 Bom. 161 ) three offences were charged against the respondent : (1) failure to submit a written notice of occupation of his factory as required by Section 7 (1) of the Factories Act, 1948, (2) failure to submit an application for registration and grant of licence as required by Section 6 of the Act read with rule 4 of the Bombay Factories Rules, 1950, and (3) for using the premises as a factory without a licence. The High Court held that the first two offences were offences completed on failure to submit the notice and the application for registration and licence, and a complaint in respect of them would be barred if it was lodged beyond the period of three months from the date of the offence under Section 106 of the Act. But a prosecution in respect of the third offence would not be so barred as that offence was a continuing offence in the sense that using the premises as a factory without registration and licence was an offence committed every time that the premises were used as a factory. Likewise, in State of Bihar v. J. P. Singh, 1963 BLJR 782 the High Court of Patna held that conducting a restaurant without having it registered and without maintaining registers required by the Bihar Shops and Establishments Act, VIII of 1954 and the Rules framed thereunder were continuing offences as every time a restaurant was run without its being registered and without maintaining the requisite registers was an offence, and therefore, the period of limitation under Section 36 of the Act would begin to run from the date of the occurrence of each of the defaults. (see also State v. Laxmi Narain, AIR 1957 All 343 (2).)9. Reg. 3 read with Section 66 of the Mines Act makes failure to furnish annual returns for the preceding year by the 21st of January of the succeeding year an offence. The language of Reg. 3 clearly indicates that an owner, manager etc. of a mine would be liable to the penalty if he were to commit an infringement of the Regulation and that infringement consists in the failure to furnish returns on or before January 21 of the succeeding year. The infringement, therefore, occurs on January 21 of the relevant years and is complete on the owner failing to furnish the annual returns by that day. The Regulation does not lay down that the owner, manager etc. of the mine concerned would be guilty of an offence if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of Reg. 3 is complied with. In other words Reg. 3 does not render a continued disobedience or non-compliance of it an offence. As in the case of a construction of a wall in violation of a rule or a bye-law of a local body, the offence would be complete once and for all as soon as such construction is made a default occurs in furnishing the returns by the prescribed date. There is nothing in Reg. 3 or in any other provision in the Act or the Regulations which renders the continued non-compliance an offence until its requirement is carried out.10. The High Court, in our view was right in holding that the complaint was time-barred as the offence in question fell within the substantive part of Section 79 of the Act and not under the Explanation attached to it. Th | 0[ds]9. Reg. 3 read with Section 66 of the Mines Act makes failure to furnish annual returns for the preceding year by the 21st of January of the succeeding year an offence. The language of Reg. 3 clearly indicates that an owner, manager etc. of a mine would be liable to the penalty if he were to commit an infringement of the Regulation and that infringement consists in the failure to furnish returns on or before January 21 of the succeeding year. The infringement, therefore, occurs on January 21 of the relevant years and is complete on the owner failing to furnish the annual returns by that day. The Regulation does not lay down that the owner, manager etc. of the mine concerned would be guilty of an offence if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of Reg. 3 is complied with. In other words Reg. 3 does not render a continued disobedience or non-compliance of it an offence. As in the case of a construction of a wall in violation of a rule or a bye-law of a local body, the offence would be complete once and for all as soon as such construction is made a default occurs in furnishing the returns by the prescribed date. There is nothing in Reg. 3 or in any other provision in the Act or the Regulations which renders the continued non-compliance an offence until its requirement is carried out.10. The High Court, in our view was right in holding that the complaint was time-barred as the offence in question fell within the substantive part of Section 79 of the Act and not under the Explanation attached to it. | 0 | 2,430 | 316 | ### 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 distance from the front of the building on the opposite side of the street without the consent of the London County Council and imposed penalties for offences against the Act and a further penalty for every day during which such offence should continue after notice from the County Council. The Court construed Section 85 to have laid down two offences : (1) building to a prohibited height, and (2) continuing such a structure already built after receiving a notice from the County Council. The latter offence was a continuing offence applying to any one who was guilty of continuing the building at the prohibited height after notice from the County Council. (The London Country Council, v. Worley, 1894 (2) Q. B. 826)8. In Emperor v. Karsandas, AIR 1942 Bom 326 the question was as to the proper construction of Section 390 Sub-s. (1) of the Bombay City Municipal Act, 1888. The sub-sec. provided that no person shall newly establish in any premises any factory in which it was intended that steam, water or other mechanical power should be employed, without the previous permission of the Commissioner, nor shall any person work or allow to be worked any such factory without such permission. The sub-section thus laid down two distinct offences : (1) establishing a new factory in which mechanical power was intended to be used without the permission, and (2) working such a factory in which mechanical power was intended to be used without permission.The High Court held that the first offence would be completed when a new factory was established without permission, an offence completed once and for all, while the other offence would be committed whenever such a factory without the permission was worked, that is, on every day that it was worked without the permission. The High Court observed that though the expression continuing offence was not a very happy expression, it was very often used. A person may not continuously work such a factory. He might work it one day and not work it the next day, and then resume its working once again. Therefore, the proper meaning to be attached to such an offence was that whenever he worked such a factory he committed an offence. The distinction between the two kinds of offences lay between an act which constituted an offence once and for all and an act which continued, and therefore, constituted a fresh offence every time on which it continued. Similarly, in State v. Bhiwandiwala, ILR (1955) Bom. 192 = (AIR 1955 Bom. 161 ) three offences were charged against the respondent : (1) failure to submit a written notice of occupation of his factory as required by Section 7 (1) of the Factories Act, 1948, (2) failure to submit an application for registration and grant of licence as required by Section 6 of the Act read with rule 4 of the Bombay Factories Rules, 1950, and (3) for using the premises as a factory without a licence. The High Court held that the first two offences were offences completed on failure to submit the notice and the application for registration and licence, and a complaint in respect of them would be barred if it was lodged beyond the period of three months from the date of the offence under Section 106 of the Act. But a prosecution in respect of the third offence would not be so barred as that offence was a continuing offence in the sense that using the premises as a factory without registration and licence was an offence committed every time that the premises were used as a factory. Likewise, in State of Bihar v. J. P. Singh, 1963 BLJR 782 the High Court of Patna held that conducting a restaurant without having it registered and without maintaining registers required by the Bihar Shops and Establishments Act, VIII of 1954 and the Rules framed thereunder were continuing offences as every time a restaurant was run without its being registered and without maintaining the requisite registers was an offence, and therefore, the period of limitation under Section 36 of the Act would begin to run from the date of the occurrence of each of the defaults. (see also State v. Laxmi Narain, AIR 1957 All 343 (2).)9. Reg. 3 read with Section 66 of the Mines Act makes failure to furnish annual returns for the preceding year by the 21st of January of the succeeding year an offence. The language of Reg. 3 clearly indicates that an owner, manager etc. of a mine would be liable to the penalty if he were to commit an infringement of the Regulation and that infringement consists in the failure to furnish returns on or before January 21 of the succeeding year. The infringement, therefore, occurs on January 21 of the relevant years and is complete on the owner failing to furnish the annual returns by that day. The Regulation does not lay down that the owner, manager etc. of the mine concerned would be guilty of an offence if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of Reg. 3 is complied with. In other words Reg. 3 does not render a continued disobedience or non-compliance of it an offence. As in the case of a construction of a wall in violation of a rule or a bye-law of a local body, the offence would be complete once and for all as soon as such construction is made a default occurs in furnishing the returns by the prescribed date. There is nothing in Reg. 3 or in any other provision in the Act or the Regulations which renders the continued non-compliance an offence until its requirement is carried out.10. The High Court, in our view was right in holding that the complaint was time-barred as the offence in question fell within the substantive part of Section 79 of the Act and not under the Explanation attached to it. Th
### Response:
0
### Explanation:
9. Reg. 3 read with Section 66 of the Mines Act makes failure to furnish annual returns for the preceding year by the 21st of January of the succeeding year an offence. The language of Reg. 3 clearly indicates that an owner, manager etc. of a mine would be liable to the penalty if he were to commit an infringement of the Regulation and that infringement consists in the failure to furnish returns on or before January 21 of the succeeding year. The infringement, therefore, occurs on January 21 of the relevant years and is complete on the owner failing to furnish the annual returns by that day. The Regulation does not lay down that the owner, manager etc. of the mine concerned would be guilty of an offence if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of Reg. 3 is complied with. In other words Reg. 3 does not render a continued disobedience or non-compliance of it an offence. As in the case of a construction of a wall in violation of a rule or a bye-law of a local body, the offence would be complete once and for all as soon as such construction is made a default occurs in furnishing the returns by the prescribed date. There is nothing in Reg. 3 or in any other provision in the Act or the Regulations which renders the continued non-compliance an offence until its requirement is carried out.10. The High Court, in our view was right in holding that the complaint was time-barred as the offence in question fell within the substantive part of Section 79 of the Act and not under the Explanation attached to it.
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Oriental Insurance Co. Ltd Vs. R. Swaminathan & Others | with an accident with another bus insured with the appellant-Insurance Company. As a result of the said accident, there were serious injuries sustained by the claimant resulting in amputation of the right hand. The claimant filed a claim before the Motor Accident Claims Tribunal (hereinafter referred to as ?the Tribunal?), Namakkal and claimed compensation of Rs. 10,00,000/- alleging negligence on the part of the drivers of both the buses. The Tribunal made an award of compensation of Rs. 4,50,000/- under the following heads:Medical expensesRs. 40,000/- DisabilityRs. 1,25,000/- Pain & sufferingsRs. 1,00,000/- Future treatmentRs. 1,85,000/- The appellant Insurance Company appealed against the award of the Tribunal along with the owner of the other bus that was involved in the accident. Another appeal was also filed by respondent No. 3 denying its liability in the matter. The learned Single Judge of the High Court interfered with the Award and reduced the compensation amount to Rs. 3,00,000/- with interest at 12% from date of the petition.3. Apparently the first respondent claimant was satisfied with the Tribunal?s Award as he did not file any appeal thereagainst to the High Court. Nonetheless, being aggrieved by the Single Judge?s judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs. 7,44,000/- under different heads with a direction for payment of interest at 18% from the date of petition. The appellant-Insurance Company is aggrieved thereby and is in appeal before us.4. The issue that arises in this case is, whether the Division Bench of the High Court was justified in increasing the compensation amount beyond the amount awarded by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is:?In this connection, we may observe that we are aware of the fact that we are enhancing the compensation even though the injured has not claimed it. But, the question is covered by catena of decisions justifying enhancement of compensation even if cases where the injured has not preferred an appeal, provided the circumstances of the case warrants the same.?To say the least, this was a very facial way of interfering with the award when no interference was called for. We called upon the learned Counsel on both sides to show us at least one case (out of the catena of judgments referred to in the impugned judgment) in support of this proposition. Learned Counsel frankly confessed that there was none. On the other hand, the learned Counsel for the appellant drew our attention to the judgment of this Court in Banarsi v. Ram Phal, reported in II (2003) SLT 258=(2003) 9 SCC 606 , which supports the proposition that in an appeal filed by the defendant laying challenge to the grant a smaller relief, the plaintiff as a respondent cannot seek a higher relief if he had not filed an appeal on his own or had not taken any cross-objection. In the present appeal it would appear that the claimant neither appealed against the award of compensation passed by the Tribunal, nor filed any cross-objection in the first appeal filed by the Insurance Company. Thus, we are satisfied that the Division Bench of the High Court wholly erred in increasing the compensation amount beyond the amount awarded by the Tribunal in the appeal filed by the Insurance Company. 5. We have been taken through the records by learned Counsel on both sides. While the Tribunal had awarded Rs. 40,000/- towards ?medical expenses?, the learned Single Judge has quashed this award under this head on the ground that the medical expenses of the claimant were met by his employer. This position is not controverted by the learned Counsel for the claimant before us. Under the head of ?pain and suffering?, while the Tribunal awarded a sum of Rs. 1,00,000/- the learned Single Judge has reduced it to Rs. 30,000/-. We are not satisfied that there is any justifiable reason to make such a reduction nor do we see any reasoning in support, in the judgment of the learned Single Judge. We are, therefore, satisfied that the payment under this head needs to be retained as in the Award of the Tribunal. The compensation awarded under the head of ?permanent disability? is Rs. 1,25,000/- in the Award of the Tribunal. Having perused the judgment of the learned Single Judge, we do not see any justifiable reason to reduce it to Rs. 75,000/-, nor is the learned Counsel for the appellant able to satisfy us on this count. We are of the view that there was no justification to interfere with the compensation awarded by the Tribunal except under the head of ?medical expenses?. 6. In the result, we hold that the compensation to be awarded to the claimant first respondent shall be as under: Medical expensesNil Future medical expensesRs. 1,85,000/- Pain & sufferingsRs. 1,00,000/- Permanent disabilityRs. 1,25,000/- TotalRs. 4,10,000/- This amount shall be payable to the claimant together with interest at the rate of 12% per annum from the date of claim petition. 7. As far as the apportionment of the liability is concerned, it would appear that the judgment of the Single Judge is justified as the appeal CMA No. 699/92 filed by the State Transport Corporation was allowed and the award against them was set aside. The Single Judge was justified in holding that the negligence was entirely attributable to the driver of the bus No. TCE 8199, which was insured by the appellant-Insurance Company.8. In the result, we hold that the appellant shall be liable to pay a sum of Rs. 4,10,000/- as compensation together with interest at the rate 12% per annum from the date of the first respondent?s claim petition till realization thereof, after setting off there from any amount already paid by the Insurance Company. | 1[ds]While the Tribunal had awarded Rs. 40,000/l expenses?, the learned Single Judge has quashed this award under this head on the ground that the medical expenses of the claimant were met by his employer. This position is not controverted by the learned Counsel for the claimant before us. Under the head ofand suffering?, while the Tribunal awarded a sum of Rs. 1,00,000/the learned Single Judge has reduced it to Rs.We are not satisfied that there is any justifiable reason to make such a reduction nor do we see any reasoning in support, in the judgment of the learned Single Judge. We are, therefore, satisfied that the payment under this head needs to be retained as in the Award of the Tribunal. The compensation awarded under the head ofdisability? is Rs. 1,25,000/in the Award of the Tribunal. Having perused the judgment of the learned Single Judge, we do not see any justifiable reason to reduce it to Rs.nor is the learned Counsel for the appellant able to satisfy us on this count. We are of the view that there was no justification to interfere with the compensation awarded by the Tribunal except under the head of. As far as the apportionment of the liability is concerned, it would appear that the judgment of the Single Judge is justified as the appeal CMA No. 699/92 filed by the State Transport Corporation was allowed and the award against them was set aside. The Single Judge was justified in holding that the negligence was entirely attributable to the driver of the bus No. TCE 8199, which was insured by theCompany.8. In the result, we hold that the appellant shall be liable to pay a sum of Rs. 4,10,000/as compensation together with interest at the rate 12% per annum from the date of the first respondent?s claim petition till realization thereof, after setting off there from any amount already paid by the Insurance Company. | 1 | 1,184 | 355 | ### 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 an accident with another bus insured with the appellant-Insurance Company. As a result of the said accident, there were serious injuries sustained by the claimant resulting in amputation of the right hand. The claimant filed a claim before the Motor Accident Claims Tribunal (hereinafter referred to as ?the Tribunal?), Namakkal and claimed compensation of Rs. 10,00,000/- alleging negligence on the part of the drivers of both the buses. The Tribunal made an award of compensation of Rs. 4,50,000/- under the following heads:Medical expensesRs. 40,000/- DisabilityRs. 1,25,000/- Pain & sufferingsRs. 1,00,000/- Future treatmentRs. 1,85,000/- The appellant Insurance Company appealed against the award of the Tribunal along with the owner of the other bus that was involved in the accident. Another appeal was also filed by respondent No. 3 denying its liability in the matter. The learned Single Judge of the High Court interfered with the Award and reduced the compensation amount to Rs. 3,00,000/- with interest at 12% from date of the petition.3. Apparently the first respondent claimant was satisfied with the Tribunal?s Award as he did not file any appeal thereagainst to the High Court. Nonetheless, being aggrieved by the Single Judge?s judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs. 7,44,000/- under different heads with a direction for payment of interest at 18% from the date of petition. The appellant-Insurance Company is aggrieved thereby and is in appeal before us.4. The issue that arises in this case is, whether the Division Bench of the High Court was justified in increasing the compensation amount beyond the amount awarded by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is:?In this connection, we may observe that we are aware of the fact that we are enhancing the compensation even though the injured has not claimed it. But, the question is covered by catena of decisions justifying enhancement of compensation even if cases where the injured has not preferred an appeal, provided the circumstances of the case warrants the same.?To say the least, this was a very facial way of interfering with the award when no interference was called for. We called upon the learned Counsel on both sides to show us at least one case (out of the catena of judgments referred to in the impugned judgment) in support of this proposition. Learned Counsel frankly confessed that there was none. On the other hand, the learned Counsel for the appellant drew our attention to the judgment of this Court in Banarsi v. Ram Phal, reported in II (2003) SLT 258=(2003) 9 SCC 606 , which supports the proposition that in an appeal filed by the defendant laying challenge to the grant a smaller relief, the plaintiff as a respondent cannot seek a higher relief if he had not filed an appeal on his own or had not taken any cross-objection. In the present appeal it would appear that the claimant neither appealed against the award of compensation passed by the Tribunal, nor filed any cross-objection in the first appeal filed by the Insurance Company. Thus, we are satisfied that the Division Bench of the High Court wholly erred in increasing the compensation amount beyond the amount awarded by the Tribunal in the appeal filed by the Insurance Company. 5. We have been taken through the records by learned Counsel on both sides. While the Tribunal had awarded Rs. 40,000/- towards ?medical expenses?, the learned Single Judge has quashed this award under this head on the ground that the medical expenses of the claimant were met by his employer. This position is not controverted by the learned Counsel for the claimant before us. Under the head of ?pain and suffering?, while the Tribunal awarded a sum of Rs. 1,00,000/- the learned Single Judge has reduced it to Rs. 30,000/-. We are not satisfied that there is any justifiable reason to make such a reduction nor do we see any reasoning in support, in the judgment of the learned Single Judge. We are, therefore, satisfied that the payment under this head needs to be retained as in the Award of the Tribunal. The compensation awarded under the head of ?permanent disability? is Rs. 1,25,000/- in the Award of the Tribunal. Having perused the judgment of the learned Single Judge, we do not see any justifiable reason to reduce it to Rs. 75,000/-, nor is the learned Counsel for the appellant able to satisfy us on this count. We are of the view that there was no justification to interfere with the compensation awarded by the Tribunal except under the head of ?medical expenses?. 6. In the result, we hold that the compensation to be awarded to the claimant first respondent shall be as under: Medical expensesNil Future medical expensesRs. 1,85,000/- Pain & sufferingsRs. 1,00,000/- Permanent disabilityRs. 1,25,000/- TotalRs. 4,10,000/- This amount shall be payable to the claimant together with interest at the rate of 12% per annum from the date of claim petition. 7. As far as the apportionment of the liability is concerned, it would appear that the judgment of the Single Judge is justified as the appeal CMA No. 699/92 filed by the State Transport Corporation was allowed and the award against them was set aside. The Single Judge was justified in holding that the negligence was entirely attributable to the driver of the bus No. TCE 8199, which was insured by the appellant-Insurance Company.8. In the result, we hold that the appellant shall be liable to pay a sum of Rs. 4,10,000/- as compensation together with interest at the rate 12% per annum from the date of the first respondent?s claim petition till realization thereof, after setting off there from any amount already paid by the Insurance Company.
### Response:
1
### Explanation:
While the Tribunal had awarded Rs. 40,000/l expenses?, the learned Single Judge has quashed this award under this head on the ground that the medical expenses of the claimant were met by his employer. This position is not controverted by the learned Counsel for the claimant before us. Under the head ofand suffering?, while the Tribunal awarded a sum of Rs. 1,00,000/the learned Single Judge has reduced it to Rs.We are not satisfied that there is any justifiable reason to make such a reduction nor do we see any reasoning in support, in the judgment of the learned Single Judge. We are, therefore, satisfied that the payment under this head needs to be retained as in the Award of the Tribunal. The compensation awarded under the head ofdisability? is Rs. 1,25,000/in the Award of the Tribunal. Having perused the judgment of the learned Single Judge, we do not see any justifiable reason to reduce it to Rs.nor is the learned Counsel for the appellant able to satisfy us on this count. We are of the view that there was no justification to interfere with the compensation awarded by the Tribunal except under the head of. As far as the apportionment of the liability is concerned, it would appear that the judgment of the Single Judge is justified as the appeal CMA No. 699/92 filed by the State Transport Corporation was allowed and the award against them was set aside. The Single Judge was justified in holding that the negligence was entirely attributable to the driver of the bus No. TCE 8199, which was insured by theCompany.8. In the result, we hold that the appellant shall be liable to pay a sum of Rs. 4,10,000/as compensation together with interest at the rate 12% per annum from the date of the first respondent?s claim petition till realization thereof, after setting off there from any amount already paid by the Insurance Company.
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Aluminium Corporation of India Limited Vs. Union of India and Others | to insure its factories factory buildings, plants, machinery, etc., under the Emergency Risks (Factories) Insurance Act, 1962, and the Emergency Risks (Factories) Insurance Scheme made under that Act. A sum of Rs. 2, 43, 750 was determined by the Chief Enforcement Officer as the amount payable by the Aluminium Corporation of India Ltd. towards arrears of premia. Clause (a) of para 7 of the Scheme prescribed that the insurable value of property for the purpose of insurance under the Act shall be, " the actual value in the case of completed works, and the estimated value of the works which are in the course of construction, or additions to property which are anticipated or expected to be completed in both cases at the prices prevailing on the relevant dates after making due allowance for any depreciation ". In arriving at the valuation, the Chief Enforcement Officer had proceeded on the basis that the " actual value " meant the market value on the relevant date and not the actual cost to the owner. The Corporation, in an appeal preferred to the Govt. of India, questioned the determination made by the Enforcement Officer on the ground that actual value meant the actual cost to the owner and not the market value as on the relevant date. The Govt. of India did not agree with the contention of the appellant-Corporation and rejected the appeal. Thereupon the Corporation preferred the present appeal to this court under art. 136 of the Constitution, after obtaining special leave from this court. We are convinced that on a true construction of the scheme, particularly in the light of the purpose and the provisions of the statute, the expression " actual value " occurring in the scheme means the market value and not the cost to the Corporation. The Emergency Risks (Factories) Insurance Act, 1962, and its sister Act, the Emergency Risks (Goods) Insurance Act, 1962, came into force w.e.f. 1-1-63, shortly after the proclamation of emergency under art. 352 of the Constitution on October 26, 1962, consequent on the Chinese aggression. The object of the Acts has been explained by this court in Amadalavalasa Co-operative Agricultural and Industrial Society v. Union of India [1976] 46 Comp Cas 264 as follows :" It was realised after the Chinese aggression that it was necessary to make provision, if possible on war footing, for reinstating the factories damaged or ruined by enemy action and for reimbursing the loss or damage of goods and continue the commercial and economic activity with a view to stabilize the economy of the country. In view of the magnitude of the task, no private agency in the field of insurance could have undertaken it. By the Acts, the Central Government undertook the task of insuring factories and goods against loss or damage sustained by enemy action. The Acts in substance provided for compulsory insurance against emergency risks..."2. A perusal of the provisions of the Emergency Risks (Factories) Insurance Act makes it clear that the scheme of insurance envisaged by the Act was entirely different from the scheme of a contract of voluntary insurance. Not only was there no element of consensus on any of the fundamental terms of insurance in this scheme, the obligation to take out policy of insurance for the full insurable value of the factory was mandatory and the failure to do so was an offence. In the case of failure to insure for the full insurable value, there was also a provision for recovery of the premia evaded. On the other side of the picture was the provision for an Emergency Risks (Factories) Insurance fund and provisions for payments due under the policy of insurance issued under the scheme which might provide for payment, within the limits of the liability assumed by the Central Govt., of the cost necessary to restore the property as far as practicable to the condition in which it existed before the occurrence of damage or compensation for the loss in value, ascertained on the basis of values, prices ruling at the time at which the policy of insurance was taken out or at which the loss occurred, whichever was less, suffered by the property as a result of the damage, after due allowance had been made for depreciation during the period of insurance covered.If the scheme which provided for the ascertainment of the insurable value as the actual value, is construed in the context of the purpose and the provisions of the Act, which contemplated the reinstatement of factories, damaged or ruined by enemy action and the continuance of economic activity with a view to stabilise the economy of the country, there cannot be any possible doubt that the actual value which was the insurable value could only be the market value and not the actual cost to the owner. The interpretation suggested by the appellant might lead to absurd consequences. The actual cost to the owner less depreciation might reduce the insurable value to such a low figure that reinstatement of the property to its previous condition would well nigh be impossible in these days of rising, if not spiralling, prices and thus frustrating the whole object of the Act. The only reasonable construction which can be put upon the expression " actual value " in para. 7 of the scheme is actual market value on the relevant date. We do not think that it is necessary to labour the point any further. Dr. Chitale invited our attention to a decision of the Calcutta High Court in CIT v. Lothian late Mills Co. Ltd. [1967] 66 ITR 630. The case is of no assistance to us, as the expression which had to be construed there was " actual cost to the assessee "occurring in s. 10(5) of the Indian I.T. Act, 1922. We are of the view that the Chief Enforcement Officer and the Govt. of India were right in adopting the market value on the relevant date as actual value for computing insurable value. | 0[ds]A perusal of the provisions of the Emergency Risks (Factories) Insurance Act makes it clear that the scheme of insurance envisaged by the Act was entirely different from the scheme of a contract of voluntary insurance. Not only was there no element of consensus on any of the fundamental terms of insurance in this scheme, the obligation to take out policy of insurance for the full insurable value of the factory was mandatory and the failure to do so was an offence. In the case of failure to insure for the full insurable value, there was also a provision for recovery of the premia evaded. On the other side of the picture was the provision for an Emergency Risks (Factories) Insurance fund and provisions for payments due under the policy of insurance issued under the scheme which might provide for payment, within the limits of the liability assumed by the Central Govt., of the cost necessary to restore the property as far as practicable to the condition in which it existed before the occurrence of damage or compensation for the loss in value, ascertained on the basis of values, prices ruling at the time at which the policy of insurance was taken out or at which the loss occurred, whichever was less, suffered by the property as a result of the damage, after due allowance had been made for depreciation during the period of insurance covered.If the scheme which provided for the ascertainment of the insurable value as the actual value, is construed in the context of the purpose and the provisions of the Act, which contemplated the reinstatement of factories, damaged or ruined by enemy action and the continuance of economic activity with a view to stabilise the economy of the country, there cannot be any possible doubt that the actual value which was the insurable value could only be the market value and not the actual cost to the owner. The interpretation suggested by the appellant might lead to absurd consequences. The actual cost to the owner less depreciation might reduce the insurable value to such a low figure that reinstatement of the property to its previous condition would well nigh be impossible in these days of rising, if not spiralling, prices and thus frustrating the whole object of the Act. The only reasonable construction which can be put upon the expression " actual value " in para. 7 of the scheme is actual market value on the relevant date. We do not think that it is necessary to labour the point any further. Dr. Chitale invited our attention to a decision of the Calcutta High Court in CIT v. Lothian late Mills Co. Ltd. [1967] 66 ITR 630. The case is of no assistance to us, as the expression which had to be construed there was " actual cost to the assessee "occurring in s. 10(5) of the Indian I.T. Act, 1922. We are of the view that the Chief Enforcement Officer and the Govt. of India were right in adopting the market value on the relevant date as actual value for computing insurable value. | 0 | 1,227 | 564 | ### 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:
to insure its factories factory buildings, plants, machinery, etc., under the Emergency Risks (Factories) Insurance Act, 1962, and the Emergency Risks (Factories) Insurance Scheme made under that Act. A sum of Rs. 2, 43, 750 was determined by the Chief Enforcement Officer as the amount payable by the Aluminium Corporation of India Ltd. towards arrears of premia. Clause (a) of para 7 of the Scheme prescribed that the insurable value of property for the purpose of insurance under the Act shall be, " the actual value in the case of completed works, and the estimated value of the works which are in the course of construction, or additions to property which are anticipated or expected to be completed in both cases at the prices prevailing on the relevant dates after making due allowance for any depreciation ". In arriving at the valuation, the Chief Enforcement Officer had proceeded on the basis that the " actual value " meant the market value on the relevant date and not the actual cost to the owner. The Corporation, in an appeal preferred to the Govt. of India, questioned the determination made by the Enforcement Officer on the ground that actual value meant the actual cost to the owner and not the market value as on the relevant date. The Govt. of India did not agree with the contention of the appellant-Corporation and rejected the appeal. Thereupon the Corporation preferred the present appeal to this court under art. 136 of the Constitution, after obtaining special leave from this court. We are convinced that on a true construction of the scheme, particularly in the light of the purpose and the provisions of the statute, the expression " actual value " occurring in the scheme means the market value and not the cost to the Corporation. The Emergency Risks (Factories) Insurance Act, 1962, and its sister Act, the Emergency Risks (Goods) Insurance Act, 1962, came into force w.e.f. 1-1-63, shortly after the proclamation of emergency under art. 352 of the Constitution on October 26, 1962, consequent on the Chinese aggression. The object of the Acts has been explained by this court in Amadalavalasa Co-operative Agricultural and Industrial Society v. Union of India [1976] 46 Comp Cas 264 as follows :" It was realised after the Chinese aggression that it was necessary to make provision, if possible on war footing, for reinstating the factories damaged or ruined by enemy action and for reimbursing the loss or damage of goods and continue the commercial and economic activity with a view to stabilize the economy of the country. In view of the magnitude of the task, no private agency in the field of insurance could have undertaken it. By the Acts, the Central Government undertook the task of insuring factories and goods against loss or damage sustained by enemy action. The Acts in substance provided for compulsory insurance against emergency risks..."2. A perusal of the provisions of the Emergency Risks (Factories) Insurance Act makes it clear that the scheme of insurance envisaged by the Act was entirely different from the scheme of a contract of voluntary insurance. Not only was there no element of consensus on any of the fundamental terms of insurance in this scheme, the obligation to take out policy of insurance for the full insurable value of the factory was mandatory and the failure to do so was an offence. In the case of failure to insure for the full insurable value, there was also a provision for recovery of the premia evaded. On the other side of the picture was the provision for an Emergency Risks (Factories) Insurance fund and provisions for payments due under the policy of insurance issued under the scheme which might provide for payment, within the limits of the liability assumed by the Central Govt., of the cost necessary to restore the property as far as practicable to the condition in which it existed before the occurrence of damage or compensation for the loss in value, ascertained on the basis of values, prices ruling at the time at which the policy of insurance was taken out or at which the loss occurred, whichever was less, suffered by the property as a result of the damage, after due allowance had been made for depreciation during the period of insurance covered.If the scheme which provided for the ascertainment of the insurable value as the actual value, is construed in the context of the purpose and the provisions of the Act, which contemplated the reinstatement of factories, damaged or ruined by enemy action and the continuance of economic activity with a view to stabilise the economy of the country, there cannot be any possible doubt that the actual value which was the insurable value could only be the market value and not the actual cost to the owner. The interpretation suggested by the appellant might lead to absurd consequences. The actual cost to the owner less depreciation might reduce the insurable value to such a low figure that reinstatement of the property to its previous condition would well nigh be impossible in these days of rising, if not spiralling, prices and thus frustrating the whole object of the Act. The only reasonable construction which can be put upon the expression " actual value " in para. 7 of the scheme is actual market value on the relevant date. We do not think that it is necessary to labour the point any further. Dr. Chitale invited our attention to a decision of the Calcutta High Court in CIT v. Lothian late Mills Co. Ltd. [1967] 66 ITR 630. The case is of no assistance to us, as the expression which had to be construed there was " actual cost to the assessee "occurring in s. 10(5) of the Indian I.T. Act, 1922. We are of the view that the Chief Enforcement Officer and the Govt. of India were right in adopting the market value on the relevant date as actual value for computing insurable value.
### Response:
0
### Explanation:
A perusal of the provisions of the Emergency Risks (Factories) Insurance Act makes it clear that the scheme of insurance envisaged by the Act was entirely different from the scheme of a contract of voluntary insurance. Not only was there no element of consensus on any of the fundamental terms of insurance in this scheme, the obligation to take out policy of insurance for the full insurable value of the factory was mandatory and the failure to do so was an offence. In the case of failure to insure for the full insurable value, there was also a provision for recovery of the premia evaded. On the other side of the picture was the provision for an Emergency Risks (Factories) Insurance fund and provisions for payments due under the policy of insurance issued under the scheme which might provide for payment, within the limits of the liability assumed by the Central Govt., of the cost necessary to restore the property as far as practicable to the condition in which it existed before the occurrence of damage or compensation for the loss in value, ascertained on the basis of values, prices ruling at the time at which the policy of insurance was taken out or at which the loss occurred, whichever was less, suffered by the property as a result of the damage, after due allowance had been made for depreciation during the period of insurance covered.If the scheme which provided for the ascertainment of the insurable value as the actual value, is construed in the context of the purpose and the provisions of the Act, which contemplated the reinstatement of factories, damaged or ruined by enemy action and the continuance of economic activity with a view to stabilise the economy of the country, there cannot be any possible doubt that the actual value which was the insurable value could only be the market value and not the actual cost to the owner. The interpretation suggested by the appellant might lead to absurd consequences. The actual cost to the owner less depreciation might reduce the insurable value to such a low figure that reinstatement of the property to its previous condition would well nigh be impossible in these days of rising, if not spiralling, prices and thus frustrating the whole object of the Act. The only reasonable construction which can be put upon the expression " actual value " in para. 7 of the scheme is actual market value on the relevant date. We do not think that it is necessary to labour the point any further. Dr. Chitale invited our attention to a decision of the Calcutta High Court in CIT v. Lothian late Mills Co. Ltd. [1967] 66 ITR 630. The case is of no assistance to us, as the expression which had to be construed there was " actual cost to the assessee "occurring in s. 10(5) of the Indian I.T. Act, 1922. We are of the view that the Chief Enforcement Officer and the Govt. of India were right in adopting the market value on the relevant date as actual value for computing insurable value.
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JAWAHARLAL NEHRU TECHNOLOGICAL UNIVERSITY REGISTRAR Vs. THE CHAIRMAN AND MANAGING DIRECTOR TRANSMISSION CORPORATION OF TELANGANA LTD & ORS | 1. Leave granted. Heard learned counsel for the parties.2. On 16.02.2018 the following order was passed:?Permission to file the special leave petition is granted.Learned Attorney General has pointed out that in view of the judgment of this Court in ?Bharathidasan University & Anr.Vs. All India Council For Technical Education & Ors.?, (2001) 8 SCC 676 , no prior approval of the All India Council for the Technical Education (AICTE) is required by the petitioner – University for starting engineering courses.The petitioner –University is a State University and it gave admissions in transparent manner only to the Government Employees. There was a contact programme and faculty was available. Practical work also held. DEC gave ex-post facto approval. The standards have not been compromised.It was also submitted that upto 2005, there were no bar for such courses being conducted even by Universities other than the State Universities. It is also stated that after 2009, the distance education system has been closed.It has been suggested that it will be necessary to hear the UGC also.AICTE and UGC are added as party – respondents.Mr. Harish Pandey, Advocate appears and accepts notice on behalf of AICTE and seeks time to take instructions.Let notice be issued to UGC, returnable on 21.03.2018.In the meanwhile, status quo,as of today, shall be maintained by the parties.In SLP(C) No. 3755/2018, SLP(C) Diary No(s). 3731/2018, Diary No(s). 4347/2018 & SLP(C) Diary No.5836/2018:Put up these matters along with SLP(C)Diary No(s). 3501 of 2018?. 3. Shri Maninder Singh, learned ASG appearing for the AICTE and the UGC has drawn our attention to the judgment of this Court in Orissa Lift Irrigation Corporation Limited v. Rabi Sankar Patro and Others - 2018 (1) SCC 468 inter alia laying down as follows:?47. The AICTE is directed to devise within one month from the date of this judgment modalities to conduct appropriate test/tests both in written examination as well as in practicals for the concerned students admitted during the academic sessions 2001-2005 covering all the concerned subjects. It is entirely left to the discretion of AICTE to come out with such modalities as it may think appropriate and the tests in that behalf shall be conducted in the National Institutes of Technology in respective States wherever the students are located. The choice may be given to the students to appear at the examination which ideally should be conducted during MayJune, 2018 or on such dates as AICTE may determine. Not more than two chances be given to the concerned students and if they do not pass the test/tests their degrees shall stand recalled and cancelled. If a particular student does not wish to appear in the test/tests, the entire money deposited by such student towards tuition and other charges shall be refunded to that student by the concerned Deemed to be University within a month of the exercise of such option. The students be given time till 15th of January, 2018 to exercise such option. The entire expenditure for conducting the test/tests in respect of students who wish to undergo test/tests shall be recovered from the concerned Deemed to be Universities by 31.03.2018. If they clear the test/tests within the stipulated time, all the advantages or benefits shall be restored to the concerned candidates. We make it clear at the cost of repetition that if the concerned candidates do not clear the test/tests within the time stipulated or choose not to appear at the test/tests, their degrees in Engineering through distance education shall stand recalled and cancelled. It goes without saying that any promotion or advancement in career on the basis of such degree shall also stand withdrawn, however any monetary benefits or advantages in that behalf shall not be recovered from them.48. As regards the students who were admitted after the ex-post-facto approval granted in favour of such Deemed to be Universities, in our view, there was no sanction whatsoever for their admission. The Policy Statements as well as warnings issued from time to time were absolutely clear. The students were admitted on the strength either provisional recognition or on the strength of interim orders passed by the High Court. We therefore, declare that in respect of students admitted after the academic sessions of 2001-2005, the degrees in Engineering awarded by the concerned Deemed to be Universities through Distance Education Mode shall stand recalled and be treated as cancelled. Any benefit which a candidate has secured as a result of such degrees in Engineering in the nature of promotion or advancement in career shall also stand recalled. However, if any monetary benefit was derived by such candidates that monetary benefit or advantage will not be recovered by the concerned departments or employers. We, further direct that the entire amount paid by such students to the concerned Deemed to be Universities towards tuition fee and all other expenditure for such courses through distance education learning shall be returned by the concerned Deemed to be Universities to the respective students. This direction shall be complied with by the concerned Deemed to be Universities scrupulously and the amounts shall be returned by 31st of May, 2018 and an appropriate affidavit to that extent shall be filed with UGC within a week thereafter?. 4. It is submitted that the norms of AICTE have to be followed and distance learning is not permitted at all in technical education. Thus, even if the distinguishing feature noted in the order issuing notice exist, the view of the High Court is consistent with the judgment of this Court.5. Shri R. Venkataramani, learned senior counsel appearing for the original writ petitioners submitted that degree to be granted has to be the one recognized by the UGC under Section 22 of the UGC Act. It is also pointed out that under Section 6(e) of the Andhra Pradesh Education Act, 1982, norms of AICTE are fully applicable to award of Diplomas. | 1[ds]6. While we find merit in the submission of learned counsel for the respondents that the view taken by the High Court is correct in law, in view of distinguishing features in the present case noted in the order issuing notice, | 1 | 1,089 | 48 | ### 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:
1. Leave granted. Heard learned counsel for the parties.2. On 16.02.2018 the following order was passed:?Permission to file the special leave petition is granted.Learned Attorney General has pointed out that in view of the judgment of this Court in ?Bharathidasan University & Anr.Vs. All India Council For Technical Education & Ors.?, (2001) 8 SCC 676 , no prior approval of the All India Council for the Technical Education (AICTE) is required by the petitioner – University for starting engineering courses.The petitioner –University is a State University and it gave admissions in transparent manner only to the Government Employees. There was a contact programme and faculty was available. Practical work also held. DEC gave ex-post facto approval. The standards have not been compromised.It was also submitted that upto 2005, there were no bar for such courses being conducted even by Universities other than the State Universities. It is also stated that after 2009, the distance education system has been closed.It has been suggested that it will be necessary to hear the UGC also.AICTE and UGC are added as party – respondents.Mr. Harish Pandey, Advocate appears and accepts notice on behalf of AICTE and seeks time to take instructions.Let notice be issued to UGC, returnable on 21.03.2018.In the meanwhile, status quo,as of today, shall be maintained by the parties.In SLP(C) No. 3755/2018, SLP(C) Diary No(s). 3731/2018, Diary No(s). 4347/2018 & SLP(C) Diary No.5836/2018:Put up these matters along with SLP(C)Diary No(s). 3501 of 2018?. 3. Shri Maninder Singh, learned ASG appearing for the AICTE and the UGC has drawn our attention to the judgment of this Court in Orissa Lift Irrigation Corporation Limited v. Rabi Sankar Patro and Others - 2018 (1) SCC 468 inter alia laying down as follows:?47. The AICTE is directed to devise within one month from the date of this judgment modalities to conduct appropriate test/tests both in written examination as well as in practicals for the concerned students admitted during the academic sessions 2001-2005 covering all the concerned subjects. It is entirely left to the discretion of AICTE to come out with such modalities as it may think appropriate and the tests in that behalf shall be conducted in the National Institutes of Technology in respective States wherever the students are located. The choice may be given to the students to appear at the examination which ideally should be conducted during MayJune, 2018 or on such dates as AICTE may determine. Not more than two chances be given to the concerned students and if they do not pass the test/tests their degrees shall stand recalled and cancelled. If a particular student does not wish to appear in the test/tests, the entire money deposited by such student towards tuition and other charges shall be refunded to that student by the concerned Deemed to be University within a month of the exercise of such option. The students be given time till 15th of January, 2018 to exercise such option. The entire expenditure for conducting the test/tests in respect of students who wish to undergo test/tests shall be recovered from the concerned Deemed to be Universities by 31.03.2018. If they clear the test/tests within the stipulated time, all the advantages or benefits shall be restored to the concerned candidates. We make it clear at the cost of repetition that if the concerned candidates do not clear the test/tests within the time stipulated or choose not to appear at the test/tests, their degrees in Engineering through distance education shall stand recalled and cancelled. It goes without saying that any promotion or advancement in career on the basis of such degree shall also stand withdrawn, however any monetary benefits or advantages in that behalf shall not be recovered from them.48. As regards the students who were admitted after the ex-post-facto approval granted in favour of such Deemed to be Universities, in our view, there was no sanction whatsoever for their admission. The Policy Statements as well as warnings issued from time to time were absolutely clear. The students were admitted on the strength either provisional recognition or on the strength of interim orders passed by the High Court. We therefore, declare that in respect of students admitted after the academic sessions of 2001-2005, the degrees in Engineering awarded by the concerned Deemed to be Universities through Distance Education Mode shall stand recalled and be treated as cancelled. Any benefit which a candidate has secured as a result of such degrees in Engineering in the nature of promotion or advancement in career shall also stand recalled. However, if any monetary benefit was derived by such candidates that monetary benefit or advantage will not be recovered by the concerned departments or employers. We, further direct that the entire amount paid by such students to the concerned Deemed to be Universities towards tuition fee and all other expenditure for such courses through distance education learning shall be returned by the concerned Deemed to be Universities to the respective students. This direction shall be complied with by the concerned Deemed to be Universities scrupulously and the amounts shall be returned by 31st of May, 2018 and an appropriate affidavit to that extent shall be filed with UGC within a week thereafter?. 4. It is submitted that the norms of AICTE have to be followed and distance learning is not permitted at all in technical education. Thus, even if the distinguishing feature noted in the order issuing notice exist, the view of the High Court is consistent with the judgment of this Court.5. Shri R. Venkataramani, learned senior counsel appearing for the original writ petitioners submitted that degree to be granted has to be the one recognized by the UGC under Section 22 of the UGC Act. It is also pointed out that under Section 6(e) of the Andhra Pradesh Education Act, 1982, norms of AICTE are fully applicable to award of Diplomas.
### Response:
1
### Explanation:
6. While we find merit in the submission of learned counsel for the respondents that the view taken by the High Court is correct in law, in view of distinguishing features in the present case noted in the order issuing notice,
|
Satyanarayana Sinha Vs. M/S S. Lal And Company (Pvt.) Ltd | to incur huge expense, it now wants to contend that the grant of the lease is invalid. Even the first respondent, once he found that the area for which he applied for a lease was not included in the appellants lease, seems to have preferred to remain absent in the case, but the State Government wants to challenge the validity of the lease which it did not do before the High Court.8. There is no doubt, as the High Court has pointed out, that where by relaxing the Rules the Central Government intends to authorise in any case the grant, renewal or transfer of any prospecting licence or mining lease, or the working of any mine for the purpose of searching for winning any mineral, on terms and conditions different from those laid down in the Rules made under S. 13 of the Act, it can do so for reasons to be recorded in writing. Whether any such reasons can be said to have been recorded in the order authorising the grant of the lease on terms and conditions different from those laid down in the Rules made under S. 13 of the Act need not concern us in this case, because, in our view, as the writ petition has been filed by a person who is not the person aggrieved, it is not maintainable.9. As already pointed out it is Admitted by respondents 2 and 3 that application made by the first respondent was not in respect of the area which is granted to the appellant and consequently the first respondent had interest in the subject-matter of the lease. Even though this contention was not urged before the High Court, and in the circumstances adverted to by us could not have been urged, as the appellant did not appear, this Court in an appeal cannot only determine the soundness of the decision, but has jurisdiction to determine any point raised before it,such as whether the appeal is competent, whether a party has locus standi to present the petition and whether the petition is maintainable etc. See Ebrahim Aboobakar v. Custodian General of Evacuee Property (1952) 3 SCR 696 = (AIR 1952 SC 319 ). In Chiranjit Lal Chowdhuri v. The Union of India 1950 SCR 869 = (AIR 1951 SC 41 ) it was held by this Court that the legal right that can be enforced under Art. 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. In respect of the jurisdiction under Art. 226 of the Constitution it was laid down in The State of Orissa v. Madan Gopal Rungta, (1952) 3 SCR 28 = (AIR 1952 SC 12 ) that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Art. 226 of the Constitution. The right to which this Court had adverted as being the foundation for exercising the jurisdiction under Art. 32 or Article 226 of the Constitution,according to The Calcutta Gas Co. (Proprietary) Ltd. v. The State of West Bengal, (1962) Supp 3 SCR 1 - (AIR 1962 SC 1044 ) is ordinarily the personal or individual right of the petitioner himself though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. Subba Rao, J. as he then was, observed in that case :"Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamenta1 rights can also approach the court seeking a relief thereunder."After citing the above passage in Godde Venkateswara Rao v. Government of Andhra Pradesh, (1966) 2 SCR 172 = (AIR 1966 SC 828 ) the learned Judge who delivered the judgment in this case also observed at p. 181:"A personal right need not be respect of a proprietary interest: it can also relate to an interest of a trustee. That apart in exceptional cases as the expression "ordinary" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof."In respect of persons who are strangers and who seek to invoke the jurisdiction of the High Court or of this Court, difficulty sometimes arises because of the nature and extent of the right or interest which is said to have been infringed, and whether the infringement in some way affects such persons. On this aspect there is no clear enunciation of principles on which the Court will exercise its jurisdiction.10. In England also the Courts have taken the view that when the application is made by a party or by a person aggrieved the Court will intervene ex debito justitiae, in justice to the applicant, and when it is made by a stranger the Court considers whether the public interest demands its intervention. In either case it is a matter which rests ultimately in the discretion of the Court: (see R. v. Thames Magistrates Court. ex. p. Greenbaum. (1967), 55 L. G. R. 129 -extracted in Yardley Source Book of English Administrative Law, 1970, p. 228)11. In this case, however, the first respondent has not challenged the grant of the lease on the ground of ex debito justitiae but has done so on the ground of direct infringement of his right to be granted" a mining lease over 280.62 acres for which the appellant was given a lease along with other area. Since it is now found that no such right of the first respondent has been affected, he has no locus standi. He is neither a party nor a person aggrieved or affected and consequently his writ petition in the High Court is not maintainable. | 1[ds]8. There is no doubt, as the High Court has pointed out, that where by relaxing the Rules the Central Government intends to authorise in any case the grant, renewal or transfer of any prospecting licence or mining lease, or the working of any mine for the purpose of searching for winning any mineral, on terms and conditions different from those laid down in the Rules made under S. 13 of the Act, it can do so for reasons to be recorded in writing. Whether any such reasons can be said to have been recorded in the order authorising the grant of the lease on terms and conditions different from those laid down in the Rules made under S. 13 of the Act need not concern us in this case, because, in our view, as the writ petition has been filed by a person who is not the person aggrieved, it is not maintainable.9. As already pointed out it is Admitted by respondents 2 and 3 that application made by the first respondent was not in respect of the area which is granted to the appellant and consequently the first respondent had interest in the subject-matter of the lease. Even though this contention was not urged before the High Court, and in the circumstances adverted to by us could not have been urged, as the appellant did not appear, this Court in an appeal cannot only determine the soundness of the decision, but has jurisdiction to determine any point raised before it,such as whether the appeal is competent, whether a party has locus standi to present the petition and whether the petition is maintainable etc.In this case, however, the first respondent has not challenged the grant of the lease on the ground of ex debito justitiae but has done so on the ground of direct infringement of his right to be granted" a mining lease over 280.62 acres for which the appellant was given a lease along with other area. Since it is now found that no such right of the first respondent has been affected, he has no locus standi. He is neither a party nor a person aggrieved or affected and consequently his writ petition in the High Court is not maintainable. | 1 | 2,460 | 407 | ### 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:
to incur huge expense, it now wants to contend that the grant of the lease is invalid. Even the first respondent, once he found that the area for which he applied for a lease was not included in the appellants lease, seems to have preferred to remain absent in the case, but the State Government wants to challenge the validity of the lease which it did not do before the High Court.8. There is no doubt, as the High Court has pointed out, that where by relaxing the Rules the Central Government intends to authorise in any case the grant, renewal or transfer of any prospecting licence or mining lease, or the working of any mine for the purpose of searching for winning any mineral, on terms and conditions different from those laid down in the Rules made under S. 13 of the Act, it can do so for reasons to be recorded in writing. Whether any such reasons can be said to have been recorded in the order authorising the grant of the lease on terms and conditions different from those laid down in the Rules made under S. 13 of the Act need not concern us in this case, because, in our view, as the writ petition has been filed by a person who is not the person aggrieved, it is not maintainable.9. As already pointed out it is Admitted by respondents 2 and 3 that application made by the first respondent was not in respect of the area which is granted to the appellant and consequently the first respondent had interest in the subject-matter of the lease. Even though this contention was not urged before the High Court, and in the circumstances adverted to by us could not have been urged, as the appellant did not appear, this Court in an appeal cannot only determine the soundness of the decision, but has jurisdiction to determine any point raised before it,such as whether the appeal is competent, whether a party has locus standi to present the petition and whether the petition is maintainable etc. See Ebrahim Aboobakar v. Custodian General of Evacuee Property (1952) 3 SCR 696 = (AIR 1952 SC 319 ). In Chiranjit Lal Chowdhuri v. The Union of India 1950 SCR 869 = (AIR 1951 SC 41 ) it was held by this Court that the legal right that can be enforced under Art. 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. In respect of the jurisdiction under Art. 226 of the Constitution it was laid down in The State of Orissa v. Madan Gopal Rungta, (1952) 3 SCR 28 = (AIR 1952 SC 12 ) that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Art. 226 of the Constitution. The right to which this Court had adverted as being the foundation for exercising the jurisdiction under Art. 32 or Article 226 of the Constitution,according to The Calcutta Gas Co. (Proprietary) Ltd. v. The State of West Bengal, (1962) Supp 3 SCR 1 - (AIR 1962 SC 1044 ) is ordinarily the personal or individual right of the petitioner himself though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. Subba Rao, J. as he then was, observed in that case :"Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamenta1 rights can also approach the court seeking a relief thereunder."After citing the above passage in Godde Venkateswara Rao v. Government of Andhra Pradesh, (1966) 2 SCR 172 = (AIR 1966 SC 828 ) the learned Judge who delivered the judgment in this case also observed at p. 181:"A personal right need not be respect of a proprietary interest: it can also relate to an interest of a trustee. That apart in exceptional cases as the expression "ordinary" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof."In respect of persons who are strangers and who seek to invoke the jurisdiction of the High Court or of this Court, difficulty sometimes arises because of the nature and extent of the right or interest which is said to have been infringed, and whether the infringement in some way affects such persons. On this aspect there is no clear enunciation of principles on which the Court will exercise its jurisdiction.10. In England also the Courts have taken the view that when the application is made by a party or by a person aggrieved the Court will intervene ex debito justitiae, in justice to the applicant, and when it is made by a stranger the Court considers whether the public interest demands its intervention. In either case it is a matter which rests ultimately in the discretion of the Court: (see R. v. Thames Magistrates Court. ex. p. Greenbaum. (1967), 55 L. G. R. 129 -extracted in Yardley Source Book of English Administrative Law, 1970, p. 228)11. In this case, however, the first respondent has not challenged the grant of the lease on the ground of ex debito justitiae but has done so on the ground of direct infringement of his right to be granted" a mining lease over 280.62 acres for which the appellant was given a lease along with other area. Since it is now found that no such right of the first respondent has been affected, he has no locus standi. He is neither a party nor a person aggrieved or affected and consequently his writ petition in the High Court is not maintainable.
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1
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8. There is no doubt, as the High Court has pointed out, that where by relaxing the Rules the Central Government intends to authorise in any case the grant, renewal or transfer of any prospecting licence or mining lease, or the working of any mine for the purpose of searching for winning any mineral, on terms and conditions different from those laid down in the Rules made under S. 13 of the Act, it can do so for reasons to be recorded in writing. Whether any such reasons can be said to have been recorded in the order authorising the grant of the lease on terms and conditions different from those laid down in the Rules made under S. 13 of the Act need not concern us in this case, because, in our view, as the writ petition has been filed by a person who is not the person aggrieved, it is not maintainable.9. As already pointed out it is Admitted by respondents 2 and 3 that application made by the first respondent was not in respect of the area which is granted to the appellant and consequently the first respondent had interest in the subject-matter of the lease. Even though this contention was not urged before the High Court, and in the circumstances adverted to by us could not have been urged, as the appellant did not appear, this Court in an appeal cannot only determine the soundness of the decision, but has jurisdiction to determine any point raised before it,such as whether the appeal is competent, whether a party has locus standi to present the petition and whether the petition is maintainable etc.In this case, however, the first respondent has not challenged the grant of the lease on the ground of ex debito justitiae but has done so on the ground of direct infringement of his right to be granted" a mining lease over 280.62 acres for which the appellant was given a lease along with other area. Since it is now found that no such right of the first respondent has been affected, he has no locus standi. He is neither a party nor a person aggrieved or affected and consequently his writ petition in the High Court is not maintainable.
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Rajesh Kumar and Ors Vs. D. Commissioner of Income Tax and Ors | the director of a company and his sympathetic and objective approach to the difficult problem that arises in each case." 52. The factors enumerated in Section 142(2A) of the Act, thus, are not exhaustive. Once it is held that the assessee suffers civil consequences and any order passed by it would be prejudicial to him, principles of natural justice must be held to be implicit. The principles of natural justice are required to be applied inter alia to minimize arbitrariness. 53. It is trite, even if there is a possibility that the Tribunal would correctly follow the statutory provisions, still compliance of principles of natural justice would be required. [See R. v. Kensington and Chelsea Rent Tribunal, ex p. MacFarlane (1974) 1 WLR 1486] 54. Justice, as is well known, is not only be done but manifestly seem to be done. If the assessee is put to notice, he could show that the nature of accounts is not such which would require appointment of special auditors. He could further show that what the assessing officer considers to be complex is in fact not so. It was also open to him to show that the same would not be in the interest of the Revenue. 55. In this case itself the appellants were not made known as to what led the Deputy Commissioner to form an opinion that all relevant factors including the ones mentioned in Section 142(2A) of the Act are satisfied. If even one of them was not satisfied, no order could be passed. If the attention of the Commissioner could be drawn to the fact that the underlined purpose for appointment of the special auditor is not bona fide it might not have approved the same. 56. Assuming that two sets of accounts were being maintained the same would not mean that the nature of accounts is difficult to understand. It could have furthermore not been shown that the power is sought to be xercised only for an unauthorised purpose, viz., for the purpose of extension of the period of limitation as provided for under Explanation 2 to section 158BE of the Act. 57. An order of approval is also not to be mechanically granted. The same should be done having regard to the materials on record. The explanation given by the assessee, if any, would be a relevant factor. The approving authority was required to go through it. He could have arrived at a different opinion. He in a situation of this nature could have corrected the assessing officer if he was found to have adopted a wrong approach or posed a wrong question unto himself. He could have been asked to complete the process of the assessment within the specified time so as to save the Revenue from suffering any loss. The same purpose might have been achieved upon production of some materials for understanding the books of accounts and/ or the entries made therein. While exercising its power, the assessing officer has to form an opinion. It is final so far he is concerned albeit subject to approval of the Chief Commissioner or the Commissioner, as the case may be. It is only at that stage he is required to consider the matter and not at a subsequent stage, viz., after the approval is given. 58. In K.I. Shephard and Others v. Union of India and Others [(1987) 4 SCC 431 : AIR 1988 SC 686 ], this Court observed: "It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose." [See also H.L. Trehan and Others v. Union of India and Others (1989) 1 SCC 764 , L.N. Mishra Institute of Economic Development and Social Change, Patna v. State of Bihar and Others (1988) 2 SCC 764 and V.C. Banaras Hindu University and Ors. v. Shrikant, 2006 (6) SCALE 66 ] 59. Whereas the order of assessment can be subject matter of an appeal, a direction issued under Section 142(2A) of the Act is not. No internal remedy is prescribed. Judicial review cannot be said to be an appropriate remedy in this behalf. The appellate power under the Act does not contain any provision like Section 105 of the Code of Civil Procedure. The power of judicial review is limited. It is discretionary. The court may not interfere with a statutory power. [See for example Jhunjhuwala Vanaspati Ltd. v. Assistant Commissioner of Income-Tax and Another (No. 1), 266 ITR 657, see, however, U.P. State Industrial Development Corporation Limited v. Commissioner of Income-Tax and Others, 171 ITR 640] 60. The hearing given, however, need not be elaborate. The notice issued may only contain briefly the issues which the assessing officer thinks to be necessary. The reasons assigned therefor need not be detailed ones. But, that would not mean that the principles of justice are not required to be complied with. Only because certain consequences would ensue if the principles of natural justice are required to be complied with, the same by itself would not mean that the court would not insist on complying with the fundamental principles of law. If the principles of natural justice are to be excluded, the Parliament could have said so expressly. The hearing given is only in terms of Section 142 (3) which is limited only to the findings of the special auditor. The order of assessment would be based upon the findings of the special auditor subject of course to its acceptance by the assessing officer. Even at that stage the assessee cannot put forward a case that power under Section 142(2A) of the Act had wrongly been exercised and he has unnecessarily been saddled with a heavy expenditure. An appeal against the order of assessment, as noticed hereinbefore, would not serve any real purpose as the appellate authority would not go into such a question since the direction issued under Section 142(2A) of the Act is not an appellate order. 61. | 1[ds]In this case itself the appellants were not made known as to what led the Deputy Commissioner to form an opinion that all relevant factors including the ones mentioned in Section 142(2A) of the Act are satisfied. If even one of them was not satisfied, no order could be passed. If the attention of the Commissioner could be drawn to the fact that the underlined purpose for appointment of the special auditor is not bona fide it might not have approved thethat two sets of accounts were being maintained the same would not mean that the nature of accounts is difficult to understand. It could have furthermore not been shown that the power is sought to be xercised only for an unauthorised purpose, viz., for the purpose of extension of the period of limitation as provided for under Explanation 2 to section 158BE of theorder of approval is also not to be mechanically granted. The same should be done having regard to the materials on record. The explanation given by the assessee, if any, would be a relevant factor. The approving authority was required to go through it. He could have arrived at a different opinion. He in a situation of this nature could have corrected the assessing officer if he was found to have adopted a wrong approach or posed a wrong question unto himself. He could have been asked to complete the process of the assessment within the specified time so as to save the Revenue from suffering any loss. The same purpose might have been achieved upon production of some materials for understanding the books of accounts and/ or the entries made therein. While exercising its power, the assessing officer has to form an opinion. It is final so far he is concerned albeit subject to approval of the Chief Commissioner or the Commissioner, as the case may be. It is only at that stage he is required to consider the matter and not at a subsequent stage, viz., after the approval ishearing given, however, need not be elaborate. The notice issued may only contain briefly the issues which the assessing officer thinks to be necessary. The reasons assigned therefor need not be detailed ones. But, that would not mean that the principles of justice are not required to be complied with. Only because certain consequences would ensue if the principles of natural justice are required to be complied with, the same by itself would not mean that the court would not insist on complying with the fundamental principles of law. If the principles of natural justice are to be excluded, the Parliament could have said so expressly. The hearing given is only in terms of Section 142 (3) which is limited only to the findings of the special auditor. The order of assessment would be based upon the findings of the special auditor subject of course to its acceptance by the assessing officer. Even at that stage the assessee cannot put forward a case that power under Section 142(2A) of the Act had wrongly been exercised and he has unnecessarily been saddled with a heavy expenditure. An appeal against the order of assessment, as noticed hereinbefore, would not serve any real purpose as the appellate authority would not go into such a question since the direction issued under Section 142(2A) of the Act is not an appellate order. | 1 | 8,274 | 617 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the director of a company and his sympathetic and objective approach to the difficult problem that arises in each case." 52. The factors enumerated in Section 142(2A) of the Act, thus, are not exhaustive. Once it is held that the assessee suffers civil consequences and any order passed by it would be prejudicial to him, principles of natural justice must be held to be implicit. The principles of natural justice are required to be applied inter alia to minimize arbitrariness. 53. It is trite, even if there is a possibility that the Tribunal would correctly follow the statutory provisions, still compliance of principles of natural justice would be required. [See R. v. Kensington and Chelsea Rent Tribunal, ex p. MacFarlane (1974) 1 WLR 1486] 54. Justice, as is well known, is not only be done but manifestly seem to be done. If the assessee is put to notice, he could show that the nature of accounts is not such which would require appointment of special auditors. He could further show that what the assessing officer considers to be complex is in fact not so. It was also open to him to show that the same would not be in the interest of the Revenue. 55. In this case itself the appellants were not made known as to what led the Deputy Commissioner to form an opinion that all relevant factors including the ones mentioned in Section 142(2A) of the Act are satisfied. If even one of them was not satisfied, no order could be passed. If the attention of the Commissioner could be drawn to the fact that the underlined purpose for appointment of the special auditor is not bona fide it might not have approved the same. 56. Assuming that two sets of accounts were being maintained the same would not mean that the nature of accounts is difficult to understand. It could have furthermore not been shown that the power is sought to be xercised only for an unauthorised purpose, viz., for the purpose of extension of the period of limitation as provided for under Explanation 2 to section 158BE of the Act. 57. An order of approval is also not to be mechanically granted. The same should be done having regard to the materials on record. The explanation given by the assessee, if any, would be a relevant factor. The approving authority was required to go through it. He could have arrived at a different opinion. He in a situation of this nature could have corrected the assessing officer if he was found to have adopted a wrong approach or posed a wrong question unto himself. He could have been asked to complete the process of the assessment within the specified time so as to save the Revenue from suffering any loss. The same purpose might have been achieved upon production of some materials for understanding the books of accounts and/ or the entries made therein. While exercising its power, the assessing officer has to form an opinion. It is final so far he is concerned albeit subject to approval of the Chief Commissioner or the Commissioner, as the case may be. It is only at that stage he is required to consider the matter and not at a subsequent stage, viz., after the approval is given. 58. In K.I. Shephard and Others v. Union of India and Others [(1987) 4 SCC 431 : AIR 1988 SC 686 ], this Court observed: "It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose." [See also H.L. Trehan and Others v. Union of India and Others (1989) 1 SCC 764 , L.N. Mishra Institute of Economic Development and Social Change, Patna v. State of Bihar and Others (1988) 2 SCC 764 and V.C. Banaras Hindu University and Ors. v. Shrikant, 2006 (6) SCALE 66 ] 59. Whereas the order of assessment can be subject matter of an appeal, a direction issued under Section 142(2A) of the Act is not. No internal remedy is prescribed. Judicial review cannot be said to be an appropriate remedy in this behalf. The appellate power under the Act does not contain any provision like Section 105 of the Code of Civil Procedure. The power of judicial review is limited. It is discretionary. The court may not interfere with a statutory power. [See for example Jhunjhuwala Vanaspati Ltd. v. Assistant Commissioner of Income-Tax and Another (No. 1), 266 ITR 657, see, however, U.P. State Industrial Development Corporation Limited v. Commissioner of Income-Tax and Others, 171 ITR 640] 60. The hearing given, however, need not be elaborate. The notice issued may only contain briefly the issues which the assessing officer thinks to be necessary. The reasons assigned therefor need not be detailed ones. But, that would not mean that the principles of justice are not required to be complied with. Only because certain consequences would ensue if the principles of natural justice are required to be complied with, the same by itself would not mean that the court would not insist on complying with the fundamental principles of law. If the principles of natural justice are to be excluded, the Parliament could have said so expressly. The hearing given is only in terms of Section 142 (3) which is limited only to the findings of the special auditor. The order of assessment would be based upon the findings of the special auditor subject of course to its acceptance by the assessing officer. Even at that stage the assessee cannot put forward a case that power under Section 142(2A) of the Act had wrongly been exercised and he has unnecessarily been saddled with a heavy expenditure. An appeal against the order of assessment, as noticed hereinbefore, would not serve any real purpose as the appellate authority would not go into such a question since the direction issued under Section 142(2A) of the Act is not an appellate order. 61.
### Response:
1
### Explanation:
In this case itself the appellants were not made known as to what led the Deputy Commissioner to form an opinion that all relevant factors including the ones mentioned in Section 142(2A) of the Act are satisfied. If even one of them was not satisfied, no order could be passed. If the attention of the Commissioner could be drawn to the fact that the underlined purpose for appointment of the special auditor is not bona fide it might not have approved thethat two sets of accounts were being maintained the same would not mean that the nature of accounts is difficult to understand. It could have furthermore not been shown that the power is sought to be xercised only for an unauthorised purpose, viz., for the purpose of extension of the period of limitation as provided for under Explanation 2 to section 158BE of theorder of approval is also not to be mechanically granted. The same should be done having regard to the materials on record. The explanation given by the assessee, if any, would be a relevant factor. The approving authority was required to go through it. He could have arrived at a different opinion. He in a situation of this nature could have corrected the assessing officer if he was found to have adopted a wrong approach or posed a wrong question unto himself. He could have been asked to complete the process of the assessment within the specified time so as to save the Revenue from suffering any loss. The same purpose might have been achieved upon production of some materials for understanding the books of accounts and/ or the entries made therein. While exercising its power, the assessing officer has to form an opinion. It is final so far he is concerned albeit subject to approval of the Chief Commissioner or the Commissioner, as the case may be. It is only at that stage he is required to consider the matter and not at a subsequent stage, viz., after the approval ishearing given, however, need not be elaborate. The notice issued may only contain briefly the issues which the assessing officer thinks to be necessary. The reasons assigned therefor need not be detailed ones. But, that would not mean that the principles of justice are not required to be complied with. Only because certain consequences would ensue if the principles of natural justice are required to be complied with, the same by itself would not mean that the court would not insist on complying with the fundamental principles of law. If the principles of natural justice are to be excluded, the Parliament could have said so expressly. The hearing given is only in terms of Section 142 (3) which is limited only to the findings of the special auditor. The order of assessment would be based upon the findings of the special auditor subject of course to its acceptance by the assessing officer. Even at that stage the assessee cannot put forward a case that power under Section 142(2A) of the Act had wrongly been exercised and he has unnecessarily been saddled with a heavy expenditure. An appeal against the order of assessment, as noticed hereinbefore, would not serve any real purpose as the appellate authority would not go into such a question since the direction issued under Section 142(2A) of the Act is not an appellate order.
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SARIKA Vs. ADMINISTRATOR, MAHAKALESHWAR MANDIR COMMITTEE, UJJAIN (MP) | construction will be done with a due permission of the competent authorities. Expert committees comment: Agrees 15. It is further resolved that in order to implement the above resolution a minimum period from one month to one Year may be sought from the Honble Supreme Court. Expert committees comment: Agrees ORDER DATED 30.11.2017: 29. Following order was passed by this Court on 30.11.2017: We are concerned, and so express our anguish, as to the way in which the orders which have been passed so far in the matter are being misrepresented in media and otherwise. We have not passed any interim direction with regard to the manner in which the religious ceremonies have to be performed in the Temple at Mahakaleshwar, Ujjain. This Court has not passed any order whatsoever that, during the Bhasma Aarti, what rituals can, or what rituals cannot be, performed, and neither it is the job of this Court to interfere in such rituals. This Court has not passed any order in this regard. We are concerned in the petition about the protection of the lingam and how it can be done. For this purpose, this Court has appointed a Committee of Experts of G.S.I. as well as the A.S.I., and they have submitted their reports. They are yet to be finally considered by this Court. A notice issued by the Managing Committee on Board has been placed before us today, indicating that this Court has directed that how much water has to be offered on the lingam by the devotees or about the quantity of Panchamrit etc. This Court had issued no such direction. In fact, it appears that the Committee itself has taken various decisions and they are being implemented. The Notice Board which has been put by the Managing Committee of the Temple should be removed forthwith i.e. by today itself, and it is open to the Committee to put it on the Notice Board as per its resolutions if any. In case any wrong or misleading reporting is made by the media, in any form, at the instance of any person about the order passed by this Court, the person so responsible for such wrong reporting, misrepresentation about the order shall be liable to be dealt with in accordance with law. It is regrettable that there has been wrong reporting at somebodys instance. We caution the parties before us that they should not indulge in any such wrong reporting, in any manner whatsoever, and if it is found that any wrong reporting is made, the same shall be viewed seriously, and the person responsible for it shall be dealt with in accordance with law. List the matter for further hearing on 4th December 2017. 30. As it was noticed that misrepresentation was being made with respect to the order passed by this Court and unrest was tried to be created on the ground that this Court is interfering with the religious rituals to be performed in the temple during Pooja. Thus we have clarified that we have not interfered with the same. Aforesaid direction holds good for this order also and to be scrupulously observed by all concerned. The only objective of entertaining the writ petition on the aforesaid question was just to ensure that all the rituals which may be necessary be performed however to ensure that the Lingam does not deteriorate any further. 31. It is apparent from the report that there is a decay of the Lingam and certain damage has been noted by the Expert Committee. Negative factors have also been pointed out in extensive details. Activities regarding the daily cleaning of temple premises, gaushala, Vedic samsthan, mandir, rasoi of the temple etc. have been pointed out. The study has been done by Spectroradiometer, portable XRF studies, water analysis, ash analysis, the extent of weathering etc. Various suggestions and recommendations had been made including the remedial measures Mr. Madan Singh Chauhan, Regional Director, ASI, Central Region, Bhopal report is contained in the first chapter. The second chapter contains the report submitted by Dr. V.K. Saxena, Director (Science), ASI, Science Branch, Dehradun. The third chapter deals with the Geo-scientific study of the Shivalinga made by Mr. Hemraj Suryavanshi, Deputy Director General and Mr. L. Vishvakarma, Director, Geological Survey of India, Bhopal. 32. It has been noticed in the report of the experts of the ASI and GSI that deterioration of Lingam has taken place during the last 40 to 50 years as depicted in photos 1 to 4 and 5 to 8 annexures with the report. It is further observed that the deterioration is continuous in nature and can be managed with remedial measures. 33. It has been pointed out that the water analysis of the temple premises used in the Jalabhishekam is highly alkaline in nature and pH value ranges from 8.4 to 8.7. Various other causes have been delineated in the report of the experts. In all 24 causes have been given. Milk particularly contaminated one, sugar, leaves, petals and flowers, poor drainage sanitation and water spillage, use of the water should be minimum. Rubbing of jaggery/sugar powder should be restricted or minimized. Use of a lot of flowers and leaves also keeps the Jyotirlingam wet all the time and hinders natural breathing of the stone of Jyotirlingam. Use of metal buckets, pots, utensils also causes abrasions to the Lingam. If possible entry of devotees in Garbh Griha should be limited. Garbh Griha should be kept dry and clean. There should be proper air circulation in Garbh Griha. Arrangements for disposal of waste may be improved and should be made more effective. Since scientific/chemical treatment may not be acceptable, preventive conservation methods may be helpful to keep the Jyotirlingam in the best of its conservation state. Considering the historical importance of the premises, use of modern materials in the premises should be avoided so as to maintain the antiquity. There is a need to identify the sculptures and they are required to be properly documented and identified. | 1[ds]9. Mahakaleshwar Jyotirlingam has so much importance for spiritual and other gains, there is a constitutional duty to protect it as envisaged in Article 25, Article 26 read with Article 49, at the same time there is a fundamental duty Under Article 51A of the Constitution to promote harmony and the spirit of common brotherhood as provided in Article 51A and to value and preserve the rich heritage of our composite culture. It is also the duty to strive towards excellence in all spheres of individual and collective activity as provided in Article 51A (a)-(j).11. There is a pious purpose of all the religious activities, no religion breeds hatred. It is in order to bring harmony and to understand basic human values and for self-realization and to visualize the concept of equality pilgrimages by the various Sections of people of various religions. Secularism is the basic structure of the Constitution that has to be given the meaning that is developing understanding and respect towards different religions. The essence of secularism is non-discrimination of people by the State on the basis of religious differences.14. The Government spends a huge amount on Kumbh/Simhasth Melas being organized at such places. Even otherwise, when there is a large number of a gathering of persons every day and in particular during melas and other festival times, State has obligation to provide the basic amenities to the pilgrims. It is the bounden duty of the Government to make proper arrangement to provide shelter places, for maintenance of law and order and to sanction the amount without fear of violation of the concept of secularism. Right to life includes mental and intellectual growth which is laid down in Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520. In P.G. Gupta v. State of Gujarat and Ors (1995) Supp 2 SCC 182, considering the International covenant on economic, social and cultural rights, food, clothing, and shelter have been held as part of Article 2115. There is a constitutional obligation to preserve the religious practices of all religions, culture and there is also a corresponding duty to act in that direction. Similarly, such acts which are necessary for the preservation of such historical monuments/deities. State is duty bound to spend the amount so that not only the archaeological, historical and ancient monuments are preserved but sanctum sanctorum, as well as the deity otherwise no useful purpose would be served by spending so much amount on Simhastha/Kumbh Melas in case deity, is itself permitted to be deteriorated as it has happened at other places particularly nearby Omkareshwar Jyotirlingam by offerings and rubbing it etc. has deteriorated and now barricades have been erected around the lingam and nobody is permitted to touch it. Same is true with respect to other important temples of which reports have been filed. It is apparent from the reports published about Omkareshwar that the administration had banned offering of milk, ghee, water, curd and other traditional materials to save the Jyotirlingam from further erosion. It is regrettable that we have not been able to preserve and protect our Jyotirlingas of immense importance and there was a proposal to install new Lingam at Omkareshwar in place of original. In 2006, also there was a report of erosion of Mahakaleshwar Jyotirlingam at Ujjain and it was feared that Jyotirlingam owing to the two vertical carvings had enough chances of splitting into three pieces in future. On the strength of a report of known scientist referred to therein, who had observed Jyotirlinga since 1953, in his opinion, if due care was not taken we will have to cut a sorry figure in future. Mahakaleshwar is the oldest Jyotirlingam out of dwadash (twelve) Jyotirlingams in the country. The main cause of constant erosion of Lingam was water and other impure material.16. News Report dated 7.7.2014 also reflects that Mahakaleshwar temple management wanted experts to check the erosion that was caused by impure puja materials like sugar, ghee, milk, and curd etc. It was regretted that suggestion to establish kiosk of Sanchi milk in temple corridor to ensure pure milk, ghee etc. to pilgrims was gathering dust. Devotees have no option but to purchase sub-standard and adulterated materials.17. As per the report on famous Mangalnath temple situated at Ujjain itself, there special Puja and Abhishekam is performed for Mangal Grih Shanti. The report indicates that District Administration has banned offering of sugar, vermilion as rubbing thereof was causing damage to the Shivling. Use of sugar had been banned with immediate effect as it was causing highest damage and use of other materials had also to be limited. Use of sub-standard and chemical contained vermilion and turmeric powder was also proposed to be checked and it was decided that herbal articles would be made available for pooja. It is regrettable that in temple of such immense importance the deities are being destroyed due to aforesaid impure materials of Puja which are being offered. A report dated 12.5.2014 had been placed on record indicating a ban on touching idol of Muktinath Lingam inside Muktinath Temple in Mustang district of Nepal. It was also mentioned that the Government team was working on a master plan for the development of Muktinath temple. Said temple is a holy place for Buddhists and Hindus.18. There are other reports placed on record with respect to the damage being caused to other important deities in the temple like Mahalaxmi Temple at Kolhapur and Bhoramdev Shivling at Kavardha in State of Chhattisgarh. Report of erosion of Shivling at Trimbakeshwar temple in Nasik, Maharashtra. The report indicates that erosion is due to use of excessive use of water etc.30. As it was noticed that misrepresentation was being made with respect to the order passed by this Court and unrest was tried to be created on the ground that this Court is interfering with the religious rituals to be performed in the temple during Pooja. Thus we have clarified that we have not interfered with the same. Aforesaid direction holds good for this order also and to be scrupulously observed by all concerned. The only objective of entertaining the writ petition on the aforesaid question was just to ensure that all the rituals which may be necessary be performed however to ensure that the Lingam does not deteriorate any further31. It is apparent from the report that there is a decay of the Lingam and certain damage has been noted by the Expert Committee. Negative factors have also been pointed out in extensive details. Activities regarding the daily cleaning of temple premises, gaushala, Vedic samsthan, mandir, rasoi of the temple etc. have been pointed out. The study has been done by Spectroradiometer, portable XRF studies, water analysis, ash analysis, the extent of weathering etc.32. It has been noticed in the report of the experts of the ASI and GSI that deterioration of Lingam has taken place during the last 40 to 50 years as depicted in photos 1 to 4 and 5 to 8 annexures with the report. It is further observed that the deterioration is continuous in nature and can be managed with remedial measures33. It has been pointed out that the water analysis of the temple premises used in the Jalabhishekam is highly alkaline in nature and pH value ranges from 8.4 to 8.7. Various other causes have been delineated in the report of the experts. In all 24 causes have been given. Milk particularly contaminated one, sugar, leaves, petals and flowers, poor drainage sanitation and water spillage, use of the water should be minimum. Rubbing of jaggery/sugar powder should be restricted or minimized. Use of a lot of flowers and leaves also keeps the Jyotirlingam wet all the time and hinders natural breathing of the stone of Jyotirlingam. Use of metal buckets, pots, utensils also causes abrasions to the Lingam. If possible entry of devotees in Garbh Griha should be limited. Garbh Griha should be kept dry and clean. There should be proper air circulation in Garbh Griha. Arrangements for disposal of waste may be improved and should be made more effective. Since scientific/chemical treatment may not be acceptable, preventive conservation methods may be helpful to keep the Jyotirlingam in the best of its conservation state. Considering the historical importance of the premises, use of modern materials in the premises should be avoided so as to maintain the antiquity. There is a need to identify the sculptures and they are required to be properly documented and identified.43. With respect to the method of lingarchan, i.e. the method of linga pooja, the 27th chapter of Ling Mahapuranm has been placed on record. That contains a detailed method of lingarchan running into 54 strotam. Apart from that Shiv Mahapuranam, Vayveey Sanhita containing details of Shastrokt Shiv Poojan method in twentyforth chapter has been placed on record.44. It is not within the jurisdiction of this Court to dictate or to prescribe or restrain the religious practices and Pujas to be performed in temple. They are required to be performed, as rightly pointed out, in accordance with the ancient rituals and practices but, at the same time, it has to be ensured that no damage is caused to the lingam. The temple which is known as Mritunjaya Mahadev and is most ancient Jyotirlingam in one of the ancient cities of India, Ujjain. Simhast is also organised 6 years and 12 years which has international importance visited by several millions of people. The Government spends thousands of crores of rupees for development of infrastructure in Ujjain for each such occasion and lot of development has taken place. Owing to all these development work, Ujjain has come up. But at the same time very cause of all developments, the Lingam of Lord Shiva requires to be preserved, protected by way of preventive conservation methods.50. On merits, we find that the decision by the Single Bench has rightly been set aside by the Division Bench for the various reasons mentioned in the order and in particular in view of the fact that in the impugned order the Division Bench has relied on decision in Ramchandra Mangilal and Ors. v. State of M.P. (1987) MPLJ 668 which had been affirmed by this Court as SLP against it was dismissed. | 1 | 27,861 | 1,860 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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construction will be done with a due permission of the competent authorities. Expert committees comment: Agrees 15. It is further resolved that in order to implement the above resolution a minimum period from one month to one Year may be sought from the Honble Supreme Court. Expert committees comment: Agrees ORDER DATED 30.11.2017: 29. Following order was passed by this Court on 30.11.2017: We are concerned, and so express our anguish, as to the way in which the orders which have been passed so far in the matter are being misrepresented in media and otherwise. We have not passed any interim direction with regard to the manner in which the religious ceremonies have to be performed in the Temple at Mahakaleshwar, Ujjain. This Court has not passed any order whatsoever that, during the Bhasma Aarti, what rituals can, or what rituals cannot be, performed, and neither it is the job of this Court to interfere in such rituals. This Court has not passed any order in this regard. We are concerned in the petition about the protection of the lingam and how it can be done. For this purpose, this Court has appointed a Committee of Experts of G.S.I. as well as the A.S.I., and they have submitted their reports. They are yet to be finally considered by this Court. A notice issued by the Managing Committee on Board has been placed before us today, indicating that this Court has directed that how much water has to be offered on the lingam by the devotees or about the quantity of Panchamrit etc. This Court had issued no such direction. In fact, it appears that the Committee itself has taken various decisions and they are being implemented. The Notice Board which has been put by the Managing Committee of the Temple should be removed forthwith i.e. by today itself, and it is open to the Committee to put it on the Notice Board as per its resolutions if any. In case any wrong or misleading reporting is made by the media, in any form, at the instance of any person about the order passed by this Court, the person so responsible for such wrong reporting, misrepresentation about the order shall be liable to be dealt with in accordance with law. It is regrettable that there has been wrong reporting at somebodys instance. We caution the parties before us that they should not indulge in any such wrong reporting, in any manner whatsoever, and if it is found that any wrong reporting is made, the same shall be viewed seriously, and the person responsible for it shall be dealt with in accordance with law. List the matter for further hearing on 4th December 2017. 30. As it was noticed that misrepresentation was being made with respect to the order passed by this Court and unrest was tried to be created on the ground that this Court is interfering with the religious rituals to be performed in the temple during Pooja. Thus we have clarified that we have not interfered with the same. Aforesaid direction holds good for this order also and to be scrupulously observed by all concerned. The only objective of entertaining the writ petition on the aforesaid question was just to ensure that all the rituals which may be necessary be performed however to ensure that the Lingam does not deteriorate any further. 31. It is apparent from the report that there is a decay of the Lingam and certain damage has been noted by the Expert Committee. Negative factors have also been pointed out in extensive details. Activities regarding the daily cleaning of temple premises, gaushala, Vedic samsthan, mandir, rasoi of the temple etc. have been pointed out. The study has been done by Spectroradiometer, portable XRF studies, water analysis, ash analysis, the extent of weathering etc. Various suggestions and recommendations had been made including the remedial measures Mr. Madan Singh Chauhan, Regional Director, ASI, Central Region, Bhopal report is contained in the first chapter. The second chapter contains the report submitted by Dr. V.K. Saxena, Director (Science), ASI, Science Branch, Dehradun. The third chapter deals with the Geo-scientific study of the Shivalinga made by Mr. Hemraj Suryavanshi, Deputy Director General and Mr. L. Vishvakarma, Director, Geological Survey of India, Bhopal. 32. It has been noticed in the report of the experts of the ASI and GSI that deterioration of Lingam has taken place during the last 40 to 50 years as depicted in photos 1 to 4 and 5 to 8 annexures with the report. It is further observed that the deterioration is continuous in nature and can be managed with remedial measures. 33. It has been pointed out that the water analysis of the temple premises used in the Jalabhishekam is highly alkaline in nature and pH value ranges from 8.4 to 8.7. Various other causes have been delineated in the report of the experts. In all 24 causes have been given. Milk particularly contaminated one, sugar, leaves, petals and flowers, poor drainage sanitation and water spillage, use of the water should be minimum. Rubbing of jaggery/sugar powder should be restricted or minimized. Use of a lot of flowers and leaves also keeps the Jyotirlingam wet all the time and hinders natural breathing of the stone of Jyotirlingam. Use of metal buckets, pots, utensils also causes abrasions to the Lingam. If possible entry of devotees in Garbh Griha should be limited. Garbh Griha should be kept dry and clean. There should be proper air circulation in Garbh Griha. Arrangements for disposal of waste may be improved and should be made more effective. Since scientific/chemical treatment may not be acceptable, preventive conservation methods may be helpful to keep the Jyotirlingam in the best of its conservation state. Considering the historical importance of the premises, use of modern materials in the premises should be avoided so as to maintain the antiquity. There is a need to identify the sculptures and they are required to be properly documented and identified.
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at Ujjain itself, there special Puja and Abhishekam is performed for Mangal Grih Shanti. The report indicates that District Administration has banned offering of sugar, vermilion as rubbing thereof was causing damage to the Shivling. Use of sugar had been banned with immediate effect as it was causing highest damage and use of other materials had also to be limited. Use of sub-standard and chemical contained vermilion and turmeric powder was also proposed to be checked and it was decided that herbal articles would be made available for pooja. It is regrettable that in temple of such immense importance the deities are being destroyed due to aforesaid impure materials of Puja which are being offered. A report dated 12.5.2014 had been placed on record indicating a ban on touching idol of Muktinath Lingam inside Muktinath Temple in Mustang district of Nepal. It was also mentioned that the Government team was working on a master plan for the development of Muktinath temple. Said temple is a holy place for Buddhists and Hindus.18. There are other reports placed on record with respect to the damage being caused to other important deities in the temple like Mahalaxmi Temple at Kolhapur and Bhoramdev Shivling at Kavardha in State of Chhattisgarh. Report of erosion of Shivling at Trimbakeshwar temple in Nasik, Maharashtra. The report indicates that erosion is due to use of excessive use of water etc.30. As it was noticed that misrepresentation was being made with respect to the order passed by this Court and unrest was tried to be created on the ground that this Court is interfering with the religious rituals to be performed in the temple during Pooja. Thus we have clarified that we have not interfered with the same. Aforesaid direction holds good for this order also and to be scrupulously observed by all concerned. The only objective of entertaining the writ petition on the aforesaid question was just to ensure that all the rituals which may be necessary be performed however to ensure that the Lingam does not deteriorate any further31. It is apparent from the report that there is a decay of the Lingam and certain damage has been noted by the Expert Committee. Negative factors have also been pointed out in extensive details. Activities regarding the daily cleaning of temple premises, gaushala, Vedic samsthan, mandir, rasoi of the temple etc. have been pointed out. The study has been done by Spectroradiometer, portable XRF studies, water analysis, ash analysis, the extent of weathering etc.32. It has been noticed in the report of the experts of the ASI and GSI that deterioration of Lingam has taken place during the last 40 to 50 years as depicted in photos 1 to 4 and 5 to 8 annexures with the report. It is further observed that the deterioration is continuous in nature and can be managed with remedial measures33. It has been pointed out that the water analysis of the temple premises used in the Jalabhishekam is highly alkaline in nature and pH value ranges from 8.4 to 8.7. Various other causes have been delineated in the report of the experts. In all 24 causes have been given. Milk particularly contaminated one, sugar, leaves, petals and flowers, poor drainage sanitation and water spillage, use of the water should be minimum. Rubbing of jaggery/sugar powder should be restricted or minimized. Use of a lot of flowers and leaves also keeps the Jyotirlingam wet all the time and hinders natural breathing of the stone of Jyotirlingam. Use of metal buckets, pots, utensils also causes abrasions to the Lingam. If possible entry of devotees in Garbh Griha should be limited. Garbh Griha should be kept dry and clean. There should be proper air circulation in Garbh Griha. Arrangements for disposal of waste may be improved and should be made more effective. Since scientific/chemical treatment may not be acceptable, preventive conservation methods may be helpful to keep the Jyotirlingam in the best of its conservation state. Considering the historical importance of the premises, use of modern materials in the premises should be avoided so as to maintain the antiquity. There is a need to identify the sculptures and they are required to be properly documented and identified.43. With respect to the method of lingarchan, i.e. the method of linga pooja, the 27th chapter of Ling Mahapuranm has been placed on record. That contains a detailed method of lingarchan running into 54 strotam. Apart from that Shiv Mahapuranam, Vayveey Sanhita containing details of Shastrokt Shiv Poojan method in twentyforth chapter has been placed on record.44. It is not within the jurisdiction of this Court to dictate or to prescribe or restrain the religious practices and Pujas to be performed in temple. They are required to be performed, as rightly pointed out, in accordance with the ancient rituals and practices but, at the same time, it has to be ensured that no damage is caused to the lingam. The temple which is known as Mritunjaya Mahadev and is most ancient Jyotirlingam in one of the ancient cities of India, Ujjain. Simhast is also organised 6 years and 12 years which has international importance visited by several millions of people. The Government spends thousands of crores of rupees for development of infrastructure in Ujjain for each such occasion and lot of development has taken place. Owing to all these development work, Ujjain has come up. But at the same time very cause of all developments, the Lingam of Lord Shiva requires to be preserved, protected by way of preventive conservation methods.50. On merits, we find that the decision by the Single Bench has rightly been set aside by the Division Bench for the various reasons mentioned in the order and in particular in view of the fact that in the impugned order the Division Bench has relied on decision in Ramchandra Mangilal and Ors. v. State of M.P. (1987) MPLJ 668 which had been affirmed by this Court as SLP against it was dismissed.
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Arnab Manoranjan Goswami Vs. The State of Maharashtra & Ors | would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions. 62. It would be apposite to extract the observations made, albeit in a dissenting opinion, by one of us (Dhananjaya Y Chandrachud, J.) in a decision of a three judge bench in Romila Thapar vs. Union of India, (2018) 10 SCC 753 : [T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty. The decision was a dissent in the facts of the case. The view of the leading majority judgment is undoubtedly the view of the court, which binds us. However, the principle quoted above is in line with the precedents of this court. 63. More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs. Balchand, (1977) 4 SCC 308 Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is bail, not jail (These words of Justice Krishna Iyer are not isolated silos in our jurisprudence, but have been consistently followed in judgments of this Court for decades. Some of these judgments are: State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21 and Sanjay Chandra vs. CBI, (2012) 1 SCC 40.) . The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the subordinate judiciary. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as under trials. Courts must be alive to the situation as it prevails on the ground - in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice systems primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the solemn expression of the humaneness of the justice system (Arghya Sengupta and Ritvika Sharma, Saharashri and the Supremes, (The Wire, 23 June 2015) available at <https://thewire.in/economy/saharashri-and-the-supremes>). Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard. 64. We would also like to take this opportunity to place on record data sourced from the National Judicial Data Grid (NJDG) on the number of bail applications currently pending in High Courts and District Courts across India: Pendency before the High Courts Bail Applications 91,568 Criminal Matters (Writ Petitions, Case/Petitions, Appeals, Revisions and Applications) 12,66,133 Pendency before the District Courts Bail Applications 1,96,861 65. The data on the NJDG is available in the public realm. The NJDG is a valuable resource for all High Courts to monitor the pendency and disposal of cases, including criminal cases. For Chief Justices of the High Courts, the information which is available is capable of being utilized as a valuable instrument to promote access to justice, particularly in matters concerning liberty. The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency. As the data on the NJDG makes clear, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition. Every court in our country would do well to remember Lord Dennings powerful invocation in the first Hamlyn Lecture, titled Freedom under the Law (Sir Alfred Denning, Freedom under the Law, the Hamlyn Lectures, First Series, available at.): Whenever one of the judges takes seat, there is one application which by long tradition has priority over all others. The counsel has but to say, My Lord, I have an application which concerns the liberty of the subject, and forthwith the judge will put all other matters aside and hear it. ... | 1[ds]This issue must be analysed from the perspective of the position that the proceeding before the High Court, after the prayer for the grant of a writ of Habeas Corpus was given up, is for quashing the FIR being CR No. 0059 of 2018 lodged on 5 May 2018.41. The High Court has dwelt at length on the decision of this Court in Habib Jeelani (supra). The High Court observed that the powers to quash are to be exercised sparingly and that too, in rare and appropriate cases and in extreme circumstances to prevent abuse of process of law. Applying this principle, the High Court opined:45. The principle stated therein will equally apply to the exercise of this Courts power under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure while considering the applications for bail since the petitioner is already in Judicial custody. The legislature has provided specific remedy under Section 439 Cr.P.C. for applying for regular bail. Having regard to the alternate and efficacious remedy available to the petitioner under section 439 of the Code of Criminal Procedure, this Court has to exercise judicial restraint while entertaining application in the nature of seeking regular bail in a petition filed under Article 226 of the Constitution of India read with section 482 of Code of Criminal Procedure.On the basis of the above foundation, the High Court has declined to even prima facie enquire into whether the allegations contained in the FIR, read as they stand, attract the provisions of Section 306 read with Section 34 of the IPC. In its view, since the petition was being posted for hearing on 10 December 2020, it was not inclined to enquire into this aspect of the case and the appellant would be at liberty to apply for regular bail under Section 439.44. The above decision thus arose in a situation where the High Court had declined to entertain a petition for quashing an FIR under Section 482 of the CrPC. However, it nonetheless directed the investigating agency not to arrest the accused during the pendency of the investigation. This was held to be impermissible by this Court. On the other hand, this Court clarified that the High Court if it thinks fit, having regard to the parameters for quashing and the self-restraint imposed by law, has the jurisdiction to quash the investigation and may pass appropriate interim orders as thought apposite in law. Clearly therefore, the High Court in the present case has misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of that jurisdiction have been duly established and if so whether a case for the grant of interim bail has been made out. The settled principles which have been consistently reiterated since the judgment of this Court in State of Haryana vs. Bhajan Lal, 1992Supp. 1 SCC 335 (Bhajan Lal) include a situation where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. This legal position was recently reiterated in a decision by a two-judge Bench of this Court in Kamal Shivaji Pokarnekar vs. State of Maharashtra, (2019) 14 SCC 350. 45. The striking aspect of the impugned judgment of the High Court spanning over fifty-six pages is the absence of any evaluation even prima facie of the most basic issue. The High Court, in other words, failed to apply its mind to a fundamental issue which needed to be considered while dealing with a petition for quashing under Article 226 of the Constitution or Section 482 of the CrPC. The High Court, by its judgment dated 9 November 2020, has instead allowed the petition for quashing to stand over for hearing a month later, and therefore declined to allow the appellants prayer for interim bail and relegated him to the remedy under Section 439 of the CrPC. In the meantime, liberty has been the casualty. The High Court having failed to evaluate prima facie whether the allegations in the FIR, taken as they stand, bring the case within the fold of Section 306 read with Section 34 of the I PC, this Court is now called upon to perform the task.48. Madan Mohan Singh vs. State of Gujarat, (2010) 8 SCC 628 was specifically a case which arose in the context of a petition under Section 482 of the CrPC where the High Court had dismissed the petition for quashing an FIR registered for offences under Sections 306 and 294(B) of the IPC. In that case, the FIR was registered on a complaint of the spouse of the deceased who was working as a driver with the accused. The driver had been rebuked by the employer and was later found to be dead on having committed suicide. A suicide note was relied upon in the FIR, the contents of which indicated that the driver had not been given a fixed vehicle unlike other drivers besides which he had other complaints including the deduction of 15 days wages from his salary. The suicide note named the accused-appellant. In the decision of a two judge Bench of this Court, delivered by Justice V S Sirpurkar, the test laid down in Bhajan Lal (supra) was applied and the Court held:10. We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306 I PC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide.11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this.Dealing with the provisions of Section 306 of the I PC and the meaning of abetment within the meaning of Section 107, the Court observed:12. In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note.The Court noted that the suicide note expressed a state of anguish of the deceased and cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. Reversing the judgement of the High Court, the petition under Section 482 was allowed and the FIR was quashed.54. In Narayan Malhari Thorat vs. Vinayak Deorao Bhagat, (2019) 13 SCC 598 this Court, speaking through Justice U.U. Lalit, reversed the judgment of a Division Bench of the High Court which had quashed criminal proceedings in exercise of the jurisdiction under Section 482. This was a case where the FIR was registered pursuant to the information received from the appellant. The FIR stated that the son and daughter-in-law of the appellant were teachers in Zila Parishad School. The respondent used to call the daughter-in-law of the appellant on the phone and used to harass her. Moreover, despite the efforts of the son of the appellant, the respondent did not desist from doing so. This Court noted:12. We now consider the facts of the present case. There are definite allegations that the first respondent would keep on calling the wife of the victim on her mobile and keep harassing her which allegations are supported by the statements of the mother and the wife of the victim recorded during investigation. The record shows that 3-4 days prior to the suicide there was an altercation between the victim and the first respondent. In the light of these facts, coupled with the fact that the suicide note made definite allegation against first respondent, the High Court was not justified in entering into question whether the first respondent had the requisite intention to aid or instigate or abet the commission of suicide. At this juncture when the investigation was yet to be completed and charge-sheet, if any, was yet to be filed, the High Court ought not to have gone into the aspect whether there was requisite mental element or intention on part of the respondent.The above observations of the Court clearly indicated that there was a specific allegation in the FIR bearing on the imputation that the respondent had actively facilitated the commission of suicide by continuously harassing the spouse of the victim and in failing to rectify his conduct despite the efforts of the victim.55. Now in this backdrop, it becomes necessary to advert briefly to the contents of the FIR in the present case. The FIR recites that the spouse of the informant had a company carrying on the business of architecture, interior design and engineering consultancy. According to the informant, her husband was over the previous two years having pressure as he did not receive the money of work carried out by him. The FIR recites that the deceased had called at the office of the appellant and spoken to his accountant for the payment of money. Apart from the above statements, it has been stated that the deceased left behind a suicide note stating that his money is stuck and following owners of respective companies are not paying our legitimate dues. Prima facie, on the application of the test which has been laid down by this Court in a consistent line of authority which has been noted above, it cannot be said that the appellant was guilty of having abetted the suicide within the meaning of Section 306 of the IPC. These observations, we must note, are prima facie at this stage since the High Court is still to take up the petition for quashing. Clearly however, the High Court in failing to notice the contents of the FIR and to make a prima facie evaluation abdicated its role, functions and jurisdiction when seized of a petition under Section 482 of the CrPC. The High Court recited the legal position that the jurisdiction to quash under Section 482 has to be exercised sparingly. These words, however, are not meaningless incantations, but have to be assessed with reference to the contents of the particular FIR before the High Court. If the High Court were to carry out a prima facie evaluation, it would have been impossible for it not to notice the disconnect between the FIR and the provisions of Section 306 of the IPC. The failure of the High Court to do so has led it to adopting a position where it left the appellant to pursue his remedies for regular bail under Section 439. The High Court was clearly in error in failing to perform a duty which is entrusted to it while evaluating a petition under Section 482 albeit at the interim stage.56. The petition before the High Court was instituted under Article 226 of the Constitution and Section 482 of the CrPC. While dealing with the petition under section 482 for quashing the FIR, the High Court has not considered whether prima facie the ingredients of the offence have been made out in the FIR. If the High Court were to have carried out this exercise, it would (as we have held in this judgment) have been apparent that the ingredients of the offence have not prima facie been established. As a consequence of its failure to perform its function under Section 482, the High Court has disabled itself from exercising its jurisdiction under Article 226 to consider the appellants application for bail. In considering such an application under Article 226, the High Court must be circumspect in exercising its powers on the basis of the facts of each case. However, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power.57. While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarized as follows:(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;(iv) The antecedents of and circumstances which are peculiar to the accused;(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and(vi) The significant interests of the public or the State and other similar considerations.58. These principles have evolved over a period of time and emanate from the following (among other) decisions: Prahlad Singh Bhati vs. NCT, Delhi, (2001) 4 SCC 280 ; Ram Govind Upadhyay vs. Sudarshan Singh, (2002) 3 SCC 598 ; State of UP vs. Amarmani Tripathi, (2005) 8 SCC 21 ; Prasanta Kumar Sarkar vs. Ashis Chatterjee, (2010) 14 SCC 496 ; Sanjay Chandra vs. CBI, (2012) 1 SCC 40 ; and P. Chidambaram vs. Central Bureau of Investigation (Criminal Appeal No. 1605 of 2019 decided on 22 October 2019).59. These principles are equally applicable to the exercise of jurisdiction under Article 226 of the Constitution when the court is called upon to secure the liberty of the accused. The High Court must exercise its power with caution and circumspection, cognizant of the fact that this jurisdiction is not a ready substitute for recourse to the remedy of bail under Section 439 of the CrPC. In the backdrop of these principles, it has become necessary to scrutinize the contents of the FIR in the case at hand. In this batch of cases, a prima facie evaluation of the FIR does not establish the ingredients of the offence of abetment of suicide under Section 306 of the IPC. The appellants are residents of India and do not pose a flight risk during the investigation or the trial. There is no apprehension of tampering of evidence or witnesses. Taking these factors into consideration, the order dated 11 November 2020 envisaged the release of the appellants on bail.61. Mr Kapil Sibal, Mr Amit Desai and Mr Chander Uday Singh are undoubtedly right in submitting that the procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. However, there was a failure of the High Court to discharge its adjudicatory function at two levels - first in declining to evaluate prima facie at the interim stage in a petition for quashing the FIR as to whether an arguable case has been made out, and secondly, in declining interim bail, as a consequence of its failure to render a prima facie opinion on the first. The High Court did have the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, this Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.62. It would be apposite to extract the observations made, albeit in a dissenting opinion, by one of us (Dhananjaya Y Chandrachud, J.) in a decision of a three judge bench in Romila Thapar vs. Union of India, (2018) 10 SCC 753 :[T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty.The decision was a dissent in the facts of the case. The view of the leading majority judgment is undoubtedly the view of the court, which binds us. However, the principle quoted above is in line with the precedents of this court.63. More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs. Balchand, (1977) 4 SCC 308 Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is bail, not jail (These words of Justice Krishna Iyer are not isolated silos in our jurisprudence, but have been consistently followed in judgments of this Court for decades. Some of these judgments are: State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21 and Sanjay Chandra vs. CBI, (2012) 1 SCC 40.) . The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the subordinate judiciary. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as under trials. Courts must be alive to the situation as it prevails on the ground - in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice systems primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the solemn expression of the humaneness of the justice system (Arghya Sengupta and Ritvika Sharma, Saharashri and the Supremes, (The Wire, 23 June 2015) available at <https://thewire.in/economy/saharashri-and-the-supremes>). Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.64. We would also like to take this opportunity to place on record data sourced from the National Judicial Data Grid (NJDG) on the number of bail applications currently pending in High Courts and District Courts across India:Pendency before the High CourtsBail Applications 91,568Criminal Matters (Writ Petitions, Case/Petitions, Appeals, Revisions and Applications) 12,66,133Pendency before the District CourtsBail Applications 1,96,86165. The data on the NJDG is available in the public realm. The NJDG is a valuable resource for all High Courts to monitor the pendency and disposal of cases, including criminal cases. For Chief Justices of the High Courts, the information which is available is capable of being utilized as a valuable instrument to promote access to justice, particularly in matters concerning liberty. The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency. As the data on the NJDG makes clear, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition. Every court in our country would do well to remember Lord Dennings powerful invocation in the first Hamlyn Lecture, titled Freedom under the Law (Sir Alfred Denning, Freedom under the Law, the Hamlyn Lectures, First Series, available at.):Whenever one of the judges takes seat, there is one application which by long tradition has priority over all others. The counsel has but to say, My Lord, I have an application which concerns the liberty of the subject, and forthwith the judge will put all other matters aside and hear it. ... | 1 | 17,798 | 4,115 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions. 62. It would be apposite to extract the observations made, albeit in a dissenting opinion, by one of us (Dhananjaya Y Chandrachud, J.) in a decision of a three judge bench in Romila Thapar vs. Union of India, (2018) 10 SCC 753 : [T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty. The decision was a dissent in the facts of the case. The view of the leading majority judgment is undoubtedly the view of the court, which binds us. However, the principle quoted above is in line with the precedents of this court. 63. More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs. Balchand, (1977) 4 SCC 308 Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is bail, not jail (These words of Justice Krishna Iyer are not isolated silos in our jurisprudence, but have been consistently followed in judgments of this Court for decades. Some of these judgments are: State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21 and Sanjay Chandra vs. CBI, (2012) 1 SCC 40.) . The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the subordinate judiciary. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as under trials. Courts must be alive to the situation as it prevails on the ground - in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice systems primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the solemn expression of the humaneness of the justice system (Arghya Sengupta and Ritvika Sharma, Saharashri and the Supremes, (The Wire, 23 June 2015) available at <https://thewire.in/economy/saharashri-and-the-supremes>). Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard. 64. We would also like to take this opportunity to place on record data sourced from the National Judicial Data Grid (NJDG) on the number of bail applications currently pending in High Courts and District Courts across India: Pendency before the High Courts Bail Applications 91,568 Criminal Matters (Writ Petitions, Case/Petitions, Appeals, Revisions and Applications) 12,66,133 Pendency before the District Courts Bail Applications 1,96,861 65. The data on the NJDG is available in the public realm. The NJDG is a valuable resource for all High Courts to monitor the pendency and disposal of cases, including criminal cases. For Chief Justices of the High Courts, the information which is available is capable of being utilized as a valuable instrument to promote access to justice, particularly in matters concerning liberty. The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency. As the data on the NJDG makes clear, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition. Every court in our country would do well to remember Lord Dennings powerful invocation in the first Hamlyn Lecture, titled Freedom under the Law (Sir Alfred Denning, Freedom under the Law, the Hamlyn Lectures, First Series, available at.): Whenever one of the judges takes seat, there is one application which by long tradition has priority over all others. The counsel has but to say, My Lord, I have an application which concerns the liberty of the subject, and forthwith the judge will put all other matters aside and hear it. ...
### Response:
1
### Explanation:
the High Court has failed to do so, this Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.62. It would be apposite to extract the observations made, albeit in a dissenting opinion, by one of us (Dhananjaya Y Chandrachud, J.) in a decision of a three judge bench in Romila Thapar vs. Union of India, (2018) 10 SCC 753 :[T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty.The decision was a dissent in the facts of the case. The view of the leading majority judgment is undoubtedly the view of the court, which binds us. However, the principle quoted above is in line with the precedents of this court.63. More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs. Balchand, (1977) 4 SCC 308 Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is bail, not jail (These words of Justice Krishna Iyer are not isolated silos in our jurisprudence, but have been consistently followed in judgments of this Court for decades. Some of these judgments are: State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21 and Sanjay Chandra vs. CBI, (2012) 1 SCC 40.) . The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the subordinate judiciary. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as under trials. Courts must be alive to the situation as it prevails on the ground - in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice systems primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the solemn expression of the humaneness of the justice system (Arghya Sengupta and Ritvika Sharma, Saharashri and the Supremes, (The Wire, 23 June 2015) available at <https://thewire.in/economy/saharashri-and-the-supremes>). Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.64. We would also like to take this opportunity to place on record data sourced from the National Judicial Data Grid (NJDG) on the number of bail applications currently pending in High Courts and District Courts across India:Pendency before the High CourtsBail Applications 91,568Criminal Matters (Writ Petitions, Case/Petitions, Appeals, Revisions and Applications) 12,66,133Pendency before the District CourtsBail Applications 1,96,86165. The data on the NJDG is available in the public realm. The NJDG is a valuable resource for all High Courts to monitor the pendency and disposal of cases, including criminal cases. For Chief Justices of the High Courts, the information which is available is capable of being utilized as a valuable instrument to promote access to justice, particularly in matters concerning liberty. The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency. As the data on the NJDG makes clear, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition. Every court in our country would do well to remember Lord Dennings powerful invocation in the first Hamlyn Lecture, titled Freedom under the Law (Sir Alfred Denning, Freedom under the Law, the Hamlyn Lectures, First Series, available at.):Whenever one of the judges takes seat, there is one application which by long tradition has priority over all others. The counsel has but to say, My Lord, I have an application which concerns the liberty of the subject, and forthwith the judge will put all other matters aside and hear it. ...
|
BELI RAM Vs. RAJINDER KUMAR & ANR. | (30) days, it was held, the driver neither had an effective driving licence nor can he said to be duly licenced. The conclusion, thus, was that the driver, who permits his licence to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the licence is renewed retrospectively. 21. The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, if two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the statute. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under: 18. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section- 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim. 22. We have reproduced the aforesaid observations as it is our view that it sets forth lucidly the correct legal position and we are in complete agreement with the views taken in all the three judgments of three different High Courts with the culmination being the elucidation of the correct legal principle in the judgment in the Hem Raj (supra) case. 23. When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years. The only thing we note is that fortunately there has been no accident with a third party claimant but the person who has caused the sufferance and sufferer are one and the same person, i.e., the first respondent driver. We are, however, dealing with the determination under the Compensation Act and those provisions are for the benefit of the workmen like the first respondent, even though he may be at fault, by determining a small amount payable to provide succor at the relevant stage when the larger issues could be debated in other proceedings. The only exception is in the provisos to Section 3 of the Compensation Act, which is not the factual situation in the present case. The relevant provision reads as under: 3. Employer s liability for compensation.- (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable-- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding [four] days; (b) in respect of any [injury, not resulting in death, caused by] an accident which is directly attributable to-- (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen. We are not aware whether any other proceedings have been initiated or not, at least, none that have been brought to our notice. The aforesaid findings of the initial lack of care by the first respondent in not renewing the driving licence would be present, but the lack of care of the appellant as the employer would also arise. We have penned down the aforesaid views as such a situation is quite likely to arise in proceedings under the MV Act where a third party is claiming the amount. Proceedings here being under the Compensation Act, the consequences are not flowing to the first respondent as the initial negligent person. | 0[ds]9. We have heard learned counsel for the parties and on a query being raised, whether there is a view taken on the question as to what would be the consequence of a valid driving licence having expired both the learned counsel for the appellant and learned counsel for respondent No.2 insurance company stated that there was no direct view on this point. We even posed a question qua any judicial view of the High Courts in this behalf, but the answer to the same was also in the negative. We reserved the orders because we wanted to satisfy ourselves over this aspect.12. We may next advert to the judgment in the Nirmala Kothari (supra) case. The judgment was sought to be canvassed in support of the proposition by learned counsel for the appellant and we reproduce the relevant paragraphs in addition to the one reproduced above, as under:10. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer.11. The view taken by the National Commission that the law as settled in the PEPSU case is not applicable in the present matter as it related to third-party claim is erroneous. It has been categorically held in the case of National Insurance Co. Ltd. vs. Swaran Singh & Ors. (SCC p.341, para 110) that,110. (iii)…Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced driver or one who was not disqualified to drive at the relevant time.13. The submission, thus, was that the appellant as insured had taken adequate care by verifying the licence of the driver/first respondent at the time of employment and the liability could have been mulled on the appellant only if he was aware or had notice that the licence was fake or invalid and still permitted the person to drive. This was stated not to be the factual position in the present case as the issuance of the licence has not been doubted, but rather that it was not subsequently renewed which was pleaded to be the responsibility of the first respondent.14. We did point out at that stage itself by raising a query as to how this judgment would help in the case of the appellant since it was not a case of a fake or invalid licence.15. We are of the view that once the basic care of verifying the driving licence has to be taken by the employer, though a detailed enquiry may not be necessary, the owner of the vehicle would know the validity of the driving licence as is set out in the licence itself. It cannot be said that thereafter he can wash his hands off the responsibility of not checking up whether the driver has renewed the licence. It is not a case where a licence has not been renewed for a short period of time, say a month, as was considered in the case of Swaran Singh (supra) where the benefit was given to a third party by burdening the insurance company. The licence in the instant case, has not been renewed for a period of three years and that too in respect of commercial vehicle like a truck. The appellant showed gross negligence in verifying the same.16. We are conscious of the fact that in the present case the beneficiary is the driver himself who was negligent but then we are not dealing with a claim under the MV Act but under the Compensation Act, which provides for immediate succor, not really based on a fault theory with a limited compensation as specified being paid. We are, thus, in the present proceedings not required to decide the share of the burdenbetween the appellant as the owner and the first respondent as the driver as may happen in a proceeding under the MV Act.18. The Delhi High Court in Tata AIG General Insurance Co. Ltd. v. Akansha & Ors. 2015 SCC OnLine 6758 : (2015) 2 TAC 52 found that the driving licence having expired led to the natural finding that there was no valid driving licence on the date of the accident. The initial onus was discharged by the insurance company in view of the licence not being valid on the date of the accident. The onus, thereafter, shifted to the owner/insured to prove that he had taken sufficient steps to ensure that there was no breach of the terms and conditions of the insurance policy. Since no evidence had been led in this behalf, a presumption was drawn that there was willful and conscious breach of the terms and conditions of the insurance policy.19. The Allahabad High Court in The Oriental Insurance Co. Ltd. v. Manoj Kumar & Ors. (2015) 111 ALR 275 (authored by Krishna Murari, J., as he then was) again dealt with the case of an expired driving licence. The endeavour to rely on the principle set forth in a fake licence case was held not applicable in the case of an expired licence since the owner was supposed to be aware that the driving licence of the driver had expired and, thus, it was held that it was the duty of the owner to have ensured that the driver gets the licence renewed within time. In the absence of a valid driving licence, the vehicle was being driven in breach of the condition of the policy, requiring the vehicle to be driven by a person who is duly licensed, and thus, there was breach of Section 149(2) (a)(ii) of the MV Act, the consequence being that the insurance company could not he held liable.20. The last judgment is of the Himachal Pradesh High Court in National Insurance Co. Ltd. v. Hem Raj & Ors. 2012 ACJ 1891 (authored by Deepak Gupta, J., as he then was) This was, once again, a case of an originally valid licence, which had expired, there was no question of a fake licence. It was opined that the conclusions to be drawn from the observations of the judgment in the Swaran Singh (supra) case of this Court, were that the insurance company can defend an action on theground that the driver was not duly licensed on the date of the accident, i.e., an expired licence having not been renewed within thirty (30) days of the expiry of the licence as provided in Sections 14 & 15 of the MV Act. In this context it was observed that the Swaran Singh. (supra) case did not deal with the consequences if the licence is not renewed within the period of thirty (30) days. If the driving licence is not renewed within thirty (30) days, it was held, the driver neither had an effective driving licence nor can he said to be duly licenced. The conclusion, thus, was that the driver, who permits his licence to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the licence is renewed retrospectively.21. The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, if two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the statute. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under:18. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section- 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim.22. We have reproduced the aforesaid observations as it is our view that it sets forth lucidly the correct legal position and we are in complete agreement with the views taken in all the three judgments of three different High Courts with the culmination being the elucidation of the correct legal principle in the judgment in the Hem Raj (supra) case.23. When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years. The only thing we note is that fortunately there has been no accident with a third party claimant but the person who has caused the sufferance and sufferer are one and the same person, i.e., the first respondent driver. We are, however, dealing with the determination under the Compensation Act and those provisions are for the benefit of the workmen like the first respondent, even though he may be at fault, by determining a small amount payable to provide succor at the relevant stage when the larger issues could be debated in other proceedings.The only exception is in the provisos to Section 3 of the Compensation Act, which is not the factual situation in the present case.We are not aware whether any other proceedings have been initiated or not, at least, none that have been brought to our notice. The aforesaid findings of the initial lack of care by the first respondent in not renewing the driving licence would be present, but the lack of care of the appellant as the employer would also arise. We have penned down the aforesaid views as such a situation is quite likely to arise in proceedings under the MV Act where a third party is claiming the amount. Proceedings here being under the Compensation Act, the consequences are not flowing to the first respondent as the initial negligent person. | 0 | 4,622 | 2,219 | ### Instruction:
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(30) days, it was held, the driver neither had an effective driving licence nor can he said to be duly licenced. The conclusion, thus, was that the driver, who permits his licence to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the licence is renewed retrospectively. 21. The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, if two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the statute. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under: 18. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section- 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim. 22. We have reproduced the aforesaid observations as it is our view that it sets forth lucidly the correct legal position and we are in complete agreement with the views taken in all the three judgments of three different High Courts with the culmination being the elucidation of the correct legal principle in the judgment in the Hem Raj (supra) case. 23. When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years. The only thing we note is that fortunately there has been no accident with a third party claimant but the person who has caused the sufferance and sufferer are one and the same person, i.e., the first respondent driver. We are, however, dealing with the determination under the Compensation Act and those provisions are for the benefit of the workmen like the first respondent, even though he may be at fault, by determining a small amount payable to provide succor at the relevant stage when the larger issues could be debated in other proceedings. The only exception is in the provisos to Section 3 of the Compensation Act, which is not the factual situation in the present case. The relevant provision reads as under: 3. Employer s liability for compensation.- (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable-- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding [four] days; (b) in respect of any [injury, not resulting in death, caused by] an accident which is directly attributable to-- (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen. We are not aware whether any other proceedings have been initiated or not, at least, none that have been brought to our notice. The aforesaid findings of the initial lack of care by the first respondent in not renewing the driving licence would be present, but the lack of care of the appellant as the employer would also arise. We have penned down the aforesaid views as such a situation is quite likely to arise in proceedings under the MV Act where a third party is claiming the amount. Proceedings here being under the Compensation Act, the consequences are not flowing to the first respondent as the initial negligent person.
### Response:
0
### Explanation:
MV Act, the consequence being that the insurance company could not he held liable.20. The last judgment is of the Himachal Pradesh High Court in National Insurance Co. Ltd. v. Hem Raj & Ors. 2012 ACJ 1891 (authored by Deepak Gupta, J., as he then was) This was, once again, a case of an originally valid licence, which had expired, there was no question of a fake licence. It was opined that the conclusions to be drawn from the observations of the judgment in the Swaran Singh (supra) case of this Court, were that the insurance company can defend an action on theground that the driver was not duly licensed on the date of the accident, i.e., an expired licence having not been renewed within thirty (30) days of the expiry of the licence as provided in Sections 14 & 15 of the MV Act. In this context it was observed that the Swaran Singh. (supra) case did not deal with the consequences if the licence is not renewed within the period of thirty (30) days. If the driving licence is not renewed within thirty (30) days, it was held, the driver neither had an effective driving licence nor can he said to be duly licenced. The conclusion, thus, was that the driver, who permits his licence to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the licence is renewed retrospectively.21. The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, if two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the statute. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under:18. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section- 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim.22. We have reproduced the aforesaid observations as it is our view that it sets forth lucidly the correct legal position and we are in complete agreement with the views taken in all the three judgments of three different High Courts with the culmination being the elucidation of the correct legal principle in the judgment in the Hem Raj (supra) case.23. When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years. The only thing we note is that fortunately there has been no accident with a third party claimant but the person who has caused the sufferance and sufferer are one and the same person, i.e., the first respondent driver. We are, however, dealing with the determination under the Compensation Act and those provisions are for the benefit of the workmen like the first respondent, even though he may be at fault, by determining a small amount payable to provide succor at the relevant stage when the larger issues could be debated in other proceedings.The only exception is in the provisos to Section 3 of the Compensation Act, which is not the factual situation in the present case.We are not aware whether any other proceedings have been initiated or not, at least, none that have been brought to our notice. The aforesaid findings of the initial lack of care by the first respondent in not renewing the driving licence would be present, but the lack of care of the appellant as the employer would also arise. We have penned down the aforesaid views as such a situation is quite likely to arise in proceedings under the MV Act where a third party is claiming the amount. Proceedings here being under the Compensation Act, the consequences are not flowing to the first respondent as the initial negligent person.
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Ram Sarup Vs. State of Haryana and Others | unless he possesses the educational and other qualifications mentioned in that clause. The minimum educational and other qualifications required by a candidate in order to be eligible to be appointed by as Labour-cum-Conciliation Officer are that, in the first instance, he must be a graduate of a recognised university preferably in one of the special sciences such as Economics, Commerce, Sociology or Law; secondly, he must have a five years experience of the working of Labour laws as Labour Inspector, Deputy Chief Inspector of Shops or Wage Inspector and lastly, he must hold a diploma in social welfare of a recognised university or institution. The appellant was undoubtedly a graduate of a recognised university in Economics and he also held diploma in social welfare of a recognised university but admittedly he did not have five years experience in the field of Labour Laws as Labour Inspector of Deputy Chief Inspector of Shops or Wage Inspector. He was a Statistical Officer for about six years and thereafter for a period of about ten months he held the post of Chief Inspector of Shops. His experience of the working of Labour laws as Chief Inspector of Shops which is a post higher than the Deputy Chief Inspector of Shops was, therefore, limited only to a period of about months and he did not satisfy the requirement of five years experience. He was, in the circumstances, ineligible to be appointed as Labour-cum-Conciliation Officer under Rule 4 cl. (1). But the argument was that by reason of cl. (2) of Rule 4 the minimum educational and other qualification set out in sub-cl. (1) were applicable only to a candidate who was appointed by promotion and these qualifications could not possibly apply in case of direct recruitment or transfer. Now it is true that cl. (2) of Rule (4) deals with a case of recruitment by promotion and it requires in so many terms that the candidate who is to be promoted must possess the minimum qualifications prescribed for the higher post to which promotion is to be made and the proviso permits the Government to relax these qualifications in case of an official who is of outstanding merit. But we fail to somehow this clause which deals with the specific case of recruitment by promotion can possibly be read as cutting into the requirement imposed by sub-cl. (1) that every person appointed to the service must possess educational and other qualifications set out in the clause by limiting such requirement only to cases of recruitment by promotion. Clause (2) of Rule 4 does not seek to qualify sub-cl. (1) or to restrict its ambit and operation. What it does is merely to deal with specific cases of recruitment by promotion and to confer power on the Government to relax the requirement of qualifications in case of promotion, where the official to be promoted is of outstanding merit. Clause (1) of Rule (4) is absolute in its terms and does not permit appointment of any person as Labour-cum-Conciliation Officer unless possesses the educational and other qualifications set out in that clause, regardless whether the appointment is to be made by promotion or by direct recruitment or by transfer. The appellant could not, therefore, be legitimately appointed to the post of Labour-cum-Conciliation Officer unless, amongst other things, he possessed five years experience in the working of Labour laws as Labour Inspector, Deputy Chief Inspector for Shops or Wage Inspector, which he admittedly did not. It is no doubt true that the Government at one time decided that the post of Statistical Officer and Labour-cum-Conciliation Officer should be made interchangeable but this decision was not implemented by carrying out the necessary amendments in the Punjab Labour Service (Class I & II) Rules, 1955. The result was that the decision of the Government remained what we may call brutum fulman and it could not operate in derogation of the requirement of the statutory rules made in exercise of the power conferred under the proviso to Art. 309 of the Constitution. The appointment of the appellant to the post of Labour-cum-Conciliation Officer was, therefore, clearly in breach of Rule 4, cl. (1) of the Rules.3. The question then arises as to what was the effect of breach of cl. (1) of Rule 4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since, he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of labour laws in any one of the three capacities mentioned in cl. (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised. The appellant worked as Labour-cum-Conciliation Officer from 1st January, 1968 and that being a post higher than that of Labour Inspector of Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the working of Labour Laws in the post of Labour-cum-Conciliation Officer must be regarded as sufficient to, constitute fulfillment of the requirement of five years experience provided in cl. (1) of Rule 4. The appointment of the appellant to the post of Labour-cum-Conciliation Officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as Labour-cum-Conciliation Officer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant, was, therefore, clearly illegal and it must be set aside. | 1[ds]We are of the view that the appointment of the appellant was irregular since, he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of labour laws in any one of the three capacities mentioned in cl. (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised. The appellant worked asOfficer from 1st January, 1968 and that being a post higher than that of Labour Inspector of Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the working of Labour Laws in the post ofOfficer must be regarded as sufficient to, constitute fulfillment of the requirement of five years experience provided in cl. (1) of Rule 4. The appointment of the appellant to the post ofOfficer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment asOfficer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant, was, therefore, clearly illegal and it must be set aside. | 1 | 1,475 | 259 | ### Instruction:
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unless he possesses the educational and other qualifications mentioned in that clause. The minimum educational and other qualifications required by a candidate in order to be eligible to be appointed by as Labour-cum-Conciliation Officer are that, in the first instance, he must be a graduate of a recognised university preferably in one of the special sciences such as Economics, Commerce, Sociology or Law; secondly, he must have a five years experience of the working of Labour laws as Labour Inspector, Deputy Chief Inspector of Shops or Wage Inspector and lastly, he must hold a diploma in social welfare of a recognised university or institution. The appellant was undoubtedly a graduate of a recognised university in Economics and he also held diploma in social welfare of a recognised university but admittedly he did not have five years experience in the field of Labour Laws as Labour Inspector of Deputy Chief Inspector of Shops or Wage Inspector. He was a Statistical Officer for about six years and thereafter for a period of about ten months he held the post of Chief Inspector of Shops. His experience of the working of Labour laws as Chief Inspector of Shops which is a post higher than the Deputy Chief Inspector of Shops was, therefore, limited only to a period of about months and he did not satisfy the requirement of five years experience. He was, in the circumstances, ineligible to be appointed as Labour-cum-Conciliation Officer under Rule 4 cl. (1). But the argument was that by reason of cl. (2) of Rule 4 the minimum educational and other qualification set out in sub-cl. (1) were applicable only to a candidate who was appointed by promotion and these qualifications could not possibly apply in case of direct recruitment or transfer. Now it is true that cl. (2) of Rule (4) deals with a case of recruitment by promotion and it requires in so many terms that the candidate who is to be promoted must possess the minimum qualifications prescribed for the higher post to which promotion is to be made and the proviso permits the Government to relax these qualifications in case of an official who is of outstanding merit. But we fail to somehow this clause which deals with the specific case of recruitment by promotion can possibly be read as cutting into the requirement imposed by sub-cl. (1) that every person appointed to the service must possess educational and other qualifications set out in the clause by limiting such requirement only to cases of recruitment by promotion. Clause (2) of Rule 4 does not seek to qualify sub-cl. (1) or to restrict its ambit and operation. What it does is merely to deal with specific cases of recruitment by promotion and to confer power on the Government to relax the requirement of qualifications in case of promotion, where the official to be promoted is of outstanding merit. Clause (1) of Rule (4) is absolute in its terms and does not permit appointment of any person as Labour-cum-Conciliation Officer unless possesses the educational and other qualifications set out in that clause, regardless whether the appointment is to be made by promotion or by direct recruitment or by transfer. The appellant could not, therefore, be legitimately appointed to the post of Labour-cum-Conciliation Officer unless, amongst other things, he possessed five years experience in the working of Labour laws as Labour Inspector, Deputy Chief Inspector for Shops or Wage Inspector, which he admittedly did not. It is no doubt true that the Government at one time decided that the post of Statistical Officer and Labour-cum-Conciliation Officer should be made interchangeable but this decision was not implemented by carrying out the necessary amendments in the Punjab Labour Service (Class I & II) Rules, 1955. The result was that the decision of the Government remained what we may call brutum fulman and it could not operate in derogation of the requirement of the statutory rules made in exercise of the power conferred under the proviso to Art. 309 of the Constitution. The appointment of the appellant to the post of Labour-cum-Conciliation Officer was, therefore, clearly in breach of Rule 4, cl. (1) of the Rules.3. The question then arises as to what was the effect of breach of cl. (1) of Rule 4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since, he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of labour laws in any one of the three capacities mentioned in cl. (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised. The appellant worked as Labour-cum-Conciliation Officer from 1st January, 1968 and that being a post higher than that of Labour Inspector of Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the working of Labour Laws in the post of Labour-cum-Conciliation Officer must be regarded as sufficient to, constitute fulfillment of the requirement of five years experience provided in cl. (1) of Rule 4. The appointment of the appellant to the post of Labour-cum-Conciliation Officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as Labour-cum-Conciliation Officer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant, was, therefore, clearly illegal and it must be set aside.
### Response:
1
### Explanation:
We are of the view that the appointment of the appellant was irregular since, he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of labour laws in any one of the three capacities mentioned in cl. (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised. The appellant worked asOfficer from 1st January, 1968 and that being a post higher than that of Labour Inspector of Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the working of Labour Laws in the post ofOfficer must be regarded as sufficient to, constitute fulfillment of the requirement of five years experience provided in cl. (1) of Rule 4. The appointment of the appellant to the post ofOfficer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment asOfficer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant, was, therefore, clearly illegal and it must be set aside.
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ADDITIONAL COMMISSIONER REVENUE AND OTHERS Vs. AKHALAQ HUSSAIN AND ANOTHER | linkage between the land and the persons status in social system . The strip of land on which they till and live assures them equal justice and dignity of their person by providing to them a near decent means of livelihood . Agricultural land is the foundation for a sense of security and freedom from fear. Assured possession is a lasting source for peace and prosperity. 10. Agriculture is the only source of livelihood for Scheduled Tribes, apart from collection and sale of minor forest produce to supplement their income. Land is their most important natural and valuable asset and imperishable endowment from which the tribals derive their sustenance, social status, economic and social equality, permanent place of abode and work and living. It is a security and source of economic empowerment. Therefore, the tribes too have great emotional attachment to their lands. The land on which they live and till, assures them equality of status and dignity of person and means to economic and social justice and is a potent weapon of economic empowerment in social democracy. The U.P. ZA & LR Act being a beneficial legislation, the provisions need to be interpreted in a manner so as to achieve the rationale behind the legislation. 26. Despite the alleged exchange said to have been effected in 1994, the land in village Khata No.36, Bandobast Khata Khatuni No.91 have not been mutated in the name of Mangal Singh. As per the Report of the Tehsildar dated 04.12.2000, village Khata No.36, Bandobast Khata Khatuni No.91 continue to remain in the name of respondents Akhalaq Hussain and Saqir Hussain and there is no noting in the name of Mangal Singh. 27. As per Section 166 of the Act, every transfer made in contravention of the provisions of the U.P. ZA & LR Act shall be void. Section 167 of the Act refers to the consequences which shall ensue in respect of every transfer which is void by virtue of Section 166 of the Act. Taking us through Appendix-III of U.P. ZA & LR Act, learned counsel for the respondents submitted that under Section 167 of the Act, the limitation period is six years from the date of illegal transfer. It was therefore submitted that suo motu action taken by the Assistant Collector/Pargana Magistrate vide order issued on 19.07.2000 (which is beyond the period of six years) is barred by limitation. Serial No.20 of Appendix-III to U.P. ZA & LR Act reads as under:- TABLE 28. Even at the outset, it is to be pointed out that Serial No.20 of Appendix-III relates to suit for ejectment of a sirdar or asami and is not relevant insofar as void transfers which are made in contravention of the provisions of the U.P. ZA & LR Act. If the period of limitation is to be applied for the void transfers which are made in contravention of the provisions of the Act, the very object of the U.P. ZA & LR Act would be defeated. There has to be a harmonious construction of the provisions of the Act. The instant exchange being void since its inception, the transfer being void in terms of Section 166 of the Act, the consequences enshrined in Section 167 of the Act shall automatically follow. Cognizance of the exchange deed was taken by the Pargana Magistrate and it cannot be said that the order passed on 19.07.2000 is barred by limitation. There is no merit in the contention that the order passed by the Pargana Magistrate dated 19.07.2000 is barred by limitation. 29. Learned counsel for the respondents has submitted that the respondents have availed loan from financial institutions and have been running a hotel under the name of ZARA Resort and it is their only source of livelihood. As discussed earlier, Section 157-B of the Act puts a complete bar on a bhumidhar or asami belonging to Scheduled Tribe to transfer their land by way of sale, gift, mortgage or lease or otherwise to a person not belonging to Scheduled Tribe. The exchange deed dated 16.03.1994 being in contravention to the provisions of the U.P. ZA & LR Act is void. The consequences have to follow as per Section 167 of the Act. In case, if the transfer is void under the provisions of the Act, there is no justification to consider the request of the respondents on the ground that they are running the Hotel by availing loan from the financial institutions. When the transfer has been made in contravention of the provisions of U.P. ZA & LR Act, there is no ground for considering the questions of equity. Lest, it would defeat the provisions of the Act. 30. The High Court has ignored the provisions of U.P. ZA & LR Act and held that the provisions of Sections 161 and 157-B of the Act do not apply in case of exchange of land which has been made by executing a document where the stamp duty has been paid as per Indian Stamp Act and the document duly registered. The High Court erred in saying that Section 157-B of the Act does not bar making of exchange by a person of Scheduled Tribe because he is getting a land in exchange. As discussed earlier, there is clear bar under Section 157-B of the Act for transfer of land by a Scheduled Tribe even by way of exchange as the word or otherwise indicates. When there is a clear statutory provision barring the transfer, it was not open to the High Court to substitute its view in the place of that provision. Any such interpretation would defeat the benevolent object of the provisions of the U.P. ZA & LR Act and also the constitutional scheme providing for the social and economic empowerment of the Scheduled Tribes. The order of the High Court is contrary to the express provisions of U.P. ZA & LR Act and is also against the benevolent provisions of the Act and the impugned judgment cannot be sustained. | 1[ds]11. By the exchange deed dated 16.03.1994, the respondents Akhalaq Hussain and Saqir executed a registered exchange deed with Mangal Singh (a Member of Scheduled Tribe) whereby the respondents are said to have given 4 ½ Muthi of land (one Muthi is equal to 12.5 sq.mtrs. totalling 56.25 sq. mtrs.) in village Khata No.36, Bandobast Khatuni Khata No.91 situated in village Vim Patti in District Pithoragarh in return for 12 Nali (one Nali is equal to 200 sq.mtrs. totalling 2400 sq.mtrs.) of agricultural land in Bandobast Khatauni Khata No.43 situated in village Mall Ghorpatta, Munsiari, District Pithoragarh. In this exchange deed, possession of the land consisting 3½ Muthi of land from Khata No.553 and 1 Muthi of land from Khata No.554 is said to have been handed over to Mangal Singh by the respondents. Similarly, Mangal Singh is said to have handed over possession of the land consisting of Khatauni Khata Bandobast No.37 and 12 Nali out of Panchshala Khatauni No.43, the area of which admeasures 12 Nali12. Mangal Singh is a member of Scheduled Tribe and this factum has not been disclosed in the exchange deed. As per Section 157-B of the Act, a bhumidhar or asami belonging to Scheduled Tribe cannot transfer his land to a person not belonging to Scheduled TribeSince the exchange deed has been executed in violation of the provisions of Section 157-B of the Act, the transfer is void and is liable to be set aside and the land is liable to be vested in the State Government13. As soon as the exchange came to the notice of the competent authority, cognizance was taken and the Sub- Divisional Officer/Assistant Collector invoked the provisions of Section 166 of the Act and declared the exchange deed dated 16.03.1994 void as it was executed in violation of Section 157- B and Section 161 of the Act. The Assistant Collector by order dated 19.07.2000 ordered the subject land to vest in the State as per Section 167 of the Act and directed the respondents to handover possession of the land within thirty days17. In the present case, the respondents have not produced any such document which shows that declaration required under Section 143 of the Act has been made much less registered. In the absence of such declaration, the land is deemed to be an agricultural land as per the provisions of Section 3(14) of the ActThe recitals in the exchange deed can be of no help to the respondents as the said document is a self-serving document and cannot operate as a document to prove that the land is an abadi land. Likewise, the respondents sought to place reliance upon the counter affidavit filed by the appellants where it is averred that the suit property is situated in the market area of Munsiari township. The averments in the counter affidavit filed by the State can be of no assistance to the respondents. For claiming the nature of the land as abadi land, a declaration as stipulated in Section 143 is required and the said declaration is also required to be registered. As pointed out earlier, the respondents have not produced any document which shows that the declaration as required under Section 143 of the Act has been made. In the absence of such declaration, the land cannot be said to be abadi land. Since the land is an agricultural land, the provisions of U.P. ZA & LR Act are applicable to the land in question. The language used in Section 157-B of the Act or otherwise emphasizes that the land belonging to a Scheduled Tribe cannot be transferred in any manner whatsoever. It is pertinent to note that in Section 157-A of the Act which deals with restrictions on transfer of land by members of Scheduled Castes, the language used is by way of sale, gift, mortgage or lease to a person not belonging to a Scheduled Caste . Absence of word or otherwise in Section 157-A of the Act shows that while exchange may be permissible of a land belonging to members of Scheduled Caste to a person belonging to Scheduled Caste, such an exchange is prohibited under Section 157-B of the Act – Restriction on transfer of land of a member of a Scheduled Tribe20. For the sake of arguments, even assuming that Section 161 of the Act is applicable, according to Section 161 of the Act, exchange by a bhumidhar with another bhumidhar or with any Gaon Sabha or local authority is permissible only with the prior permission of the Assistant Collector. Use of the word shall in the proviso to Section 161 of the Act clearly indicates that for a valid exchange, it is mandatory to obtain permission of the Assistant Collector. In the instant case, admittedly, no prior permission was sought from the Assistant Collector as mandated. In the absence of fulfilling of pre-requisite condition as laid down in Section 161 of the Act, the exchange has to be necessarily held to be void22. There is no merit in the contention that for exchange of land prior permission under Section 161 of the Act is not required. It is to be pointed out by a reading of the provisions of Section 161 of the Act that the Assistant Collector shall refuse permission if the difference between the rental value of the land given in exchange and of the land received in exchange calculated as hereditary rates is more than 10% of the lower rental value. In the instant case, the respondents exchanged 4½ Muthi land (56.25 sq. mtrs. of land) with Mangal Singhs 12 Nali land (2400 sq. mtrs. of land), the annual rental value for 12 Nali is Rs.2.50/- and for 4½ Muthi, it is Rs.0.05/-. The difference between the value of the two is clearly more than 10%. Even assuming that Section 161 of the Act is applicable, on this ground, the Assistant Collector was bound to refuse the permission even if the respondent had applied for it23. As per proviso to Section 161 of the Act, it is incumbent upon the Assistant Collector to calculate the rental value of the land given in exchange and of the land received in exchange and if the difference is more than 10% of the lower rental value then the Assistant Collector shall refuse the permission. Thus, the pre-requisite condition for grant of permission is the calculation of the rental value and if the difference between the rental value of land given in exchange and of land received in exchange is more than 10%, then the Assistant Collector shall refuse the permission. The pre-requisite condition of calculation of the rental value clearly suggests that the permission of the Assistant Collector is a pre-requisite condition for a valid exchange. We have referred to Section 161 of the Act only for the sake of completion. As pointed out earlier, Section 157-B of the Act prohibits even exchange of the land to a person not belonging to a Scheduled Tribe24. The respondents have not explained as to why Mangal Singh (a member of Scheduled Tribe) wanted to exchange his large extent of land i.e. 12 Nali (2400 sq. mtrs.) with a much smaller piece of land i.e. 4½ Muthi (56.25 sq. mtrs.). This aspect raises doubt about the genuineness of the exchange deed. This aspect casting doubt upon the validity of the exchange deed is further strengthened by the fact that the names of the respondents have been mutated in the land of Mangal Singh in Bandobast Khatuni Khata No.43; whereas the name of Mangal Singh has not been mutated in village Khata No.36, Bandobast Khatuni Khata No.91. These circumstances clearly indicate that the exchange deed relied upon by the respondents is not a valid exchange and has been executed in violation of the provisions of the U.P. ZA & LR Act26. Despite the alleged exchange said to have been effected in 1994, the land in village Khata No.36, Bandobast Khata Khatuni No.91 have not been mutated in the name of Mangal Singh. As per the Report of the Tehsildar dated 04.12.2000, village Khata No.36, Bandobast Khata Khatuni No.91 continue to remain in the name of respondents Akhalaq Hussain and Saqir Hussain and there is no noting in the name of Mangal Singh28. Even at the outset, it is to be pointed out that Serial No.20 of Appendix-III relates to suit for ejectment of a sirdar or asami and is not relevant insofar as void transfers which are made in contravention of the provisions of the U.P. ZA & LR Act. If the period of limitation is to be applied for the void transfers which are made in contravention of the provisions of the Act, the very object of the U.P. ZA & LR Act would be defeated. There has to be a harmonious construction of the provisions of the Act. The instant exchange being void since its inception, the transfer being void in terms of Section 166 of the Act, the consequences enshrined in Section 167 of the Act shall automatically follow. Cognizance of the exchange deed was taken by the Pargana Magistrate and it cannot be said that the order passed on 19.07.2000 is barred by limitation. There is no merit in the contention that the order passed by the Pargana Magistrate dated 19.07.2000 is barred by limitationAs discussed earlier, Section 157-B of the Act puts a complete bar on a bhumidhar or asami belonging to Scheduled Tribe to transfer their land by way of sale, gift, mortgage or lease or otherwise to a person not belonging to Scheduled Tribe. The exchange deed dated 16.03.1994 being in contravention to the provisions of the U.P. ZA & LR Act is void. The consequences have to follow as per Section 167 of the Act. In case, if the transfer is void under the provisions of the Act, there is no justification to consider the request of the respondents on the ground that they are running the Hotel by availing loan from the financial institutions. When the transfer has been made in contravention of the provisions of U.P. ZA & LR Act, there is no ground for considering the questions of equity. Lest, it would defeat the provisions of the Act30. The High Court has ignored the provisions of U.P. ZA & LR Act and held that the provisions of Sections 161 and 157-B of the Act do not apply in case of exchange of land which has been made by executing a document where the stamp duty has been paid as per Indian Stamp Act and the document duly registered. The High Court erred in saying that Section 157-B of the Act does not bar making of exchange by a person of Scheduled Tribe because he is getting a land in exchange. As discussed earlier, there is clear bar under Section 157-B of the Act for transfer of land by a Scheduled Tribe even by way of exchange as the word or otherwise indicates. When there is a clear statutory provision barring the transfer, it was not open to the High Court to substitute its view in the place of that provision. Any such interpretation would defeat the benevolent object of the provisions of the U.P. ZA & LR Act and also the constitutional scheme providing for the social and economic empowerment of the Scheduled Tribes. The order of the High Court is contrary to the express provisions of U.P. ZA & LR Act and is also against the benevolent provisions of the Act and the impugned judgment cannot be sustainedThe U.P. ZA & LR Act being a beneficial legislation, the provisions need to be interpreted in a manner so as to achieve the rationale behind the legislation. | 1 | 6,281 | 2,121 | ### Instruction:
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linkage between the land and the persons status in social system . The strip of land on which they till and live assures them equal justice and dignity of their person by providing to them a near decent means of livelihood . Agricultural land is the foundation for a sense of security and freedom from fear. Assured possession is a lasting source for peace and prosperity. 10. Agriculture is the only source of livelihood for Scheduled Tribes, apart from collection and sale of minor forest produce to supplement their income. Land is their most important natural and valuable asset and imperishable endowment from which the tribals derive their sustenance, social status, economic and social equality, permanent place of abode and work and living. It is a security and source of economic empowerment. Therefore, the tribes too have great emotional attachment to their lands. The land on which they live and till, assures them equality of status and dignity of person and means to economic and social justice and is a potent weapon of economic empowerment in social democracy. The U.P. ZA & LR Act being a beneficial legislation, the provisions need to be interpreted in a manner so as to achieve the rationale behind the legislation. 26. Despite the alleged exchange said to have been effected in 1994, the land in village Khata No.36, Bandobast Khata Khatuni No.91 have not been mutated in the name of Mangal Singh. As per the Report of the Tehsildar dated 04.12.2000, village Khata No.36, Bandobast Khata Khatuni No.91 continue to remain in the name of respondents Akhalaq Hussain and Saqir Hussain and there is no noting in the name of Mangal Singh. 27. As per Section 166 of the Act, every transfer made in contravention of the provisions of the U.P. ZA & LR Act shall be void. Section 167 of the Act refers to the consequences which shall ensue in respect of every transfer which is void by virtue of Section 166 of the Act. Taking us through Appendix-III of U.P. ZA & LR Act, learned counsel for the respondents submitted that under Section 167 of the Act, the limitation period is six years from the date of illegal transfer. It was therefore submitted that suo motu action taken by the Assistant Collector/Pargana Magistrate vide order issued on 19.07.2000 (which is beyond the period of six years) is barred by limitation. Serial No.20 of Appendix-III to U.P. ZA & LR Act reads as under:- TABLE 28. Even at the outset, it is to be pointed out that Serial No.20 of Appendix-III relates to suit for ejectment of a sirdar or asami and is not relevant insofar as void transfers which are made in contravention of the provisions of the U.P. ZA & LR Act. If the period of limitation is to be applied for the void transfers which are made in contravention of the provisions of the Act, the very object of the U.P. ZA & LR Act would be defeated. There has to be a harmonious construction of the provisions of the Act. The instant exchange being void since its inception, the transfer being void in terms of Section 166 of the Act, the consequences enshrined in Section 167 of the Act shall automatically follow. Cognizance of the exchange deed was taken by the Pargana Magistrate and it cannot be said that the order passed on 19.07.2000 is barred by limitation. There is no merit in the contention that the order passed by the Pargana Magistrate dated 19.07.2000 is barred by limitation. 29. Learned counsel for the respondents has submitted that the respondents have availed loan from financial institutions and have been running a hotel under the name of ZARA Resort and it is their only source of livelihood. As discussed earlier, Section 157-B of the Act puts a complete bar on a bhumidhar or asami belonging to Scheduled Tribe to transfer their land by way of sale, gift, mortgage or lease or otherwise to a person not belonging to Scheduled Tribe. The exchange deed dated 16.03.1994 being in contravention to the provisions of the U.P. ZA & LR Act is void. The consequences have to follow as per Section 167 of the Act. In case, if the transfer is void under the provisions of the Act, there is no justification to consider the request of the respondents on the ground that they are running the Hotel by availing loan from the financial institutions. When the transfer has been made in contravention of the provisions of U.P. ZA & LR Act, there is no ground for considering the questions of equity. Lest, it would defeat the provisions of the Act. 30. The High Court has ignored the provisions of U.P. ZA & LR Act and held that the provisions of Sections 161 and 157-B of the Act do not apply in case of exchange of land which has been made by executing a document where the stamp duty has been paid as per Indian Stamp Act and the document duly registered. The High Court erred in saying that Section 157-B of the Act does not bar making of exchange by a person of Scheduled Tribe because he is getting a land in exchange. As discussed earlier, there is clear bar under Section 157-B of the Act for transfer of land by a Scheduled Tribe even by way of exchange as the word or otherwise indicates. When there is a clear statutory provision barring the transfer, it was not open to the High Court to substitute its view in the place of that provision. Any such interpretation would defeat the benevolent object of the provisions of the U.P. ZA & LR Act and also the constitutional scheme providing for the social and economic empowerment of the Scheduled Tribes. The order of the High Court is contrary to the express provisions of U.P. ZA & LR Act and is also against the benevolent provisions of the Act and the impugned judgment cannot be sustained.
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it is Rs.0.05/-. The difference between the value of the two is clearly more than 10%. Even assuming that Section 161 of the Act is applicable, on this ground, the Assistant Collector was bound to refuse the permission even if the respondent had applied for it23. As per proviso to Section 161 of the Act, it is incumbent upon the Assistant Collector to calculate the rental value of the land given in exchange and of the land received in exchange and if the difference is more than 10% of the lower rental value then the Assistant Collector shall refuse the permission. Thus, the pre-requisite condition for grant of permission is the calculation of the rental value and if the difference between the rental value of land given in exchange and of land received in exchange is more than 10%, then the Assistant Collector shall refuse the permission. The pre-requisite condition of calculation of the rental value clearly suggests that the permission of the Assistant Collector is a pre-requisite condition for a valid exchange. We have referred to Section 161 of the Act only for the sake of completion. As pointed out earlier, Section 157-B of the Act prohibits even exchange of the land to a person not belonging to a Scheduled Tribe24. The respondents have not explained as to why Mangal Singh (a member of Scheduled Tribe) wanted to exchange his large extent of land i.e. 12 Nali (2400 sq. mtrs.) with a much smaller piece of land i.e. 4½ Muthi (56.25 sq. mtrs.). This aspect raises doubt about the genuineness of the exchange deed. This aspect casting doubt upon the validity of the exchange deed is further strengthened by the fact that the names of the respondents have been mutated in the land of Mangal Singh in Bandobast Khatuni Khata No.43; whereas the name of Mangal Singh has not been mutated in village Khata No.36, Bandobast Khatuni Khata No.91. These circumstances clearly indicate that the exchange deed relied upon by the respondents is not a valid exchange and has been executed in violation of the provisions of the U.P. ZA & LR Act26. Despite the alleged exchange said to have been effected in 1994, the land in village Khata No.36, Bandobast Khata Khatuni No.91 have not been mutated in the name of Mangal Singh. As per the Report of the Tehsildar dated 04.12.2000, village Khata No.36, Bandobast Khata Khatuni No.91 continue to remain in the name of respondents Akhalaq Hussain and Saqir Hussain and there is no noting in the name of Mangal Singh28. Even at the outset, it is to be pointed out that Serial No.20 of Appendix-III relates to suit for ejectment of a sirdar or asami and is not relevant insofar as void transfers which are made in contravention of the provisions of the U.P. ZA & LR Act. If the period of limitation is to be applied for the void transfers which are made in contravention of the provisions of the Act, the very object of the U.P. ZA & LR Act would be defeated. There has to be a harmonious construction of the provisions of the Act. The instant exchange being void since its inception, the transfer being void in terms of Section 166 of the Act, the consequences enshrined in Section 167 of the Act shall automatically follow. Cognizance of the exchange deed was taken by the Pargana Magistrate and it cannot be said that the order passed on 19.07.2000 is barred by limitation. There is no merit in the contention that the order passed by the Pargana Magistrate dated 19.07.2000 is barred by limitationAs discussed earlier, Section 157-B of the Act puts a complete bar on a bhumidhar or asami belonging to Scheduled Tribe to transfer their land by way of sale, gift, mortgage or lease or otherwise to a person not belonging to Scheduled Tribe. The exchange deed dated 16.03.1994 being in contravention to the provisions of the U.P. ZA & LR Act is void. The consequences have to follow as per Section 167 of the Act. In case, if the transfer is void under the provisions of the Act, there is no justification to consider the request of the respondents on the ground that they are running the Hotel by availing loan from the financial institutions. When the transfer has been made in contravention of the provisions of U.P. ZA & LR Act, there is no ground for considering the questions of equity. Lest, it would defeat the provisions of the Act30. The High Court has ignored the provisions of U.P. ZA & LR Act and held that the provisions of Sections 161 and 157-B of the Act do not apply in case of exchange of land which has been made by executing a document where the stamp duty has been paid as per Indian Stamp Act and the document duly registered. The High Court erred in saying that Section 157-B of the Act does not bar making of exchange by a person of Scheduled Tribe because he is getting a land in exchange. As discussed earlier, there is clear bar under Section 157-B of the Act for transfer of land by a Scheduled Tribe even by way of exchange as the word or otherwise indicates. When there is a clear statutory provision barring the transfer, it was not open to the High Court to substitute its view in the place of that provision. Any such interpretation would defeat the benevolent object of the provisions of the U.P. ZA & LR Act and also the constitutional scheme providing for the social and economic empowerment of the Scheduled Tribes. The order of the High Court is contrary to the express provisions of U.P. ZA & LR Act and is also against the benevolent provisions of the Act and the impugned judgment cannot be sustainedThe U.P. ZA & LR Act being a beneficial legislation, the provisions need to be interpreted in a manner so as to achieve the rationale behind the legislation.
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Union Of India Vs. Jardine Henderson And Ors. (And Vice Versa) | by the High Court and in our opinion rightly."9. Mr. S. T. Desai appearing for the company submitted that where the amount was enhanced in appeal or revision there was no express provision in the I.T. Act for service of a fresh or another notice of demand for the additional amount. But if the amount was enhanced under the power of rectification under s. 35 then sub-s. (4) thereof requires" Where any such rectification has the effect of enhancing the assessment or reducing a refund the Income-tax Officer shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable, and such notice of demand shall be deemed to be issued under section 29 and the provisions of this Act shall apply accordingly10. The effect of this sub-section, according to the counsel, has not been done away with by cl. (a) of s. 3 of the Validation Act. We reject this argument as being unsound and for two reasons. Firstly, on a correct interpretation of sub-s. (4) of s. 35 it would be noticed that though the expression used is " the sum payable " but in the context it would mean only the " extra enhanced sum payable " and not the whole of the enhanced amount. The expression " sum payable " had to be used in sub-s. (4) because that sub-section was also providing for a contingency where by the rectification order the amount of refund was reduced. In such a case, the expression " the sum payable " would obviously mean the difference between the amount refunded and the reduced amount which was liable to be refunded. The second reason is that even if it were to be held that in the case of enhancement the expression " the sum payable " in sub-s. (4) means the whole of the enhanced amount by a rule of harmonious construction it has got to be held that in view of s. 3(1)(a) of the Validation Act even in the case of a rectification a notice of demand is to be served now only in respect of the amount by which the Government dues are enhanced11. Now, coming to the case of reduction dealt with in cl. (b) of sub-s. (1) of s. 3 of the Validation Act it would be seen that sub-cl. (i) clearly provides that it is not necessary for the taxing authority to serve upon the assessee a fresh notice of demand. The only thing which he is required to do is that he has to give intimation of the fact of such deduction to the assessee and to the TRO. The purpose of giving intimation to the assessee is to bring it to his pointed knowledge that the demand against him has been reduced, although by other methods also such as by service of a copy of the appellate order or the revisional order being served on him he may be made aware of that. The intimation to the TRO is essential, as without that intimation from the taxing authority he cannot reduce the amount of the certificate debt in the proceedings already commenced. The High Court has taken the view that the provision contained in sub-cl. (ii) of cl. (b) of s. 3(1) of the Validation Act is mandatory and, in the absence of a formal intimation to the assessee and to the TRO as required by the said provision, the proceedings initially started could not be continued under sub-cl. (iii). In our opinion the view of the High Court is not sustainable in law. On the facts of this case, the assessee himself in his review application had clearly mentioned that the demand against him stood reduced in appeal. He also claimed that he had made certain payments. Although the TRO rejected his review petition, as, probably, he had no power of review, he took the precautionary measure of making inquiry from the taxing authority. Thereupon, the taxing authority gave him the information and the amount of the certificate debt was substantially reduced. We, therefore, hold that, on the facts of this case, the requirement of sub-cl. (ii) stood fulfilled and nothing further had to be done in the matter by the taxing authority. That being so, the proceedings initiated on the basis of the notice of demand served upon the assessee before the reduction of the amount in appeal could be continued in relation to the amount so reduced from the stage at which such proceedings stood immediately before such disposal as provided for in sub-cl. (iii)Clause (c) of s. 3(1) of the Validation Act is also important and it clearly and expressly provides that no proceedings in relation to the Government dues shall be invalid merely because no fresh notice of demand was served upon the assessee after the dues were enhanced or reduced in any appeal or proceeding. It is, therefore, plain that in neither of the two cases did the certificate proceeding become invalid, in one case by reduction of the demand and in the other by an enhancement. In both the cases notices under s. 7 of the Bengal Act had been served upon the certificate-debtors before the property in question was transferred by them to the company. The transfer was, therefore, void against the certificate claims in both the cases under s. 8(a) of the Bengal Act12. Mr. S. T. Desai called our attention to the decision of the Allahabad High Court in Ram Swarup Gupta v. Behari Lal Baldeo Prasad [1974] 95 ITR 339. That case is, however, clearly distinguishable as in that the property was sold in certificate proceedings started for the realisation of the original amount even after the amount had been reduced in appeal. It is obvious that that sale was illegal and invalid as rightly held by the High Court because after reduction the demand had to be reduced on intimation by the taxing authority and the property could not be sold for the original amount13. | 1[ds]Hence, the notice served under s. 7 on the certificate-debtor continued to have its effect in spite of the reduction of the amount and no fresh notice under s. 7 was necessary to be served. In agreement with the High Court we have no difficulty in rejecting thiswas, therefore, not quite accurate to say that the company had no locus standi to prefer the claim. It was open to it to show under r. 40 that at the date of the service of notice under s. 7 it had some interest in the property in dispute. If the notice served at the beginning of the two certificate cases under s. 7 on the two certificate-debtors was not a valid notice in the sense that in one case on the reduction of the amount of the certificate it became necessary to give a fresh notice and in the other without a fresh demand notice under the I.T. Act for the enhanced amount, the certificate case could not proceed, then the company had validly purchased the property and its purchase was not void. The property purchased by it could not then be sold for realization of the income-tax dues against the two brothers. If, however, no fresh notice was necessary to be served in either of the two cases then it is plain that the companys purchase was void as against the claim enforceable in execution of the certificate. The answer in both the cases has got to be given with reference to the Validation Act and no other point of any consequence was argued or could be pressed with any success in either of the twoa plain reading of cl. (a) of s. 3 it is clear that the intention of the legislature is not to allow the nullification of the proceedings which were initiated for recovery of the original demand. On the basis of another notice of demand for the enhanced amount, two courses are open to the department :(1) to initiate another proceeding for the recovery of the amount by which the dues are enhanced treating it as a separate demand, or(2) to cancel the first proceedings and start a fresh one for the recovery of the entire amount including the enhanced one. In the latter case, the first proceedings started for the recovery of the original amount will lose its force and the fresh proceeding will have to proceed de novo. But in the former the first proceedings are not affected at all. In Civil Appeal No. 1965 of 1971 this is exactly the view taken by the High Court and in our opinionreject this argument as being unsound and for two reasons. Firstly, on a correct interpretation of sub-s. (4) of s. 35 it would be noticed that though the expression used is " the sum payable " but in the context it would mean only the " extra enhanced sum payable " and not the whole of the enhanced amount. The expression " sum payable " had to be used in sub-s. (4) because that sub-section was also providing for a contingency where by the rectification order the amount of refund was reduced. In such a case, the expression " the sum payable " would obviously mean the difference between the amount refunded and the reduced amount which was liable to be refunded. The second reason is that even if it were to be held that in the case of enhancement the expression " the sum payable " in sub-s. (4) means the whole of the enhanced amount by a rule of harmonious construction it has got to be held that in view of s. 3(1)(a) of the Validation Act even in the case of a rectification a notice of demand is to be served now only in respect of the amount by which the Government dues arecoming to the case of reduction dealt with in cl. (b) of sub-s. (1) of s. 3 of the Validation Act it would be seen that sub-cl. (i) clearly provides that it is not necessary for the taxing authority to serve upon the assessee a fresh notice of demand. The only thing which he is required to do is that he has to give intimation of the fact of such deduction to the assessee and to the TRO. The purpose of giving intimation to the assessee is to bring it to his pointed knowledge that the demand against him has been reduced, although by other methods also such as by service of a copy of the appellate order or the revisional order being served on him he may be made aware of that. The intimation to the TRO is essential, as without that intimation from the taxing authority he cannot reduce the amount of the certificate debt in the proceedings already commenced. The High Court has taken the view that the provision contained in sub-cl. (ii) of cl. (b) of s. 3(1) of the Validation Act is mandatory and, in the absence of a formal intimation to the assessee and to the TRO as required by the said provision, the proceedings initially started could not be continued under sub-cl. (iii). In our opinion the view of the High Court is not sustainable in law. On the facts of this case, the assessee himself in his review application had clearly mentioned that the demand against him stood reduced in appeal. He also claimed that he had made certain payments. Although the TRO rejected his review petition, as, probably, he had no power of review, he took the precautionary measure of making inquiry from the taxing authority. Thereupon, the taxing authority gave him the information and the amount of the certificate debt was substantially reduced. We, therefore, hold that, on the facts of this case, the requirement of sub-cl. (ii) stood fulfilled and nothing further had to be done in the matter by the taxing authority. That being so, the proceedings initiated on the basis of the notice of demand served upon the assessee before the reduction of the amount in appeal could be continued in relation to the amount so reduced from the stage at which such proceedings stood immediately before such disposal as provided for in sub-cl. (iii)Clause (c) of s. 3(1) of the Validation Act is also important and it clearly and expressly provides that no proceedings in relation to the Government dues shall be invalid merely because no fresh notice of demand was served upon the assessee after the dues were enhanced or reduced in any appeal or proceeding. It is, therefore, plain that in neither of the two cases did the certificate proceeding become invalid, in one case by reduction of the demand and in the other by an enhancement. In both the cases notices under s. 7 of the Bengal Act had been served upon the certificate-debtors before the property in question was transferred by them to the company. The transfer was, therefore, void against the certificate claims in both the cases under s. 8(a) of the Bengalcase is, however, clearly distinguishable as in that the property was sold in certificate proceedings started for the realisation of the original amount even after the amount had been reduced in appeal. It is obvious that that sale was illegal and invalid as rightly held by the High Court because after reduction the demand had to be reduced on intimation by the taxing authority and the property could not be sold for the original amount | 1 | 4,141 | 1,373 | ### Instruction:
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by the High Court and in our opinion rightly."9. Mr. S. T. Desai appearing for the company submitted that where the amount was enhanced in appeal or revision there was no express provision in the I.T. Act for service of a fresh or another notice of demand for the additional amount. But if the amount was enhanced under the power of rectification under s. 35 then sub-s. (4) thereof requires" Where any such rectification has the effect of enhancing the assessment or reducing a refund the Income-tax Officer shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable, and such notice of demand shall be deemed to be issued under section 29 and the provisions of this Act shall apply accordingly10. The effect of this sub-section, according to the counsel, has not been done away with by cl. (a) of s. 3 of the Validation Act. We reject this argument as being unsound and for two reasons. Firstly, on a correct interpretation of sub-s. (4) of s. 35 it would be noticed that though the expression used is " the sum payable " but in the context it would mean only the " extra enhanced sum payable " and not the whole of the enhanced amount. The expression " sum payable " had to be used in sub-s. (4) because that sub-section was also providing for a contingency where by the rectification order the amount of refund was reduced. In such a case, the expression " the sum payable " would obviously mean the difference between the amount refunded and the reduced amount which was liable to be refunded. The second reason is that even if it were to be held that in the case of enhancement the expression " the sum payable " in sub-s. (4) means the whole of the enhanced amount by a rule of harmonious construction it has got to be held that in view of s. 3(1)(a) of the Validation Act even in the case of a rectification a notice of demand is to be served now only in respect of the amount by which the Government dues are enhanced11. Now, coming to the case of reduction dealt with in cl. (b) of sub-s. (1) of s. 3 of the Validation Act it would be seen that sub-cl. (i) clearly provides that it is not necessary for the taxing authority to serve upon the assessee a fresh notice of demand. The only thing which he is required to do is that he has to give intimation of the fact of such deduction to the assessee and to the TRO. The purpose of giving intimation to the assessee is to bring it to his pointed knowledge that the demand against him has been reduced, although by other methods also such as by service of a copy of the appellate order or the revisional order being served on him he may be made aware of that. The intimation to the TRO is essential, as without that intimation from the taxing authority he cannot reduce the amount of the certificate debt in the proceedings already commenced. The High Court has taken the view that the provision contained in sub-cl. (ii) of cl. (b) of s. 3(1) of the Validation Act is mandatory and, in the absence of a formal intimation to the assessee and to the TRO as required by the said provision, the proceedings initially started could not be continued under sub-cl. (iii). In our opinion the view of the High Court is not sustainable in law. On the facts of this case, the assessee himself in his review application had clearly mentioned that the demand against him stood reduced in appeal. He also claimed that he had made certain payments. Although the TRO rejected his review petition, as, probably, he had no power of review, he took the precautionary measure of making inquiry from the taxing authority. Thereupon, the taxing authority gave him the information and the amount of the certificate debt was substantially reduced. We, therefore, hold that, on the facts of this case, the requirement of sub-cl. (ii) stood fulfilled and nothing further had to be done in the matter by the taxing authority. That being so, the proceedings initiated on the basis of the notice of demand served upon the assessee before the reduction of the amount in appeal could be continued in relation to the amount so reduced from the stage at which such proceedings stood immediately before such disposal as provided for in sub-cl. (iii)Clause (c) of s. 3(1) of the Validation Act is also important and it clearly and expressly provides that no proceedings in relation to the Government dues shall be invalid merely because no fresh notice of demand was served upon the assessee after the dues were enhanced or reduced in any appeal or proceeding. It is, therefore, plain that in neither of the two cases did the certificate proceeding become invalid, in one case by reduction of the demand and in the other by an enhancement. In both the cases notices under s. 7 of the Bengal Act had been served upon the certificate-debtors before the property in question was transferred by them to the company. The transfer was, therefore, void against the certificate claims in both the cases under s. 8(a) of the Bengal Act12. Mr. S. T. Desai called our attention to the decision of the Allahabad High Court in Ram Swarup Gupta v. Behari Lal Baldeo Prasad [1974] 95 ITR 339. That case is, however, clearly distinguishable as in that the property was sold in certificate proceedings started for the realisation of the original amount even after the amount had been reduced in appeal. It is obvious that that sale was illegal and invalid as rightly held by the High Court because after reduction the demand had to be reduced on intimation by the taxing authority and the property could not be sold for the original amount13.
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given with reference to the Validation Act and no other point of any consequence was argued or could be pressed with any success in either of the twoa plain reading of cl. (a) of s. 3 it is clear that the intention of the legislature is not to allow the nullification of the proceedings which were initiated for recovery of the original demand. On the basis of another notice of demand for the enhanced amount, two courses are open to the department :(1) to initiate another proceeding for the recovery of the amount by which the dues are enhanced treating it as a separate demand, or(2) to cancel the first proceedings and start a fresh one for the recovery of the entire amount including the enhanced one. In the latter case, the first proceedings started for the recovery of the original amount will lose its force and the fresh proceeding will have to proceed de novo. But in the former the first proceedings are not affected at all. In Civil Appeal No. 1965 of 1971 this is exactly the view taken by the High Court and in our opinionreject this argument as being unsound and for two reasons. Firstly, on a correct interpretation of sub-s. (4) of s. 35 it would be noticed that though the expression used is " the sum payable " but in the context it would mean only the " extra enhanced sum payable " and not the whole of the enhanced amount. The expression " sum payable " had to be used in sub-s. (4) because that sub-section was also providing for a contingency where by the rectification order the amount of refund was reduced. In such a case, the expression " the sum payable " would obviously mean the difference between the amount refunded and the reduced amount which was liable to be refunded. The second reason is that even if it were to be held that in the case of enhancement the expression " the sum payable " in sub-s. (4) means the whole of the enhanced amount by a rule of harmonious construction it has got to be held that in view of s. 3(1)(a) of the Validation Act even in the case of a rectification a notice of demand is to be served now only in respect of the amount by which the Government dues arecoming to the case of reduction dealt with in cl. (b) of sub-s. (1) of s. 3 of the Validation Act it would be seen that sub-cl. (i) clearly provides that it is not necessary for the taxing authority to serve upon the assessee a fresh notice of demand. The only thing which he is required to do is that he has to give intimation of the fact of such deduction to the assessee and to the TRO. The purpose of giving intimation to the assessee is to bring it to his pointed knowledge that the demand against him has been reduced, although by other methods also such as by service of a copy of the appellate order or the revisional order being served on him he may be made aware of that. The intimation to the TRO is essential, as without that intimation from the taxing authority he cannot reduce the amount of the certificate debt in the proceedings already commenced. The High Court has taken the view that the provision contained in sub-cl. (ii) of cl. (b) of s. 3(1) of the Validation Act is mandatory and, in the absence of a formal intimation to the assessee and to the TRO as required by the said provision, the proceedings initially started could not be continued under sub-cl. (iii). In our opinion the view of the High Court is not sustainable in law. On the facts of this case, the assessee himself in his review application had clearly mentioned that the demand against him stood reduced in appeal. He also claimed that he had made certain payments. Although the TRO rejected his review petition, as, probably, he had no power of review, he took the precautionary measure of making inquiry from the taxing authority. Thereupon, the taxing authority gave him the information and the amount of the certificate debt was substantially reduced. We, therefore, hold that, on the facts of this case, the requirement of sub-cl. (ii) stood fulfilled and nothing further had to be done in the matter by the taxing authority. That being so, the proceedings initiated on the basis of the notice of demand served upon the assessee before the reduction of the amount in appeal could be continued in relation to the amount so reduced from the stage at which such proceedings stood immediately before such disposal as provided for in sub-cl. (iii)Clause (c) of s. 3(1) of the Validation Act is also important and it clearly and expressly provides that no proceedings in relation to the Government dues shall be invalid merely because no fresh notice of demand was served upon the assessee after the dues were enhanced or reduced in any appeal or proceeding. It is, therefore, plain that in neither of the two cases did the certificate proceeding become invalid, in one case by reduction of the demand and in the other by an enhancement. In both the cases notices under s. 7 of the Bengal Act had been served upon the certificate-debtors before the property in question was transferred by them to the company. The transfer was, therefore, void against the certificate claims in both the cases under s. 8(a) of the Bengalcase is, however, clearly distinguishable as in that the property was sold in certificate proceedings started for the realisation of the original amount even after the amount had been reduced in appeal. It is obvious that that sale was illegal and invalid as rightly held by the High Court because after reduction the demand had to be reduced on intimation by the taxing authority and the property could not be sold for the original amount
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Yogi Agarwal Vs. M/S Inspiration Clothes & U | company, and its two directors namely, petitioner and second respondent), affirmed by the High Court, has led to the filing of this special leave petition. For convenience, we will refer to the parties by their rank in the suit. 2. There is a delay of 182 days in filing this petition. The only reason assigned by the petitioner, a seasoned businessman, to explain the delay is that he was confused by diverse opinions about filing of special leave petition. The explanation is neither satisfactory nor sufficient to condone the delay. Even assuming that the delay is condonable, we find that the special leave petition is liable to be rejected on merits.3. The plaintiff filed the suit on 9.9.2003 for recovery of Rs.9,48,143 with interest allegedly due in regard to (i) price of two consignments supplied by plaintiff to the nominees of the first defendant company and (ii) value of nine samples made available by the plaintiff to defendants. In the said suit, defendants made an application dated 17.12.2005 under section 8 of the Act, for referring the parties to arbitration. To show the existence of arbitration agreement, the defendants relied upon three invoices of ‘Yash Traders, a proprietary concern of the second defendant (petitioner herein), dated 2.11.1999, 22.6.2001 and 11.2.2003 in regard to the sale of cotton fabric by the said Yash Traders to the plaintiff containing the following note: "All disputes pertaining to this transaction if any will be subject to the Arbitration Rules & Regulations of Bharat Merchant Chamber". The defendants alleged that the said invoices were accepted by the plaintiff thus resulting in a binding arbitration agreement.4. The trial court noted that there was no arbitration agreement in regard to the suit transactions and that the defendants wanted the three invoices (containing a provision for arbitration) relating to some other transactions to be treated as an arbitration agreement between parties in regard to the suit transactions. It examined the three invoices and held that the said invoices could not be treated as containing an arbitration agreement within the meaning of Section 7 of the Act, as the invoices were signed only by ‘Yash Traders and not by the plaintiff. The said decision has been affirmed by the High Court. 5. The petitioner has filed this special leave petition, contending that to constitute a valid arbitration agreement, a document containing the arbitration agreement need not be signed by all parties. According to the petitioner, if an invoice signed by the seller is acknowledged or accepted or acted upon by the buyer, a term in the invoice providing for arbitration will be an "arbitration agreement" as between the seller and the buyer, irrespective of whether the buyer signed the document or not. We do not propose to examine the said contention as it does not really arise for consideration in this case. 6. The fundamental lacuna in the claim of defendants for reference to arbitration is the absence of an arbitration agreement between the parties, in regard to the suit transactions. The three invoices containing a provision for arbitration relied upon by the petitioner (second defendant), do not relate to the suit transactions at all. The plaintiff, as noticed above, filed a suit for recovery of the amounts allegedly due in regard to some samples supplied by him to the defendants and certain supplies made to the nominees of the first defendant company. The three invoices relied on by the defendants, on the other hand, relate to sale of goods by the proprietary concern of second defendant to the plaintiff. The said invoices have nothing to do with the suit transactions. Such unconnected documents cannot be pressed into service to claim the existence of an arbitration agreement. 7. When a defendant invokes section 8 of the Act by alleging existence of an arbitration agreement, he should establish that such arbitration agreement related to, or is applicable to, the suit transaction/contract. The parties may enter into different contracts at different points of time or may enter into a series of unrelated transactions. It is possible that in regard to some, they may provide for arbitration and in regard to others, may not provide for arbitration. Obviously, the existence of an arbitration agreement with reference to some other transaction/contract to which plaintiff was or is a party, unconnected with the transactions or contracts to which a suit relates, cannot be considered as existence of an ‘arbitration agreement in regard to the suit transactions/contracts. When sections 7 and 8 of the Act refer to the existence of an arbitration agreement between the parties, they necessarily refer to an arbitration agreement in regard to the current dispute between the parties or the subject matter of the suit. It is fundamental that a provision for arbitration, to constitute an arbitration agreement for the purposes of sections 7 and 8 of the Act, should satisfy two conditions. Firstly, it should be between the parties to the dispute. Secondly, it should relate to or applicable to the dispute. 8. In this case, neither of the two conditions was satisfied. Firstly, the suit related to transactions said to have taken place between plaintiff and first defendant company and its two directors, whereas the documents put forth as containing the arbitration agreement related to some transactions between a proprietary concern of second defendant and plaintiff. Secondly, the provision for arbitration is not contained in any contract or document relating to the suit transactions, but contained in documents relating to some unconnected independent transactions. It is significant that, in their application under section 8 of the Act, the defendants did not even allege that there was an arbitration agreement in regard to the subject matter of the suit. What they alleged was that ‘subject matter of the suit was similar to or identical with the ‘subject matter of the arbitration agreement. That does not entitle them to seek relief under section 8 of the Act. As there was no ‘arbitration agreement, the requirements of section 7 were not met.9. | 0[ds]In this case, neither of the two conditions was satisfied. Firstly, the suit related to transactions said to have taken place between plaintiff and first defendant company and its two directors, whereas the documents put forth as containing the arbitration agreement related to some transactions between a proprietary concern of second defendant and plaintiff. Secondly, the provision for arbitration is not contained in any contract or document relating to the suit transactions, but contained in documents relating to some unconnected independent transactions. It is significant that, in their application under section 8 of the Act, the defendants did not even allege that there was an arbitration agreement in regard to the subject matter of the suit. What they alleged was that ‘subject matter of the suit was similar to or identical with the ‘subject matter of the arbitration agreement. That does not entitle them to seek relief under section 8 of the Act. As there was no ‘arbitration agreement, the requirements of section 7 were not met. | 0 | 1,167 | 189 | ### Instruction:
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company, and its two directors namely, petitioner and second respondent), affirmed by the High Court, has led to the filing of this special leave petition. For convenience, we will refer to the parties by their rank in the suit. 2. There is a delay of 182 days in filing this petition. The only reason assigned by the petitioner, a seasoned businessman, to explain the delay is that he was confused by diverse opinions about filing of special leave petition. The explanation is neither satisfactory nor sufficient to condone the delay. Even assuming that the delay is condonable, we find that the special leave petition is liable to be rejected on merits.3. The plaintiff filed the suit on 9.9.2003 for recovery of Rs.9,48,143 with interest allegedly due in regard to (i) price of two consignments supplied by plaintiff to the nominees of the first defendant company and (ii) value of nine samples made available by the plaintiff to defendants. In the said suit, defendants made an application dated 17.12.2005 under section 8 of the Act, for referring the parties to arbitration. To show the existence of arbitration agreement, the defendants relied upon three invoices of ‘Yash Traders, a proprietary concern of the second defendant (petitioner herein), dated 2.11.1999, 22.6.2001 and 11.2.2003 in regard to the sale of cotton fabric by the said Yash Traders to the plaintiff containing the following note: "All disputes pertaining to this transaction if any will be subject to the Arbitration Rules & Regulations of Bharat Merchant Chamber". The defendants alleged that the said invoices were accepted by the plaintiff thus resulting in a binding arbitration agreement.4. The trial court noted that there was no arbitration agreement in regard to the suit transactions and that the defendants wanted the three invoices (containing a provision for arbitration) relating to some other transactions to be treated as an arbitration agreement between parties in regard to the suit transactions. It examined the three invoices and held that the said invoices could not be treated as containing an arbitration agreement within the meaning of Section 7 of the Act, as the invoices were signed only by ‘Yash Traders and not by the plaintiff. The said decision has been affirmed by the High Court. 5. The petitioner has filed this special leave petition, contending that to constitute a valid arbitration agreement, a document containing the arbitration agreement need not be signed by all parties. According to the petitioner, if an invoice signed by the seller is acknowledged or accepted or acted upon by the buyer, a term in the invoice providing for arbitration will be an "arbitration agreement" as between the seller and the buyer, irrespective of whether the buyer signed the document or not. We do not propose to examine the said contention as it does not really arise for consideration in this case. 6. The fundamental lacuna in the claim of defendants for reference to arbitration is the absence of an arbitration agreement between the parties, in regard to the suit transactions. The three invoices containing a provision for arbitration relied upon by the petitioner (second defendant), do not relate to the suit transactions at all. The plaintiff, as noticed above, filed a suit for recovery of the amounts allegedly due in regard to some samples supplied by him to the defendants and certain supplies made to the nominees of the first defendant company. The three invoices relied on by the defendants, on the other hand, relate to sale of goods by the proprietary concern of second defendant to the plaintiff. The said invoices have nothing to do with the suit transactions. Such unconnected documents cannot be pressed into service to claim the existence of an arbitration agreement. 7. When a defendant invokes section 8 of the Act by alleging existence of an arbitration agreement, he should establish that such arbitration agreement related to, or is applicable to, the suit transaction/contract. The parties may enter into different contracts at different points of time or may enter into a series of unrelated transactions. It is possible that in regard to some, they may provide for arbitration and in regard to others, may not provide for arbitration. Obviously, the existence of an arbitration agreement with reference to some other transaction/contract to which plaintiff was or is a party, unconnected with the transactions or contracts to which a suit relates, cannot be considered as existence of an ‘arbitration agreement in regard to the suit transactions/contracts. When sections 7 and 8 of the Act refer to the existence of an arbitration agreement between the parties, they necessarily refer to an arbitration agreement in regard to the current dispute between the parties or the subject matter of the suit. It is fundamental that a provision for arbitration, to constitute an arbitration agreement for the purposes of sections 7 and 8 of the Act, should satisfy two conditions. Firstly, it should be between the parties to the dispute. Secondly, it should relate to or applicable to the dispute. 8. In this case, neither of the two conditions was satisfied. Firstly, the suit related to transactions said to have taken place between plaintiff and first defendant company and its two directors, whereas the documents put forth as containing the arbitration agreement related to some transactions between a proprietary concern of second defendant and plaintiff. Secondly, the provision for arbitration is not contained in any contract or document relating to the suit transactions, but contained in documents relating to some unconnected independent transactions. It is significant that, in their application under section 8 of the Act, the defendants did not even allege that there was an arbitration agreement in regard to the subject matter of the suit. What they alleged was that ‘subject matter of the suit was similar to or identical with the ‘subject matter of the arbitration agreement. That does not entitle them to seek relief under section 8 of the Act. As there was no ‘arbitration agreement, the requirements of section 7 were not met.9.
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In this case, neither of the two conditions was satisfied. Firstly, the suit related to transactions said to have taken place between plaintiff and first defendant company and its two directors, whereas the documents put forth as containing the arbitration agreement related to some transactions between a proprietary concern of second defendant and plaintiff. Secondly, the provision for arbitration is not contained in any contract or document relating to the suit transactions, but contained in documents relating to some unconnected independent transactions. It is significant that, in their application under section 8 of the Act, the defendants did not even allege that there was an arbitration agreement in regard to the subject matter of the suit. What they alleged was that ‘subject matter of the suit was similar to or identical with the ‘subject matter of the arbitration agreement. That does not entitle them to seek relief under section 8 of the Act. As there was no ‘arbitration agreement, the requirements of section 7 were not met.
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The Project Director, Project Implementation Unit Vs. P.V. Krishnamoorthy & Ors | Section 3A of the 1956 Act until the grant or non-grant of permissions by the competent authorities under the environmental and forest laws, as the case may be, including until the stated permissions attain finality. In other words, time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof. 73. In the present case, it is noticed that the NHAI being the executing agency, had soon submitted Terms of Reference to the MoEF after publication of notification under Section 2(2) of the 1956 Act dated 1.3.2018, declaring the section - C-K-S (NC) as a national highway. That was submitted on 19.4.2018 and the approval in furtherance thereof was granted by the MoEF on 8.6.2018, consequent to the recommendation made by the EAC on 7.5.2018. Indeed, the NHAI thereafter submitted amendment to the Terms of Reference on 5.7.2018 and 21.8.2018. The EAC after examining the amendment in Terms of Reference, submitted its recommendation on 30.8.2018. It is also matter of record and stated on affidavit by the EAC that no lapses have been committed by the NHAI in complying with necessary formalities. Similarly, NHAI had submitted application on 12.5.2018 to Conservator of Forests for grant of permissions under the forest laws in respect of lands forming part of the notification under Section 3A of the 1956 Act. That application was duly processed and the permission was granted by the competent authority under the forest laws on 8.6.2018. Concededly, these permissions/clearances have been issued by the concerned authorities under the environment and forest laws after notification under Section 3A and before issuance of declaration under Section 3D of the 1956 Act. In terms of this decision, therefore, the time spent for obtaining such clearances including till the pronouncement of this decision and until the stated permissions/clearances attain finality, whichever is later, as the matter had remained sub judice, need to be excluded. Even after excluding such period, if any notification under Section 3A impugned before the High Court is not saved from the deemed lapsing effect predicated in Section 3D(3), the Central Government may have to issue fresh notification(s) under Section 3A of the 1956 Act and recommence the process of acquisition, if so advised. We are not expressing any final opinion in that regard. However, such fresh notifications may be issued only in respect of land forming part of permissions/clearances given by the competent authority under the environment/forest laws, being site specific. OTHER CONTENTIONS 74. That takes us to the grievance regarding the same Consultant being continued for the changed section i.e. C-K-S (NC). Indeed, the eligibility of the Consultant was in reference to the originally conceived project concerning C-M (EC). It was found eligible to undertake the consultancy work for the said project and letter dated 29.9.2017 was also issued by NHAI. In the Committees meeting chaired by the Secretary of MoRTH on 19.1.2018, new alignment was finalised thereby deviating from the original project of C-M (EC). Instead, section - C-K-S (NC) was finalised. However, the same Consultant had been continued by execution of a contract agreement dated 22.2.2018 for the changed stretch/section. This was done as the terms and conditions were same. Indeed, it was vehemently contended before us that the authorities should have followed the procedure stipulated for appointment of Consultant for the changed project afresh. However, we find that in none of the writ petitions filed before the High Court, express declaration had been sought or for that matter, the contract agreement dated 22.2.2018 executed between NHAI and the Consultant came to be challenged. Moreover, the terms and conditions of appointment of the Consultant would have no financial ramifications, considering the fact that the consultancy charges were to be paid on per kilometre basis; and in fact due to change of alignment, the length of proposed national highway stood reduced to only around 277 kms. (instead of original stretch [C-M (EC)] of around 350 kms.) Further, no challenge is set forth regarding the qualification and eligibility of the Consultant as such. Notably, the decision to change the stretch/section from Economic Corridor to National Corridor was that of the Committee. It was not founded on the recommendation of the Consultant, as has been assumed by the writ petitioners and so propounded before the high Court. The decision of the Committee was backed by tangible reasons as recorded in the minutes and also intrinsic in it its vast experience about the efficacy of governing policies for developing seamless national highway connectivity across the country. In any case, irregularity, if any, in the appointment of the Consultant cannot be the basis to quash and set aside a well- considered decision taken by the Committee after due deliberations, much less the impugned notifications under Section 2(2) or Section 3A(1) of the 1956 Act. We therefore, hold that the High Court should have eschewed from expressing any opinion on the manner of appointment of the same Consultant for the changed section/stretch [C-K-S (NC)], as no relief challenging its appointment was sought and thus it was not the matter in issue before it; and for the same reason, we do not wish to dilate on this aspect any further. Thus understood, the dictum of this Court in decisions relied upon by the respondents/writ petitioners in K. Lubna (supra) and Shrilekha Vidyarthi (supra) will be of no avail in this case. 75. Having dealt with the merits of the controversy in extenso, it is unnecessary to dilate on the question of maintainability of the writ petitions being premature. CONCLUSION | 1[ds]Notably, no declaration was sought by the writ petitioners in reference to the provisions of the 1956 Act, the 1988 Act and in particular, Section 2 of the 1956 Act, to be ultra vires as such.Indisputably, law made by the Parliament in the present case is the 1956 Act and the 1988 Act in reference to Entry 23 of List I of the Seventh Schedule. If the stated law made by the Parliament is ascribable to Entry 23 of List I of the Seventh Schedule, the Parliament has the exclusive power to make law on that subject and for matters connected therewith. The fact that Entry 13 of List II bestows exclusive power upon the legislature of any State concerning subject roads, cannot be the basis to give restricted meaning to Entry 23 in List I, dealing with all matters concerning national highways. It is well-established position that if the law made by the Parliament is in respect of subject falling under Union List, then the incidental encroachment by the law under the State list, per se, would not render it invalid. The doctrine of pith and substance is well-established in India. The doctrine is invoked upon ascertaining the true character of the legislation. It may be useful to advert to Article 248 of the Constitution, bestowing legislative powers on the Parliament to make a law with respect to any matter not enumerated in the Concurrent List or the State List. Concededly, the expression highways as such, is not mentioned either in the State List or the Concurrent list. While making law on the subject falling under the Union List in terms of Entry 97 thereof, it is open to the Parliament to make law on any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.28. Indisputably, the entries in the legislative lists are not sources of legislative powers, but are merely topics or fields in respect of which concerned legislative body is free to make a law. The entries must receive a liberal and expansive construction, reckoning the wide spirit thereof and not in a narrow pedantic sense. Entry 23 in List I refers generally to highways declared or to be declared by the Parliament as national highways and all matters connected therewith. This empowers the Parliament to declare any stretch/section across any State as a highway for being designated as a national highway. There is no indication in the Constitution to limit the exercise of that power of the Parliament only in respect of an existing highway. Further, whenever and wherever the question of legislative competence is raised, the test is whether the law enacted, examined as a whole, is substantially with respect to the particular topic of legislation falling under the concerned list. If the law made by the Parliament or the legislature of any State has a substantial and not merely a remote connection with the Entry under which it is made, there is nothing to preclude the concerned legislature to make law on all matters concerning the topic covered under the Union List or the State List, as the case may be. Reliance has been justly placed on the dictum of the Constitution Bench of this Court in K.T. Plantation Pvt. Ltd. (supra), that the test is identicalness or diversity between dominant intention of the two legislations. Moreover, power of law-making itself would be rendered otiose if it does not provide for suitable coverage of matters that are incidental as well as intrinsically connected to the expressly granted power. Further, Chapter II of Part XI of the Constitution dealing with administrative relations between the Union and the States makes it amply clear that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which applied in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose. Article 257 expounds about the control of the Union over States in certain cases.29. Suffice it to observe that there is nothing in the Constitution which constricts the power of the Parliament to make a law for declaring any stretch/section within the State not being a road or an existing highway, to be a national highway. Whereas, the provisions in the Constitution unambiguously indicate that the legislative as well as executive power regarding all matters concerning and connected with a highway to be designated as a national highway, vests in the Parliament and the laws to be made by it in that regard. For the same reason, the complete executive power also vests within the Union.In the present case, we have to consider the sweep of the 1956 Act in light of the amended provisions, which came into force with effect from 24.1.1997. The 1956 Act extends to the whole of India and has come into force on 15.4.1957. Section 2(1) thereof is in the nature of declaration by the Parliament that each of the highways specified in the schedule appended to the 1956 Act to be a national highway. The Schedule appended in the end gives the description of such highways. Sub-Section (2) of Section 2, however, empowers the Central Government to declare any other highway to be a national highway by publishing a notification in the Official Gazette in that behalf and upon such publication, the highway shall be deemed to be specified in the stated Schedule. This provision contains a legal fiction.35. It is not necessary to dilate on the other provisions of the 1956 Act for the time being. As aforesaid, Sections 3A to 3J have been inserted by way of amendment of 1997. On close examination, the 1956 Act, as amended and applicable to the present case, is an Act to authorise Central Government to declare the notified stretches/sections in the State concerned as a highway to be a national highway; and for matters connected therewith including acquisition of any land for building or construction of a new highway (which need not be an existing road/highway). The substance of this Act is ascribable to Entry 23 of the Union List and matters connected therewith.36. Having said thus, we have no hesitation in concluding that the challenge to the notifications issued under Section 2(2) of the 1956 Act on the argument of lack of legislative competence, is devoid of merits. The High Court justly negatived the same and we uphold that conclusion.37. A fortiori, even the challenge to the stated notifications on the ground of being ultra vires the Constitution derived executive powers of the Union, must fail. That challenge is founded on the purport of Article 257, which has been reproduced above. It is urged that Article 257 pointedly refers to the sphere of executive powers of the Union. Article 257 of the Constitution, as aforesaid, deals with administrative relations between the States and the Union. In the first place, having said that the Parliament has exclusive legislative competence to make a law in respect of national highways and all matters connected therewith, which includes declaring any stretch/section within the State (not being existing roads/highways) as a national highway, it must follow that the Central Government alone has the executive powers to construct/build a new national highway in any State and to issue directions to the Government of any State for carrying out the purposes of the 1956 Act. It is incomprehensible as to how the argument of lack of executive power of the Central Government despite such a law, can be countenanced. Concededly, the validity of Section 2 of the 1956 Act, which empowers the Central Government to notify any other highway (other than the scheduled national highways) as a national highway, has not been put in issue. No declaration is sought that the said provision is ultra vires the Constitution or the law. Therefore, the argument essentially requires us to examine the question as to whether Section 2(2) of the 1956 Act enables the Central Government to declare a national highway in respect of a non- existing road(s)/highway(s) and on open green-fields land within the State. Suffice it to observe that the challenge to notifications issued by the Central Government under Section 2(2) of the 1956 Act on the ground of being ultra vires the Constitution derived executive powers, is also devoid of merits.Somewhat similar question was dealt with by the same High Court (Madras High Court) in reference to the provisions of the Tamil Nadu Highways Act, 2001 in Jayaraman (supra). However, we are called upon to examine the question under consideration in reference to the 1956 Act and the 1988 Act.We have briefly adverted to the scope of sub-Section (1), which is in the nature of declaration by the Parliament that each of the highways specified in the Schedule appended to the 1956 Act shall be a national highway. For building a new highway, as in the present case, between stretch/section C-K-S (NC) NH-179A and NH-179B respectively, the Central Government can do so in exercise of power conferred upon it under Section 2(2) of the 1956 Act. That empowers the Central Government to notify any other highway (not forming part of the Schedule appended to the Act) as a national highway and upon such publication of notification in the official gazette, the said highway is deemed to be specified in the Schedule as a national highway. This power is not constricted or circumscribed by any other inhibition, such as to declare only an existing road or highway within the State as a national highway. The requirement of a national highway within the country as a whole and State-wise, in particular, is to alleviate evolving socio-economic dynamics, for which such a wide power has been bestowed upon the Central Government. The Central Government is obliged to do so to facilitate it to discharge its obligations under Part IV of the Constitution. There is nothing in the Constitution of India or for that matter, the 1956 Act to limit that power of the Central Government only in respect of existing roads/highways within the State. To say so would be counter-productive and would entail in a piquant situation that the Central Government cannot effectively discharge its obligations under Part IV of the Constitution unto the remote inaccessible parts of the country until the concerned State Government constructs a road/highway within the State. On the other hand, if the concerned State, due to reasons beyond its control or otherwise, is unable/flounder to provision a road/highway in a given segment of the State; despite being imperative to do so to assuage the perennial difficulties faced by the locals in that belt due to lack of access, the Central Government may come forward and step in to construct a national highway and connect the area with the other parts of the country. By its very nomenclature, a national highway is to link the entire country and provide access to all in every remote corner of the country for interaction and to promote commerce and trade, employment and education including health related services. This approach would enhance and further the federal structure. This is because, the existence of a national highway in the neighbourhood paves way for the fulfilment of aspirations of the locals and their empowerment. It not only brings with it opportunity to travel across, but also propels the economy of that region and the country as a whole. It gives impetus to myriads of social, commerce and more importantly, access to other activities/facilities essential for the health, education and general well-being of the locals, in particular.41. The Central Government, whilst exercising power under Section 2(2) of the 1956 Act creates a right in the locals of the concerned area to pass and repass along a highway from one marked town or inhabited place to another inhabited place for the purpose of legitimate travel. Such highway is dedicated for the ordinary and reasonable user of the road as a national highway from one designated town (Chennai) upto another town (Salem), which will be common to all the subjects. As expounded hitherto, the Central Government is fully competent to notify any land (not necessarily an existing road/highway) for acquisition, to construct a highway to be a national highway.The original Project (Bharatmala Pariyojna - Phase I) included section – C-M (EC), as approved by the CCEA in October, 2017. It is true that the Project (Bharamala Pariyojna Phase I) was conceived after a scientific study as a comprehensive project at the macro (national) level for 24,800 kms. in Phase I, spanning over a period of 5 years (2017-18 to 2021-22) at an estimated outlay of INR 5,35,000 crores with an objective to improve the efficiency of freight and passenger movement across the country by bridging critical infrastructure gaps through effective interventions like development of Economic Corridors, Inter Corridors and Feeder Routes (ICFR), National Corridor Efficiency Improvement, Border and International connectivity roads, Coastal and Port connectivity roads and Green-field expressways. This Project, being a macro level project, does not reckon the nuanced imperatives of a particular region or area, which may only be a miniature of the whole Project traversing across around 24,800 kms. in Phase I. For that reason, the approved Project itself bestows discretion upon the MoRTH to substitute/replace up to 15% length of 24800 kms., of the Project (Phase I), by other suitable projects.43. Be that as it may, one of the reasons recorded in the minutes is that instead of opting for expansion of the existing stretch/section [C-M (EC)], a crow-flight green-field alignment be preferred and developed between Chennai and Salem via Harur under National Corridor Efficiency Improvement, so as to reduce the distance between Chennai and Salem/Coimbatore by 40 kms. and also diversify the traffic from the congested Chennai- Krishnagiri section of Golden Quadrilateral and Chennai- Ulundurpet section of the C-M (EC). At the outset, it had been noted that the traffic from Chennai bound to Salem/Coimbatore and Pallakad (Kerala) currently uses the Chennai-Krishnagiri section of the Golden Quadrilateral (Chennai-Bengaluru) and the Krishnagiri-Salem section of the North-South corridor or the Chennai-Tindivanam-Ulundurpet section of the C-M (EC) and the Ulunderpet-Salem Inter-corridor route, thereby congesting Chennai-Krishnagiri section of Golden Quadrilateral and Chennai-Tindivanam (72,000 PCU) – Ulundurpet (47,000 PCU) section of the C-M (EC). It is well settled that the findings of expert bodies in technical and scientific matters would not ordinarily be interfered with by the Courts – as observed in paragraphs 59 to 62 of Akhil Bharat Goseva Sangh (supra) - (also see – K. Vasudevan Nair & Ors. vs. Union of India & Ors. 1991 Supp (2) SCC 134 (paragraphs 19 and 20) and Systopic Laboratories (Pvt.) Ltd. vs. Dr. Prem Gupta & Ors.1994 Supp (1) SCC 160). Again, in Kushala Shetty (supra), this Court analysed the provisions of the 1956 Act (Sections 3A to 3D) and opined that it is not open to the Court to castigate the reasons weighed with the competent authority. As we are dealing with this decision, we may note with approval dictum about the functions of the NHAI, as adverted to in paragraph 28 of the reported judgment. The same reads thus: -28. Here, it will be apposite to mention that NHAI is a pro- fessionally managed statutory body having expertise in the field of development and maintenance of national highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for the development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and main- tenance of national highways after thorough study by ex-perts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the par- ticular alignment would subserve the larger public inter- est. In such matters, the scope of judicial review is very limited. The court can nullify the acquisition of land and, in the rarest of rare cases, the particular project, if it is found to be ex facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither has any violation of mandate of the 1956 Act been estab- lished nor has the charge of malice in fact been proved. Therefore, the order under challenge cannot be sustained.44. Thus understood, there is no substance in the argument that the change of stretch/section to C-K-S (National Corridor) was not based on any tangible material to sustain the stated decision of the Committee. Indeed, the necessity to enhance the existing section of Economic Corridor between Chennai-Madurai was taken note of in the principal Pariyojna. However, the Committee, as per the discretion bestowed in it in terms of the approved Pariyojna, whilst reckoning the imperatives of the region under consideration for micro level implementation, took a conscious decision to opt for C-K-S (National Corridor) being relatively more beneficial and to strengthen the National Corridor; and at the same time increase efficiency of the existing economic corridor. Such decision, obviously, partakes the colour of a policy decision of the Central Government, which is also backed by the guidelines issued on 26.2.2018 by the competent authority of the same Ministry of the Government of India, MoRTH (Planning Zone). This communication refers to the approval of the Project (Bharatmal Pariyojna Phase I) by the CCEA in October, 2017 recording obstructions/difficulties faced during upgradation of the existing road arteries.45. There is no challenge to these guidelines. Indeed, these guidelines have been issued after the decision was already taken on 19.1.2018 in respect of section - C-K-S (NC) in lieu of C-M (EC) section. However, it needs to be understood that the decision was taken by the broad-based Committee of experts, of which the Secretary of the same Ministry (MoRTH) which had issued the guidelines on 26.2.2018, was the Chairperson alongwith the other officials including the officials of NHAI. The decision regarding change is a policy decision. Moreso, keeping in mind that the change in alignment and the purpose of such a change is stated to be for strengthening the national corridor in preference to the economic corridor in the region, it is not open to disregard this opinion of the Central Government based on the recommendation of the Committee constituted by it for that singular purpose.46. This Court in Sooraram Pratap Reddy (supra) had held that it is the primary duty of the competent authority to decide whether there exists public purpose or not. The Courts may not ordinarily interfere with that unless the power is being exercised malafide or for collateral purposes or the decision is dehors the Act, irrational or otherwise unreasonable or so-called purpose is no public purpose at all and fraud of statute is manifest. Further, it is not for the Courts to sit over such decision as a Court(s) of appeal and to disregard it merely because another option would have been more beneficial. We may usefully advert to the dictum of the Constitution Bench of this Court in Somawanti (supra). In paragraph 36 (of SCCOnline), the Court observed thus: -36. Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is being acquired by the State is within the legisla- tive competence of the State the declaration of the Govern- ment will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committed to the Government by the Act is a limited power in the sense that it can be exer- cised only where there is a public purpose, leaving aside for a moment the purpose of a company. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. Subject to this exception the declaration of the Government will be final.In the present case, it is seen that the basis for taking such informed decision by the Committee is ascribable to tangible aspects referred to in the minutes of the meeting held on 19.1.2018 (as is manifest from the factual aspects recorded therein). The decision of this Court in Dwarkadas Marfatia & Sons (supra) will be of no avail, because we find that the decision of the Committee was well-informed and backed by reasons guided by public interest. We must remind ourselves of the word of caution noted by this Court in Col. A.S. Sangwan (supra) that the Courts should be loath in dealing with policy and administrative reasons. The Court observed thus: -4. …. A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the impera- tives of national considerations. We cannot, as court, give directives as to how the Defence Ministry should function except to state that the obligation not to act ar- bitrarily and to treat employees equally is binding on the Union of India because it functions under the Constitu- tion and not over it. … So, whatever policy is made should be done fairly and made known to those concerned. So, we make it clear that while the Central Government is beyond the forbiddance of the court from making or changing its pol- icy in regard to the Directorate of Military Farms or in the choice or promotion of Brigadiers, it has to act fairly as every administrative act must be done.47. Be it noted that the notifications under Section 2(2) to declare the C-K-S (NC) section as NH-179A and NH-179B, as the case may be, were issued only after due deliberation by the broad-based committee of experts, which decision we find is also in conformity with the guidelines contemporaneously issued by the concerned department on the same subject matter. Such a decision cannot be labelled as manifestly arbitrary, irrational or taken in undue haste as such. As a result, it was not open to the High Court to interfere with the change so articulated in the meeting held on 19.1.2018 or the notifications issued under Section 2(2) of the 1956 Act declaring C-K-S (NC) as a national highway (i.e. NH-179A and NH-179B). The declaration of a highway being a national highway is within the exclusive domain of the Central Government in terms of Section 2(2) of the 1956 Act. The argument of the land owners that prior approvals ought to have been obtained from the CCEA and regarding budgetary arrangement, is premised on the manuals which govern the functioning of the executing agency (NHAI). As the decision regarding change of stretch/section has been taken by the concerned department of the Central Government itself and the approved Project (Bharatmala Pariyojna - Phase I) also recognises that such change in the form of substitution/replacement of the stretch/section can be done by the Ministry upto 15% length of 24,800 kms., so long as it does not entail in incurring of additional costs, it becomes integral part of the originally approved project (for Phase I) for all purposes. In the present case, the costs for construction of C-K-S (NC) were bound to be less than the originally conceived C-M (EC), as the length of the road is reduced significantly. In other words, it would operate as minor change to the original plan with deemed approval thereof and get interpolated therein. Further, the minutes recorded on 19.1.2018 do indicate that the decision was to be placed before the CCEA in the ensuing biannual meeting, where it would be duly ratified. Suffice it to observe that the decision taken by the Committee which culminated with the issuance of notification under Section 2(2) of the 1956 Act is in complete conformity with the governing provisions and guidelines and founded on tangible and objective facts noted in the minutes dated 19.1.2018. The Central Government had full authority to adopt such a change of stretch/section, by way of substitution/replacement whilst ensuring that there is no need for higher budgetary allocation than envisaged in the already approved programme for Phase I. Thus, there is no legal basis to doubt the validity of the notification under Section 2(2) and ex consequenti Section 3A of the 1956 Act as well.48. The High Court has completely glossed over these crucial aspects and entered into the domain of sufficiency and adequacy of material including the appropriateness of the route approved by the competent authority. Such enquiry, in exercise of judicial review is forbidden. Furthermore, the High Court, despite noting that judicial interference in acquisition matters is limited, went on to interfere in the guise of extra-ordinary circumstances obtaining in this case. On a thorough perusal, the impugned judgment does not reveal any just circumstance for invoking the judicial review jurisdiction. In light of the above discussion, we hold that challenge to the decision of the Committee and ex consequenti of the Central Government, regarding change of section – C-M (EC) to C-K-S (NC) at the micro level for the implementation of the original Project as approved, ought not to have been doubted by the High Court. Notably, in the final conclusion and declaration issued by the High Court, it has justly not struck down the notifications under Section 2(2) of the 1956 Act. In other words, so long as Section 2(2) of the 1956 Act was to remain in force and the decision regarding change of stretch/section to C-K-S (NC) being the foundation for issue of notification under Section 3A, would continue to bind all concerned and in particular, the officials of NHAI being the executing agency.This argument is based on the dictum of this Court in Karnataka Industrial Areas Development Board (supra). In paragraph 100 of the said decision, a general direction came to be issued that in future, before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development that they do not gravely impair the ecology and environment. Paragraphs 100 and 101 of the reported decision are extracted hereunder: -100. The importance and awareness of environment and ecology is becoming so vital and important that we, in our judgment, want the appellant to insist on the conditions em- anating from the principle of Sustainable Development:(1) We direct that, in future, before acquisi- tion of lands for development, the conse- quence and adverse impact of development on environment must be properly compre- hended and the lands be acquired for devel- opment that they do not gravely impair the ecology and environment.(2) We also direct the appellant to incorporate the condition of allotment to obtain clearance from the Karnataka State Pollution Control Board before the land is allotted for develop- ment. The said directory condition of allotment of lands be converted into a mandatory condi- tion for all the projects to be sanctioned in fu- ture.101. This has been an interesting judicial pilgrimage for the last four decades. In our opinion, this is a significant contri- bution of the judiciary in making serious endeavour to pre- serve and protect ecology and environment, in consonance with the provisions of the Constitution.Support is also drawn from the notification/Office Memorandum issued by the MoEF dated 14.9.2006 and 7.10.2014 respectively. Our attention is also invited to exposition in M. Velu (supra), following the aforementioned decision of this Court.50. The question as to whether the competent authority under the 1956 Act is obliged to take prior permission before issuing notification under Section 3A of the Act, must be answered primarily on the basis of the scheme of the enactments under consideration. As regards power to acquire land for the purpose of building, maintenance, management and operation of a national highway or part thereof, the same has been bestowed on the Central Government in terms of Section 3A of the 1956 Act. There is nothing in the 1956 Act, which impels the Central Government to obtain prior environment clearance before exercise of that power and in issuing notification under Section 2(2), much less Section 3A expressing its intention to acquire the designated land.51. The Central Government has framed rules in exercise of power under Section 9 of the 1956 Act, titled as the National Highways Rules, 1957(For short the 1957 Rules). These rules are required to be followed by the executing agency. There is nothing, even in these Rules, to remotely suggest that the Central Government is obliged to obtain prior permission(s) under environmental/forest laws before issuing notification under Section 3A. The executing agency is none else, but established under the 1988 Act, namely, the NHAI. Before NHAI commences the execution of any original work, it has to abide by the norms specified in the 1957 Rules regarding preparation of estimate of work etc. The Schedule of the 1957 Rules stipulates conditions for the issue of technical approval and financial sanction to plan and estimate for execution of any original work on a national highway costing an amount not exceeding Rs.50 lakhs by the executing agency concerned. Neither the 1956 Act, the Rules framed thereunder i.e. the 1957 Rules nor the 1988 Act and the Rules made thereunder have any bearing on the question under consideration. None of these enactments/rules specify any express condition requiring Central Government to obtain prior environmental/forest clearance before issuing notification under Section 2(2) declaring the stretch/section to be a national highway or Section 3A of the 1956 Act to express intention to acquire land for the purpose of building, maintenance, management or operation of a national highway, as the case may be.52. Reverting to the notification issued by the MoEF dated 14.9.2006, even this notification does not constrict the power of Central Government to issue notification under Section 2(2) or Section 3A of the 1956 Act. There is nothing to suggest that before expressing intention to acquire any land for the purpose of the 1956 Act, prior environmental/forest clearance is required. The environmental/forest clearance, however, is, required to be obtained by the executing agency in terms of this notification before commencing the actual work or executing the proposed work/project. That would happen only after the land is vested in the NHAI or the NHAI was to be entrusted with the development work of concerned national highway by the Central Government in exercise of powers under Section 5 of the 1956 Act read with Section 11 of the 1988 Act. The land would vest in the Central Government under the 1956 Act only after publication of declaration of acquisition under Section 3D. And until then, the question of Central Government vesting it in favour of NHAI under Section 11 of the 1988 Act would not arise. However, until the vesting of the land, the Central Government and its authorised officer can undertake surveys of the notified lands by entering upon it in terms of Section 3B of the Act. Pertinently, the activities predicated in Section 3B are of exploration for verifying the feasibility and viability of land for construction of a national highway. These are one-time activities and not in the nature of exploitation of the land for continuous commercial/industrial activities as such. There is remote possibility of irretrievable wide spread environmental impact due to carrying out activities referred to in Section 3B for assessing the worthiness of the land for using it as a national highway. Thus, the question of applying notification of 2006 at this stage does not arise, much less obligate the Central Government to follow directives thereunder.54. It is indisputable that NHAI is an authority appointed by the Central Government under the 1988 Act. This authority is a functional body constituted under Section 3 of the 1988 Act. Chapter III of the 1988 Act provides for the manner of dealing with the contracts to be entered into by NHAI. Sections 11 to 13 deal with the power of the Central Government to vest in or entrust to the Authority (NHAI), transfer of assets and liabilities of the Central Government to the Authority (NHAI) and the compulsory acquisition of land for the Authority.55. On plain and harmonious construction of the provisions of the two enactments (i.e. the 1956 Act and the 1988 Act), it is amply clear that at the stage of issuing notifications under Section 2(2) or for that matter, Section 3A of the Act, there is no need to seek prior permission (by the Central Government) under environmental laws or the forest laws, as the case may be. Further, the purpose of public hearing in the concerned enactments (namely, the 1956 and 1988 Acts on the one hand and the 1986 Act or forest laws, on the other) is qualitatively different and contextual to matters relevant under the concerned enactment. The competent authority in the former, may be satisfied that the acquisition of land in question is for public purpose, but if the competent authority under the latter legislations is of the view that the execution of the project in question (construction of a national highway) or any portion thereof may cause irretrievable comprehensive impact on the environment or the forests, as the case may be, would be competent to deny permission to such a project as a whole or part thereof. That decision must then prevail, being in public interests. This is not to say that one competent authority is superior to the other, but such balancing becomes essential to effectuate the public purposes under the stated enactments. It is quite possible that the executing agency (NHAI) may be able to convince the competent authority under the latter enactments that certain remedial steps can minimise or mitigate the environmental impact or to the forest, as the case may be, and commend it to accord conditional approval/permission to execute the project so as to conform to the tenets of sustainable development. If that suggestion commends to the competent authority under the environmental/forest laws, such clearance/permission can be granted after the public hearing.56. As regards the decision in Raghbir Singh Sehrawat (supra), the same may have relevance at the time of considering the objections to be dealt with by the competent authority under the 1956 Act during the public hearing under Section 3C. The dictum in this decision cannot be the basis to doubt the well- considered decision dated 19.1.2018 nor the notification issued by the Central Government under Section 2(2) of the 1956 Act declaring the stretch between C-K-S (NC) as a national highway.57. Even in the case of R.S. Nanji (supra), the Constitution Bench highlighted the sweep of expression public purpose in the context of challenge to the order of the competent authority to requisition the premises. As noted earlier, the satisfaction regarding public interests or necessity to acquire the land in question for public purpose for construction of a new national highway, is a matter which needs to be considered by the competent authority during the public hearing under Section 3C of the 1956 Act. The challenge before the High Court in the present case was before that stage had reached, for which reason we do not wish to dilate on this reported decision any further.58. Suffice it to observe that the subject notification of 2006 and Office Memorandum dated 7.10.2014 ordain that such permission is required to be obtained (only) before commencement of the work of the new project or activities or on the expansion or improvisation of the project or activities based on their potential environment impact.59. The view that we have taken is reinforced from the opening part of this notification. It expounds that no project involving potential environmental impact shall be undertaken or commenced in any part of India without obtaining prior environmental clearance in the manner provided for. Same position obtains from the recitals of this notification, namely, prior environmental clearance is required before any construction work or preparation of land by the project management, except for securing the land, is started on the project or the activity. A priori, the decision in Delhi Development Authority (supra), does not take the matter any further in the present case. Therefore, no interference is warranted with the decision of the Committee regarding the change of stretch/section to be implemented during Phase I between C-K-S (NC); including the impugned notifications under Sections 2(2) and 3A of the 1956 Act.60. Be it noted that the notification of 2006 is in the nature of guidelines/directives issued by the Central Government in exercise of its statutory powers. These directions need to be adhered by the executing agency (NHAI) whilst undertaking the work in furtherance of the approved project. To put it differently, it is incomprehensible that the stated 2006 notification obliges the Central Government to take prior permission even before the stage of planning and finalisation of the project(s) such as in terms of the minutes dated 19.1.2018 followed by notifications under Sections 2(2) and 3A of the 1956 Act, as the case may be.We reject this plea. In our view, the activities required to be undertaken in furtherance of notification under Section 3A of the 1956 Act, referred to in Section 3B of the same Act are only to explore the feasibility and viability of the stretch/section to be used as a national highway and no further. These activities are outside the purview of notification of 2006.62. The High Court had adverted to decisions of other jurisdictions, namely, of American Courts, to buttress the view that prior permission ought to be taken even before issuing notification under Section 3A of the 1956 Act. Considering the legislative scheme and upon giving proper meaning and perspective to the directives issued by the Central Government in the form of 2006 notification, we are of the considered opinion that the dictum in those decisions will be of no avail. For, we are of the view that it is not necessary for the Central Government or for that matter, NHAI, to apply for prior environmental/forest clearances or permissions, as the case may be, at the stage of planning or taking an in-principle decision to formalize the Project of constructing a new national highway manifested in notification under Section 2(2), including until the stage of issuing notification under Section 3A of the 1956 Act.63. If we accept the argument of the writ petitioners that the Central Government must follow comprehensive procedure under the environmental laws and forest laws articulating its final decision and to issue notification under Section 2(2) of the 1956 Act to declare any stretch/land not being a highway as a national highway, such approach would be counter-productive and the functioning of the departments responsible for timely execution of such projects would be completely paralysed and depend solely on the outcome of the processes under the environmental laws or forest laws, as the case may be. It cannot be overlooked that the role of the competent authority under the environmental law or forest law is limited to scrutiny of the formalized project brought before it prior to its implementation by the executing agency, to ascertain whether it may have any environmental impact and if so, to impose such conditions by way of remedial steps to minimise and mitigate the impact while keeping in mind the need to fulfil the States obligation of sustainable development.64. Be that as it may, one cannot be oblivious of the qualitative difference between a project necessitating acquisition of a large chunk of land at one place for continual commercial/industrial activities to be carried out thereon as opposed to acquisition of a small strip of land in the area for construction of a road/highway. The purpose of road/highway is merely to facilitate free passage through the same. It would have a floating population unlike in the case of a big project at one place occupying several square metres of land and engaging in continual commercial/industrial activities thereon. The environmental impact would be and ought to be measured in relative terms and at the local level and site specific. Whereas, the requirement for road/national highway would essentially be in larger national interest.65. For the purpose of considering the question posed before us, suffice it to observe that the prior environmental clearance in terms of 2006 notification issued under Section 3 of the Environment (Protection) Act, 1986 Act read with Rule 5 of the Environment (Protection) Rules, 1986, is required to be taken before commencement of the actual construction or building work of the national highway by the executing agency (NHAI). That will happen only after the acquisition proceedings are taken to its logical end until the land finally vests in the NHAI or is entrusted to it by the Central Government for building/management of the national highway.Applying the tenet underlying this notification, it is amply clear that before the process of acquisition of land is ripe for declaration under Section 3D of the 1956 Act, it would be open to the executing agency (NHAI) to make an application to the competent authority for environmental clearance. That process can be commenced parallelly or alongside the acquisition process after a preliminary notification under Section 3A of the 1956 Act, for acquisition is issued.66. As in this case, after notification under Section 3A of the 1956 Act came to be issued, NHAI must have, and in fact has, moved into action by making application to the competent authorities under the environmental laws, as well as, forest laws to accord necessary permissions.67. Considering the provisions of the 1956 Act and the 1988 Act, NHAI can take over the work of development and maintenance of the concerned national highway only if the notified land is vested in it or when the same is entrusted to it by the Central Government. From the scheme of the enactments in question, as soon as notification under Section 3A is issued, it is open to the Central Government to issue direction/notification in exercise of power under Section 5 of the 1956 Act read with Section 11 of the 1988 Act so as to entrust the development of the proposed national highway to NHAI. Upon such entrustment, NHAI assumes the role of an executing agency and only thenceforth can move into action to apply for requisite permissions/clearances under the environmental/forest laws including as provided in terms of notification/Office Memorandum dated 14.9.2006 and 7.10.2014 respectively.68. It is not in dispute that environmental/forest clearance is always site specific and, therefore, until the site is identified for construction of national highways manifested vide Section 3A notification, the question of making any application for permission under the environmental/forest laws would not arise, as predicated in Office Memorandum dated 7.10.2014. The site is identified only in reference to the notification under Section 3A of the 1956 Act, giving description of the land which is proposed to be acquired for public purpose of building, maintenance, management or operation of the national highway or part thereof.69. Considering the interplay of provisions empowering the Central Government coupled with the purport of the notification/Office Memorandum issued by the MoEF dated 14.9.2006 and 7.10.2014 respectively, it will be paradoxical to countenance the argument that the Central Government is obliged to seek prior approval/permission of the competent authorities under the environment/forest laws, as the case may be, even before issuing notification under Section 2(2) or for that matter, Section 3A of the 1956 Act.70. Reverting to the dictum of this Court in Karnataka Industrial Areas Development Board (supra), it must be understood to mean that the declaration under Section 3D regarding acquisition of notified land, be made only after environmental/forest clearance qua the specific land is granted. To put it differently, the necessity of prior environmental/forest clearance would arise only if finally, the land in question (site specific) is to be notified under Section 3D, as being acquired for the purposes of building, maintenance, management or operation of the national highway or part thereof. Such interpretation would further the cause and objective of environment and forest laws, as also not impede the timeline specified for building, maintenance, management or operation of the national highway or part thereof, which undeniably is a public purpose and of national importance. This would also assuage the concerns of the land owners that even if eventually no environment permission or forest clearance is accorded, the land cannot be reverted to the original owner as it had de jure vested in the Central Government upon issue of notification under Section 3D of the 1956 Act and no power is bestowed on the Central Government under this Act to withdraw from acquisition.71. We are conscious of the fact, as has been rightly argued by the appellants-authorities, that it is essential to issue a declaration under Section 3D of the 1956 Act within a period of one year from the date of publication of the notification under Section 3A in respect of the notified land, failing which notification under Section 3A ceases to have any effect. It is possible that whilst pursuing the proposal for environmental/forest clearance after notification under Section 3A, some time may be lost, even though the process under the 1956 Act for acquisition of the land had become ripe for issue of declaration of acquisition under Section 3D. It is also true that time spent for obtaining environmental clearance or permission under the forest laws has not been explicitly excluded from the period of one year to be reckoned under Section 3D(3) of the Act. The extension of time or so to say suspension of time is only in respect of period during which the action of the proceedings to be taken in pursuance of notification under Section 3A(1) is stayed by an order of Court. In other words, there is no express provision in the 1956 Act, which excludes the time spent by the Central Government or the executing agency in obtaining prior environmental clearance or permission under forest laws, as the case may be. To get over this predicament, by an interpretative process and also by invoking plenary powers of this Court under Article 142 of the Constitution, we hold that the dictum in paragraph 100(1) of Karnataka Industrial Areas Development Board (supra), shall operate as a stay by an order of the Court for the purposes of Section 3D(3) in respect of all projects under the 1956 Act, in particular for excluding the time spent after issue of Section 3A notification, in obtaining the environmental clearance as well as for permissions under the forest laws. Only this approach would further the cause of environment and forest laws, as also, the need to adhere to the timeline specified under Section 3D(3) for speedy execution of the work of construction of national highway, which is also for a public purpose and of national importance. In other words, balancing of competing public interests/public purposes need to be kept in mind as being the only way forward for accomplishing the goal of sustainable development.72. The argument of the writ petitioners that the expression shall occurring in Section 3D(1) be interpreted as may, though attractive on the first blush, deserves to be rejected. If that interpretation is accepted, it would render the efficacy of Section 3D(3) of lapsing of the acquisition process otiose. It is a mandatory provision. Instead, we have acceded to the alternative argument to give expansive meaning to the proviso in Section 3D(3) of the 1956 Act by interpretative process, including by invoking plenary powers of this Court under Article 142 of the Constitution to hold that the dictum of this Court in Karnataka Industrial Areas Development Board (supra) be regarded as stay granted by the Court to all notifications issued under Section 3A of the 1956 Act until the grant or non-grant of permissions by the competent authorities under the environmental and forest laws, as the case may be, including until the stated permissions attain finality. In other words, time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof.73. In the present case, it is noticed that the NHAI being the executing agency, had soon submitted Terms of Reference to the MoEF after publication of notification under Section 2(2) of the 1956 Act dated 1.3.2018, declaring the section - C-K-S (NC) as a national highway. That was submitted on 19.4.2018 and the approval in furtherance thereof was granted by the MoEF on 8.6.2018, consequent to the recommendation made by the EAC on 7.5.2018. Indeed, the NHAI thereafter submitted amendment to the Terms of Reference on 5.7.2018 and 21.8.2018. The EAC after examining the amendment in Terms of Reference, submitted its recommendation on 30.8.2018. It is also matter of record and stated on affidavit by the EAC that no lapses have been committed by the NHAI in complying with necessary formalities. Similarly, NHAI had submitted application on 12.5.2018 to Conservator of Forests for grant of permissions under the forest laws in respect of lands forming part of the notification under Section 3A of the 1956 Act. That application was duly processed and the permission was granted by the competent authority under the forest laws on 8.6.2018. Concededly, these permissions/clearances have been issued by the concerned authorities under the environment and forest laws after notification under Section 3A and before issuance of declaration under Section 3D of the 1956 Act. In terms of this decision, therefore, the time spent for obtaining such clearances including till the pronouncement of this decision and until the stated permissions/clearances attain finality, whichever is later, as the matter had remained sub judice, need to be excluded. Even after excluding such period, if any notification under Section 3A impugned before the High Court is not saved from the deemed lapsing effect predicated in Section 3D(3), the Central Government may have to issue fresh notification(s) under Section 3A of the 1956 Act and recommence the process of acquisition, if so advised. We are not expressing any final opinion in that regard. However, such fresh notifications may be issued only in respect of land forming part of permissions/clearances given by the competent authority under the environment/forest laws, being site specific.74. That takes us to the grievance regarding the same Consultant being continued for the changed section i.e. C-K-S (NC). Indeed, the eligibility of the Consultant was in reference to the originally conceived project concerning C-M (EC). It was found eligible to undertake the consultancy work for the said project and letter dated 29.9.2017 was also issued by NHAI. In the Committees meeting chaired by the Secretary of MoRTH on 19.1.2018, new alignment was finalised thereby deviating from the original project of C-M (EC). Instead, section - C-K-S (NC) was finalised. However, the same Consultant had been continued by execution of a contract agreement dated 22.2.2018 for the changed stretch/section. This was done as the terms and conditions were same. Indeed, it was vehemently contended before us that the authorities should have followed the procedure stipulated for appointment of Consultant for the changed project afresh. However, we find that in none of the writ petitions filed before the High Court, express declaration had been sought or for that matter, the contract agreement dated 22.2.2018 executed between NHAI and the Consultant came to be challenged. Moreover, the terms and conditions of appointment of the Consultant would have no financial ramifications, considering the fact that the consultancy charges were to be paid on per kilometre basis; and in fact due to change of alignment, the length of proposed national highway stood reduced to only around 277 kms. (instead of original stretch [C-M (EC)] of around 350 kms.) Further, no challenge is set forth regarding the qualification and eligibility of the Consultant as such. Notably, the decision to change the stretch/section from Economic Corridor to National Corridor was that of the Committee. It was not founded on the recommendation of the Consultant, as has been assumed by the writ petitioners and so propounded before the high Court. The decision of the Committee was backed by tangible reasons as recorded in the minutes and also intrinsic in it its vast experience about the efficacy of governing policies for developing seamless national highway connectivity across the country. In any case, irregularity, if any, in the appointment of the Consultant cannot be the basis to quash and set aside a well- considered decision taken by the Committee after due deliberations, much less the impugned notifications under Section 2(2) or Section 3A(1) of the 1956 Act. We therefore, hold that the High Court should have eschewed from expressing any opinion on the manner of appointment of the same Consultant for the changed section/stretch [C-K-S (NC)], as no relief challenging its appointment was sought and thus it was not the matter in issue before it; and for the same reason, we do not wish to dilate on this aspect any further. Thus understood, the dictum of this Court in decisions relied upon by the respondents/writ petitioners in K. Lubna (supra) and Shrilekha Vidyarthi (supra) will be of no avail in this case.75. Having dealt with the merits of the controversy in extenso, it is unnecessary to dilate on the question of maintainability of the writ petitions being premature. | 1 | 35,002 | 10,036 | ### 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:
Section 3A of the 1956 Act until the grant or non-grant of permissions by the competent authorities under the environmental and forest laws, as the case may be, including until the stated permissions attain finality. In other words, time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof. 73. In the present case, it is noticed that the NHAI being the executing agency, had soon submitted Terms of Reference to the MoEF after publication of notification under Section 2(2) of the 1956 Act dated 1.3.2018, declaring the section - C-K-S (NC) as a national highway. That was submitted on 19.4.2018 and the approval in furtherance thereof was granted by the MoEF on 8.6.2018, consequent to the recommendation made by the EAC on 7.5.2018. Indeed, the NHAI thereafter submitted amendment to the Terms of Reference on 5.7.2018 and 21.8.2018. The EAC after examining the amendment in Terms of Reference, submitted its recommendation on 30.8.2018. It is also matter of record and stated on affidavit by the EAC that no lapses have been committed by the NHAI in complying with necessary formalities. Similarly, NHAI had submitted application on 12.5.2018 to Conservator of Forests for grant of permissions under the forest laws in respect of lands forming part of the notification under Section 3A of the 1956 Act. That application was duly processed and the permission was granted by the competent authority under the forest laws on 8.6.2018. Concededly, these permissions/clearances have been issued by the concerned authorities under the environment and forest laws after notification under Section 3A and before issuance of declaration under Section 3D of the 1956 Act. In terms of this decision, therefore, the time spent for obtaining such clearances including till the pronouncement of this decision and until the stated permissions/clearances attain finality, whichever is later, as the matter had remained sub judice, need to be excluded. Even after excluding such period, if any notification under Section 3A impugned before the High Court is not saved from the deemed lapsing effect predicated in Section 3D(3), the Central Government may have to issue fresh notification(s) under Section 3A of the 1956 Act and recommence the process of acquisition, if so advised. We are not expressing any final opinion in that regard. However, such fresh notifications may be issued only in respect of land forming part of permissions/clearances given by the competent authority under the environment/forest laws, being site specific. OTHER CONTENTIONS 74. That takes us to the grievance regarding the same Consultant being continued for the changed section i.e. C-K-S (NC). Indeed, the eligibility of the Consultant was in reference to the originally conceived project concerning C-M (EC). It was found eligible to undertake the consultancy work for the said project and letter dated 29.9.2017 was also issued by NHAI. In the Committees meeting chaired by the Secretary of MoRTH on 19.1.2018, new alignment was finalised thereby deviating from the original project of C-M (EC). Instead, section - C-K-S (NC) was finalised. However, the same Consultant had been continued by execution of a contract agreement dated 22.2.2018 for the changed stretch/section. This was done as the terms and conditions were same. Indeed, it was vehemently contended before us that the authorities should have followed the procedure stipulated for appointment of Consultant for the changed project afresh. However, we find that in none of the writ petitions filed before the High Court, express declaration had been sought or for that matter, the contract agreement dated 22.2.2018 executed between NHAI and the Consultant came to be challenged. Moreover, the terms and conditions of appointment of the Consultant would have no financial ramifications, considering the fact that the consultancy charges were to be paid on per kilometre basis; and in fact due to change of alignment, the length of proposed national highway stood reduced to only around 277 kms. (instead of original stretch [C-M (EC)] of around 350 kms.) Further, no challenge is set forth regarding the qualification and eligibility of the Consultant as such. Notably, the decision to change the stretch/section from Economic Corridor to National Corridor was that of the Committee. It was not founded on the recommendation of the Consultant, as has been assumed by the writ petitioners and so propounded before the high Court. The decision of the Committee was backed by tangible reasons as recorded in the minutes and also intrinsic in it its vast experience about the efficacy of governing policies for developing seamless national highway connectivity across the country. In any case, irregularity, if any, in the appointment of the Consultant cannot be the basis to quash and set aside a well- considered decision taken by the Committee after due deliberations, much less the impugned notifications under Section 2(2) or Section 3A(1) of the 1956 Act. We therefore, hold that the High Court should have eschewed from expressing any opinion on the manner of appointment of the same Consultant for the changed section/stretch [C-K-S (NC)], as no relief challenging its appointment was sought and thus it was not the matter in issue before it; and for the same reason, we do not wish to dilate on this aspect any further. Thus understood, the dictum of this Court in decisions relied upon by the respondents/writ petitioners in K. Lubna (supra) and Shrilekha Vidyarthi (supra) will be of no avail in this case. 75. Having dealt with the merits of the controversy in extenso, it is unnecessary to dilate on the question of maintainability of the writ petitions being premature. CONCLUSION
### Response:
1
### Explanation:
Court to all notifications issued under Section 3A of the 1956 Act until the grant or non-grant of permissions by the competent authorities under the environmental and forest laws, as the case may be, including until the stated permissions attain finality. In other words, time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof.73. In the present case, it is noticed that the NHAI being the executing agency, had soon submitted Terms of Reference to the MoEF after publication of notification under Section 2(2) of the 1956 Act dated 1.3.2018, declaring the section - C-K-S (NC) as a national highway. That was submitted on 19.4.2018 and the approval in furtherance thereof was granted by the MoEF on 8.6.2018, consequent to the recommendation made by the EAC on 7.5.2018. Indeed, the NHAI thereafter submitted amendment to the Terms of Reference on 5.7.2018 and 21.8.2018. The EAC after examining the amendment in Terms of Reference, submitted its recommendation on 30.8.2018. It is also matter of record and stated on affidavit by the EAC that no lapses have been committed by the NHAI in complying with necessary formalities. Similarly, NHAI had submitted application on 12.5.2018 to Conservator of Forests for grant of permissions under the forest laws in respect of lands forming part of the notification under Section 3A of the 1956 Act. That application was duly processed and the permission was granted by the competent authority under the forest laws on 8.6.2018. Concededly, these permissions/clearances have been issued by the concerned authorities under the environment and forest laws after notification under Section 3A and before issuance of declaration under Section 3D of the 1956 Act. In terms of this decision, therefore, the time spent for obtaining such clearances including till the pronouncement of this decision and until the stated permissions/clearances attain finality, whichever is later, as the matter had remained sub judice, need to be excluded. Even after excluding such period, if any notification under Section 3A impugned before the High Court is not saved from the deemed lapsing effect predicated in Section 3D(3), the Central Government may have to issue fresh notification(s) under Section 3A of the 1956 Act and recommence the process of acquisition, if so advised. We are not expressing any final opinion in that regard. However, such fresh notifications may be issued only in respect of land forming part of permissions/clearances given by the competent authority under the environment/forest laws, being site specific.74. That takes us to the grievance regarding the same Consultant being continued for the changed section i.e. C-K-S (NC). Indeed, the eligibility of the Consultant was in reference to the originally conceived project concerning C-M (EC). It was found eligible to undertake the consultancy work for the said project and letter dated 29.9.2017 was also issued by NHAI. In the Committees meeting chaired by the Secretary of MoRTH on 19.1.2018, new alignment was finalised thereby deviating from the original project of C-M (EC). Instead, section - C-K-S (NC) was finalised. However, the same Consultant had been continued by execution of a contract agreement dated 22.2.2018 for the changed stretch/section. This was done as the terms and conditions were same. Indeed, it was vehemently contended before us that the authorities should have followed the procedure stipulated for appointment of Consultant for the changed project afresh. However, we find that in none of the writ petitions filed before the High Court, express declaration had been sought or for that matter, the contract agreement dated 22.2.2018 executed between NHAI and the Consultant came to be challenged. Moreover, the terms and conditions of appointment of the Consultant would have no financial ramifications, considering the fact that the consultancy charges were to be paid on per kilometre basis; and in fact due to change of alignment, the length of proposed national highway stood reduced to only around 277 kms. (instead of original stretch [C-M (EC)] of around 350 kms.) Further, no challenge is set forth regarding the qualification and eligibility of the Consultant as such. Notably, the decision to change the stretch/section from Economic Corridor to National Corridor was that of the Committee. It was not founded on the recommendation of the Consultant, as has been assumed by the writ petitioners and so propounded before the high Court. The decision of the Committee was backed by tangible reasons as recorded in the minutes and also intrinsic in it its vast experience about the efficacy of governing policies for developing seamless national highway connectivity across the country. In any case, irregularity, if any, in the appointment of the Consultant cannot be the basis to quash and set aside a well- considered decision taken by the Committee after due deliberations, much less the impugned notifications under Section 2(2) or Section 3A(1) of the 1956 Act. We therefore, hold that the High Court should have eschewed from expressing any opinion on the manner of appointment of the same Consultant for the changed section/stretch [C-K-S (NC)], as no relief challenging its appointment was sought and thus it was not the matter in issue before it; and for the same reason, we do not wish to dilate on this aspect any further. Thus understood, the dictum of this Court in decisions relied upon by the respondents/writ petitioners in K. Lubna (supra) and Shrilekha Vidyarthi (supra) will be of no avail in this case.75. Having dealt with the merits of the controversy in extenso, it is unnecessary to dilate on the question of maintainability of the writ petitions being premature.
|
Patel Field Marshal Agencies & Another Vs. P.M. Diesels Ltd. & Others | exists in the 1958 Act to understand the provisions of Section 111(3) in any other manner except that the right to raise the issue of invalidity is lost forever if the requisite action to move the High Court/IPAB (now) is not initiated within the statutorily prescribed time frame.32. Thus, by virtue of the operation of the 1958 Act, the plea of rectification, upon abandonment, must be understood to have ceased to exist or survive between the parties inter se. Any other view would be to permit a party to collaterally raise the issue of rectification at any stage notwithstanding that a final decree may have been passed by the civil court in the meantime. True, the decree of the Civil Court will be on the basis of the conclusions on the other issues in the suit. But to permit the issue of rectification, once abandoned, to be resurrected at the option of the party who had chosen not to pursue the same at an earlier point of time would be to open the doors to reopening of decrees/orders that have attained finality in law. This will bring in uncertainty if not chaos in the judicial determinations between the parties that stand concluded. Besides, such an interpretation would permit an aggrieved party to get over the operation of a statute providing for deemed abandonment of the right to raise an issue relevant; in fact, fundamental to the lis. The position may be highlighted by reference to a suit for infringement where the defendant raises the plea of invalidity of the plaintiffs trade mark and also in the alternative takes up any of the defenses available in law. The defendant by operation of Section 111(3) of the 1958 Act is deemed to have abandoned the plea of invalidity. In the trial it is found that the defendant is guilty of infringement and is appropriately restrained by a decree of the Civil Court. If the right under Section 46/56 of the 1958 Act is to subsist even in such a situation, the possible uncertainty and possible anarchy may well be visualized. This is why the legislature by enacting Section 111 of the 1958 Act has mandated that the issue of invalidity which would go to the root of the matter should be decided in the first instance and a decision on the same would bind the parties before the civil court. Only if the same is abandoned or decided against the party raising it that the suit will proceed in respect of the other issues, if any. If the above is the legislative intent, which seems to be clear, we do not see how the same can be overcome by reading the rights under Sections 46 and 56 of the 1958 Act to exist even in a situation where the abandonment of the same right under Section 111(3) has taken effect in law. The mandate of the 1958 Act, particularly, Section 111 thereof, appears to be that if an aggrieved party does not approach the Tribunal for a decision on the issue of invalidity of registration as provided for under Section 111(2) and (3), the right to raise the issue (of invalidity) would no longer survive between the parties to enable the concerned party to seek enforcement of the same by recourse to or by a separate action under the provisions of Section 46/56 of the 1958 Act.33. Having dealt with the matter in the above manner, certain subsidiary and incidental questions, urged and argued by the parties, would also need an answer. 34. The first question posed is how an approach to the superior Court i.e. the High Court, under Section 111 of the 1958 Act, can be contingent on a permission or grant of leave by a court of subordinate jurisdiction. The above is also contended to be plainly contrary to the provisions of Section 41 (b) of Specific Relief Act, 1963. It is also urged that Section 32 of the 1958 Act provides a defence to a claim of infringement which is open to be taken both in a proceeding for rectification as well as in a suit. The said defence statutorily available to a contesting party cannot be foreclosed by a deemed abandonment of the issue of invalidity, it has been contended. 35. Section 111 of the 1958 Act and the corresponding Section 124 of the 1999 Act nowhere contemplates grant of permission by the civil court to move the High Court or the IPAB, as may be, for rectification. The true purport and effect of Sections 111/124 (of the old and new Act) has been dealt within detail and would not require any further discussion or enumeration. The requirement of satisfaction of the civil Court regarding the existence of a prima facie case of invalidity and the framing of an issue to that effect before the law operates to vest jurisdiction in the statutory authority to deal with the issue of invalidity by no means, tantamount to permission or leave of the civil court, as has been contended. It is a basic requirement to further the cause of justice by elimination of false, frivolous and untenable claims of invalidity that may be raised in the suit.36. While Section 32 of the 1958 Act, undoubtedly, provides a defence with regard to the finality of a registration by efflux of time, we do not see how the provisions of aforesaid section can be construed to understand that the proceedings under Sections 46 and 56 on the one hand and those under Sections 107 and 111 on the other of the 1958 Act and the pari materia provisions of the 1999 Act would run parallelly. As already held by us, the jurisdiction of rectification conferred by Sections 46 and 56 of the 1958 Act is the very same jurisdiction that is to be exercised under Sections 107 and 111 of the 1958 Act when the issue of invalidity is raised in the suit but by observance of two different procedural regimes. | 0[ds]The question does not seem to have received/engaged the attention of this Court at any earlier point of time and therefore will have to be answered by us.Rather, from the resume of the provisions of the 1958 Act made above it becomes clear that all questions with regard to the validity of a Trade Mark is required to be decided by the Registrar or the High Court under the 1958 Act or by the Registrar or the IPAB under the 1999 Act and not by the Civil Court. The Civil Court, infact, is not empowered by the Act to decide the said question. Furthermore, the Act mandates that the decisions rendered by the prescribed statutory authority [Registrar/High Court (now IPAB)] will bind the Civil Court. At the same time, the Act (both old and new) goes on to provide a different procedure to govern the exercise of the same jurisdiction in two different situations. In a case where the issue of invalidity is raised or arises independent of a suit, the prescribed statutory authority will be the sole authority to deal with the matter. However, in a situation where a suit is pending (whether instituted before or after the filing of a rectification application) the exercise of jurisdiction by the prescribed statutory authority is contingent on a finding of the Civil Court as regards the prima facie tenability of the plea of invalidity.The 1958 Act clearly visualizes that though in both situations i.e. where no suit for infringement is pending at the time of filing of the application for rectification or such a suit has came to be instituted subsequent to the application for rectification, it is the Registrar or the High Court which constitutes the Tribunal to determine the question of invalidity, the procedure contemplated by the Statute to govern the exercise of jurisdiction to rectify is, however, different in the two situations enumerated. Such difference has already been noted.30. The intention of the legislature is clear. All issues relating to and connected with the validity of registration has to be dealt with by the Tribunal and not by the civil court. In cases where the parties have not approached the civil court, Sections 46 and 56 provide an independent statutory right to an aggrieved party to seek rectification of a trade mark. However, in the event the Civil Court is approached, inter alia, raising the issue of invalidity of the trade mark such plea will be decided not by the civil court but by the Tribunal under the 1958 Act. The Tribunal will however come into seisin of the matter only if the Civil Court is satisfied that an issue with regard to invalidity ought to be framed in the suit. Once an issue to the said effect is framed, the matter will have to go to the Tribunal and the decision of the Tribunal will thereafter bind the Civil Court. If despite the order of the civil court the parties do not approach the Tribunal for rectification, the plea with regard to rectification will no longer survive.31. The legislature while providing consequences forwith timelines for doing of any act must be understood to have intended such consequences to be mandatory in nature, thereby, also affecting the substantive rights of the parties. This is how Section 111(3) of the 1958 Act has to be understood. That apart, it is very much within the legislative domain to create legal fictions by incorporating a deeming clause and the court will have to understand such statutory fictions as bringing about a real state of affairs between the parties and ushering in legal consequences affecting the parties unless, of course, there is any other contrary provision in the statue. None exists in the 1958 Act to understand the provisions of Section 111(3) in any other manner except that the right to raise the issue of invalidity is lost forever if the requisite action to move the High Court/IPAB (now) is not initiated within the statutorily prescribed time frame.32. Thus, by virtue of the operation of the 1958 Act, the plea of rectification, upon abandonment, must be understood to have ceased to exist or survive between the parties inter se. Any other view would be to permit a party to collaterally raise the issue of rectification at any stage notwithstanding that a final decree may have been passed by the civil court in the meantime. True, the decree of the Civil Court will be on the basis of the conclusions on the other issues in the suit. But to permit the issue of rectification, once abandoned, to be resurrected at the option of the party who had chosen not to pursue the same at an earlier point of time would be to open the doors to reopening of decrees/orders that have attained finality in law. This will bring in uncertainty if not chaos in the judicial determinations between the parties that stand concluded. Besides, such an interpretation would permit an aggrieved party to get over the operation of a statute providing for deemed abandonment of the right to raise an issue relevant; in fact, fundamental to the lis. The position may be highlighted by reference to a suit for infringement where the defendant raises the plea of invalidity of the plaintiffs trade mark and also in the alternative takes up any of the defenses available in law. The defendant by operation of Section 111(3) of the 1958 Act is deemed to have abandoned the plea of invalidity. In the trial it is found that the defendant is guilty of infringement and is appropriately restrained by a decree of the Civil Court. If the right under Section 46/56 of the 1958 Act is to subsist even in such a situation, the possible uncertainty and possible anarchy may well be visualized. This is why the legislature by enacting Section 111 of the 1958 Act has mandated that the issue of invalidity which would go to the root of the matter should be decided in the first instance and a decision on the same would bind the parties before the civil court. Only if the same is abandoned or decided against the party raising it that the suit will proceed in respect of the other issues, if any. If the above is the legislative intent, which seems to be clear, we do not see how the same can be overcome by reading the rights under Sections 46 and 56 of the 1958 Act to exist even in a situation where the abandonment of the same right under Section 111(3) has taken effect in law. The mandate of the 1958 Act, particularly, Section 111 thereof, appears to be that if an aggrieved party does not approach the Tribunal for a decision on the issue of invalidity of registration as provided for under Section 111(2) and (3), the right to raise the issue (of invalidity) would no longer survive between the parties to enable the concerned party to seek enforcement of the same by recourse to or by a separate action under the provisions of Section 46/56 of the 1958 Act.33. Having dealt with the matter in the above manner, certain subsidiary and incidental questions, urged and argued by the parties, would also need an answer.Section 111 of the 1958 Act and the corresponding Section 124 of the 1999 Act nowhere contemplates grant of permission by the civil court to move the High Court or the IPAB, as may be, for rectification. The true purport and effect of Sections 111/124 (of the old and new Act) has been dealt within detail and would not require any further discussion or enumeration. The requirement of satisfaction of the civil Court regarding the existence of a prima facie case of invalidity and the framing of an issue to that effect before the law operates to vest jurisdiction in the statutory authority to deal with the issue of invalidity by no means, tantamount to permission or leave of the civil court, as has been contended. It is a basic requirement to further the cause of justice by elimination of false, frivolous and untenable claims of invalidity that may be raised in the suit.36. While Section 32 of the 1958 Act, undoubtedly, provides a defence with regard to the finality of a registration by efflux of time, we do not see how the provisions of aforesaid section can be construed to understand that the proceedings under Sections 46 and 56 on the one hand and those under Sections 107 and 111 on the other of the 1958 Act and the pari materia provisions of the 1999 Act would run parallelly. As already held by us, the jurisdiction of rectification conferred by Sections 46 and 56 of the 1958 Act is the very same jurisdiction that is to be exercised under Sections 107 and 111 of the 1958 Act when the issue of invalidity is raised in the suit but by observance of two different procedural regimes. | 0 | 8,327 | 1,619 | ### 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:
exists in the 1958 Act to understand the provisions of Section 111(3) in any other manner except that the right to raise the issue of invalidity is lost forever if the requisite action to move the High Court/IPAB (now) is not initiated within the statutorily prescribed time frame.32. Thus, by virtue of the operation of the 1958 Act, the plea of rectification, upon abandonment, must be understood to have ceased to exist or survive between the parties inter se. Any other view would be to permit a party to collaterally raise the issue of rectification at any stage notwithstanding that a final decree may have been passed by the civil court in the meantime. True, the decree of the Civil Court will be on the basis of the conclusions on the other issues in the suit. But to permit the issue of rectification, once abandoned, to be resurrected at the option of the party who had chosen not to pursue the same at an earlier point of time would be to open the doors to reopening of decrees/orders that have attained finality in law. This will bring in uncertainty if not chaos in the judicial determinations between the parties that stand concluded. Besides, such an interpretation would permit an aggrieved party to get over the operation of a statute providing for deemed abandonment of the right to raise an issue relevant; in fact, fundamental to the lis. The position may be highlighted by reference to a suit for infringement where the defendant raises the plea of invalidity of the plaintiffs trade mark and also in the alternative takes up any of the defenses available in law. The defendant by operation of Section 111(3) of the 1958 Act is deemed to have abandoned the plea of invalidity. In the trial it is found that the defendant is guilty of infringement and is appropriately restrained by a decree of the Civil Court. If the right under Section 46/56 of the 1958 Act is to subsist even in such a situation, the possible uncertainty and possible anarchy may well be visualized. This is why the legislature by enacting Section 111 of the 1958 Act has mandated that the issue of invalidity which would go to the root of the matter should be decided in the first instance and a decision on the same would bind the parties before the civil court. Only if the same is abandoned or decided against the party raising it that the suit will proceed in respect of the other issues, if any. If the above is the legislative intent, which seems to be clear, we do not see how the same can be overcome by reading the rights under Sections 46 and 56 of the 1958 Act to exist even in a situation where the abandonment of the same right under Section 111(3) has taken effect in law. The mandate of the 1958 Act, particularly, Section 111 thereof, appears to be that if an aggrieved party does not approach the Tribunal for a decision on the issue of invalidity of registration as provided for under Section 111(2) and (3), the right to raise the issue (of invalidity) would no longer survive between the parties to enable the concerned party to seek enforcement of the same by recourse to or by a separate action under the provisions of Section 46/56 of the 1958 Act.33. Having dealt with the matter in the above manner, certain subsidiary and incidental questions, urged and argued by the parties, would also need an answer. 34. The first question posed is how an approach to the superior Court i.e. the High Court, under Section 111 of the 1958 Act, can be contingent on a permission or grant of leave by a court of subordinate jurisdiction. The above is also contended to be plainly contrary to the provisions of Section 41 (b) of Specific Relief Act, 1963. It is also urged that Section 32 of the 1958 Act provides a defence to a claim of infringement which is open to be taken both in a proceeding for rectification as well as in a suit. The said defence statutorily available to a contesting party cannot be foreclosed by a deemed abandonment of the issue of invalidity, it has been contended. 35. Section 111 of the 1958 Act and the corresponding Section 124 of the 1999 Act nowhere contemplates grant of permission by the civil court to move the High Court or the IPAB, as may be, for rectification. The true purport and effect of Sections 111/124 (of the old and new Act) has been dealt within detail and would not require any further discussion or enumeration. The requirement of satisfaction of the civil Court regarding the existence of a prima facie case of invalidity and the framing of an issue to that effect before the law operates to vest jurisdiction in the statutory authority to deal with the issue of invalidity by no means, tantamount to permission or leave of the civil court, as has been contended. It is a basic requirement to further the cause of justice by elimination of false, frivolous and untenable claims of invalidity that may be raised in the suit.36. While Section 32 of the 1958 Act, undoubtedly, provides a defence with regard to the finality of a registration by efflux of time, we do not see how the provisions of aforesaid section can be construed to understand that the proceedings under Sections 46 and 56 on the one hand and those under Sections 107 and 111 on the other of the 1958 Act and the pari materia provisions of the 1999 Act would run parallelly. As already held by us, the jurisdiction of rectification conferred by Sections 46 and 56 of the 1958 Act is the very same jurisdiction that is to be exercised under Sections 107 and 111 of the 1958 Act when the issue of invalidity is raised in the suit but by observance of two different procedural regimes.
### Response:
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do not approach the Tribunal for rectification, the plea with regard to rectification will no longer survive.31. The legislature while providing consequences forwith timelines for doing of any act must be understood to have intended such consequences to be mandatory in nature, thereby, also affecting the substantive rights of the parties. This is how Section 111(3) of the 1958 Act has to be understood. That apart, it is very much within the legislative domain to create legal fictions by incorporating a deeming clause and the court will have to understand such statutory fictions as bringing about a real state of affairs between the parties and ushering in legal consequences affecting the parties unless, of course, there is any other contrary provision in the statue. None exists in the 1958 Act to understand the provisions of Section 111(3) in any other manner except that the right to raise the issue of invalidity is lost forever if the requisite action to move the High Court/IPAB (now) is not initiated within the statutorily prescribed time frame.32. Thus, by virtue of the operation of the 1958 Act, the plea of rectification, upon abandonment, must be understood to have ceased to exist or survive between the parties inter se. Any other view would be to permit a party to collaterally raise the issue of rectification at any stage notwithstanding that a final decree may have been passed by the civil court in the meantime. True, the decree of the Civil Court will be on the basis of the conclusions on the other issues in the suit. But to permit the issue of rectification, once abandoned, to be resurrected at the option of the party who had chosen not to pursue the same at an earlier point of time would be to open the doors to reopening of decrees/orders that have attained finality in law. This will bring in uncertainty if not chaos in the judicial determinations between the parties that stand concluded. Besides, such an interpretation would permit an aggrieved party to get over the operation of a statute providing for deemed abandonment of the right to raise an issue relevant; in fact, fundamental to the lis. The position may be highlighted by reference to a suit for infringement where the defendant raises the plea of invalidity of the plaintiffs trade mark and also in the alternative takes up any of the defenses available in law. The defendant by operation of Section 111(3) of the 1958 Act is deemed to have abandoned the plea of invalidity. In the trial it is found that the defendant is guilty of infringement and is appropriately restrained by a decree of the Civil Court. If the right under Section 46/56 of the 1958 Act is to subsist even in such a situation, the possible uncertainty and possible anarchy may well be visualized. This is why the legislature by enacting Section 111 of the 1958 Act has mandated that the issue of invalidity which would go to the root of the matter should be decided in the first instance and a decision on the same would bind the parties before the civil court. Only if the same is abandoned or decided against the party raising it that the suit will proceed in respect of the other issues, if any. If the above is the legislative intent, which seems to be clear, we do not see how the same can be overcome by reading the rights under Sections 46 and 56 of the 1958 Act to exist even in a situation where the abandonment of the same right under Section 111(3) has taken effect in law. The mandate of the 1958 Act, particularly, Section 111 thereof, appears to be that if an aggrieved party does not approach the Tribunal for a decision on the issue of invalidity of registration as provided for under Section 111(2) and (3), the right to raise the issue (of invalidity) would no longer survive between the parties to enable the concerned party to seek enforcement of the same by recourse to or by a separate action under the provisions of Section 46/56 of the 1958 Act.33. Having dealt with the matter in the above manner, certain subsidiary and incidental questions, urged and argued by the parties, would also need an answer.Section 111 of the 1958 Act and the corresponding Section 124 of the 1999 Act nowhere contemplates grant of permission by the civil court to move the High Court or the IPAB, as may be, for rectification. The true purport and effect of Sections 111/124 (of the old and new Act) has been dealt within detail and would not require any further discussion or enumeration. The requirement of satisfaction of the civil Court regarding the existence of a prima facie case of invalidity and the framing of an issue to that effect before the law operates to vest jurisdiction in the statutory authority to deal with the issue of invalidity by no means, tantamount to permission or leave of the civil court, as has been contended. It is a basic requirement to further the cause of justice by elimination of false, frivolous and untenable claims of invalidity that may be raised in the suit.36. While Section 32 of the 1958 Act, undoubtedly, provides a defence with regard to the finality of a registration by efflux of time, we do not see how the provisions of aforesaid section can be construed to understand that the proceedings under Sections 46 and 56 on the one hand and those under Sections 107 and 111 on the other of the 1958 Act and the pari materia provisions of the 1999 Act would run parallelly. As already held by us, the jurisdiction of rectification conferred by Sections 46 and 56 of the 1958 Act is the very same jurisdiction that is to be exercised under Sections 107 and 111 of the 1958 Act when the issue of invalidity is raised in the suit but by observance of two different procedural regimes.
|
Dasrath Gond & Others Vs. State of Orissa | offence under S. 302/149, I. P. C. on the allegation that on 25-2-1952 they, in furtherance of their common object, murdered one Madan Sahu of their village. The motive for the murder was said to be their belief that Madan Sahu was a Pungnia (sorcerer) who was mainly responsible for the prevalence of small pox in the village. The parties belong to village Badimal P. S. Brajarajnagar, in an interior part of Sambalpur district.It appears that in the early part of the year 1952 small pox epidemic was prevalent in a virulent form in the village and the efforts of the villagers to drive away the epidemic with the help of Bejis (charmers) proved fruitless. The Bejis then informed the villagers that their Mantras were all rendered ineffective because one of the villagers was himself a Pungnia and was counteracting the effect of their Mantras. Thereupon the villagers grew alarmed and on 16-1-52 met in a body and executed a document (Ex. 8) agreeing to beat any one who was found to be a Pungnia.The deceased, some of the appellants and the Gaontia of the village signed that document. Several other villagers also either signed it or gave their thumb impressions. As the epidemic showed no. signs of abatement it was alleged that on 25-2-52 the appellants and some other villagers, suspecting that deceased Madan Sahu was the Pungnia, brought him to the Bhagbatghar of the village and asked him to take oath before the deity to the effect that he was not the Pungnia responsible for the small pox in the village.Madan refused to take the oath first and there was an altercation between him and some of the appellants. He then tried to leave the Bhagbatghar but he was caught hold of by some of the appellants and severaly belaboured with first blows and kicks. His son Lokanath Sahu (P. W. 4) and his widow Indumati Sahuani (P. W. 8) attempted to save him; but they were pushed out by some of the appellants.It was alleged that after thus severely assaulting Madan in the Bhagbatghar itself the culprits carried him to the courtyard of appellant Chintamoni close by and continued to beat him there till he died. Then his corpse was taken away and thrown in a jungle close to the village."2. The accused were all committed to take their trial before the Sessions Judge on charges under Ss. 302./149/120B/201, I. P. C. Seven of the accused were acquitted. The remaining 12 were convicted under Ss. 325/149 & 120, I.P.C. and acquitted in respect of S. 302/149 & S. 201 I. P. C. In respect of the convictions under S. 325/149, each was sentenced to three years rigorous imprisonment and in respect of the convictions under S. 120 I. P. C. no. separate sentences were awarded. These twelve went up in appeal to the High Court .3. At the commencement of the hearing of the appeal a rule was issued by the High Court to show cause why the sentence against each should not be enhanced. Both the appeal and the motion for enhancement were finally argued together. The learned Judges of the High Court after discussing the merits of the case and considering the evidence and the probabilities confirmed the convictions in respect of eleven persons and enhanced their sentences from three years R. I. to seven years R. I. for each.One other person who was also an appellant was given the benefit of the doubt and acquitted. The High Court has also noted that it was reported that one out of the eleven was dead but that they were not sure about it. However that may be, only eight out of these eleven persons appear to have applied to this Court for special leave and they are the petitioners before us.4. The judgment of the High Court shows that in enhancing the sentences the learned Judges were mainly influenced by their view of the facts that the offence committed by the appellants before them in fact constituted murder under S. 302 I. P. C. and not merely grievous hurt under S. 325, I.P.C.5. Whether this view is correct or not is not material since there has been no. appeal by the Government against the acquittal and the High Court maintained the convictions only under S. 325/149, I. P. C. we agree entirely with the learned Judges of the High Court that, taking all the circumstances of the case into consideration, the sentence of three years rigorous imprisonment awarded by the learned Sessions judge was inadequate.6. The post-mortem examination of the corpse of the deceased person showed that there were ten injuries all over the body as stated by the High Court in the following passage :"The post mortem examination on the corpse of Madan Sahu was held by Dr. S. C. Rout (P.W. 5) who found ten injuries all over the body. Some of the injuries were lacerated wounds on the left side and the right side of the head. There were contusion all over the face neck, thorax and abdomen. The right leg from the knee downwards was broken at its middle. On dissection, the Medical Officer found the lower law fractured and several ribs broken. The pleurae were also found torn at six places below fractured ribs.The right lung was also lacerated. All these injuries appeared to be ante-mortem and death was due to shock and haemorrhage resulting from the thoracic wounds caused by some hard substance or a blunt weapon like a lathi or by fist blows or kicks. Though a portion of the body had been eaten away by wild animals the Medical Officers opinion regarding the ante-mortem nature of the injuries as described above was not challenged ."7. It is clear that this was a brutal attack by several persons in a fit of superstition relating to suspected sorcery. The circumstances in which this attack was made calls for a deterrent sentence. We do not, therefore, feel called upon to interfere. | 0[ds]4. The judgment of the High Court shows that in enhancing the sentences the learned Judges were mainly influenced by their view of the facts that the offence committed by the appellants before them in fact constituted murder under S. 302 I. P. C. and not merely grievous hurt under S. 325, I.P.C.5. Whether this view is correct or not is not material since there has been no. appeal by the Government against the acquittal and the High Court maintained the convictions only under S. 325/149, I. P. C. we agree entirely with the learned Judges of the High Court that, taking all the circumstances of the case into consideration, the sentence of three years rigorous imprisonment awarded by the learned Sessions judge was inadequate.6. Theexamination of the corpse of the deceased person showed that there were ten injuries all over the body as stated by the High Court in the following passage :"The post mortem examination on the corpse of Madan Sahu was held by Dr. S. C. Rout (P.W. 5) who found ten injuries all over the body. Some of the injuries were lacerated wounds on the left side and the right side of the head. There were contusion all over the face neck, thorax and abdomen. The right leg from the knee downwards was broken at its middle. On dissection, the Medical Officer found the lower law fractured and several ribs broken. The pleurae were also found torn at six places below fractured ribs.The right lung was also lacerated. All these injuries appeared to beand death was due to shock and haemorrhage resulting from the thoracic wounds caused by some hard substance or a blunt weapon like a lathi or by fist blows or kicks. Though a portion of the body had been eaten away by wild animals the Medical Officers opinion regarding thenature of the injuries as described above was not challenged ."7. It is clear that this was a brutal attack by several persons in a fit of superstition relating to suspected sorcery. The circumstances in which this attack was made calls for a deterrent sentence. We do not, therefore, feel called upon to interfere. | 0 | 1,130 | 394 | ### 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:
offence under S. 302/149, I. P. C. on the allegation that on 25-2-1952 they, in furtherance of their common object, murdered one Madan Sahu of their village. The motive for the murder was said to be their belief that Madan Sahu was a Pungnia (sorcerer) who was mainly responsible for the prevalence of small pox in the village. The parties belong to village Badimal P. S. Brajarajnagar, in an interior part of Sambalpur district.It appears that in the early part of the year 1952 small pox epidemic was prevalent in a virulent form in the village and the efforts of the villagers to drive away the epidemic with the help of Bejis (charmers) proved fruitless. The Bejis then informed the villagers that their Mantras were all rendered ineffective because one of the villagers was himself a Pungnia and was counteracting the effect of their Mantras. Thereupon the villagers grew alarmed and on 16-1-52 met in a body and executed a document (Ex. 8) agreeing to beat any one who was found to be a Pungnia.The deceased, some of the appellants and the Gaontia of the village signed that document. Several other villagers also either signed it or gave their thumb impressions. As the epidemic showed no. signs of abatement it was alleged that on 25-2-52 the appellants and some other villagers, suspecting that deceased Madan Sahu was the Pungnia, brought him to the Bhagbatghar of the village and asked him to take oath before the deity to the effect that he was not the Pungnia responsible for the small pox in the village.Madan refused to take the oath first and there was an altercation between him and some of the appellants. He then tried to leave the Bhagbatghar but he was caught hold of by some of the appellants and severaly belaboured with first blows and kicks. His son Lokanath Sahu (P. W. 4) and his widow Indumati Sahuani (P. W. 8) attempted to save him; but they were pushed out by some of the appellants.It was alleged that after thus severely assaulting Madan in the Bhagbatghar itself the culprits carried him to the courtyard of appellant Chintamoni close by and continued to beat him there till he died. Then his corpse was taken away and thrown in a jungle close to the village."2. The accused were all committed to take their trial before the Sessions Judge on charges under Ss. 302./149/120B/201, I. P. C. Seven of the accused were acquitted. The remaining 12 were convicted under Ss. 325/149 & 120, I.P.C. and acquitted in respect of S. 302/149 & S. 201 I. P. C. In respect of the convictions under S. 325/149, each was sentenced to three years rigorous imprisonment and in respect of the convictions under S. 120 I. P. C. no. separate sentences were awarded. These twelve went up in appeal to the High Court .3. At the commencement of the hearing of the appeal a rule was issued by the High Court to show cause why the sentence against each should not be enhanced. Both the appeal and the motion for enhancement were finally argued together. The learned Judges of the High Court after discussing the merits of the case and considering the evidence and the probabilities confirmed the convictions in respect of eleven persons and enhanced their sentences from three years R. I. to seven years R. I. for each.One other person who was also an appellant was given the benefit of the doubt and acquitted. The High Court has also noted that it was reported that one out of the eleven was dead but that they were not sure about it. However that may be, only eight out of these eleven persons appear to have applied to this Court for special leave and they are the petitioners before us.4. The judgment of the High Court shows that in enhancing the sentences the learned Judges were mainly influenced by their view of the facts that the offence committed by the appellants before them in fact constituted murder under S. 302 I. P. C. and not merely grievous hurt under S. 325, I.P.C.5. Whether this view is correct or not is not material since there has been no. appeal by the Government against the acquittal and the High Court maintained the convictions only under S. 325/149, I. P. C. we agree entirely with the learned Judges of the High Court that, taking all the circumstances of the case into consideration, the sentence of three years rigorous imprisonment awarded by the learned Sessions judge was inadequate.6. The post-mortem examination of the corpse of the deceased person showed that there were ten injuries all over the body as stated by the High Court in the following passage :"The post mortem examination on the corpse of Madan Sahu was held by Dr. S. C. Rout (P.W. 5) who found ten injuries all over the body. Some of the injuries were lacerated wounds on the left side and the right side of the head. There were contusion all over the face neck, thorax and abdomen. The right leg from the knee downwards was broken at its middle. On dissection, the Medical Officer found the lower law fractured and several ribs broken. The pleurae were also found torn at six places below fractured ribs.The right lung was also lacerated. All these injuries appeared to be ante-mortem and death was due to shock and haemorrhage resulting from the thoracic wounds caused by some hard substance or a blunt weapon like a lathi or by fist blows or kicks. Though a portion of the body had been eaten away by wild animals the Medical Officers opinion regarding the ante-mortem nature of the injuries as described above was not challenged ."7. It is clear that this was a brutal attack by several persons in a fit of superstition relating to suspected sorcery. The circumstances in which this attack was made calls for a deterrent sentence. We do not, therefore, feel called upon to interfere.
### Response:
0
### Explanation:
4. The judgment of the High Court shows that in enhancing the sentences the learned Judges were mainly influenced by their view of the facts that the offence committed by the appellants before them in fact constituted murder under S. 302 I. P. C. and not merely grievous hurt under S. 325, I.P.C.5. Whether this view is correct or not is not material since there has been no. appeal by the Government against the acquittal and the High Court maintained the convictions only under S. 325/149, I. P. C. we agree entirely with the learned Judges of the High Court that, taking all the circumstances of the case into consideration, the sentence of three years rigorous imprisonment awarded by the learned Sessions judge was inadequate.6. Theexamination of the corpse of the deceased person showed that there were ten injuries all over the body as stated by the High Court in the following passage :"The post mortem examination on the corpse of Madan Sahu was held by Dr. S. C. Rout (P.W. 5) who found ten injuries all over the body. Some of the injuries were lacerated wounds on the left side and the right side of the head. There were contusion all over the face neck, thorax and abdomen. The right leg from the knee downwards was broken at its middle. On dissection, the Medical Officer found the lower law fractured and several ribs broken. The pleurae were also found torn at six places below fractured ribs.The right lung was also lacerated. All these injuries appeared to beand death was due to shock and haemorrhage resulting from the thoracic wounds caused by some hard substance or a blunt weapon like a lathi or by fist blows or kicks. Though a portion of the body had been eaten away by wild animals the Medical Officers opinion regarding thenature of the injuries as described above was not challenged ."7. It is clear that this was a brutal attack by several persons in a fit of superstition relating to suspected sorcery. The circumstances in which this attack was made calls for a deterrent sentence. We do not, therefore, feel called upon to interfere.
|
Union of India Vs. Chothia (H.P.) and Others Etc | records of all officers of State Forest Servicer included in the list;(b) the records of all other eligible officers of the State Forest Service who are not adjudged suitable for inclusion in the list, together with the reasons as recorded by the Board for their non-inclusion in the list" (Emphasis ours)A perusal of Regulation 5 manifestly shows that the provision requires three essential conditions to be complied with:-(i) that the Board shall prepare in order of preference a list of officers of the State Forest Service in accordance with Regulation 4;(ii) that the Board must adjudge persons whom it thinks suitable for the appointment to the posts;(iii) that the Board shall send the records of eligible officers of the State who are not adjudged as suitable together with reasons recorded by the Board.The words "shall then be referred to the Commission for advice, by the Central Government alongwith" appear to be of a mandatory character and govern not only cl. (a) but all the other clauses viz. (b) and (c). Thus, a plain interpretation of regulation 5 would show that the requirements mentioned in cls. (a), (b) and (c) must be complied with before the recommendation is sent to the Commission. Cl. (b) clearly states that where eligible officers of the State Forest Service are not found suitable, reasons must be given by the Board for their non-inclusion in the select list. This provision, in our opinion is in public interest and has been made with a view to avoid arbitrary or capricious exercise of discretion by the Board, and also to prevent any hostile discrimination. The word adjudge is a very strong term and indicates that the Board must be satisfied that a person is not suitable and the requirement for giving reasons, has been enjoined for the purpose of proving that the Board was not only satisfied but has given grounds of its satisfaction so as to exclude possibility of any oblique or extraneous consideration. In these circumstances, therefore, we are unable to agree with the counsel for the appellant that the requirement of giving reasons as contained in Regulation 5(2)(b) is merely an idle formality and it is a substantial compliance with the said clause if the Board peruses the confidential rolls of officers and forwards the record to the Commission. Another purpose served by the provision is that the Commission would be in a position to know the views of the Selection Board and the reasons given by it for excluding a particular candidate so that it may verify the correctness of the reasons given by the Board with the record forwarded by the Board. In these circumstances we are satisfied that the provisions for giving reasons by Regulation 5 (2) (b) are mandatory and must be complied with. It is not disputed in the present case that the Board had not complied with this part of the provision of Regulation 5 and this was sufficient to vitiate the selection made by the Board. Mr. Bhatt, relied on an unreported decision of the Kerala High Court where, in a very summary fashion, the said High Court has held that there was no requirement in the Regulation that reasons should be given. In this connection, the High Court of Kerala observed as follows:-"It is to be observed that there is no such requirement in the Rules with which we are concerned in the instant case. Being so, it would be inappropriate to import any requirement of recording of reasons-for selection in this case." (Vide K. G. Vasudevan vs. State of Kerala &Ors. 0 P 2910/ 72 dt. 1-10-75)5. The High Court does not appear to have applied its mind to the language used in S. 5 (2) (b) of the Regulation, nor has it considered the avowed purpose of this provision which is undoubtedly in public interest. In these circumstances, therefore, we find ourself unable to agree with the view taken by the Kerala High Court on this point and we overrule the same.6. Lastly, Mr. Bhatt submitted that in view of the reply affidavit filed by Mr. Bhardwaj, Deputy Secretary to the Government of India, it would appear that the reasons were given by the Board which were that the service record of the respondent did not justify the inclusion of his name in the select list. In the first place, the affidavit appears to have been given by a person who was not a member of the Selection Board and as the recommendation was by a non-speaking order lie would not at all be conversant with the manner in which the recommendation was made ignoring the Respondent No. 1. No r had he any knowledge of the way in which the mind of the Board was working at that time. The deponent, therefore, was not at all competent to certify as to what was the reason given by the Board as required by Regulation 5 (2) (b) nor could the affidavit supply an omission made by the Selection Board in not complying with the mandate contained in Regulation 5 (2) (b). Secondly, the affidavit is obtuse because according to the Deputy Secretary, there was no obligation placed on the Selection Board to give reasons for the supersession of the said Forest Service Officers. This view as we have pointed out, is absolutely incorrect and is not borne out by the language of the provision of Regulation 5. Apart from this, the High Court has pointed out in its judgment at page 31 of the brief that the Court bad given an opportunity to the appellant to produce the records before it so as to find out if the confidential records of the Respondent No. I did not justify the selection. The appellant did not choose to avail of the opportunity given to it by the High Court which clearly indicates that the position was somewhat obscure.For these reasons, we find ourself in complete agreement with the judgment of the High Court and endorse the same. | 0[ds]The High Court does not appear to have applied its mind to the language used in S. 5 (2) (b) of the Regulation, nor has it considered the avowed purpose of this provision which is undoubtedly in public interest. In these circumstances, therefore, we find ourself unable to agree with the view taken by the Kerala High Court on this point and we overrule thethe first place, the affidavit appears to have been given by a person who was not a member of the Selection Board and as the recommendation was by a non-speaking order lie would not at all be conversant with the manner in which the recommendation was made ignoring the Respondent No. 1. No r had he any knowledge of the way in which the mind of the Board was working at that time. The deponent, therefore, was not at all competent to certify as to what was the reason given by the Board as required by Regulation 5 (2) (b) nor could the affidavit supply an omission made by the Selection Board in not complying with the mandate contained in Regulation 5 (2) (b). Secondly, the affidavit is obtuse because according to the Deputy Secretary, there was no obligation placed on the Selection Board to give reasons for the supersession of the said Forest Service Officers. This view as we have pointed out, is absolutely incorrect and is not borne out by the language of the provision of Regulation 5. Apart from this, the High Court has pointed out in its judgment at page 31 of the brief that the Court bad given an opportunity to the appellant to produce the records before it so as to find out if the confidential records of the Respondent No. I did not justify the selection. The appellant did not choose to avail of the opportunity given to it by the High Court which clearly indicates that the position was somewhat obscure.For these reasons, we find ourself in complete agreement with the judgment of the High Court and endorse the same. | 0 | 1,882 | 379 | ### 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:
records of all officers of State Forest Servicer included in the list;(b) the records of all other eligible officers of the State Forest Service who are not adjudged suitable for inclusion in the list, together with the reasons as recorded by the Board for their non-inclusion in the list" (Emphasis ours)A perusal of Regulation 5 manifestly shows that the provision requires three essential conditions to be complied with:-(i) that the Board shall prepare in order of preference a list of officers of the State Forest Service in accordance with Regulation 4;(ii) that the Board must adjudge persons whom it thinks suitable for the appointment to the posts;(iii) that the Board shall send the records of eligible officers of the State who are not adjudged as suitable together with reasons recorded by the Board.The words "shall then be referred to the Commission for advice, by the Central Government alongwith" appear to be of a mandatory character and govern not only cl. (a) but all the other clauses viz. (b) and (c). Thus, a plain interpretation of regulation 5 would show that the requirements mentioned in cls. (a), (b) and (c) must be complied with before the recommendation is sent to the Commission. Cl. (b) clearly states that where eligible officers of the State Forest Service are not found suitable, reasons must be given by the Board for their non-inclusion in the select list. This provision, in our opinion is in public interest and has been made with a view to avoid arbitrary or capricious exercise of discretion by the Board, and also to prevent any hostile discrimination. The word adjudge is a very strong term and indicates that the Board must be satisfied that a person is not suitable and the requirement for giving reasons, has been enjoined for the purpose of proving that the Board was not only satisfied but has given grounds of its satisfaction so as to exclude possibility of any oblique or extraneous consideration. In these circumstances, therefore, we are unable to agree with the counsel for the appellant that the requirement of giving reasons as contained in Regulation 5(2)(b) is merely an idle formality and it is a substantial compliance with the said clause if the Board peruses the confidential rolls of officers and forwards the record to the Commission. Another purpose served by the provision is that the Commission would be in a position to know the views of the Selection Board and the reasons given by it for excluding a particular candidate so that it may verify the correctness of the reasons given by the Board with the record forwarded by the Board. In these circumstances we are satisfied that the provisions for giving reasons by Regulation 5 (2) (b) are mandatory and must be complied with. It is not disputed in the present case that the Board had not complied with this part of the provision of Regulation 5 and this was sufficient to vitiate the selection made by the Board. Mr. Bhatt, relied on an unreported decision of the Kerala High Court where, in a very summary fashion, the said High Court has held that there was no requirement in the Regulation that reasons should be given. In this connection, the High Court of Kerala observed as follows:-"It is to be observed that there is no such requirement in the Rules with which we are concerned in the instant case. Being so, it would be inappropriate to import any requirement of recording of reasons-for selection in this case." (Vide K. G. Vasudevan vs. State of Kerala &Ors. 0 P 2910/ 72 dt. 1-10-75)5. The High Court does not appear to have applied its mind to the language used in S. 5 (2) (b) of the Regulation, nor has it considered the avowed purpose of this provision which is undoubtedly in public interest. In these circumstances, therefore, we find ourself unable to agree with the view taken by the Kerala High Court on this point and we overrule the same.6. Lastly, Mr. Bhatt submitted that in view of the reply affidavit filed by Mr. Bhardwaj, Deputy Secretary to the Government of India, it would appear that the reasons were given by the Board which were that the service record of the respondent did not justify the inclusion of his name in the select list. In the first place, the affidavit appears to have been given by a person who was not a member of the Selection Board and as the recommendation was by a non-speaking order lie would not at all be conversant with the manner in which the recommendation was made ignoring the Respondent No. 1. No r had he any knowledge of the way in which the mind of the Board was working at that time. The deponent, therefore, was not at all competent to certify as to what was the reason given by the Board as required by Regulation 5 (2) (b) nor could the affidavit supply an omission made by the Selection Board in not complying with the mandate contained in Regulation 5 (2) (b). Secondly, the affidavit is obtuse because according to the Deputy Secretary, there was no obligation placed on the Selection Board to give reasons for the supersession of the said Forest Service Officers. This view as we have pointed out, is absolutely incorrect and is not borne out by the language of the provision of Regulation 5. Apart from this, the High Court has pointed out in its judgment at page 31 of the brief that the Court bad given an opportunity to the appellant to produce the records before it so as to find out if the confidential records of the Respondent No. I did not justify the selection. The appellant did not choose to avail of the opportunity given to it by the High Court which clearly indicates that the position was somewhat obscure.For these reasons, we find ourself in complete agreement with the judgment of the High Court and endorse the same.
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0
### Explanation:
The High Court does not appear to have applied its mind to the language used in S. 5 (2) (b) of the Regulation, nor has it considered the avowed purpose of this provision which is undoubtedly in public interest. In these circumstances, therefore, we find ourself unable to agree with the view taken by the Kerala High Court on this point and we overrule thethe first place, the affidavit appears to have been given by a person who was not a member of the Selection Board and as the recommendation was by a non-speaking order lie would not at all be conversant with the manner in which the recommendation was made ignoring the Respondent No. 1. No r had he any knowledge of the way in which the mind of the Board was working at that time. The deponent, therefore, was not at all competent to certify as to what was the reason given by the Board as required by Regulation 5 (2) (b) nor could the affidavit supply an omission made by the Selection Board in not complying with the mandate contained in Regulation 5 (2) (b). Secondly, the affidavit is obtuse because according to the Deputy Secretary, there was no obligation placed on the Selection Board to give reasons for the supersession of the said Forest Service Officers. This view as we have pointed out, is absolutely incorrect and is not borne out by the language of the provision of Regulation 5. Apart from this, the High Court has pointed out in its judgment at page 31 of the brief that the Court bad given an opportunity to the appellant to produce the records before it so as to find out if the confidential records of the Respondent No. I did not justify the selection. The appellant did not choose to avail of the opportunity given to it by the High Court which clearly indicates that the position was somewhat obscure.For these reasons, we find ourself in complete agreement with the judgment of the High Court and endorse the same.
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Punjab State Industrial Dev. Corpn. Ltd Vs. Pnfc Karamchari Sangh | appellant submitted that the PSIDC was formed in the year 1966 as one of the State Financial Institutions for promoting and developing industries in the State of Punjab. In its role of promotion and development of the industries in the State, the PSIDC promoted more than 100 companies. The object was to ensure industrial development in the State. The PNFC was one of the several companies promoted by the PSIDC. As already notified, the PNFC is a separate legal entity being a Company limited by shares under the Companies Act. 8. The PNFC is not a Government company while the PSIDC is a wholly owned undertaking of the Government of Punjab. Even according to respondents, PSIDC hel only 46.23% of equity, other public financial institutions held 14.59% and public held the remaining 39.18% . After drawing our attention to the legal status of the two companies involved, the learned counsel for the appellant drew our attention to the note of the Chief Minister of Punjab. It is submitted with reference to the said Note that it can neither be said to be an order of the State Government nor can it has any binding force so far as the PSIDC is concerned. The submission of the learned counsel for the appellant is that the note is in the nature of a suggestion/request by the Chief Minister and the PSIDC has no legal liability so far as the dues of the PNFC to its workers are concerned. 9. Both the companies were separate legal entities. Though PSIDC might have been involved in promotion and thereafter in guiding the affairs of the PNFC, that is not enough to fasten the liabilities of the PNFC to the PSIDC. In reply, the learned counsel appearing for the respondent - workers association, submitted that as the affairs of PNFC are entirely managed and controlled by the PSIDC, the corporate veil has to be lifted to show that PSIDC was responsible for the acts of PNFC and liabilities of PNFC and it was therefore liable for the dues of the workers. In their application under Rule 9 of the Companies (Court) Rules the workers have pleaded that the PSIDC exercised control over financial and administrative affairs of the PNFC. It is also submitted that the fact that the PSIDC holds 46.13% shares in the PNFC shows the financial interest of the PSIDC in the PNFC. The officers of the PSIDC are also said to have been posted from time to time in the PNFC to manage its affairs. The learned counsel relied on Section 446 of the Companies Act to suggest that a Company Judge has wide powers with respect to a company in liquidation. He invited reference to Sudarsan Chits (I) Ltd. vs. O. Sukumaran Pillai and Ors. (1984) 4 SCC 657 in support of this contention. In our view this judgment does not help the respondent. Under Section 446 the powers of the Company Judge qua a Company under liquidation may be wide, but that does not empower the Company Judge to pass an order making a distinct and separate corporation, a third party, liable for the liabilities of the Company in liquidation. 10. This aspect unfortunately has not been adverted to either by the learned Company Judge or by the Division Bench of the High Court. Reliance was placed on the so called order of the Chief Minister permitting the PSIDC to raise funds in order to meet the liability of the PNFC towards salary of its workers for at least six months. We have carefully perused the note of the Chief Minister dated 25th August, 2001. The said note cannot be said to be an order of the State Government and therefore is not binding on the PSIDC. The orders of the State Government are issued in a prescribed manner and the note dated 25th August, 2001 cannot be treated as one. The learned counsel for the respondent also brought to our notice Article 135 of the Memorandum and Articles of Association of the PSIDC under which the State Government can issue directives to the PSIDC. Article 135 is reproduced as under: Notwithstanding anything contained in any of the Articles, the Government may from time to time; issue such directives as they may consider necessary in matters of broad policy and in like manner may vary and annul any such directive. The company shall give immediate effect to directives so issued. 11. Reliance on Article 135 is misplaced in the present case because the note of the Chief Minister cannot be said to be a directive of the State Government nor it is in relation to broad policy of the Company. Article 135 does not help the respondent. 12. While contending that the veil has to be lifted, the learned counsel relied on Calcutta Chromotype Ltd. vs. Collector of Central Excise, Calcutta AIR 1988 SC 1631. This was a case of alleged evasion of excise duty by a manufacturer selling its manufactured products through a sole selling distributor, who sold the goods in market at a higher price. The idea was to show a lesser price of manufacture in order to save central excise duty. The manufacturing company as well as the business of the sole selling agent though shown as independent, were owned by the members of the same family. In such a case the focus is from a different angle and the issue is different. In the present case there is no evasion of any tax. Here the issue is when there are two independently legal entities can an order be passed that one company will be liable for the dues of the other to a third party. Can a Company Court pass such a direction without consideration of the question of legal liability of the company sought to be made liable? As a result of the above discussion we hold that the PSIDC could not be made liable for the dues owed by the PNFC to its workers. 13. | 1[ds]The Company Court has chosen to fasten liability on a third party, i.e., the PSIDC while seized of proceedings with respect to the Company in liquidation (the PNFC). Was it legally permissible? The learned counsel for the appellant submitted that the PSIDC was formed in the year 1966 as one of the State Financial Institutions for promoting and developing industries in the State of Punjab. In its role of promotion and development of the industries in the State, the PSIDC promoted more than 100 companies. The object was to ensure industrial development in the State. The PNFC was one of the several companies promoted by the PSIDC. As already notified, the PNFC is a separate legal entity being a Company limited by shares under the Companies Act8. The PNFC is not a Government company while the PSIDC is a wholly owned undertaking of the Government of Punjab. Even according to respondents, PSIDC hel only 46.23% of equity, other public financial institutions held 14.59% and public held the remaining 39.18% . After drawing our attention to the legal status of the two companies involved, the learned counsel for the appellant drew our attention to the note of the Chief Minister of Punjab. It is submitted with reference to the said Note that it can neither be said to be an order of the State Government nor can it has any binding force so far as the PSIDC is concerned. The submission of the learned counsel for the appellant is that the note is in the nature of a suggestion/request by the Chief Minister and the PSIDC has no legal liability so far as the dues of the PNFC to its workers are concerned9. Both the companies were separate legal entities. Though PSIDC might have been involved in promotion and thereafter in guiding the affairs of the PNFC, that is not enough to fasten the liabilities of the PNFC to the PSIDC. In reply, the learned counsel appearing for the respondent - workers association, submitted that as the affairs of PNFC are entirely managed and controlled by the PSIDC, the corporate veil has to be lifted to show that PSIDC was responsible for the acts of PNFC and liabilities of PNFC and it was therefore liable for the dues of the workers. In their application under Rule 9 of the Companies (Court) Rules the workers have pleaded that the PSIDC exercised control over financial and administrative affairs of the PNFC. It is also submitted that the fact that the PSIDC holds 46.13% shares in the PNFC shows the financial interest of the PSIDC in the PNFC. The officers of the PSIDC are also said to have been posted from time to time in the PNFC to manage its affairs. The learned counsel relied on Section 446 of the Companies Act to suggest that a Company Judge has wide powers with respect to a company in liquidation. He invited reference to Sudarsan Chits (I) Ltd. vs. O. Sukumaran Pillai and Ors. (1984) 4 SCC 657 in support of this contention. In our view this judgment does not help the respondent. Under Section 446 the powers of the Company Judge qua a Company under liquidation may be wide, but that does not empower the Company Judge to pass an order making a distinct and separate corporation, a third party, liable for the liabilities of the Company in liquidation10. This aspect unfortunately has not been adverted to either by the learned Company Judge or by the Division Bench of the High Court. Reliance was placed on the so called order of the Chief Minister permitting the PSIDC to raise funds in order to meet the liability of the PNFC towards salary of its workers for at least six months. We have carefully perused the note of the Chief Minister dated 25th August, 2001. The said note cannot be said to be an order of the State Government and therefore is not binding on the PSIDC. The orders of the State Government are issued in a prescribed manner and the note dated 25th August, 2001 cannot be treated as one. The learned counsel for the respondent also brought to our notice Article 135 of the Memorandum and Articles of Association of the PSIDC under which the State Government can issue directives to the PSIDC. Article 135 is reproduced as under: Notwithstanding anything contained in any of the Articles, the Government may from time to time; issue such directives as they may consider necessary in matters of broad policy and in like manner may vary and annul any such directive. The company shall give immediate effect to directives so issued11. Reliance on Article 135 is misplaced in the present case because the note of the Chief Minister cannot be said to be a directive of the State Government nor it is in relation to broad policy of the Company. Article 135 does not help the respondent12. While contending that the veil has to be lifted, the learned counsel relied on Calcutta Chromotype Ltd. vs. Collector of Central Excise, Calcutta AIR 1988 SC 1631. This was a case of alleged evasion of excise duty by a manufacturer selling its manufactured products through a sole selling distributor, who sold the goods in market at a higher price. The idea was to show a lesser price of manufacture in order to save central excise duty. The manufacturing company as well as the business of the sole selling agent though shown as independent, were owned by the members of the same family. In such a case the focus is from a different angle and the issue is different. In the present case there is no evasion of any tax. Here the issue is when there are two independently legal entities can an order be passed that one company will be liable for the dues of the other to a third party. Can a Company Court pass such a direction without consideration of the question of legal liability of the company sought to be made liable? As a result of the above discussion we hold that the PSIDC could not be made liable for the dues owed by the PNFC to its workers | 1 | 1,896 | 1,113 | ### 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:
appellant submitted that the PSIDC was formed in the year 1966 as one of the State Financial Institutions for promoting and developing industries in the State of Punjab. In its role of promotion and development of the industries in the State, the PSIDC promoted more than 100 companies. The object was to ensure industrial development in the State. The PNFC was one of the several companies promoted by the PSIDC. As already notified, the PNFC is a separate legal entity being a Company limited by shares under the Companies Act. 8. The PNFC is not a Government company while the PSIDC is a wholly owned undertaking of the Government of Punjab. Even according to respondents, PSIDC hel only 46.23% of equity, other public financial institutions held 14.59% and public held the remaining 39.18% . After drawing our attention to the legal status of the two companies involved, the learned counsel for the appellant drew our attention to the note of the Chief Minister of Punjab. It is submitted with reference to the said Note that it can neither be said to be an order of the State Government nor can it has any binding force so far as the PSIDC is concerned. The submission of the learned counsel for the appellant is that the note is in the nature of a suggestion/request by the Chief Minister and the PSIDC has no legal liability so far as the dues of the PNFC to its workers are concerned. 9. Both the companies were separate legal entities. Though PSIDC might have been involved in promotion and thereafter in guiding the affairs of the PNFC, that is not enough to fasten the liabilities of the PNFC to the PSIDC. In reply, the learned counsel appearing for the respondent - workers association, submitted that as the affairs of PNFC are entirely managed and controlled by the PSIDC, the corporate veil has to be lifted to show that PSIDC was responsible for the acts of PNFC and liabilities of PNFC and it was therefore liable for the dues of the workers. In their application under Rule 9 of the Companies (Court) Rules the workers have pleaded that the PSIDC exercised control over financial and administrative affairs of the PNFC. It is also submitted that the fact that the PSIDC holds 46.13% shares in the PNFC shows the financial interest of the PSIDC in the PNFC. The officers of the PSIDC are also said to have been posted from time to time in the PNFC to manage its affairs. The learned counsel relied on Section 446 of the Companies Act to suggest that a Company Judge has wide powers with respect to a company in liquidation. He invited reference to Sudarsan Chits (I) Ltd. vs. O. Sukumaran Pillai and Ors. (1984) 4 SCC 657 in support of this contention. In our view this judgment does not help the respondent. Under Section 446 the powers of the Company Judge qua a Company under liquidation may be wide, but that does not empower the Company Judge to pass an order making a distinct and separate corporation, a third party, liable for the liabilities of the Company in liquidation. 10. This aspect unfortunately has not been adverted to either by the learned Company Judge or by the Division Bench of the High Court. Reliance was placed on the so called order of the Chief Minister permitting the PSIDC to raise funds in order to meet the liability of the PNFC towards salary of its workers for at least six months. We have carefully perused the note of the Chief Minister dated 25th August, 2001. The said note cannot be said to be an order of the State Government and therefore is not binding on the PSIDC. The orders of the State Government are issued in a prescribed manner and the note dated 25th August, 2001 cannot be treated as one. The learned counsel for the respondent also brought to our notice Article 135 of the Memorandum and Articles of Association of the PSIDC under which the State Government can issue directives to the PSIDC. Article 135 is reproduced as under: Notwithstanding anything contained in any of the Articles, the Government may from time to time; issue such directives as they may consider necessary in matters of broad policy and in like manner may vary and annul any such directive. The company shall give immediate effect to directives so issued. 11. Reliance on Article 135 is misplaced in the present case because the note of the Chief Minister cannot be said to be a directive of the State Government nor it is in relation to broad policy of the Company. Article 135 does not help the respondent. 12. While contending that the veil has to be lifted, the learned counsel relied on Calcutta Chromotype Ltd. vs. Collector of Central Excise, Calcutta AIR 1988 SC 1631. This was a case of alleged evasion of excise duty by a manufacturer selling its manufactured products through a sole selling distributor, who sold the goods in market at a higher price. The idea was to show a lesser price of manufacture in order to save central excise duty. The manufacturing company as well as the business of the sole selling agent though shown as independent, were owned by the members of the same family. In such a case the focus is from a different angle and the issue is different. In the present case there is no evasion of any tax. Here the issue is when there are two independently legal entities can an order be passed that one company will be liable for the dues of the other to a third party. Can a Company Court pass such a direction without consideration of the question of legal liability of the company sought to be made liable? As a result of the above discussion we hold that the PSIDC could not be made liable for the dues owed by the PNFC to its workers. 13.
### Response:
1
### Explanation:
permissible? The learned counsel for the appellant submitted that the PSIDC was formed in the year 1966 as one of the State Financial Institutions for promoting and developing industries in the State of Punjab. In its role of promotion and development of the industries in the State, the PSIDC promoted more than 100 companies. The object was to ensure industrial development in the State. The PNFC was one of the several companies promoted by the PSIDC. As already notified, the PNFC is a separate legal entity being a Company limited by shares under the Companies Act8. The PNFC is not a Government company while the PSIDC is a wholly owned undertaking of the Government of Punjab. Even according to respondents, PSIDC hel only 46.23% of equity, other public financial institutions held 14.59% and public held the remaining 39.18% . After drawing our attention to the legal status of the two companies involved, the learned counsel for the appellant drew our attention to the note of the Chief Minister of Punjab. It is submitted with reference to the said Note that it can neither be said to be an order of the State Government nor can it has any binding force so far as the PSIDC is concerned. The submission of the learned counsel for the appellant is that the note is in the nature of a suggestion/request by the Chief Minister and the PSIDC has no legal liability so far as the dues of the PNFC to its workers are concerned9. Both the companies were separate legal entities. Though PSIDC might have been involved in promotion and thereafter in guiding the affairs of the PNFC, that is not enough to fasten the liabilities of the PNFC to the PSIDC. In reply, the learned counsel appearing for the respondent - workers association, submitted that as the affairs of PNFC are entirely managed and controlled by the PSIDC, the corporate veil has to be lifted to show that PSIDC was responsible for the acts of PNFC and liabilities of PNFC and it was therefore liable for the dues of the workers. In their application under Rule 9 of the Companies (Court) Rules the workers have pleaded that the PSIDC exercised control over financial and administrative affairs of the PNFC. It is also submitted that the fact that the PSIDC holds 46.13% shares in the PNFC shows the financial interest of the PSIDC in the PNFC. The officers of the PSIDC are also said to have been posted from time to time in the PNFC to manage its affairs. The learned counsel relied on Section 446 of the Companies Act to suggest that a Company Judge has wide powers with respect to a company in liquidation. He invited reference to Sudarsan Chits (I) Ltd. vs. O. Sukumaran Pillai and Ors. (1984) 4 SCC 657 in support of this contention. In our view this judgment does not help the respondent. Under Section 446 the powers of the Company Judge qua a Company under liquidation may be wide, but that does not empower the Company Judge to pass an order making a distinct and separate corporation, a third party, liable for the liabilities of the Company in liquidation10. This aspect unfortunately has not been adverted to either by the learned Company Judge or by the Division Bench of the High Court. Reliance was placed on the so called order of the Chief Minister permitting the PSIDC to raise funds in order to meet the liability of the PNFC towards salary of its workers for at least six months. We have carefully perused the note of the Chief Minister dated 25th August, 2001. The said note cannot be said to be an order of the State Government and therefore is not binding on the PSIDC. The orders of the State Government are issued in a prescribed manner and the note dated 25th August, 2001 cannot be treated as one. The learned counsel for the respondent also brought to our notice Article 135 of the Memorandum and Articles of Association of the PSIDC under which the State Government can issue directives to the PSIDC. Article 135 is reproduced as under: Notwithstanding anything contained in any of the Articles, the Government may from time to time; issue such directives as they may consider necessary in matters of broad policy and in like manner may vary and annul any such directive. The company shall give immediate effect to directives so issued11. Reliance on Article 135 is misplaced in the present case because the note of the Chief Minister cannot be said to be a directive of the State Government nor it is in relation to broad policy of the Company. Article 135 does not help the respondent12. While contending that the veil has to be lifted, the learned counsel relied on Calcutta Chromotype Ltd. vs. Collector of Central Excise, Calcutta AIR 1988 SC 1631. This was a case of alleged evasion of excise duty by a manufacturer selling its manufactured products through a sole selling distributor, who sold the goods in market at a higher price. The idea was to show a lesser price of manufacture in order to save central excise duty. The manufacturing company as well as the business of the sole selling agent though shown as independent, were owned by the members of the same family. In such a case the focus is from a different angle and the issue is different. In the present case there is no evasion of any tax. Here the issue is when there are two independently legal entities can an order be passed that one company will be liable for the dues of the other to a third party. Can a Company Court pass such a direction without consideration of the question of legal liability of the company sought to be made liable? As a result of the above discussion we hold that the PSIDC could not be made liable for the dues owed by the PNFC to its workers
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Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. | the international covenants operating in the field. 66. It is of some significance to notice that in Jolly George Varghese and Another vs. The Bank of Cochin [(1980) 2 SCC 360] , this Court opined: Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Arts. 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhis case [1978] 1 S.C.R. 248 as developed further in Sunil Batra v. Delhi Administration, Sita Ram and Ors. v. State of U.P. and Sunil Batra v. Delhi Administration lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of daridra Narayana, is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation we have put on the Proviso to Section 51 C.P.C. and the lethal blow of Article 21 cannot strike down the provision, as now interpreted. The words which hurt are or has had since the date of the decree, the means to pay the amount of the decree. This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11(of the Covenant) and Article 21(of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtors other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised Section 51 with the Covenant and the Constitution. 67. It is also of some significance to note that whereas under Section 357(1) of the Code of Criminal Procedure a fine of Rs. 5000/- can be imposed; fine in terms of Section 357 (2) thereof can be twice the amount of cheque whereas there is no upper limit for award of a compensation. But the same would be subject to other provisions of the Code of Criminal Procedure which mandates that the amount of fine imposed on an accused cannot be more than Rs. 5000/-. The very fact that the Parliament did not think it fit to put a ceiling limit in regard to the amount of compensation leviable upon an accused, the discretionary jurisdiction thereto must be exercised judiciously. Ordinarily, an accused shall not be taken in custody during trial. Thus, while exercising the appellate power, ordinarily, a person should not suffer imprisonment only because the conditions imposed for suspending the sentence are harsh. 68. We are of the opinion that having regard to the aforementioned factors the amount of compensation not only must be reasonable one, the conditions for suspending the sentence should also be reasonable. It is only with that intent in view, the doctrine of purposive construction should be applied. We would, however, like to put a note of caution that the right of an accused unnecessarily need not be enlarged but it is the courts duty to duly protect his right. We are prima facie of the opinion (without going into the merit of the appeal) that the direction of the learned Trial Judge appears to be somewhat unreasonable. Appellant herein has been sentenced to imprisonment. Only fine has been imposed on the Company. Thus, for all intent and purpose, the learned Trial Judge has invoked both Sub-sections (1) and (3) of Section 357 of the Code. The liability of the appellant herein was a vicarious one in terms of Section 141 of the Negotiable Instruments Act. The question may also have to be considered from the angle that the learned Trial Judge thought it fit to impose a fine of Rs. 25,000/- only upon the Company. If that be so, a question would arise as to whether an amount of compensation for a sum of Rs. 15 lakhs should have been directed to be paid by the Chairman of the Company. We feel that it is not. 69. We, therefore, are of the opinion: i) In a case of this nature, Sub-Section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation; ii) The Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right; iii) The amount of compensation must be a reasonable sum; iv) The Court, while fixing such amount, must have regard to all relevant factors including the one referred to in Sub-Section (5) of 357 of the Code of Criminal Procedure; v) No unreasonable amount of compensation can be directed to be paid. 70. | 1[ds]33. We must, however, observe that there exists a distinction between fine and compensation, although, in a way it seeks to achieve the same purpose. An amount of compensation can be directed to be recovered as a fine but the legal fiction raised in relation to recovery of fine only, it is in that sense `fine stands on a higher footing than compensation awarded by the Court. If, therefore, undern (2) of Section 357, realization of fine, at least in respect of the factor(s) enumerated in clause (1) ofn to be stayed automatically, we see no reason as to why the legislative intent cannot be held to apply in relation to amount of compensation directed to be paid in terms of48. Section 421 only provides for a mode of recovery of fine. Section 424 provides for an enabling clause so as to enable the Court to take recourse to either of the situations provided for therein. The said provision, however, would be subject ton (2) of Section 357 of the Code. Section 431 of the Code provides for a legal fiction in terms whereof any money other than a fine shall be recoverable as if it were a fine. Even according to Mr. Lalit,n (2) of Section 357 of the Code would be attracted in such a situation. There does not appear to be any reason as to why the amount of compensation should be held to be automatically payable, although the same is only to be recovered as if a fine has been imposed49. We are, however, not oblivious of the fact that in Stanny Felix Pinto vs. Jangid Builders Pvt. Ltd. & Anr. [(2001) 2 SCC 416] , Thomas, J. opined that while entertaining revision applications, a part of the fine should be directed to be deposited but therein this Court had no occasion to consider the provisions of Section 357 of the Code in details50. This Court in an appropriate case may have to consider as to whether in economic offence like Negotiable Instruments Act, the Courts should at all invoken (3) of Section 357 of the Code, when the purpose can be achieved by taking recourse to substantive provision of Section 138 of the Act read with Section 357(1) thereof. We, however, do not intend to lay down any law in this behalf, as at present advised, as we are not concerned herein with such a situation51. Section 389 does not deal with exactly a similar situation. Section 389 of the Code is to be read with Section 387 thereof. Suspension of a sentence and enlarging an appellant on bail, who is convicted and realization of fine has been dealt with by the Parliament under different provisions of the Code. The power of the Court, thus, to suspend a sentence in regard to realization of compensation may be different from that of a direction in realization of fine52. If realization of an amount of compensation payable to a victim as envisaged under Clause (d) ofn (1) of Section 357 is to be stayed undern (2) thereof, there is no reason why the amount of compensation payable in terms ofn (3) shall not receive the same treatment. Doctrine of Purposive Interpretation in a situation of this nature, in our opinion, shall be applied54. Unfortunately, the Legislature has not made any express provision in this behalf. In absence of any express provision, the question must be considered having regard to the overall object of aWe have noticed hereinbefore that Article 21 of the Constitution of India read with Section 374 of Crl.P.C. confers a right of appeal. Such a right is an absolute one. In a case where a judgment of conviction has been awarded, the Court can release a person on bail having regard to the nature of offence but as also the other relevant factors including its effect on society. A person upon arrest may have to remain in jail as an under trial prisoner. So would a person upon conviction. A person may also have to remain in jail, in the event he defaults in payment of fine, if he is so directed. But when a direction is issued for payment of compensation, having regard ton (2) of Section 357 of the Code, the application thereof should ordinarily be directed to be stayed. It will, therefore, be for the Court to stay the operation of that part of the judgment whereby and where under compensation has been directed to be paid, which would necessarily mean that some conditions therefor may also be imposed. A fortiori a part of the amount of compensation may be directed to be deposited, but the same must be a reasonable amount55. An order may not be passed which the appellant cannot comply with resulting him being sent to prison. Appellate Court, in such cases, must make an endeavour to strike a balance. Section 421 of the Code of the Criminal Procedure may take recourse to, but therefor he cannot be remanded to custody56. The Parliament has dealt with the imposition of substantive sentence and a sentence of fines payment of compensation differently57. A penal statute, in the event, the different meanings are possible to be given, must be construed liberally in favour of an accused58. While the Court shall give due weight to the need of the victim, it cannot ignore the right of an accused. In a case of conflict, construction which favours the accused shall prevail59. In a case of this nature, the Court must invoke the doctrine of purposive construction.n (2) of Section 357 was enacted for a definite purpose. It must be given its full effect65. We, generally, agree with the observations made by the learned Judge, the same shall, however, be subject to any observations made hereinbeforeThe matter has to be considered from another angle. An accused for commission of an offence under Section 138 of the Negotiable Instruments Act would ordinarily be granted bail; in view of the fact that the offence is a bailable oneThe right to appeal from a judgment of convictions the provisions of Section 357 of the Code of Criminal Procedure and other provisions thereof, as mentioned hereinbefore, must be considered having regard to the fundamental right of an accused enshrined under Article 21 of the Constitution of India as also the international covenants operating in the fieldIt is also of some significance to note that whereas under Section 357(1) of the Code of Criminal Procedure a fine of Rs. 5000/can be imposed; fine in terms of Section 357 (2) thereof can be twice the amount of cheque whereas there is no upper limit for award of a compensation. But the same would be subject to other provisions of the Code of Criminal Procedure which mandates that the amount of fine imposed on an accused cannot be more than Rs.. The very fact that the Parliament did not think it fit to put a ceiling limit in regard to the amount of compensation leviable upon an accused, the discretionary jurisdiction thereto must be exercised judiciously. Ordinarily, an accused shall not be taken in custody during trial. Thus, while exercising the appellate power, ordinarily, a person should not suffer imprisonment only because the conditions imposed for suspending the sentence are harshWe are of the opinion that having regard to the aforementioned factors the amount of compensation not only must be reasonable one, the conditions for suspending the sentence should also be reasonable. It is only with that intent in view, the doctrine of purposive construction should be appliedWe would, however, like to put a note of caution that the right of an accused unnecessarily need not be enlarged but it is the courts duty to duly protect his rightWe are prima facie of the opinion (without going into the merit of the appeal) that the direction of the learned Trial Judge appears to be somewhat unreasonable. Appellant herein has been sentenced to imprisonment. Only fine has been imposed on the Company. Thus, for all intent and purpose, the learned Trial Judge has invoked boths (1) and (3) of Section 357 of the Code. The liability of the appellant herein was a vicarious one in terms of Section 141 of the Negotiable Instruments Act. The question may also have to be considered from the angle that the learned Trial Judge thought it fit to impose a fine of Rs. 25,000/only upon the Company. If that be so, a question would arise as to whether an amount of compensation for a sum of Rs. 15 lakhs should have been directed to be paid by the Chairman of the Company. We feel that it is notWe, therefore, are of the opinion:i) In a case of this nature,n (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation;ii) The Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right;iii) The amount of compensation must be a reasonable sum;iv) The Court, while fixing such amount, must have regard to all relevant factors including the one referred to inn (5) of 357 of the Code of Criminal Procedure;v) No unreasonable amount of compensation can be directed to be paid. | 1 | 10,715 | 1,773 | ### 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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the international covenants operating in the field. 66. It is of some significance to notice that in Jolly George Varghese and Another vs. The Bank of Cochin [(1980) 2 SCC 360] , this Court opined: Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Arts. 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhis case [1978] 1 S.C.R. 248 as developed further in Sunil Batra v. Delhi Administration, Sita Ram and Ors. v. State of U.P. and Sunil Batra v. Delhi Administration lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of daridra Narayana, is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation we have put on the Proviso to Section 51 C.P.C. and the lethal blow of Article 21 cannot strike down the provision, as now interpreted. The words which hurt are or has had since the date of the decree, the means to pay the amount of the decree. This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11(of the Covenant) and Article 21(of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtors other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised Section 51 with the Covenant and the Constitution. 67. It is also of some significance to note that whereas under Section 357(1) of the Code of Criminal Procedure a fine of Rs. 5000/- can be imposed; fine in terms of Section 357 (2) thereof can be twice the amount of cheque whereas there is no upper limit for award of a compensation. But the same would be subject to other provisions of the Code of Criminal Procedure which mandates that the amount of fine imposed on an accused cannot be more than Rs. 5000/-. The very fact that the Parliament did not think it fit to put a ceiling limit in regard to the amount of compensation leviable upon an accused, the discretionary jurisdiction thereto must be exercised judiciously. Ordinarily, an accused shall not be taken in custody during trial. Thus, while exercising the appellate power, ordinarily, a person should not suffer imprisonment only because the conditions imposed for suspending the sentence are harsh. 68. We are of the opinion that having regard to the aforementioned factors the amount of compensation not only must be reasonable one, the conditions for suspending the sentence should also be reasonable. It is only with that intent in view, the doctrine of purposive construction should be applied. We would, however, like to put a note of caution that the right of an accused unnecessarily need not be enlarged but it is the courts duty to duly protect his right. We are prima facie of the opinion (without going into the merit of the appeal) that the direction of the learned Trial Judge appears to be somewhat unreasonable. Appellant herein has been sentenced to imprisonment. Only fine has been imposed on the Company. Thus, for all intent and purpose, the learned Trial Judge has invoked both Sub-sections (1) and (3) of Section 357 of the Code. The liability of the appellant herein was a vicarious one in terms of Section 141 of the Negotiable Instruments Act. The question may also have to be considered from the angle that the learned Trial Judge thought it fit to impose a fine of Rs. 25,000/- only upon the Company. If that be so, a question would arise as to whether an amount of compensation for a sum of Rs. 15 lakhs should have been directed to be paid by the Chairman of the Company. We feel that it is not. 69. We, therefore, are of the opinion: i) In a case of this nature, Sub-Section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation; ii) The Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right; iii) The amount of compensation must be a reasonable sum; iv) The Court, while fixing such amount, must have regard to all relevant factors including the one referred to in Sub-Section (5) of 357 of the Code of Criminal Procedure; v) No unreasonable amount of compensation can be directed to be paid. 70.
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of any express provision, the question must be considered having regard to the overall object of aWe have noticed hereinbefore that Article 21 of the Constitution of India read with Section 374 of Crl.P.C. confers a right of appeal. Such a right is an absolute one. In a case where a judgment of conviction has been awarded, the Court can release a person on bail having regard to the nature of offence but as also the other relevant factors including its effect on society. A person upon arrest may have to remain in jail as an under trial prisoner. So would a person upon conviction. A person may also have to remain in jail, in the event he defaults in payment of fine, if he is so directed. But when a direction is issued for payment of compensation, having regard ton (2) of Section 357 of the Code, the application thereof should ordinarily be directed to be stayed. It will, therefore, be for the Court to stay the operation of that part of the judgment whereby and where under compensation has been directed to be paid, which would necessarily mean that some conditions therefor may also be imposed. A fortiori a part of the amount of compensation may be directed to be deposited, but the same must be a reasonable amount55. An order may not be passed which the appellant cannot comply with resulting him being sent to prison. Appellate Court, in such cases, must make an endeavour to strike a balance. Section 421 of the Code of the Criminal Procedure may take recourse to, but therefor he cannot be remanded to custody56. The Parliament has dealt with the imposition of substantive sentence and a sentence of fines payment of compensation differently57. A penal statute, in the event, the different meanings are possible to be given, must be construed liberally in favour of an accused58. While the Court shall give due weight to the need of the victim, it cannot ignore the right of an accused. In a case of conflict, construction which favours the accused shall prevail59. In a case of this nature, the Court must invoke the doctrine of purposive construction.n (2) of Section 357 was enacted for a definite purpose. It must be given its full effect65. We, generally, agree with the observations made by the learned Judge, the same shall, however, be subject to any observations made hereinbeforeThe matter has to be considered from another angle. An accused for commission of an offence under Section 138 of the Negotiable Instruments Act would ordinarily be granted bail; in view of the fact that the offence is a bailable oneThe right to appeal from a judgment of convictions the provisions of Section 357 of the Code of Criminal Procedure and other provisions thereof, as mentioned hereinbefore, must be considered having regard to the fundamental right of an accused enshrined under Article 21 of the Constitution of India as also the international covenants operating in the fieldIt is also of some significance to note that whereas under Section 357(1) of the Code of Criminal Procedure a fine of Rs. 5000/can be imposed; fine in terms of Section 357 (2) thereof can be twice the amount of cheque whereas there is no upper limit for award of a compensation. But the same would be subject to other provisions of the Code of Criminal Procedure which mandates that the amount of fine imposed on an accused cannot be more than Rs.. The very fact that the Parliament did not think it fit to put a ceiling limit in regard to the amount of compensation leviable upon an accused, the discretionary jurisdiction thereto must be exercised judiciously. Ordinarily, an accused shall not be taken in custody during trial. Thus, while exercising the appellate power, ordinarily, a person should not suffer imprisonment only because the conditions imposed for suspending the sentence are harshWe are of the opinion that having regard to the aforementioned factors the amount of compensation not only must be reasonable one, the conditions for suspending the sentence should also be reasonable. It is only with that intent in view, the doctrine of purposive construction should be appliedWe would, however, like to put a note of caution that the right of an accused unnecessarily need not be enlarged but it is the courts duty to duly protect his rightWe are prima facie of the opinion (without going into the merit of the appeal) that the direction of the learned Trial Judge appears to be somewhat unreasonable. Appellant herein has been sentenced to imprisonment. Only fine has been imposed on the Company. Thus, for all intent and purpose, the learned Trial Judge has invoked boths (1) and (3) of Section 357 of the Code. The liability of the appellant herein was a vicarious one in terms of Section 141 of the Negotiable Instruments Act. The question may also have to be considered from the angle that the learned Trial Judge thought it fit to impose a fine of Rs. 25,000/only upon the Company. If that be so, a question would arise as to whether an amount of compensation for a sum of Rs. 15 lakhs should have been directed to be paid by the Chairman of the Company. We feel that it is notWe, therefore, are of the opinion:i) In a case of this nature,n (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation;ii) The Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right;iii) The amount of compensation must be a reasonable sum;iv) The Court, while fixing such amount, must have regard to all relevant factors including the one referred to inn (5) of 357 of the Code of Criminal Procedure;v) No unreasonable amount of compensation can be directed to be paid.
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Commissioner Of Income Tax 1 Vs. M/S. Hindustan Petroleum Corporation Ltd | by compressing the same into liquid form; and(d) Capping, fixing of seals and safety valves prior to storage and loading of filled cylinders.17) Thus, after the bottling activities at the assessees’ plants, LPG is stored in cylinders in liquefied form under pressure. When the cylinder valve is opened and the gas is withdrawn from the cylinder, the pressure falls and the liquid boils to return to gaseous state. This is how LPG is made suitable for domestic use by customers who will not be able to use LPG in its vapour form as produced in the oil refinery. It, therefore, becomes apparent that the LPG obtained from the refinery undergoes a complex technical process in the assessees’ plants and is clearly distinguishable from the LPG bottled in cylinders and cleared from these plants for domestic use by customers. It may be relevant to point out that keeping in view the aforesaid process, the ITAT arrived at the specific findings in support of its decision, which are as under:(a) There is no dispute that the LPG produced in the refinery cannot be directly supplied to the consumer for domestic use because of various reasons of handling, storage and safety.(b) LPG bottling is a highly technical and complex activity which requires precise functions of machines operated by technically expert personnel.(c) Bottling of LPG is an essential process for rendering the product marketable and usable for the end customer.(d) The word ‘production’ has a wider connotation in comparison to ‘manufacture’, and any activity which brings a commercially new product into existence constitutes production. The process of bottling of LPG renders it capable of being marketed as a domestic kitchen fuel and, thereby, makes it a viable commercial product.18) In the considered opinion of this Court, the aforesaid activity would definitely fall within the expression ‘production’. We agree with the submission of the learned counsels for the assessees that the definition of ‘manufacture of gas’ in Rule 2 (xxxii) of the Gas Cylinders Rules, 2004 also supports the case of the assessees inasmuch as gas distribution and bottling is treated as manufacturing or producing gas. We are also inclined to accept the submission of the learned counsel for the assesses that various High Courts have, from time to time, decided that bottling of gas into cylinder amounts to production and, therefore, claim of deduction under Sections 80HH, 80-I and 80-IA would be admissible. Another important aspect which was highlighted by learned counsels for the assessees was that identical issue whether bottling of gas into cylinder amounts to production for claim of deduction under the Act has been considered by various High Courts and decided in the affirmative but those decisions were not challenged by the Department. The cases specifically referred were M/s. Puttur Petro Products Pvt. Ltd. v. The Assistant Commissioner of Income Tax, Mangalore (2014) 361 ITR 290 )and Central U.P. Gas Ltd. v. Deputy Commissioner of Income Tax, Kanpur (Income Tax Appeal No. 224 of 2014 decided by High Court of Allahabad.19) From the submissions made by learned counsel for the Revenue, who banked on the reasoning given by the AO, it can be gathered that the entire thrust of the AO was that the process involved in filling up the gas into cylinders does not amount to ‘manufacture’ inasmuch as the said process does not bring into existence a new identifiable and distinctive goods. In the first instance, no distinction was drawn between manufacture and production and the matter was not looked into from the angle as to whether the aforesaid process would amount to production or not. Other reason which prevailed with the AO and which was also the argument of the learned counsel for the Revenue was that, on identical facts, the Gujarat High Court had held that refilling the LPG after purchasing from M/s. HPCL into small cylinders would not amount to manufacture. That was a case which was decided in the context of the Gujarat Sales Tax Act, 1969. The Court held that transfer of LPG from bulk containers into cylinders did not amount to process of manufacture. It is pertinent to point out that Section 2(16) of the Gujarat Sales Tax Act, 1969 defines ‘manufacture’ and, therefore, the entire case was examined keeping in view the said definition of ‘manufacture’ and the issue was as to whether the process amounted to manufacture or not. As pointed out above, the question as to whether it amounts to ‘production’ as well did not arise for consideration. The AO committed manifest error in relying upon the said decision inasmuch as the provisions with which we are concerned in the instant case use the words ‘manufacture or production’ and are not limited to ‘manufacture’ alone.20) Judgment in the cases of Servo-Med Industries Private Limited and Tara Agencies, which were cited by the learned counsel for the Revenue, may not apply to the present case. They dealt with the provision of the Central Excise Act and, therefore, test of ‘manufacture’ propounded on that case would not be applicable when dealing with the cases under the provisions of Sections 80HH, 80-I and 80-IA of the Act which use both the expressions ‘manufacture’ and ‘production’. It has already been clarified in Vadilal Chemicals Ltd. judgment. Insofar as judgment in Tara Agencies is concerned, the factual scenario therein was totally different where three different stages in relation to tea were examined by this Court. The Court held that the procedure of blending of different qualities of tea would amount to ‘processing of tea’ and it did not amount to ‘manufacture or production of tea’. Here, the case set up by the assessees is not that bottling of LPG is ‘processing’ as distinguished from ‘manufacture’ or ‘production’. We may, at this juncture, refer to the judgment of this Court in Commissioner of Income Tax, Madras v. Vinbros and Company (2015) 14 SCC 483 )where bottling and blending of alcohol is held to be ‘manufacture or production’ for the purpose of Section 80-IB of the Act. | 1[ds]16) Keeping the aforesaid distinction in mind, let us take note of the process of LPG bottling that is undertaken by the assessees herein and about which there is no dispute. It has come on record that specific activities atplant include receiving bulk LPG vapour from the oil refinery, unloading the LPG vapour, compression of the LPG vapour, loading of the LPG in liquefied form into bullets, followed by cylinder filling operations. The stages of these activities are as under:(a) Bulk LPG is received in the bottling plant through road tankers/rail wagons;(b) The LPG is unloaded into spheres/bullets through LPG compressors which use variable levels of pressure for suction, unloading and vapour recovery;(c) Refilling/bottling of LPG in cylinders by compressing the same into liquid form; and(d) Capping, fixing of seals and safety valves prior to storage and loading of filled cylinders.17) Thus, after the bottling activities at theplants, LPG is stored in cylinders in liquefied form under pressure. When the cylinder valve is opened and the gas is withdrawn from the cylinder, the pressure falls and the liquid boils to return to gaseous state. This is how LPG is made suitable for domestic use by customers who will not be able to use LPG in its vapour form as produced in the oil refinery. It, therefore, becomes apparent that the LPG obtained from the refinery undergoes a complex technical process in theplants and is clearly distinguishable from the LPG bottled in cylinders and cleared from these plants for domestic use by customers. It may be relevant to point out that keeping in view the aforesaid process, the ITAT arrived at the specific findings in support of its decision, which are asThere is no dispute that the LPG produced in the refinery cannot be directly supplied to the consumer for domestic use because of various reasons of handling, storage and safety.(b) LPG bottling is a highly technical and complex activity which requires precise functions of machines operated by technically expert personnel.(c) Bottling of LPG is an essential process for rendering the product marketable and usable for the end customer.(d) The wordhas a wider connotation in comparison toand any activity which brings a commercially new product into existence constitutes production. The process of bottling of LPG renders it capable of being marketed as a domestic kitchen fuel and, thereby, makes it a viable commercialIn the considered opinion of this Court, the aforesaid activity would definitely fall within the expressionWe agree with the submission of the learned counsels for the assessees that the definition of ‘manufacture ofin Rule 2 (xxxii) of the Gas Cylinders Rules, 2004 also supports the case of the assessees inasmuch as gas distribution and bottling is treated as manufacturing or producing gas. We are also inclined to accept the submission of the learned counsel for the assesses that various High Courts have, from time to time, decided that bottling of gas into cylinder amounts to production and, therefore, claim of deduction under Sections 80HH,IA would be admissible. Another important aspect which was highlighted by learned counsels for the assessees was that identical issue whether bottling of gas into cylinder amounts to production for claim of deduction under the Act has been considered by various High Courts and decided in the affirmative but those decisions were not challenged by the Department. The cases specifically referred were M/s. Puttur Petro Products Pvt. Ltd. v. The Assistant Commissioner of Income Tax, Mangalore (2014) 361 ITR 290 )and Central U.P. Gas Ltd. v. Deputy Commissioner of Income Tax, Kanpur (Income Tax Appeal No. 224 of 2014 decided by High Court of Allahabad9) From the submissions made by learned counsel for the Revenue, who banked on the reasoning given by the AO, it can be gathered that the entire thrust of the AO was that the process involved in filling up the gas into cylinders does not amount toinasmuch as the said process does not bring into existence a new identifiable and distinctive goods. In the first instance, no distinction was drawn between manufacture and production and the matter was not looked into from the angle as to whether the aforesaid process would amount to production or not. Other reason which prevailed with the AO and which was also the argument of the learned counsel for the Revenue was that, on identical facts, the Gujarat High Court had held that refilling the LPG after purchasing from M/s. HPCL into small cylinders would not amount to manufacture. That was a case which was decided in the context of the Gujarat Sales Tax Act, 1969. The Court held that transfer of LPG from bulk containers into cylinders did not amount to process of manufacture. It is pertinent to point out that Section 2(16) of the Gujarat Sales Tax Act, 1969 definesand, therefore, the entire case was examined keeping in view the said definition ofand the issue was as to whether the process amounted to manufacture or not. As pointed out above, the question as to whether it amounts toas well did not arise for consideration. The AO committed manifest error in relying upon the said decision inasmuch as the provisions with which we are concerned in the instant case use the words ‘manufacture orand are not limited toalone.20) Judgment in the cases ofIndustries Private Limited and Tara Agencies, which were cited by the learned counsel for the Revenue, may not apply to the present case. They dealt with the provision of the Central Excise Act and, therefore, test ofpropounded on that case would not be applicable when dealing with the cases under the provisions of Sections 80HH,IA of the Act which use both the expressionsIt has already been clarified in Vadilal Chemicals Ltd. judgment. Insofar as judgment in Tara Agencies is concerned, the factual scenario therein was totally different where three different stages in relation to tea were examined by this Court. The Court held that the procedure of blending of different qualities of tea would amount to ‘processing ofand it did not amount to ‘manufacture or production ofHere, the case set up by the assessees is not that bottling of LPG isas distinguished fromWe may, at this juncture, refer to the judgment of this Court in Commissioner of Income Tax, Madras v. Vinbros and Company (2015) 14 SCC 483 )where bottling and blending of alcohol is held to be ‘manufacture orfor the purpose of Sectionof the Act. | 1 | 5,365 | 1,190 | ### 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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by compressing the same into liquid form; and(d) Capping, fixing of seals and safety valves prior to storage and loading of filled cylinders.17) Thus, after the bottling activities at the assessees’ plants, LPG is stored in cylinders in liquefied form under pressure. When the cylinder valve is opened and the gas is withdrawn from the cylinder, the pressure falls and the liquid boils to return to gaseous state. This is how LPG is made suitable for domestic use by customers who will not be able to use LPG in its vapour form as produced in the oil refinery. It, therefore, becomes apparent that the LPG obtained from the refinery undergoes a complex technical process in the assessees’ plants and is clearly distinguishable from the LPG bottled in cylinders and cleared from these plants for domestic use by customers. It may be relevant to point out that keeping in view the aforesaid process, the ITAT arrived at the specific findings in support of its decision, which are as under:(a) There is no dispute that the LPG produced in the refinery cannot be directly supplied to the consumer for domestic use because of various reasons of handling, storage and safety.(b) LPG bottling is a highly technical and complex activity which requires precise functions of machines operated by technically expert personnel.(c) Bottling of LPG is an essential process for rendering the product marketable and usable for the end customer.(d) The word ‘production’ has a wider connotation in comparison to ‘manufacture’, and any activity which brings a commercially new product into existence constitutes production. The process of bottling of LPG renders it capable of being marketed as a domestic kitchen fuel and, thereby, makes it a viable commercial product.18) In the considered opinion of this Court, the aforesaid activity would definitely fall within the expression ‘production’. We agree with the submission of the learned counsels for the assessees that the definition of ‘manufacture of gas’ in Rule 2 (xxxii) of the Gas Cylinders Rules, 2004 also supports the case of the assessees inasmuch as gas distribution and bottling is treated as manufacturing or producing gas. We are also inclined to accept the submission of the learned counsel for the assesses that various High Courts have, from time to time, decided that bottling of gas into cylinder amounts to production and, therefore, claim of deduction under Sections 80HH, 80-I and 80-IA would be admissible. Another important aspect which was highlighted by learned counsels for the assessees was that identical issue whether bottling of gas into cylinder amounts to production for claim of deduction under the Act has been considered by various High Courts and decided in the affirmative but those decisions were not challenged by the Department. The cases specifically referred were M/s. Puttur Petro Products Pvt. Ltd. v. The Assistant Commissioner of Income Tax, Mangalore (2014) 361 ITR 290 )and Central U.P. Gas Ltd. v. Deputy Commissioner of Income Tax, Kanpur (Income Tax Appeal No. 224 of 2014 decided by High Court of Allahabad.19) From the submissions made by learned counsel for the Revenue, who banked on the reasoning given by the AO, it can be gathered that the entire thrust of the AO was that the process involved in filling up the gas into cylinders does not amount to ‘manufacture’ inasmuch as the said process does not bring into existence a new identifiable and distinctive goods. In the first instance, no distinction was drawn between manufacture and production and the matter was not looked into from the angle as to whether the aforesaid process would amount to production or not. Other reason which prevailed with the AO and which was also the argument of the learned counsel for the Revenue was that, on identical facts, the Gujarat High Court had held that refilling the LPG after purchasing from M/s. HPCL into small cylinders would not amount to manufacture. That was a case which was decided in the context of the Gujarat Sales Tax Act, 1969. The Court held that transfer of LPG from bulk containers into cylinders did not amount to process of manufacture. It is pertinent to point out that Section 2(16) of the Gujarat Sales Tax Act, 1969 defines ‘manufacture’ and, therefore, the entire case was examined keeping in view the said definition of ‘manufacture’ and the issue was as to whether the process amounted to manufacture or not. As pointed out above, the question as to whether it amounts to ‘production’ as well did not arise for consideration. The AO committed manifest error in relying upon the said decision inasmuch as the provisions with which we are concerned in the instant case use the words ‘manufacture or production’ and are not limited to ‘manufacture’ alone.20) Judgment in the cases of Servo-Med Industries Private Limited and Tara Agencies, which were cited by the learned counsel for the Revenue, may not apply to the present case. They dealt with the provision of the Central Excise Act and, therefore, test of ‘manufacture’ propounded on that case would not be applicable when dealing with the cases under the provisions of Sections 80HH, 80-I and 80-IA of the Act which use both the expressions ‘manufacture’ and ‘production’. It has already been clarified in Vadilal Chemicals Ltd. judgment. Insofar as judgment in Tara Agencies is concerned, the factual scenario therein was totally different where three different stages in relation to tea were examined by this Court. The Court held that the procedure of blending of different qualities of tea would amount to ‘processing of tea’ and it did not amount to ‘manufacture or production of tea’. Here, the case set up by the assessees is not that bottling of LPG is ‘processing’ as distinguished from ‘manufacture’ or ‘production’. We may, at this juncture, refer to the judgment of this Court in Commissioner of Income Tax, Madras v. Vinbros and Company (2015) 14 SCC 483 )where bottling and blending of alcohol is held to be ‘manufacture or production’ for the purpose of Section 80-IB of the Act.
### Response:
1
### Explanation:
form into bullets, followed by cylinder filling operations. The stages of these activities are as under:(a) Bulk LPG is received in the bottling plant through road tankers/rail wagons;(b) The LPG is unloaded into spheres/bullets through LPG compressors which use variable levels of pressure for suction, unloading and vapour recovery;(c) Refilling/bottling of LPG in cylinders by compressing the same into liquid form; and(d) Capping, fixing of seals and safety valves prior to storage and loading of filled cylinders.17) Thus, after the bottling activities at theplants, LPG is stored in cylinders in liquefied form under pressure. When the cylinder valve is opened and the gas is withdrawn from the cylinder, the pressure falls and the liquid boils to return to gaseous state. This is how LPG is made suitable for domestic use by customers who will not be able to use LPG in its vapour form as produced in the oil refinery. It, therefore, becomes apparent that the LPG obtained from the refinery undergoes a complex technical process in theplants and is clearly distinguishable from the LPG bottled in cylinders and cleared from these plants for domestic use by customers. It may be relevant to point out that keeping in view the aforesaid process, the ITAT arrived at the specific findings in support of its decision, which are asThere is no dispute that the LPG produced in the refinery cannot be directly supplied to the consumer for domestic use because of various reasons of handling, storage and safety.(b) LPG bottling is a highly technical and complex activity which requires precise functions of machines operated by technically expert personnel.(c) Bottling of LPG is an essential process for rendering the product marketable and usable for the end customer.(d) The wordhas a wider connotation in comparison toand any activity which brings a commercially new product into existence constitutes production. The process of bottling of LPG renders it capable of being marketed as a domestic kitchen fuel and, thereby, makes it a viable commercialIn the considered opinion of this Court, the aforesaid activity would definitely fall within the expressionWe agree with the submission of the learned counsels for the assessees that the definition of ‘manufacture ofin Rule 2 (xxxii) of the Gas Cylinders Rules, 2004 also supports the case of the assessees inasmuch as gas distribution and bottling is treated as manufacturing or producing gas. We are also inclined to accept the submission of the learned counsel for the assesses that various High Courts have, from time to time, decided that bottling of gas into cylinder amounts to production and, therefore, claim of deduction under Sections 80HH,IA would be admissible. Another important aspect which was highlighted by learned counsels for the assessees was that identical issue whether bottling of gas into cylinder amounts to production for claim of deduction under the Act has been considered by various High Courts and decided in the affirmative but those decisions were not challenged by the Department. The cases specifically referred were M/s. Puttur Petro Products Pvt. Ltd. v. The Assistant Commissioner of Income Tax, Mangalore (2014) 361 ITR 290 )and Central U.P. Gas Ltd. v. Deputy Commissioner of Income Tax, Kanpur (Income Tax Appeal No. 224 of 2014 decided by High Court of Allahabad9) From the submissions made by learned counsel for the Revenue, who banked on the reasoning given by the AO, it can be gathered that the entire thrust of the AO was that the process involved in filling up the gas into cylinders does not amount toinasmuch as the said process does not bring into existence a new identifiable and distinctive goods. In the first instance, no distinction was drawn between manufacture and production and the matter was not looked into from the angle as to whether the aforesaid process would amount to production or not. Other reason which prevailed with the AO and which was also the argument of the learned counsel for the Revenue was that, on identical facts, the Gujarat High Court had held that refilling the LPG after purchasing from M/s. HPCL into small cylinders would not amount to manufacture. That was a case which was decided in the context of the Gujarat Sales Tax Act, 1969. The Court held that transfer of LPG from bulk containers into cylinders did not amount to process of manufacture. It is pertinent to point out that Section 2(16) of the Gujarat Sales Tax Act, 1969 definesand, therefore, the entire case was examined keeping in view the said definition ofand the issue was as to whether the process amounted to manufacture or not. As pointed out above, the question as to whether it amounts toas well did not arise for consideration. The AO committed manifest error in relying upon the said decision inasmuch as the provisions with which we are concerned in the instant case use the words ‘manufacture orand are not limited toalone.20) Judgment in the cases ofIndustries Private Limited and Tara Agencies, which were cited by the learned counsel for the Revenue, may not apply to the present case. They dealt with the provision of the Central Excise Act and, therefore, test ofpropounded on that case would not be applicable when dealing with the cases under the provisions of Sections 80HH,IA of the Act which use both the expressionsIt has already been clarified in Vadilal Chemicals Ltd. judgment. Insofar as judgment in Tara Agencies is concerned, the factual scenario therein was totally different where three different stages in relation to tea were examined by this Court. The Court held that the procedure of blending of different qualities of tea would amount to ‘processing ofand it did not amount to ‘manufacture or production ofHere, the case set up by the assessees is not that bottling of LPG isas distinguished fromWe may, at this juncture, refer to the judgment of this Court in Commissioner of Income Tax, Madras v. Vinbros and Company (2015) 14 SCC 483 )where bottling and blending of alcohol is held to be ‘manufacture orfor the purpose of Sectionof the Act.
|
Pepsico India Holding Pvt.Ltd Vs. State Of Maharashtra | material are more than five time of the water tax rate of general industrial use, the financial burden of amount of difference is falling on the corporation. It was also intimated that with a view not to put financial burden on the corporation, decision of amending the rates of water supply under industrial area has been taken. The rates of water supply of such consumers who use water a raw material was revised by extending the rates by Rs. 34.60 per cm of water supply of respective industrial area issued vide circular no. G/7 dated 27.05.12003, the rates of water supply was amended from 01.11.2001. As to how water bills relating to the period from 01.11.2001 to 30.11.2002 should be recovered was also spelt out in the said notification. 36. Consequent thereto a letter was written to the appellant herein by Deputy Engineer, Maharashtra Industrial Development Corporation, on 06.06.2005 intimating him that he is required to pay water bills for the period from 01.11.2001 to 30.11.2005 as per revised rates. 37. It is, therefore, established from all the aforesaid policy decisions of the Government for increasing the rates of water supply charges and also from the resolution of the Corporation taking a policy decision and also from the circulars issued for raising the water charges to 10 times that the decision was taken by the Corporation to increase the water charges based on the decision of the State Government to increase such rates of water charges. The Corporation supplies water to all needy persons be it residential houses, industrial units or to those industries where water is used as raw material on “no profit no loss basis”. Consequent upon revision of the rates by the Government at which rate the Corporation is to make payment to the Government, the Corporation has no other alternative but to revise the same and follow the increase rates as demanded by the State Government itself. The State Government has increased the water charges so far those industries where water is used as raw material to 10 times and the said rates were circulated by the Government to the Corporation in 2001 itself. The fact of such increase was intimated to all the persons to whom water was supplied by the Corporation including the appellant who was fully aware about the aforesaid increase of water charges from 2001.38. There cannot be any dispute to the fact that in the industries like that of the appellant, consumption of water is much more than all other types of industries as they use water as raw materials. Requirement and use of water in these industries is huge and therefore they are placed as one distinct category or class of their own. These industries stand apart from other industries and also differently situated from residential houses.Therefore, there is an intelligible differentia between these three categories so there is no discrimination. 39. However, a demand for payment of water charges at the aforesaid increased rates was for some time kept in abeyance in view of the several representations pending at the level of the Government from the aggrieved and affected persons including that of the appellant. But since the Government did not change its position and informed the Corporation to make payment at the revised rate which was increased in 2001 itself, the Corporation has no other alternative but to release the payment of water tax/bill at the increased rate demanded by the State Government. Although in 2003 a policy decision was taken to charge half the rate of the increased rate i.e. five times instead of ten times, at par with the industrial uses, but later on it was found that half the rate is not feasible and that what is being charged at the earlier point of time is required to be paid as Corporations financial loss was continuously increasing. That policy decision of 2003 was also a stop gap arrangement which is indicated from paragraph 6 thereof and the said decrease finally came to be amended in the notification of 2005. 40. The appellant is receiving the facility of water supply from the Corporation and is obliged to pay at such rates which are demanded by the Corporation as the same rate is being charged by the Government. The Corporation cannot be asked to suffer a loss for extensive user of water by the appellant using water as raw material for its business as it is discharging its public and welfare duty for supplying water to help and assist industries like the appellant. The stand of the appellant that the increased rate of water charges is being demanded from them on a retrospective basis is erroneous and fallacious and not proper because it is established from the record that the appellant had the knowledge about the aforesaid increase in 2001 itself when the Government issued the notification intimating such increase which fact is an admitted position. Therefore, there is no violation of clause 27 nor is there any question of giving any retrospective effect to the aforesaid increase. It was also submitted that appellant was not paying increased water charges as the matter was pending for final consideration in view of several pending representations. In the pleadings before us, the said fact is clearly proved by the statement of the appellant in the affidavit filed.41. We have gone through the judgment and order passed by the High Court in the coordinate Bench which was followed by the High Court in the present case. From the judgment it is distinctly indicated that while rejecting the contentions of the counsel appearing for the appellant the High Court has recorded cogent reasons for rejecting such contentions. We find no infirmity in the said reasons. We however make it clear that a representation of the nature as suggested by the High Court could still be made by the appellant on all the grounds specifically mentioned therein and any other valid ground, which when filed would be disposed of expeditiously. 42. Consequently, | 0[ds]37. It is, therefore, established from all the aforesaid policy decisions of the Government for increasing the rates of water supply charges and also from the resolution of the Corporation taking a policy decision and also from the circulars issued for raising the water charges to 10 times that the decision was taken by the Corporation to increase the water charges based on the decision of the State Government to increase such rates of water charges. The Corporation supplies water to all needy persons be it residential houses, industrial units or to those industries where water is used as raw material onprofit no lossConsequent upon revision of the rates by the Government at which rate the Corporation is to make payment to the Government, the Corporation has no other alternative but to revise the same and follow the increase rates as demanded by the State Government itself. The State Government has increased the water charges so far those industries where water is used as raw material to 10 times and the said rates were circulated by the Government to the Corporation in 2001 itself. The fact of such increase was intimated to all the persons to whom water was supplied by the Corporation including the appellant who was fully aware about the aforesaid increase of water charges from 2001.38. There cannot be any dispute to the fact that in the industries like that of the appellant, consumption of water is much more than all other types of industries as they use water as raw materials. Requirement and use of water in these industries is huge and therefore they are placed as one distinct category or class of their own. These industries stand apart from other industries and also differently situated from residential houses.Theappellant is receiving the facility of water supply from the Corporation and is obliged to pay at such rates which are demanded by the Corporation as the same rate is being charged by the Government. The Corporation cannot be asked to suffer a loss for extensive user of water by the appellant using water as raw material for its business as it is discharging its public and welfare duty for supplying water to help and assist industries like the appellant. The stand of the appellant that the increased rate of water charges is being demanded from them on a retrospective basis is erroneous and fallacious and not proper because it is established from the record that the appellant had the knowledge about the aforesaid increase in 2001 itself when the Government issued the notification intimating such increase which fact is an admitted position. Therefore, there is no violation of clause 27 nor is there any question of giving any retrospective effect to the aforesaid increase. It was also submitted that appellant was not paying increased water charges as the matter was pending for final consideration in view of several pending representations. In the pleadings before us, the said fact is clearly proved by the statement of the appellant in the affidavit filed.41. We have gone through the judgment and order passed by the High Court in the coordinate Bench which was followed by the High Court in the present case. From the judgment it is distinctly indicated that while rejecting the contentions of the counsel appearing for the appellant the High Court has recorded cogent reasons for rejecting such contentions. We find no infirmity in the said reasons. We however make it clear that a representation of the nature as suggested by the High Court could still be made by the appellant on all the grounds specifically mentioned therein and any other valid ground, which when filed would be disposed of expeditiously. | 0 | 7,609 | 645 | ### 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:
material are more than five time of the water tax rate of general industrial use, the financial burden of amount of difference is falling on the corporation. It was also intimated that with a view not to put financial burden on the corporation, decision of amending the rates of water supply under industrial area has been taken. The rates of water supply of such consumers who use water a raw material was revised by extending the rates by Rs. 34.60 per cm of water supply of respective industrial area issued vide circular no. G/7 dated 27.05.12003, the rates of water supply was amended from 01.11.2001. As to how water bills relating to the period from 01.11.2001 to 30.11.2002 should be recovered was also spelt out in the said notification. 36. Consequent thereto a letter was written to the appellant herein by Deputy Engineer, Maharashtra Industrial Development Corporation, on 06.06.2005 intimating him that he is required to pay water bills for the period from 01.11.2001 to 30.11.2005 as per revised rates. 37. It is, therefore, established from all the aforesaid policy decisions of the Government for increasing the rates of water supply charges and also from the resolution of the Corporation taking a policy decision and also from the circulars issued for raising the water charges to 10 times that the decision was taken by the Corporation to increase the water charges based on the decision of the State Government to increase such rates of water charges. The Corporation supplies water to all needy persons be it residential houses, industrial units or to those industries where water is used as raw material on “no profit no loss basis”. Consequent upon revision of the rates by the Government at which rate the Corporation is to make payment to the Government, the Corporation has no other alternative but to revise the same and follow the increase rates as demanded by the State Government itself. The State Government has increased the water charges so far those industries where water is used as raw material to 10 times and the said rates were circulated by the Government to the Corporation in 2001 itself. The fact of such increase was intimated to all the persons to whom water was supplied by the Corporation including the appellant who was fully aware about the aforesaid increase of water charges from 2001.38. There cannot be any dispute to the fact that in the industries like that of the appellant, consumption of water is much more than all other types of industries as they use water as raw materials. Requirement and use of water in these industries is huge and therefore they are placed as one distinct category or class of their own. These industries stand apart from other industries and also differently situated from residential houses.Therefore, there is an intelligible differentia between these three categories so there is no discrimination. 39. However, a demand for payment of water charges at the aforesaid increased rates was for some time kept in abeyance in view of the several representations pending at the level of the Government from the aggrieved and affected persons including that of the appellant. But since the Government did not change its position and informed the Corporation to make payment at the revised rate which was increased in 2001 itself, the Corporation has no other alternative but to release the payment of water tax/bill at the increased rate demanded by the State Government. Although in 2003 a policy decision was taken to charge half the rate of the increased rate i.e. five times instead of ten times, at par with the industrial uses, but later on it was found that half the rate is not feasible and that what is being charged at the earlier point of time is required to be paid as Corporations financial loss was continuously increasing. That policy decision of 2003 was also a stop gap arrangement which is indicated from paragraph 6 thereof and the said decrease finally came to be amended in the notification of 2005. 40. The appellant is receiving the facility of water supply from the Corporation and is obliged to pay at such rates which are demanded by the Corporation as the same rate is being charged by the Government. The Corporation cannot be asked to suffer a loss for extensive user of water by the appellant using water as raw material for its business as it is discharging its public and welfare duty for supplying water to help and assist industries like the appellant. The stand of the appellant that the increased rate of water charges is being demanded from them on a retrospective basis is erroneous and fallacious and not proper because it is established from the record that the appellant had the knowledge about the aforesaid increase in 2001 itself when the Government issued the notification intimating such increase which fact is an admitted position. Therefore, there is no violation of clause 27 nor is there any question of giving any retrospective effect to the aforesaid increase. It was also submitted that appellant was not paying increased water charges as the matter was pending for final consideration in view of several pending representations. In the pleadings before us, the said fact is clearly proved by the statement of the appellant in the affidavit filed.41. We have gone through the judgment and order passed by the High Court in the coordinate Bench which was followed by the High Court in the present case. From the judgment it is distinctly indicated that while rejecting the contentions of the counsel appearing for the appellant the High Court has recorded cogent reasons for rejecting such contentions. We find no infirmity in the said reasons. We however make it clear that a representation of the nature as suggested by the High Court could still be made by the appellant on all the grounds specifically mentioned therein and any other valid ground, which when filed would be disposed of expeditiously. 42. Consequently,
### Response:
0
### Explanation:
37. It is, therefore, established from all the aforesaid policy decisions of the Government for increasing the rates of water supply charges and also from the resolution of the Corporation taking a policy decision and also from the circulars issued for raising the water charges to 10 times that the decision was taken by the Corporation to increase the water charges based on the decision of the State Government to increase such rates of water charges. The Corporation supplies water to all needy persons be it residential houses, industrial units or to those industries where water is used as raw material onprofit no lossConsequent upon revision of the rates by the Government at which rate the Corporation is to make payment to the Government, the Corporation has no other alternative but to revise the same and follow the increase rates as demanded by the State Government itself. The State Government has increased the water charges so far those industries where water is used as raw material to 10 times and the said rates were circulated by the Government to the Corporation in 2001 itself. The fact of such increase was intimated to all the persons to whom water was supplied by the Corporation including the appellant who was fully aware about the aforesaid increase of water charges from 2001.38. There cannot be any dispute to the fact that in the industries like that of the appellant, consumption of water is much more than all other types of industries as they use water as raw materials. Requirement and use of water in these industries is huge and therefore they are placed as one distinct category or class of their own. These industries stand apart from other industries and also differently situated from residential houses.Theappellant is receiving the facility of water supply from the Corporation and is obliged to pay at such rates which are demanded by the Corporation as the same rate is being charged by the Government. The Corporation cannot be asked to suffer a loss for extensive user of water by the appellant using water as raw material for its business as it is discharging its public and welfare duty for supplying water to help and assist industries like the appellant. The stand of the appellant that the increased rate of water charges is being demanded from them on a retrospective basis is erroneous and fallacious and not proper because it is established from the record that the appellant had the knowledge about the aforesaid increase in 2001 itself when the Government issued the notification intimating such increase which fact is an admitted position. Therefore, there is no violation of clause 27 nor is there any question of giving any retrospective effect to the aforesaid increase. It was also submitted that appellant was not paying increased water charges as the matter was pending for final consideration in view of several pending representations. In the pleadings before us, the said fact is clearly proved by the statement of the appellant in the affidavit filed.41. We have gone through the judgment and order passed by the High Court in the coordinate Bench which was followed by the High Court in the present case. From the judgment it is distinctly indicated that while rejecting the contentions of the counsel appearing for the appellant the High Court has recorded cogent reasons for rejecting such contentions. We find no infirmity in the said reasons. We however make it clear that a representation of the nature as suggested by the High Court could still be made by the appellant on all the grounds specifically mentioned therein and any other valid ground, which when filed would be disposed of expeditiously.
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State Vs. D.A.M. Prabhu and Anr | and the supplementary charges sheet were consolidated and the court observed that summons were issued to some of the accused and that the predecessor court by order dated 22.02.1991 had mentioned that these persons may not be summoned for the time being. Thereafter, the court directed that the matter should come up for arguments on 04.06.1991 on the question whether the persons named in Column No.2. be summoned as accused. In the order dated 11.2.1994, it is recorded as under: "It appears that in the supplementary challan, four accused were placed in Column No.2 and have not been summoned so far probably on the presumption that they have not been sent up for trial by the police. However, a perusal of the final report in the supplementary challan would show that the police has specifically mentioned that there was a violation of Clause 17 of the Textile Control Order, 1986 by Swantantra Bharat Mills which is a company by virtue of Section 10 of the Act and the Managing Director, General Manager, Executive Director (Textile) and Supervisors, Folding Division are liable and should be summoned." 7. Accordingly, the court came to the view that the respondents alongwith other two mentioned in Column No.2, namely, R.C. Kesar and Lala Bansidhar be also summoned. 8. The basic stand before the High Court was that the deeming provision of Section 10 of the Act cannot be applied to the facts of the case.The High Court found that Swatantra Bharat Mills was nothing but a unit of the body corporate known as DCM Ltd. But it cannot be called to be an association of individuals. So holding, the proceedings so far as the respondents are concerned were quashed. 9. Learned counsel for the appellant-State submitted that true scope and ambit of Explanation appended to Section 10 has not been kept in view. 10. Learned counsel for the respondents on the other hand supported the judgment. Additionally, it is submitted that the infraction as alleged is of a very minor nature and, therefore, continuance of the proceedings shall not be appropriate. 11. To appreciate rival submissions it would be necessary to take note of Section 10 of the Act. The said provision reads as follows: "(1) If the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation - For the purpose of this section,- (a) "company" means any body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm." 12. In Dulichand Laxminarayan v. Commissioner of Income Tax, Nagpur (1956 SCR 154) it was inter-alia observed that the expression ‘person has not been defined and applying the definition under the General Clauses Act, 1872 (in short the ‘General Clauses Act) body of individuals can be covered under the expression ‘person. Sub-Section (42) of Section 3 of the General Clauses Act has been statutorily incorporated by way of an Explanation under Section 10. 13. The section appears to our mind to be plain enough. If the contravention of the order made under Section 3 is by a company, the persons who may be held guilty and punished are (1) the company itself, (2) every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company whom, for short, we shall describe as the person-in-charge of the company, and (3) any director, manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, whom, for short, we shall describe as an officer of the company. Any one or more or all of them may be prosecuted and punished. The company alone may be prosecuted. The person-in-charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person-in-charge or an officer of the company may not be prosecuted unless he be ranged alongside the company itself. Section 10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person-in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the company. Section 10 lists the person who may be held guilty and punished when it is a company that contravenes an order made under Section 3 of the Essential Commodities Act. Naturally, before the person in-charge or an officer of the company is held guilty in that capacity it must be established that there has been a contravention of the order by the company. 14. The above position was highlighted in Sheoratan Agarwal and Anr. V. State of Madhya Pradesh (1984 (4) SCC 352 ) and State of Punjab v. Kasturi Lal and Ors. (2004 (12) SCC 195 ) 15. | 1[ds]The section appears to our mind to be plain enough. If the contravention of the order made under Section 3 is by a company, the persons who may be held guilty and punished are (1) the company itself, (2) every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company whom, for short, we shall describe as the person-in-charge of the company, and (3) any director, manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, whom, for short, we shall describe as an officer of the company. Any one or more or all of them may be prosecuted and punished. The company alone may be prosecuted. The person-in-charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person-in-charge or an officer of the company may not be prosecuted unless he be ranged alongside the company itself. Section 10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person-in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the company. Section 10 lists the person who may be held guilty and punished when it is a company that contravenes an order made under Section 3 of the Essential Commodities Act. Naturally, before the person in-charge or an officer of the company is held guilty in that capacity it must be established that there has been a contravention of the order by the company. | 1 | 1,575 | 347 | ### 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:
and the supplementary charges sheet were consolidated and the court observed that summons were issued to some of the accused and that the predecessor court by order dated 22.02.1991 had mentioned that these persons may not be summoned for the time being. Thereafter, the court directed that the matter should come up for arguments on 04.06.1991 on the question whether the persons named in Column No.2. be summoned as accused. In the order dated 11.2.1994, it is recorded as under: "It appears that in the supplementary challan, four accused were placed in Column No.2 and have not been summoned so far probably on the presumption that they have not been sent up for trial by the police. However, a perusal of the final report in the supplementary challan would show that the police has specifically mentioned that there was a violation of Clause 17 of the Textile Control Order, 1986 by Swantantra Bharat Mills which is a company by virtue of Section 10 of the Act and the Managing Director, General Manager, Executive Director (Textile) and Supervisors, Folding Division are liable and should be summoned." 7. Accordingly, the court came to the view that the respondents alongwith other two mentioned in Column No.2, namely, R.C. Kesar and Lala Bansidhar be also summoned. 8. The basic stand before the High Court was that the deeming provision of Section 10 of the Act cannot be applied to the facts of the case.The High Court found that Swatantra Bharat Mills was nothing but a unit of the body corporate known as DCM Ltd. But it cannot be called to be an association of individuals. So holding, the proceedings so far as the respondents are concerned were quashed. 9. Learned counsel for the appellant-State submitted that true scope and ambit of Explanation appended to Section 10 has not been kept in view. 10. Learned counsel for the respondents on the other hand supported the judgment. Additionally, it is submitted that the infraction as alleged is of a very minor nature and, therefore, continuance of the proceedings shall not be appropriate. 11. To appreciate rival submissions it would be necessary to take note of Section 10 of the Act. The said provision reads as follows: "(1) If the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation - For the purpose of this section,- (a) "company" means any body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm." 12. In Dulichand Laxminarayan v. Commissioner of Income Tax, Nagpur (1956 SCR 154) it was inter-alia observed that the expression ‘person has not been defined and applying the definition under the General Clauses Act, 1872 (in short the ‘General Clauses Act) body of individuals can be covered under the expression ‘person. Sub-Section (42) of Section 3 of the General Clauses Act has been statutorily incorporated by way of an Explanation under Section 10. 13. The section appears to our mind to be plain enough. If the contravention of the order made under Section 3 is by a company, the persons who may be held guilty and punished are (1) the company itself, (2) every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company whom, for short, we shall describe as the person-in-charge of the company, and (3) any director, manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, whom, for short, we shall describe as an officer of the company. Any one or more or all of them may be prosecuted and punished. The company alone may be prosecuted. The person-in-charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person-in-charge or an officer of the company may not be prosecuted unless he be ranged alongside the company itself. Section 10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person-in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the company. Section 10 lists the person who may be held guilty and punished when it is a company that contravenes an order made under Section 3 of the Essential Commodities Act. Naturally, before the person in-charge or an officer of the company is held guilty in that capacity it must be established that there has been a contravention of the order by the company. 14. The above position was highlighted in Sheoratan Agarwal and Anr. V. State of Madhya Pradesh (1984 (4) SCC 352 ) and State of Punjab v. Kasturi Lal and Ors. (2004 (12) SCC 195 ) 15.
### Response:
1
### Explanation:
The section appears to our mind to be plain enough. If the contravention of the order made under Section 3 is by a company, the persons who may be held guilty and punished are (1) the company itself, (2) every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company whom, for short, we shall describe as the person-in-charge of the company, and (3) any director, manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, whom, for short, we shall describe as an officer of the company. Any one or more or all of them may be prosecuted and punished. The company alone may be prosecuted. The person-in-charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person-in-charge or an officer of the company may not be prosecuted unless he be ranged alongside the company itself. Section 10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person-in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the company. Section 10 lists the person who may be held guilty and punished when it is a company that contravenes an order made under Section 3 of the Essential Commodities Act. Naturally, before the person in-charge or an officer of the company is held guilty in that capacity it must be established that there has been a contravention of the order by the company.
|
Grid Corporation of Orissa Limited Vs. Messrs Indian Charge Chrome Limited | in the GRID it could not absorb power generated by ICCL and as a result thereof its Captive Plant and boilers were required to be shut down. At times the boilers were closed down for several hours. Though the high rise frequency was intermittent but once the boilers were shut down they used to take more than two hours to produce the steam which is supplied to the turbines to generate power. The GRID high frequency had caused damage to the blades of the turbines costing about couple of crores in replacing the same. Mr. Venugopal then urged that in fact the GRIDCO owed certain amounts to ICCL and had received Rs. 10 crores and for the balance the matter is pending before the high power Committee set up by Government of Orissa. As regards the wheeling charges counsel disputed any liability thereof and urged that there was no question of paying any wheeling charges when power was not wheeled by GRIDCO by reason of time to time shutting down to turbines and boilors of ICCL. It was, therefore, urged that the GRIDCO had no claim whatsoever against the ICCL and therefore the courts below were right in staying the disconnection notices without imposing any condition. (18) In our considered view the spacious claim pressed before us on behalf of ICCL cannot be accepted at this interlocutory stage. it is not denied by ICCL that back up power was available to its sister concern IMF and PPL and the manufacturing process was continuing. At this interlocutory stage what the courts are required to bear in mind is as to whether a prima facie case for recovery of arrears of energy charges is made out and on whose side the balance of convenience lies. In the facts and circumstances of the case whether interim order should be passed by imposing certain conditions or without any condition. The net result of the impugned order is that the GRIDCO is required o maintain back up power to the constituents of ICCL but for such supply latter was not required to make any payment for power consumed. It also needs to be mentioned that under the MOU dated 15.11.94 and agreement dated 4.3.95 ICCL is required to pay for consumption of energy @ Rs. 2.31 per unit which is far less than the rate at which power is supplied to other commercial units. It is true that ICCL when supplies power to GRIDCO the latter pays at the rate of 77 paise per unit to former. Some dispute is also raised as regards interpretation of MOU and agreement but we do not think it appropriate to deal with these contentions at his point of time .(19) Mr. Venugopal also disputed the recording of consumption of power on half hourly basis. It was according to learned counsel wholly illegal and as a result thereof the amounts in the bills stood inflated, and consequently ICCL is not liable to honour such bills. On the other hand Mr. Nariman urged that it is not open to ICCL to challenge the half hourly recording because it was specifically agreed upon between the parties under MOU and the agreement. We do not propose to deal with these rival contentions at this interlocutory stage and, therefore, they are kept open. (20) Mr. Nariman alternatively urged that at any rate on the basis of monthly billing, the amounts payable by ICCL to GRIDCO would come to Rs. 46.193 crores and, therefore, at this interlocutory stage without touching the controversy as regards half hourly recording is right or wrong, I CCL must make the full payment of this amount. Another dispute also relates to wheeling charges @ 15%. According the GRIDCO power was in fact wheeled but according to Mr. Venugopal when the turbines were shut down though intermittantly there was no question of wheeling the power. This issue again needs further investigation in depth and at this interlocutory stage it would not be proper to conclude one way or the other. We, therefore, proceed on the assumption that the amount reflected on the basis of monthly bills payable to the GRIDCO by ICCL would be Rs. 46.193 crores less 15% wheeling charges which would come Rs. 6.92 crores approximately. At this interlocutory stage even if we give benefit of this amount of R s. 6.92 crores payable by ICCL to GRIDCO under the various bills still the outstanding arrears payable by ICCL to GRIDCO would come to Rs. 39.273 crores. (21) Now the question is what could be the fair and just order as regards the payment of these arrears. Mr. Venugopal although expressed the financial constraints of ICCL to make any payment but that cannot be a ground to allow ICCL to use power without any charges. We, therefore, feel that the fair and proper order to meet the ends of justice a t this interim stage would be to direct ICCL to pay Rs. 39.273 crores in seven equal installments of Rs. 5 crores payable on or before 10th of each month to GRIDCO and the 8th installment of Rs.5 crores will be payable in the month of June , 1998. The Regulatory Commission while making the award, will pass appropriate orders as regards interest on the amount if found refundable to ICCL or recoverable by GRIDCO on their respective claims in accordance with law. In the event of an y two defaults, facility of payment by installment to stand vacated. Disconnection notices will revive and Gridco will be at liberty to take such steps as permissible in law. As regards the recurring charges if ICCL wants to use power it will have to make payment of such bills as and when served upon them. ICCL may raise a dispute before the Regulatory Commission. If there be any Occasion to consider such application the Regulatory Commission will pass interim orders in accordance with law. These calculations and directions are without prejudice to the rights and contentions of the parties. | 1[ds](14) We have gone through the judgment of the High Court and in our considered view it had exceeded the jurisdiction while entertaining the application of ICCL under Section 11 of the Arbitration and Conciliation Act, 199 6. The High Court erroneously assumed that the Regulatory Commission had failed to arbitrate under Section 37(1) of the Reform Act. this finding is factually incorrect because vide application dated 19.797 ICCL asked the Regulatory Commission to adjourn the proceedings pending before it on the ground that it had filed MJC No. 229/97 in the High Court . In view of this application the Regulatory Commission did not proceed in the matter. If this be so the High Court in our opinion was wrong in holding that there was failure on the part of Regulatory Commission to arbitrate and consequently the application made by ICCL under Section 11 of Arbitration Act is maintainable. In our considered view the application made by ICCL under Section 11 of the Arbitration Act, 1996 (MJC No. 229/97) was premature and the High Court could not have entertained the same and granted desired relief to) Another question which was seriously contested on behalf of GRIDCO before the Regulatory Commission as well as before the High Court was that ICCL is not a licensee within the meaning of Section 2(h) of Indian Electricity Act, 1910 and also under Section 2(e) and (f) of the Reform Act, 1995. The High Court recorded a finding that ICCL is a licensee under the Indian Electricity Act, 1910 and it continued to be a licensee even after Reform Act, 1995 came into force. The High Court placed reliance on Section 14(1) of the Reform Act and held that ICCL is authorised by the State Authority in the business of supplying the electricity. It was thus concluded that ICCL in view of Section 14 of the Reform Act, 1995 shall continue to be a licensee. In view of this finding the High Court held that the dispute is arbitrable under Section 37(1) read with Section 33 of the Reform Act, 1995. It is not seriously disputed that ICCL after a long drawn correspondence with the Orissa Government had received no objection to put up the captive power plant at Choudwar to generate power. Accordingly in 1989 the Captive power plant started generating power which was supplied to the OSEB. This arrangement continued till 1994 When MOU and agreement were entered into between ICCL and OSEB. The GRIDCO being a successor of OSEB naturally the MOU of 1994 and agreement of 1995 will be binding upon the GRIDCO in the absence of any material to the contrary. It is not the contention of the GRIDCO that ICCL did not supply any power at all during the period for which the bills were raised on ICCL. Despite this factual position it appears that no formal licence was issued under Section 2(h) of Indian Electricity Act, 1910 or under the Reform Act, 1995. It cannot be ignored that the investment of ICCL in putting up a Captive power Plant at choudwar is running into few hundred croresFrom the facts noted hereinabove and in view of Section 14(1) of the Reform Act it is quite clear that ICCL was/is authorised and engaged in supplying the electricity to OSEB and thereafter to GRIDCO and if this be so the dispute between the GRIDCO and ICCL could be arbitrable under Section 37(1) read with Section 33 of the Reform Act, 1995(18) In our considered view the spacious claim pressed before us on behalf of ICCL cannot be accepted at this interlocutory stage. it is not denied by ICCL that back up power was available to its sister concern IMF and PPL and the manufacturing process was continuing. At this interlocutory stage what the courts are required to bear in mind is as to whether a prima facie case for recovery of arrears of energy charges is made out and on whose side the balance of convenience lies. In the facts and circumstances of the case whether interim order should be passed by imposing certain conditions or without any condition. The net result of the impugned order is that the GRIDCO is required o maintain back up power to the constituents of ICCL but for such supply latter was not required to make any payment for power consumed. It also needs to be mentioned that under the MOU dated 15.11.94 and agreement dated 4.3.95 ICCL is required to pay for consumption of energy @ Rs. 2.31 per unit which is far less than the rate at which power is supplied to other commercial units. It is true that ICCL when supplies power to GRIDCO the latter pays at the rate of 77 paise per unit to former. Some dispute is also raised as regards interpretation of MOU and agreement but we do not think it appropriate to deal with these contentions at his point of timeWe do not propose to deal with these rival contentions at this interlocutory stage and, therefore, they are kept openAnother dispute also relates to wheeling charges @ 15%. According the GRIDCO power was in fact wheeled but according to Mr. Venugopal when the turbines were shut down though intermittantly there was no question of wheeling the power. This issue again needs further investigation in depth and at this interlocutory stage it would not be proper to conclude one way or the other. We, therefore, proceed on the assumption that the amount reflected on the basis of monthly bills payable to the GRIDCO by ICCL would be Rs. 46.193 crores less 15% wheeling charges which would come Rs. 6.92 crores approximately. At this interlocutory stage even if we give benefit of this amount of R s. 6.92 crores payable by ICCL to GRIDCO under the various bills still the outstanding arrears payable by ICCL to GRIDCO would come to Rs. 39.273 croresWe, therefore, feel that the fair and proper order to meet the ends of justice a t this interim stage would be to direct ICCL to pay Rs. 39.273 crores in seven equal installments of Rs. 5 crores payable on or before 10th of each month to GRIDCO and the 8th installment of Rs.5 crores will be payable in the month of June , 1998. The Regulatory Commission while making the award, will pass appropriate orders as regards interest on the amount if found refundable to ICCL or recoverable by GRIDCO on their respective claims in accordance with law. In the event of an y two defaults, facility of payment by installment to stand vacated. Disconnection notices will revive and Gridco will be at liberty to take such steps as permissible in law. As regards the recurring charges if ICCL wants to use power it will have to make payment of such bills as and when served upon them. ICCL may raise a dispute before the Regulatory Commission. If there be any Occasion to consider such application the Regulatory Commission will pass interim orders in accordance with law. These calculations and directions are without prejudice to the rights and contentions of the parties. | 1 | 4,214 | 1,290 | ### 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:
in the GRID it could not absorb power generated by ICCL and as a result thereof its Captive Plant and boilers were required to be shut down. At times the boilers were closed down for several hours. Though the high rise frequency was intermittent but once the boilers were shut down they used to take more than two hours to produce the steam which is supplied to the turbines to generate power. The GRID high frequency had caused damage to the blades of the turbines costing about couple of crores in replacing the same. Mr. Venugopal then urged that in fact the GRIDCO owed certain amounts to ICCL and had received Rs. 10 crores and for the balance the matter is pending before the high power Committee set up by Government of Orissa. As regards the wheeling charges counsel disputed any liability thereof and urged that there was no question of paying any wheeling charges when power was not wheeled by GRIDCO by reason of time to time shutting down to turbines and boilors of ICCL. It was, therefore, urged that the GRIDCO had no claim whatsoever against the ICCL and therefore the courts below were right in staying the disconnection notices without imposing any condition. (18) In our considered view the spacious claim pressed before us on behalf of ICCL cannot be accepted at this interlocutory stage. it is not denied by ICCL that back up power was available to its sister concern IMF and PPL and the manufacturing process was continuing. At this interlocutory stage what the courts are required to bear in mind is as to whether a prima facie case for recovery of arrears of energy charges is made out and on whose side the balance of convenience lies. In the facts and circumstances of the case whether interim order should be passed by imposing certain conditions or without any condition. The net result of the impugned order is that the GRIDCO is required o maintain back up power to the constituents of ICCL but for such supply latter was not required to make any payment for power consumed. It also needs to be mentioned that under the MOU dated 15.11.94 and agreement dated 4.3.95 ICCL is required to pay for consumption of energy @ Rs. 2.31 per unit which is far less than the rate at which power is supplied to other commercial units. It is true that ICCL when supplies power to GRIDCO the latter pays at the rate of 77 paise per unit to former. Some dispute is also raised as regards interpretation of MOU and agreement but we do not think it appropriate to deal with these contentions at his point of time .(19) Mr. Venugopal also disputed the recording of consumption of power on half hourly basis. It was according to learned counsel wholly illegal and as a result thereof the amounts in the bills stood inflated, and consequently ICCL is not liable to honour such bills. On the other hand Mr. Nariman urged that it is not open to ICCL to challenge the half hourly recording because it was specifically agreed upon between the parties under MOU and the agreement. We do not propose to deal with these rival contentions at this interlocutory stage and, therefore, they are kept open. (20) Mr. Nariman alternatively urged that at any rate on the basis of monthly billing, the amounts payable by ICCL to GRIDCO would come to Rs. 46.193 crores and, therefore, at this interlocutory stage without touching the controversy as regards half hourly recording is right or wrong, I CCL must make the full payment of this amount. Another dispute also relates to wheeling charges @ 15%. According the GRIDCO power was in fact wheeled but according to Mr. Venugopal when the turbines were shut down though intermittantly there was no question of wheeling the power. This issue again needs further investigation in depth and at this interlocutory stage it would not be proper to conclude one way or the other. We, therefore, proceed on the assumption that the amount reflected on the basis of monthly bills payable to the GRIDCO by ICCL would be Rs. 46.193 crores less 15% wheeling charges which would come Rs. 6.92 crores approximately. At this interlocutory stage even if we give benefit of this amount of R s. 6.92 crores payable by ICCL to GRIDCO under the various bills still the outstanding arrears payable by ICCL to GRIDCO would come to Rs. 39.273 crores. (21) Now the question is what could be the fair and just order as regards the payment of these arrears. Mr. Venugopal although expressed the financial constraints of ICCL to make any payment but that cannot be a ground to allow ICCL to use power without any charges. We, therefore, feel that the fair and proper order to meet the ends of justice a t this interim stage would be to direct ICCL to pay Rs. 39.273 crores in seven equal installments of Rs. 5 crores payable on or before 10th of each month to GRIDCO and the 8th installment of Rs.5 crores will be payable in the month of June , 1998. The Regulatory Commission while making the award, will pass appropriate orders as regards interest on the amount if found refundable to ICCL or recoverable by GRIDCO on their respective claims in accordance with law. In the event of an y two defaults, facility of payment by installment to stand vacated. Disconnection notices will revive and Gridco will be at liberty to take such steps as permissible in law. As regards the recurring charges if ICCL wants to use power it will have to make payment of such bills as and when served upon them. ICCL may raise a dispute before the Regulatory Commission. If there be any Occasion to consider such application the Regulatory Commission will pass interim orders in accordance with law. These calculations and directions are without prejudice to the rights and contentions of the parties.
### Response:
1
### Explanation:
Another question which was seriously contested on behalf of GRIDCO before the Regulatory Commission as well as before the High Court was that ICCL is not a licensee within the meaning of Section 2(h) of Indian Electricity Act, 1910 and also under Section 2(e) and (f) of the Reform Act, 1995. The High Court recorded a finding that ICCL is a licensee under the Indian Electricity Act, 1910 and it continued to be a licensee even after Reform Act, 1995 came into force. The High Court placed reliance on Section 14(1) of the Reform Act and held that ICCL is authorised by the State Authority in the business of supplying the electricity. It was thus concluded that ICCL in view of Section 14 of the Reform Act, 1995 shall continue to be a licensee. In view of this finding the High Court held that the dispute is arbitrable under Section 37(1) read with Section 33 of the Reform Act, 1995. It is not seriously disputed that ICCL after a long drawn correspondence with the Orissa Government had received no objection to put up the captive power plant at Choudwar to generate power. Accordingly in 1989 the Captive power plant started generating power which was supplied to the OSEB. This arrangement continued till 1994 When MOU and agreement were entered into between ICCL and OSEB. The GRIDCO being a successor of OSEB naturally the MOU of 1994 and agreement of 1995 will be binding upon the GRIDCO in the absence of any material to the contrary. It is not the contention of the GRIDCO that ICCL did not supply any power at all during the period for which the bills were raised on ICCL. Despite this factual position it appears that no formal licence was issued under Section 2(h) of Indian Electricity Act, 1910 or under the Reform Act, 1995. It cannot be ignored that the investment of ICCL in putting up a Captive power Plant at choudwar is running into few hundred croresFrom the facts noted hereinabove and in view of Section 14(1) of the Reform Act it is quite clear that ICCL was/is authorised and engaged in supplying the electricity to OSEB and thereafter to GRIDCO and if this be so the dispute between the GRIDCO and ICCL could be arbitrable under Section 37(1) read with Section 33 of the Reform Act, 1995(18) In our considered view the spacious claim pressed before us on behalf of ICCL cannot be accepted at this interlocutory stage. it is not denied by ICCL that back up power was available to its sister concern IMF and PPL and the manufacturing process was continuing. At this interlocutory stage what the courts are required to bear in mind is as to whether a prima facie case for recovery of arrears of energy charges is made out and on whose side the balance of convenience lies. In the facts and circumstances of the case whether interim order should be passed by imposing certain conditions or without any condition. The net result of the impugned order is that the GRIDCO is required o maintain back up power to the constituents of ICCL but for such supply latter was not required to make any payment for power consumed. It also needs to be mentioned that under the MOU dated 15.11.94 and agreement dated 4.3.95 ICCL is required to pay for consumption of energy @ Rs. 2.31 per unit which is far less than the rate at which power is supplied to other commercial units. It is true that ICCL when supplies power to GRIDCO the latter pays at the rate of 77 paise per unit to former. Some dispute is also raised as regards interpretation of MOU and agreement but we do not think it appropriate to deal with these contentions at his point of timeWe do not propose to deal with these rival contentions at this interlocutory stage and, therefore, they are kept openAnother dispute also relates to wheeling charges @ 15%. According the GRIDCO power was in fact wheeled but according to Mr. Venugopal when the turbines were shut down though intermittantly there was no question of wheeling the power. This issue again needs further investigation in depth and at this interlocutory stage it would not be proper to conclude one way or the other. We, therefore, proceed on the assumption that the amount reflected on the basis of monthly bills payable to the GRIDCO by ICCL would be Rs. 46.193 crores less 15% wheeling charges which would come Rs. 6.92 crores approximately. At this interlocutory stage even if we give benefit of this amount of R s. 6.92 crores payable by ICCL to GRIDCO under the various bills still the outstanding arrears payable by ICCL to GRIDCO would come to Rs. 39.273 croresWe, therefore, feel that the fair and proper order to meet the ends of justice a t this interim stage would be to direct ICCL to pay Rs. 39.273 crores in seven equal installments of Rs. 5 crores payable on or before 10th of each month to GRIDCO and the 8th installment of Rs.5 crores will be payable in the month of June , 1998. The Regulatory Commission while making the award, will pass appropriate orders as regards interest on the amount if found refundable to ICCL or recoverable by GRIDCO on their respective claims in accordance with law. In the event of an y two defaults, facility of payment by installment to stand vacated. Disconnection notices will revive and Gridco will be at liberty to take such steps as permissible in law. As regards the recurring charges if ICCL wants to use power it will have to make payment of such bills as and when served upon them. ICCL may raise a dispute before the Regulatory Commission. If there be any Occasion to consider such application the Regulatory Commission will pass interim orders in accordance with law. These calculations and directions are without prejudice to the rights and contentions of the parties.
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Ajoy Acharya Vs. State Bureau Of Inv.Against Eco.Offence | process in the meeting of the Cabinet Review Committee dated 28.1.1994, as also, the resolution of the Board of Directors of the MPSIDC dated 31.1.1994. The charge against the appellant is based on the fact, that the appellant allowed the Board of Directors of the MPSIDC to pass the resolution dated 19.4.1995, inspite of the earlier decisions at the hands of the Cabinet Review Committee (in meeting dated 18.1.1994) and the consequential resolution of the Board of Directors (dated 31.1.1994). We, therefore, reject the submission advanced at the hands of the learned counsel for the appellant based on Section 141 of the NI Act. All the same, it would be relevant to notice, that the second proviso under Section 141(1) of the N.I. Act is inapplicable to the facts of this case, because the appellant was not nominated as a Director of the MPSIDC on account of holding the office of Industries Commissioner, Government of Madhya Pradesh. The appellants appointment as nominee Director of the MPSIDC was based on the determination of the Governor of Madhya Pradesh under clause 89 of the Memorandum and Articles of Association of the MPSIDC. If the factual position alleged against the appellant is correct, the culpability of the appellant would emerge from sub-Section (2) of Section 141 of the N.I. Act. The instant inference is inevitable, because it is not disputed on behalf of the appellant, that he had actually participated in the Cabinet Review Meeting dated 28.1.1984, as well as, in the meetings of the Board of Directors leading to the passing of the resolutions dated 31.1.1994 and 19.4.1995. In the facts of the present case, the accusation implicating the appellant, is directly attributable to the appellant, as nominee Director of the MPSIDC. The aforesaid inference has been drawn by us, to negate the submission of the learned counsel for the appellant based on Section 141 of the N.I. Act. In our view, the instant issue does not arise for adjudication in the present controversy in view of the conclusions already drawn hereinabove, that the culpability of the appellant, lies in the mischief of passing the resolution dated 19.4.1995. The implementation of the said resolution is the consequential effect of the said mischief. 20. For the last contention advanced on behalf of the appellant, learned counsel placed reliance on a decision rendered by this Court in C.K. Jaffer Sharief vs. State (through CBI), (2013) 1 SCC 205. Our pointed attention was drawn to the following observations recorded therein:- 17. It has already been noticed that the appellant besides working as the Minister of Railways was the Head of the two public sector undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the appellant in performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how in the light of the above facts, demonstrated by the materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of the witnesses examined under Section 161 Cr.P.C. show that the aforesaid four persons had performed certain tasks to assist the Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the appellant as a public servant can arise. As a Minister it was for the appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar v. State of Kerala, AIR 1963 SC 1116 while considering the provisions of Section 5 of Act of 1947. (emphasis is ours) Based on the aforesaid determination, it was the contention of the learned counsel for the appellant, that the allegations levelled against the appellant do not lead to the inference, that the appellant had adopted corrupt or illegal means, or had abused his position as a public servant to obtain any valuable thing or pecuniary advantage, either for himself or for the industries to whom the MPSIDC extended short term loans (including ICDs). We are of the view, that the last contention advanced at the hands of the learned counsel for the appellant is a mixed question of fact and law. Determination of the instant issue would be possible only after the rival parties have adduced evidence to establish their respective claims. At the said juncture, it would be possible to record factual conclusions. It would then be possible for the concerned Court(s) to draw inferences on the basis of the established factual position, whether the accused is guilty of the accusation levelled against him. Therefore, it is neither proper nor possible for us to deal with the last contention advanced at the hands of the learned counsel for the appellant, at the present juncture. 21. No further contention was advanced at the hands of the learned counsel for the appellant. 22. For the reasons recorded hereinabove, | 0[ds]We are of the view, that the appellants reliance on Section 141 of the NI Act, as also, the judgment rendered by this Court in National Small Industries Corporation Ltd. (supra), is misconceived. The appellant is not being blamed for the implementation of the resolution of the Board of Directors of the MPSIDC dated 19.4.1995. The appellant is being blamed for having allowed the aforesaid resolution dated 19.4.1995 to be passed despite the earlier decision taken in the Cabinet Review Meeting held on 28.1.1994, as also, the earlier resolution of the Board of Directors of the MPSIDC dated 31.1.1994. It is not a matter of dispute before us, that the appellant had participated in the decision making process in the meeting of the Cabinet Review Committee dated 28.1.1994, as also, the resolution of the Board of Directors of the MPSIDC dated 31.1.1994. The charge against the appellant is based on the fact, that the appellant allowed the Board of Directors of the MPSIDC to pass the resolution dated 19.4.1995, inspite of the earlier decisions at the hands of the Cabinet Review Committee (in meeting dated 18.1.1994) and the consequential resolution of the Board of Directors (dated 31.1.1994). We, therefore, reject the submission advanced at the hands of the learned counsel for the appellant based on Section 141 of the NI Act. All the same, it would be relevant to notice, that the second proviso under Section 141(1) of the N.I. Act is inapplicable to the facts of this case, because the appellant was not nominated as a Director of the MPSIDC on account of holding the office of Industries Commissioner, Government of Madhya Pradesh. The appellants appointment as nominee Director of the MPSIDC was based on the determination of the Governor of Madhya Pradesh under clause 89 of the Memorandum and Articles of Association of the MPSIDC. If the factual position alleged against the appellant is correct, the culpability of the appellant would emerge from sub-Section (2) of Section 141 of the N.I. Act. The instant inference is inevitable, because it is not disputed on behalf of the appellant, that he had actually participated in the Cabinet Review Meeting dated 28.1.1984, as well as, in the meetings of the Board of Directors leading to the passing of the resolutions dated 31.1.1994 and 19.4.1995. In the facts of the present case, the accusation implicating the appellant, is directly attributable to the appellant, as nominee Director of the MPSIDC. The aforesaid inference has been drawn by us, to negate the submission of the learned counsel for the appellant based on Section 141 of the N.I. Act. In our view, the instant issue does not arise for adjudication in the present controversy in view of the conclusions already drawn hereinabove, that the culpability of the appellant, lies in the mischief of passing the resolution dated 19.4.1995. The implementation of the said resolution is the consequential effect of the said mischiefIn the facts and circumstances of this case, we are of the view, that answer to the instant question has also to be in the negative. Our aforesaid determination is based on the fact that the appellant remained a nominee Director of the MPSIDC from 1993 to 1998. The first charge sheet in the matter was filed on 24.9.2007. Well before the filing of the first charge sheet, the appellant had relinquished charge of the office which he is alleged to have abused/misused (i.e. the office of nominee Director of the MPSIDC). In the above view of the matter, since the appellant was not holding the public office which he is alleged to have abused, when the first charge sheet was filed, in terms of the law declared by this Court (referred to in the judgments extracted in paragraph 13 above), there was no need to obtain any sanction before proceeding to prosecute the appellant, for the offences alleged against him16. It would be relevant to mention, that during the course of hearing learned counsel for the appellant placed emphatic reliance on the judgment rendered by this Court in State of Madhya Pradesh vs. Sheetla Sahai & Ors., (2009) 8 SCC 617. It is not necessary for us to refer either to the factual position in the judgment relied upon, or even the conclusions recorded thereon. We say so because, the issues canvassed and determined in the aforesaid judgments were not the ones on the basis whereof we have recorded our conclusions, in the foregoing paragraphs. It is sufficient for us to note, that the judgment rendered by this Court in State of Madhya Pradesh vs. Sheetla Sahai & Ors. (supra), does not carve out any exception, to the two propositions relied upon for the conclusions drawn by us, from the judgments referred to in paragraph 13 aboveIt was the vehement contention of the learned counsel for the appellant, that sanction to prosecute anotherd similarly situated as the appellant, having been obtained, it was not permissible to treat the appellant differently. We find no substance in the second contention advanced at the hands of the learned counsel for the appellant. Having concluded on the basis of the law declared by this Court, that prior sanction for prosecuting the appellant was unessential, it is futile to suggest that sanction ought to have been obtained all the same. The instant submission needs no further consideration in view of the deliberations recorded by us hereinabove. Parity in law can be claimed only in respect of action rightfully executed. And not otherwise. Having concluded that sanction was not required in the case of the appellant, it is not possible for us to accept on the analogy of the submission advanced at the hands of the learned counsel for the appellant, that merely because sanction was obtained in respect of another, it needed to have been obtained in the appellants case as well19. We have given our thoughtful consideration to the contention advanced at the hands of the learned counsel for the appellant, as has been noticed in the foregoing paragraph.We are of the view, that the appellants reliance on Section 141 of the NI Act, as also, the judgment rendered by this Court in National Small Industries Corporation Ltd. (supra), is misconceived. The appellant is not being blamed for the implementation of the resolution of the Board of Directors of the MPSIDC dated 19.4.1995. The appellant is being blamed for having allowed the aforesaid resolution dated 19.4.1995 to be passed despite the earlier decision taken in the Cabinet Review Meeting held on 28.1.1994, as also, the earlier resolution of the Board of Directors of the MPSIDC dated 31.1.1994. It is not a matter of dispute before us, that the appellant had participated in the decision making process in the meeting of the Cabinet Review Committee dated 28.1.1994, as also, the resolution of the Board of Directors of the MPSIDC dated 31.1.1994. The charge against the appellant is based on the fact, that the appellant allowed the Board of Directors of the MPSIDC to pass the resolution dated 19.4.1995, inspite of the earlier decisions at the hands of the Cabinet Review Committee (in meeting dated 18.1.1994) and the consequential resolution of the Board of Directors (dated 31.1.1994). We, therefore, reject the submission advanced at the hands of the learned counsel for the appellant based on Section 141 of the NI Act. All the same, it would be relevant to notice, that the second proviso under Section 141(1) of the N.I. Act is inapplicable to the facts of this case, because the appellant was not nominated as a Director of the MPSIDC on account of holding the office of Industries Commissioner, Government of Madhya Pradesh. The appellants appointment as nominee Director of the MPSIDC was based on the determination of the Governor of Madhya Pradesh under clause 89 of the Memorandum and Articles of Association of the MPSIDC. If the factual position alleged against the appellant is correct, the culpability of the appellant would emerge fromn (2) of Section 141 of the N.I. Act. The instant inference is inevitable, because it is not disputed on behalf of the appellant, that he had actually participated in the Cabinet Review Meeting dated 28.1.1984, as well as, in the meetings of the Board of Directors leading to the passing of the resolutions dated 31.1.1994 and 19.4.1995. In the facts of the present case, the accusation implicating the appellant, is directly attributable to the appellant, as nominee Director of the MPSIDC. The aforesaid inference has been drawn by us, to negate the submission of the learned counsel for the appellant based on Section 141 of the N.I. Act. In our view, the instant issue does not arise for adjudication in the present controversy in view of the conclusions already drawn hereinabove, that the culpability of the appellant, lies in the mischief of passing the resolution dated 19.4.1995. The implementation of the said resolution is the consequential effect of the said mischiefWe are of the view, that the last contention advanced at the hands of the learned counsel for the appellant is a mixed question of fact and law. Determination of the instant issue would be possible only after the rival parties have adduced evidence to establish their respective claims. At the said juncture, it would be possible to record factual conclusions. It would then be possible for the concerned Court(s) to draw inferences on the basis of the established factual position, whether the accused is guilty of the accusation levelled against him. Therefore, it is neither proper nor possible for us to deal with the last contention advanced at the hands of the learned counsel for the appellant, at the present juncture21. No further contention was advanced at the hands of the learned counsel for the appellant. | 0 | 11,569 | 1,804 | ### Instruction:
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process in the meeting of the Cabinet Review Committee dated 28.1.1994, as also, the resolution of the Board of Directors of the MPSIDC dated 31.1.1994. The charge against the appellant is based on the fact, that the appellant allowed the Board of Directors of the MPSIDC to pass the resolution dated 19.4.1995, inspite of the earlier decisions at the hands of the Cabinet Review Committee (in meeting dated 18.1.1994) and the consequential resolution of the Board of Directors (dated 31.1.1994). We, therefore, reject the submission advanced at the hands of the learned counsel for the appellant based on Section 141 of the NI Act. All the same, it would be relevant to notice, that the second proviso under Section 141(1) of the N.I. Act is inapplicable to the facts of this case, because the appellant was not nominated as a Director of the MPSIDC on account of holding the office of Industries Commissioner, Government of Madhya Pradesh. The appellants appointment as nominee Director of the MPSIDC was based on the determination of the Governor of Madhya Pradesh under clause 89 of the Memorandum and Articles of Association of the MPSIDC. If the factual position alleged against the appellant is correct, the culpability of the appellant would emerge from sub-Section (2) of Section 141 of the N.I. Act. The instant inference is inevitable, because it is not disputed on behalf of the appellant, that he had actually participated in the Cabinet Review Meeting dated 28.1.1984, as well as, in the meetings of the Board of Directors leading to the passing of the resolutions dated 31.1.1994 and 19.4.1995. In the facts of the present case, the accusation implicating the appellant, is directly attributable to the appellant, as nominee Director of the MPSIDC. The aforesaid inference has been drawn by us, to negate the submission of the learned counsel for the appellant based on Section 141 of the N.I. Act. In our view, the instant issue does not arise for adjudication in the present controversy in view of the conclusions already drawn hereinabove, that the culpability of the appellant, lies in the mischief of passing the resolution dated 19.4.1995. The implementation of the said resolution is the consequential effect of the said mischief. 20. For the last contention advanced on behalf of the appellant, learned counsel placed reliance on a decision rendered by this Court in C.K. Jaffer Sharief vs. State (through CBI), (2013) 1 SCC 205. Our pointed attention was drawn to the following observations recorded therein:- 17. It has already been noticed that the appellant besides working as the Minister of Railways was the Head of the two public sector undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the appellant in performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how in the light of the above facts, demonstrated by the materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of the witnesses examined under Section 161 Cr.P.C. show that the aforesaid four persons had performed certain tasks to assist the Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the appellant as a public servant can arise. As a Minister it was for the appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar v. State of Kerala, AIR 1963 SC 1116 while considering the provisions of Section 5 of Act of 1947. (emphasis is ours) Based on the aforesaid determination, it was the contention of the learned counsel for the appellant, that the allegations levelled against the appellant do not lead to the inference, that the appellant had adopted corrupt or illegal means, or had abused his position as a public servant to obtain any valuable thing or pecuniary advantage, either for himself or for the industries to whom the MPSIDC extended short term loans (including ICDs). We are of the view, that the last contention advanced at the hands of the learned counsel for the appellant is a mixed question of fact and law. Determination of the instant issue would be possible only after the rival parties have adduced evidence to establish their respective claims. At the said juncture, it would be possible to record factual conclusions. It would then be possible for the concerned Court(s) to draw inferences on the basis of the established factual position, whether the accused is guilty of the accusation levelled against him. Therefore, it is neither proper nor possible for us to deal with the last contention advanced at the hands of the learned counsel for the appellant, at the present juncture. 21. No further contention was advanced at the hands of the learned counsel for the appellant. 22. For the reasons recorded hereinabove,
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in paragraph 13 above), there was no need to obtain any sanction before proceeding to prosecute the appellant, for the offences alleged against him16. It would be relevant to mention, that during the course of hearing learned counsel for the appellant placed emphatic reliance on the judgment rendered by this Court in State of Madhya Pradesh vs. Sheetla Sahai & Ors., (2009) 8 SCC 617. It is not necessary for us to refer either to the factual position in the judgment relied upon, or even the conclusions recorded thereon. We say so because, the issues canvassed and determined in the aforesaid judgments were not the ones on the basis whereof we have recorded our conclusions, in the foregoing paragraphs. It is sufficient for us to note, that the judgment rendered by this Court in State of Madhya Pradesh vs. Sheetla Sahai & Ors. (supra), does not carve out any exception, to the two propositions relied upon for the conclusions drawn by us, from the judgments referred to in paragraph 13 aboveIt was the vehement contention of the learned counsel for the appellant, that sanction to prosecute anotherd similarly situated as the appellant, having been obtained, it was not permissible to treat the appellant differently. We find no substance in the second contention advanced at the hands of the learned counsel for the appellant. Having concluded on the basis of the law declared by this Court, that prior sanction for prosecuting the appellant was unessential, it is futile to suggest that sanction ought to have been obtained all the same. The instant submission needs no further consideration in view of the deliberations recorded by us hereinabove. Parity in law can be claimed only in respect of action rightfully executed. And not otherwise. Having concluded that sanction was not required in the case of the appellant, it is not possible for us to accept on the analogy of the submission advanced at the hands of the learned counsel for the appellant, that merely because sanction was obtained in respect of another, it needed to have been obtained in the appellants case as well19. We have given our thoughtful consideration to the contention advanced at the hands of the learned counsel for the appellant, as has been noticed in the foregoing paragraph.We are of the view, that the appellants reliance on Section 141 of the NI Act, as also, the judgment rendered by this Court in National Small Industries Corporation Ltd. (supra), is misconceived. The appellant is not being blamed for the implementation of the resolution of the Board of Directors of the MPSIDC dated 19.4.1995. The appellant is being blamed for having allowed the aforesaid resolution dated 19.4.1995 to be passed despite the earlier decision taken in the Cabinet Review Meeting held on 28.1.1994, as also, the earlier resolution of the Board of Directors of the MPSIDC dated 31.1.1994. It is not a matter of dispute before us, that the appellant had participated in the decision making process in the meeting of the Cabinet Review Committee dated 28.1.1994, as also, the resolution of the Board of Directors of the MPSIDC dated 31.1.1994. The charge against the appellant is based on the fact, that the appellant allowed the Board of Directors of the MPSIDC to pass the resolution dated 19.4.1995, inspite of the earlier decisions at the hands of the Cabinet Review Committee (in meeting dated 18.1.1994) and the consequential resolution of the Board of Directors (dated 31.1.1994). We, therefore, reject the submission advanced at the hands of the learned counsel for the appellant based on Section 141 of the NI Act. All the same, it would be relevant to notice, that the second proviso under Section 141(1) of the N.I. Act is inapplicable to the facts of this case, because the appellant was not nominated as a Director of the MPSIDC on account of holding the office of Industries Commissioner, Government of Madhya Pradesh. The appellants appointment as nominee Director of the MPSIDC was based on the determination of the Governor of Madhya Pradesh under clause 89 of the Memorandum and Articles of Association of the MPSIDC. If the factual position alleged against the appellant is correct, the culpability of the appellant would emerge fromn (2) of Section 141 of the N.I. Act. The instant inference is inevitable, because it is not disputed on behalf of the appellant, that he had actually participated in the Cabinet Review Meeting dated 28.1.1984, as well as, in the meetings of the Board of Directors leading to the passing of the resolutions dated 31.1.1994 and 19.4.1995. In the facts of the present case, the accusation implicating the appellant, is directly attributable to the appellant, as nominee Director of the MPSIDC. The aforesaid inference has been drawn by us, to negate the submission of the learned counsel for the appellant based on Section 141 of the N.I. Act. In our view, the instant issue does not arise for adjudication in the present controversy in view of the conclusions already drawn hereinabove, that the culpability of the appellant, lies in the mischief of passing the resolution dated 19.4.1995. The implementation of the said resolution is the consequential effect of the said mischiefWe are of the view, that the last contention advanced at the hands of the learned counsel for the appellant is a mixed question of fact and law. Determination of the instant issue would be possible only after the rival parties have adduced evidence to establish their respective claims. At the said juncture, it would be possible to record factual conclusions. It would then be possible for the concerned Court(s) to draw inferences on the basis of the established factual position, whether the accused is guilty of the accusation levelled against him. Therefore, it is neither proper nor possible for us to deal with the last contention advanced at the hands of the learned counsel for the appellant, at the present juncture21. No further contention was advanced at the hands of the learned counsel for the appellant.
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Bhaskar Shrachi Alloys Ltd. and Ors Vs. Damodar Valley Corporation and Ors | have gone through the reasoning adopted by the learned Appellate Tribunal in this regard. Having clarified the manner in which the fourth proviso to Section 14 of the 2003 Act has to be understood, we do not find the reasoning adopted by the learned Appellate Tribunal on the issues relating to depreciation and sinking fund to be fundamentally flawed in any manner so as to give rise to a substantial question of law requiring our intervention/interference Under Section 125 of the 2003 Act.51. Insofar as the debt-equity ratio is concerned, we find that except for the projects which have been completed prior to 1992 in which case the ratio has been worked out at par with other public-sector organisation at 50:50, the ratio of 70:30 has been adopted following the prescription under Regulation 20 of the Tariff Regulations in the absence of any specific rate under the Act of 1948.52. So far as the pension and gratuity fund is concerned, the only issue arising is whether the fund worked out on Actuary basis at Rs. 1534.49 crores should be apportioned between the Corporation and the consumers as held by the CERC in the ratio of 40:60 or the entire fund should be allowed to be recovered by way of tariff from the consumers as held by the learned Appellate Tribunal. The reasoning of the learned Appellate Tribunal in coming to the aforesaid conclusion is as follows:D. 3 As a general rule, once the Commission, after prudence check, has agreed with the need for funding the Pension and Gratuity Contribution funds, DVC should have been allowed to recover entire amount from the consumers through the tariff. Asking DVC to contribute out of its own resources would tantamount to denying it the return on equity as assured in terms of Tariff Regulations. However, if we look at it from the point of view of the consumers, the consumers, particularly the industrial and commercial ones, have now no option to adjust their sale price to take into consideration the need for meeting the accumulated liability. It is, therefore, an accepted fact that due to postponing of the creation of such fund, the consumers were enjoying lesser tariff than the legitimate tariff otherwise applicable to them.53. A careful consideration of the reasoning adopted by the learned Appellate Tribunal would not disclose any such error so as to warrant interference of this Court. No error or fallacy, ex facie, is disclosed in the reasoning adopted so as to justify interference Under Section 125 of the 2003 Act.54. Insofar as the consumers (Appellants in Civil Appeal Nos. 971-973 of 2008) are concerned, an additional issue has been struck, as noticed earlier. This is with regard to the number of employees engaged in the power sector by the Corporation for whom alone proportionate recovery by way of tariff so far as the pension and gratuity is concerned, would be justifiable. Apart from the fact that the issue was not raised in any of the forums below and had been so raised before this Court for the first time and that too in the course of the arguments advanced, the materials on record do not justify a conclusion to be reached by us which will support the core basis of the contention made, namely, that the Corporation had not laid before the CERC any materials to show the extent of the work-force deployed in the power sector of the Corporation. In fact, in the counter arguments advanced on behalf of the Corporation this contention has been refuted and it is asserted that such materials were, indeed, laid before the CERC, a fact which we find to be correct.55. Insofar as the issue of allowance of cost relating to other activities of the Corporation to be recovered through tariff on electricity is concerned, we have taken note of the objection(s) raised in this regard which in sum and substance is that Sections 32 and 33 of the Act of 1948 are in direct conflict with Sections 41 and 51 of the 2003 Act and, therefore, recovery of cost incurred in "other works" undertaken by the Corporation through power tariff is wholly untenable. Apart from reiterating the basis on which we have thought it proper to affirm the findings of the learned Appellate Tribunal on the purport and scope of the fourth proviso to Section 14 of the 2003 Act and the continued operation of the provisions of the Act of 1948 which are not inconsistent with the provisions of the 2003 Act, we have also taken note of the specific provisions contained in Sections 41 and 51 of the 2003 Act which, inter alia, require maintenance of separate accounts of the other business undertaken by transmission/distribution licensees so as to ensure that the returns from the transmission/distribution business of electricity do not subsidize any other such business. Not only Sections 41 and 51 of the 2003 Act contemplate prior approval of the Appropriate Commission before a licensee can engage in any other business other than that of a licensee under the 2003 Act, what is contemplated by the aforesaid provisions of the 2003 Act is some return or earning of revenue from such business. In the instant case, the "other activities" of the Corporation are not optional as contemplated Under Sections 41/51 of the 2003 Act but are mandatorily cast by the statute i.e. Act of 1948 which, being in the nature of socially beneficial measures, per se, do not entail earning of any revenue so as to require maintenance of separate accounts. The allowance of recovery of cost incurred in connection with "other activities" of the Corporation from the common fund generated by tariff chargeable from the consumers/customers of electricity as contemplated by the provisions of the Act of 1948, therefore, do not collide or is, in any manner, inconsistent with the provisions of the 2003 Act. We will, therefore, have no occasion to interfere with the findings recorded by the learned Appellate Tribunal on the above score. | 0[ds]27. We have considered the reasons which had weighed with the CERC as well as the learned Appellate Tribunal in granting the aforesaid transitory period. The present dispute, regardless of the way it is resolved, would have relevance to the quantum of the tariff, depending on whether the determination is made on the basis of the provisions of Part IV of the Act of 1948 or the provisions of the Tariff Regulations, as may be. So far as the grant of the transitory period is concerned, the same, we have noticed, has been so granted having due regard to the statutory functions/social responsibilities that the Corporation is mandated to undertake in terms of the Act of 1948. The tariff fixed is also lower than the tariff that has been fixed by the Jharkhand and West Bengal Electricity Regulatory Commission for the general/domestic classes of consumers. While it is correct that the classes of consumers served by the Corporation are HT-Industrial consumers like Steel, Coal, Railways, etc. beside bulk supply to main beneficiaries of State Electricity Boards of West Bengal and Jharkhand, the said fact, itself, is another peculiar feature which distinguishes the Corporation from other licenses. If in a situation where the Corporation in addition to generation, transmission and distribution of electricity is statutorily required to undertake certain social security/beneficial measures like flood control, control of soil erosion, afforestation, navigation, promotion of public health, etc. we do not see how the grant of transitory period can be faulted with. We, therefore, decline to interfere with the aforesaid part of the order of the learned Appellate Tribunal28. The learned Appellate Tribunal has also taken the view that having regard to the provisions of Section 79 of the 2003 Act it is the CERC which would be the "Appropriate Commission" for determination of tariff inasmuch as the Damodar Valley Corporation is a Corporation owned and controlled by the Central Government. The detailed inputs to arrive at the aforesaid conclusion have been duly considered by us. On such consideration, we are of the view that the above conclusion recorded by the learned Appellate Tribunal is neither unreasonable nor irrelevant so as to warrant our interference, particularly, in exercise of the limited jurisdiction Under Section 125 of the 2003 ActAs can be observed, the primary objective of the Tennessee Valley Authority Act is to prevent floods across the Tennessee River Valley and the generation of electricity is incidental to this activity of flood-control37. It may be wholly unnecessary to detract from the fundamental principles of law laid down in The Presidential Reference (supra), which would be an inevitable consequence, if the contentions advanced on behalf of the Appellants to the effect that the Tariff Regulations must override the provisions of the Act of 1948 as the said Regulations are statutory in character is to be accepted. This is also what has been subsequently emphasised by this Court in Bharathidasan University and Anr. (supra) and Samsthanan Chethu Thozhilali Union (supra). No error, therefore, can also be found in the implicit reliance placed on the ratio of the above decisions by the learned Appellate Tribunal in its order dated 23rd November, 2007On a careful reading of the aforesaid later part of the fourth proviso to Section 14 of the Act of 2003, it is seen that it is clearly a substantive provision to lay down something more than what a proviso generally deals with. If the intention of the proviso was to exclude DVC only from the main part of Section 14 of the Act of 2003 dealing with the requirement of obtaining licence for transmission/distribution/trade in electricity, the purpose is fully achieved by the first part recognising DVC as a deemed licensee and not requiring to apply for and obtain licence. The Legislature could have simply stopped there. There was no necessity to incorporate the second part. The second part of the fourth proviso is to bring in the continued application of some of the provisions of the Act of 1948 which are not inconsistent with the provisions of the Act of 2003. To elaborate it further, let us take the case of the third proviso to Section 14 of the Act of 2003 which provides "that in case an appropriate Government transmits electricity or distributes electricity or undertakes trading in electricity whether before or after the commencement of the Act, such Government shall be deemed to be a licensee under the Act but shall not be required to obtain licence under the Act". In so far as DVC is concerned, if the fourth proviso is to be confined only to licensing as in the case of third proviso, the fourth proviso also would have stopped with the first part of the proviso. There would have been no necessity to incorporate the second part of the proviso. The legislature does not incorporate any words which are irrelevant or redundant and every expression used in a statutory provision has some purpose42. A careful comparative reading of the third and the fourth provisos to Section 14 of the Act of 2003 clearly indicates the intention of the legislature that the second part of the fourth proviso is to bring in the continued application of some of the provisions of the Act of 1948 which are not inconsistent with the provisions of the Act of 2003. There are no licensing provisions in the Act of 1948 to be saved. The obvious reference in the second part of proviso is to provide for the continued application of the provisions of the Act of 1948 insofar as they are not inconsistent with the provisions of the Act of 2003A perusal of Sections 18 and 19 of the Act of 1948 show that they deal with the supply and generation of electrical energy and distribution of electricity within the Damodar Valley area. The provisions of the Act of 2003 which authorise the Regulatory Commissions to grant licence to persons (other than DVC) fully govern the field and there is no question of continued application of the Act of 1948 in that respect. Sections 18 and 19 of the Act of 1948 do not deal with licence to DVC. These provisions only deal with activities of other entities to distribute electricity within the Damodar Valley area. Further, the provisions of Electricity Act, 2003 authorizes the Regulatory Commissions to grant licence to persons other than DVC. Therefore, there can be no question of continued application of the Act of 1948 over those provisions47. On the other hand, it would appear from the record of the proceedings of the Parliamentary Standing Committee that the Industry represented by Chhotanagpur Chamber of Commerce & Industry and The Bengal Chamber of Commerce & Industry as well as the States of Jharkhand and West Bengal had contested the claims made by the Corporation for exemption and had pleaded before the Parliamentary Standing Committee that the Act of 1948 itself be repealed/amended insofar as all non-power related activities are concerned which constitute only about 10% of the total activities of the Corporation48. After considering the respective stands taken, the Parliamentary Standing Committee had recommended that the Corporation should be exempted from the operation of the provisions of the proposed 2003 Act in view of the special status and responsibilities of the Corporation as envisaged under the Parliamentary enactment constituting it (i.e. the Act of 1948). However, it appears that Parliament was not inclined to provide a blanket/total exemption in favour of the Corporation and the 2003 Act did not include the Corporation as one of the entities in Section 173 of the 2003 Act which provides exemption in so far as the provisions of the Consumer Protection Act, 1986, the Atomic Energy Act, 1962 and the Railways Act, 1989 clearly excluding the provisions of the Act of 1948 therefrom. Instead, the fourth proviso to Section 14 of the 2003 Act was specifically incorporated, details of which have already been noted. Having regard to the legislative history behind the enactment of the provision of Section 173 and the provisions of Section 14 including the fourth proviso thereto, it may be more in consonance with the Parliamentary intention to hold that the fourth proviso to Section 14 need not be understood to be confined only to the question of licensing which is dealt with by the main part of the Section 14. Rather, we are inclined to hold that Parliament had intended to provide partial exemption to the Corporation by mandating that such provisions of the Act of 1948 which are not inconsistent with the 2003 Act will continue to hold the field. Viewed thus, the fourth proviso to Section 14 of the Electricity Act 2003 has to be understood to be a legislative exercise in the nature of a substantial provision of law. Part IV of the Act of 1948 not being inconsistent with the provisions of the 2003 Act can, therefore, be taken into account for determination of tariff. Such provisions of the Act of 1948 will also have an overriding effect over the inconsistent provisions of the Tariff Regulations. Our view, as above, will also effectuate the provisions of the Act of 1948 in so far as the activities of the Corporation, other than generation and transmission of electricity, is concerned. We, therefore, affirm the above view taken by the Appellate Tribunal for the reasons afore-stated50. Insofar as the questions under the last two issues at (g) and (h) above is concerned, the same have already been dealt with in the present order. Of the remaining heads of tariff fixation, it appears that so far as the depreciation rate and sinking fund is concerned it is the provisions of Section 40 of the Act of 1948 which have been held to be determinative. We have gone through the reasoning adopted by the learned Appellate Tribunal in this regard. Having clarified the manner in which the fourth proviso to Section 14 of the 2003 Act has to be understood, we do not find the reasoning adopted by the learned Appellate Tribunal on the issues relating to depreciation and sinking fund to be fundamentally flawed in any manner so as to give rise to a substantial question of law requiring our intervention/interference Under Section 125 of the 2003 Act51. Insofar as the debt-equity ratio is concerned, we find that except for the projects which have been completed prior to 1992 in which case the ratio has been worked out at par with other public-sector organisation at 50:50, the ratio of 70:30 has been adopted following the prescription under Regulation 20 of the Tariff Regulations in the absence of any specific rate under the Act of 194852. So far as the pension and gratuity fund is concerned, the only issue arising is whether the fund worked out on Actuary basis at Rs. 1534.49 crores should be apportioned between the Corporation and the consumers as held by the CERC in the ratio of 40:60 or the entire fund should be allowed to be recovered by way of tariff from the consumers as held by the learned Appellate Tribunal53. A careful consideration of the reasoning adopted by the learned Appellate Tribunal would not disclose any such error so as to warrant interference of this Court. No error or fallacy, ex facie, is disclosed in the reasoning adopted so as to justify interference Under Section 125 of the 2003 Act54. Insofar as the consumers (Appellants in Civil Appeal Nos. 971-973 of 2008) are concerned, an additional issue has been struck, as noticed earlier. This is with regard to the number of employees engaged in the power sector by the Corporation for whom alone proportionate recovery by way of tariff so far as the pension and gratuity is concerned, would be justifiable. Apart from the fact that the issue was not raised in any of the forums below and had been so raised before this Court for the first time and that too in the course of the arguments advanced, the materials on record do not justify a conclusion to be reached by us which will support the core basis of the contention made, namely, that the Corporation had not laid before the CERC any materials to show the extent of the work-force deployed in the power sector of the Corporation. In fact, in the counter arguments advanced on behalf of the Corporation this contention has been refuted and it is asserted that such materials were, indeed, laid before the CERC, a fact which we find to be correct55. Insofar as the issue of allowance of cost relating to other activities of the Corporation to be recovered through tariff on electricity is concerned, we have taken note of the objection(s) raised in this regard which in sum and substance is that Sections 32 and 33 of the Act of 1948 are in direct conflict with Sections 41 and 51 of the 2003 Act and, therefore, recovery of cost incurred in "other works" undertaken by the Corporation through power tariff is wholly untenable. Apart from reiterating the basis on which we have thought it proper to affirm the findings of the learned Appellate Tribunal on the purport and scope of the fourth proviso to Section 14 of the 2003 Act and the continued operation of the provisions of the Act of 1948 which are not inconsistent with the provisions of the 2003 Act, we have also taken note of the specific provisions contained in Sections 41 and 51 of the 2003 Act which, inter alia, require maintenance of separate accounts of the other business undertaken by transmission/distribution licensees so as to ensure that the returns from the transmission/distribution business of electricity do not subsidize any other such business. Not only Sections 41 and 51 of the 2003 Act contemplate prior approval of the Appropriate Commission before a licensee can engage in any other business other than that of a licensee under the 2003 Act, what is contemplated by the aforesaid provisions of the 2003 Act is some return or earning of revenue from such business. In the instant case, the "other activities" of the Corporation are not optional as contemplated Under Sections 41/51 of the 2003 Act but are mandatorily cast by the statute i.e. Act of 1948 which, being in the nature of socially beneficial measures, per se, do not entail earning of any revenue so as to require maintenance of separate accounts. The allowance of recovery of cost incurred in connection with "other activities" of the Corporation from the common fund generated by tariff chargeable from the consumers/customers of electricity as contemplated by the provisions of the Act of 1948, therefore, do not collide or is, in any manner, inconsistent with the provisions of the 2003 Act. We will, therefore, have no occasion to interfere with the findings recorded by the learned Appellate Tribunal on the above score. | 0 | 11,134 | 2,668 | ### Instruction:
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have gone through the reasoning adopted by the learned Appellate Tribunal in this regard. Having clarified the manner in which the fourth proviso to Section 14 of the 2003 Act has to be understood, we do not find the reasoning adopted by the learned Appellate Tribunal on the issues relating to depreciation and sinking fund to be fundamentally flawed in any manner so as to give rise to a substantial question of law requiring our intervention/interference Under Section 125 of the 2003 Act.51. Insofar as the debt-equity ratio is concerned, we find that except for the projects which have been completed prior to 1992 in which case the ratio has been worked out at par with other public-sector organisation at 50:50, the ratio of 70:30 has been adopted following the prescription under Regulation 20 of the Tariff Regulations in the absence of any specific rate under the Act of 1948.52. So far as the pension and gratuity fund is concerned, the only issue arising is whether the fund worked out on Actuary basis at Rs. 1534.49 crores should be apportioned between the Corporation and the consumers as held by the CERC in the ratio of 40:60 or the entire fund should be allowed to be recovered by way of tariff from the consumers as held by the learned Appellate Tribunal. The reasoning of the learned Appellate Tribunal in coming to the aforesaid conclusion is as follows:D. 3 As a general rule, once the Commission, after prudence check, has agreed with the need for funding the Pension and Gratuity Contribution funds, DVC should have been allowed to recover entire amount from the consumers through the tariff. Asking DVC to contribute out of its own resources would tantamount to denying it the return on equity as assured in terms of Tariff Regulations. However, if we look at it from the point of view of the consumers, the consumers, particularly the industrial and commercial ones, have now no option to adjust their sale price to take into consideration the need for meeting the accumulated liability. It is, therefore, an accepted fact that due to postponing of the creation of such fund, the consumers were enjoying lesser tariff than the legitimate tariff otherwise applicable to them.53. A careful consideration of the reasoning adopted by the learned Appellate Tribunal would not disclose any such error so as to warrant interference of this Court. No error or fallacy, ex facie, is disclosed in the reasoning adopted so as to justify interference Under Section 125 of the 2003 Act.54. Insofar as the consumers (Appellants in Civil Appeal Nos. 971-973 of 2008) are concerned, an additional issue has been struck, as noticed earlier. This is with regard to the number of employees engaged in the power sector by the Corporation for whom alone proportionate recovery by way of tariff so far as the pension and gratuity is concerned, would be justifiable. Apart from the fact that the issue was not raised in any of the forums below and had been so raised before this Court for the first time and that too in the course of the arguments advanced, the materials on record do not justify a conclusion to be reached by us which will support the core basis of the contention made, namely, that the Corporation had not laid before the CERC any materials to show the extent of the work-force deployed in the power sector of the Corporation. In fact, in the counter arguments advanced on behalf of the Corporation this contention has been refuted and it is asserted that such materials were, indeed, laid before the CERC, a fact which we find to be correct.55. Insofar as the issue of allowance of cost relating to other activities of the Corporation to be recovered through tariff on electricity is concerned, we have taken note of the objection(s) raised in this regard which in sum and substance is that Sections 32 and 33 of the Act of 1948 are in direct conflict with Sections 41 and 51 of the 2003 Act and, therefore, recovery of cost incurred in "other works" undertaken by the Corporation through power tariff is wholly untenable. Apart from reiterating the basis on which we have thought it proper to affirm the findings of the learned Appellate Tribunal on the purport and scope of the fourth proviso to Section 14 of the 2003 Act and the continued operation of the provisions of the Act of 1948 which are not inconsistent with the provisions of the 2003 Act, we have also taken note of the specific provisions contained in Sections 41 and 51 of the 2003 Act which, inter alia, require maintenance of separate accounts of the other business undertaken by transmission/distribution licensees so as to ensure that the returns from the transmission/distribution business of electricity do not subsidize any other such business. Not only Sections 41 and 51 of the 2003 Act contemplate prior approval of the Appropriate Commission before a licensee can engage in any other business other than that of a licensee under the 2003 Act, what is contemplated by the aforesaid provisions of the 2003 Act is some return or earning of revenue from such business. In the instant case, the "other activities" of the Corporation are not optional as contemplated Under Sections 41/51 of the 2003 Act but are mandatorily cast by the statute i.e. Act of 1948 which, being in the nature of socially beneficial measures, per se, do not entail earning of any revenue so as to require maintenance of separate accounts. The allowance of recovery of cost incurred in connection with "other activities" of the Corporation from the common fund generated by tariff chargeable from the consumers/customers of electricity as contemplated by the provisions of the Act of 1948, therefore, do not collide or is, in any manner, inconsistent with the provisions of the 2003 Act. We will, therefore, have no occasion to interfere with the findings recorded by the learned Appellate Tribunal on the above score.
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the provisions of the 2003 Act can, therefore, be taken into account for determination of tariff. Such provisions of the Act of 1948 will also have an overriding effect over the inconsistent provisions of the Tariff Regulations. Our view, as above, will also effectuate the provisions of the Act of 1948 in so far as the activities of the Corporation, other than generation and transmission of electricity, is concerned. We, therefore, affirm the above view taken by the Appellate Tribunal for the reasons afore-stated50. Insofar as the questions under the last two issues at (g) and (h) above is concerned, the same have already been dealt with in the present order. Of the remaining heads of tariff fixation, it appears that so far as the depreciation rate and sinking fund is concerned it is the provisions of Section 40 of the Act of 1948 which have been held to be determinative. We have gone through the reasoning adopted by the learned Appellate Tribunal in this regard. Having clarified the manner in which the fourth proviso to Section 14 of the 2003 Act has to be understood, we do not find the reasoning adopted by the learned Appellate Tribunal on the issues relating to depreciation and sinking fund to be fundamentally flawed in any manner so as to give rise to a substantial question of law requiring our intervention/interference Under Section 125 of the 2003 Act51. Insofar as the debt-equity ratio is concerned, we find that except for the projects which have been completed prior to 1992 in which case the ratio has been worked out at par with other public-sector organisation at 50:50, the ratio of 70:30 has been adopted following the prescription under Regulation 20 of the Tariff Regulations in the absence of any specific rate under the Act of 194852. So far as the pension and gratuity fund is concerned, the only issue arising is whether the fund worked out on Actuary basis at Rs. 1534.49 crores should be apportioned between the Corporation and the consumers as held by the CERC in the ratio of 40:60 or the entire fund should be allowed to be recovered by way of tariff from the consumers as held by the learned Appellate Tribunal53. A careful consideration of the reasoning adopted by the learned Appellate Tribunal would not disclose any such error so as to warrant interference of this Court. No error or fallacy, ex facie, is disclosed in the reasoning adopted so as to justify interference Under Section 125 of the 2003 Act54. Insofar as the consumers (Appellants in Civil Appeal Nos. 971-973 of 2008) are concerned, an additional issue has been struck, as noticed earlier. This is with regard to the number of employees engaged in the power sector by the Corporation for whom alone proportionate recovery by way of tariff so far as the pension and gratuity is concerned, would be justifiable. Apart from the fact that the issue was not raised in any of the forums below and had been so raised before this Court for the first time and that too in the course of the arguments advanced, the materials on record do not justify a conclusion to be reached by us which will support the core basis of the contention made, namely, that the Corporation had not laid before the CERC any materials to show the extent of the work-force deployed in the power sector of the Corporation. In fact, in the counter arguments advanced on behalf of the Corporation this contention has been refuted and it is asserted that such materials were, indeed, laid before the CERC, a fact which we find to be correct55. Insofar as the issue of allowance of cost relating to other activities of the Corporation to be recovered through tariff on electricity is concerned, we have taken note of the objection(s) raised in this regard which in sum and substance is that Sections 32 and 33 of the Act of 1948 are in direct conflict with Sections 41 and 51 of the 2003 Act and, therefore, recovery of cost incurred in "other works" undertaken by the Corporation through power tariff is wholly untenable. Apart from reiterating the basis on which we have thought it proper to affirm the findings of the learned Appellate Tribunal on the purport and scope of the fourth proviso to Section 14 of the 2003 Act and the continued operation of the provisions of the Act of 1948 which are not inconsistent with the provisions of the 2003 Act, we have also taken note of the specific provisions contained in Sections 41 and 51 of the 2003 Act which, inter alia, require maintenance of separate accounts of the other business undertaken by transmission/distribution licensees so as to ensure that the returns from the transmission/distribution business of electricity do not subsidize any other such business. Not only Sections 41 and 51 of the 2003 Act contemplate prior approval of the Appropriate Commission before a licensee can engage in any other business other than that of a licensee under the 2003 Act, what is contemplated by the aforesaid provisions of the 2003 Act is some return or earning of revenue from such business. In the instant case, the "other activities" of the Corporation are not optional as contemplated Under Sections 41/51 of the 2003 Act but are mandatorily cast by the statute i.e. Act of 1948 which, being in the nature of socially beneficial measures, per se, do not entail earning of any revenue so as to require maintenance of separate accounts. The allowance of recovery of cost incurred in connection with "other activities" of the Corporation from the common fund generated by tariff chargeable from the consumers/customers of electricity as contemplated by the provisions of the Act of 1948, therefore, do not collide or is, in any manner, inconsistent with the provisions of the 2003 Act. We will, therefore, have no occasion to interfere with the findings recorded by the learned Appellate Tribunal on the above score.
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S.V.ASGAONKAR Vs. MUMBAI METROPOLITAN REGN.DEVT.AUTH | 1999 as was approved by the Authority for the allotment of land to the MMRDA ClassIV Employees Cooperative Housing Society at Panchpakhadi. We are in a readiness to make the necessary payment for taking the possession of the land of 13,700 sq.mtr. area on the terms prescribed in the above referred Government of Maharashtra Resolution. Thanking you, Yours faithfully, (A.V. Ghangurde) Chairman. 16. In response to letter dated 27.04.2001, the Authority wrote a letter dated 03.05.2001 to the Society forwarding the Resolution dated 09.07.1999 and requesting the Society to go through the terms and conditions and communicate Societys willingness so that further action be taken. The Society vide letter dated 10.05.2001 communicated its willingness to abide by the Resolution dated 09.07.1999 and thereafter Resolution dated 01.09.2003 was passed for allotment of land. In pursuance of Resolution dated 01.09.2003, letter dated 11.12.2003 was issued by the Authority to the Society. The Authority vide letter dated 11.12.2003 informed that lease premium may be charged at Rs.2500/ per sq.mtr. instead of Rs.1400/ per sq. mtr. as was earlier approved. From the aforesaid sequence of events, it is clear that the allotment dated 01.09.2003 was a fresh allotment of land on a higher premium that is Rs.2500/ per sqr. mtr. Earlier allotment dated 07.06.1997 had lapsed due to non fulfilment of the conditions as required by the Disposal of Land Regulations, 1977 as noted above. Thus, the allotment dated 01.09.2003 was on the basis of the fresh proposal relying on the Government of Maharashtra Resolution dated 09.07.1999. We, thus, are of the view that the High Court is right in its conclusion that allotment dated 01.09.2003 was on the basis of fresh proposal of the Society and same has no nexus with respect to Resolution dated 07.06.1997. 17. Learned counsel for the appellants relying on Resolution dated 01.09.2003 submits that the Resolution dated 01.09.2003 clearly mentions that it modifies condition No.3 contained in earlier Resolution dated 07.06.1997 which clearly means that Resolution dated 01.09.2003 is in continuation of earlier Resolution, hence, the eligibility of the members have to be seen on 07.06.1997 or 05.11.1998. He relies on the following portion of Resolution dated 01.09.2003: "RESOLVED THAT, in exercise of power conferred under SubSection 2 of Section 3 of the Mumbai Metropolitan Region Development Authority Act, 1974 and making modification in Condition No.c contained in its resolution dated 727 passed in the 88 th meeting held on 7.6.1997 and as proposed in paragraph 6 of the item note, the authority allots the land situated at Chitalhar, Manpada, Thane to the MMRDA employees cooperative housing society on the following terms and conditions. 18. It is true that Resolution dated 01.09.2003 modifies condition No.(c) as was contained in Resolution 07.06.1997. Condition No.(c) was with regard to amount of premium per sq.mtr. which was Rs.1400/. The Resolution dated 01.09.2003 modifies the said amount as Rs.2500/ per sq. mtr. The modification of above condition has been specifically mentioned since earlier the Authority has offered the plot on Rs.1400/ per sq. mtr. which was subsequently made as Rs.2500/ per sq.mtr. As noted above the Resolution dated 07.06.1997 itself was not honoured by the Society and it lapsed as per statutory Regulations noted above. 19. The fresh allotment was made on 01.09.2003 in pursuance of which Letter of Intent was issued on 11.12.2003, thus, the eligibility has to be seen as per condition of AnnexureA of the Government Resolution dated 09.07.1999. On the strength of Resolution dated 01.09.2003 in so far as it modifies the rate of premium per sq.mtr., it cannot be said that the same allotment which was made on 07.06.1997 has been continued on 01.09.2003 and the eligibility of members has to be pegged on the date of Resolution dated 07.06.1997 or 05.11.1998 i.e. issue of Letter of Intent. We, thus, do not find any substance in the above submission of the learned counsel of the appellants. 20. The submission of the learned counsel for the appellants that eligibility with regard to being in service has to be seen on the date 07.06.1997 or 05.11.1998, thus, cannot be accepted. The Society itself has given approval vide its communication dated 10.05.2001 to consider the allotment to the Society in its forthcoming meeting on 17.05.2001 on the basis of Government of Maharashtra Resolution dated 09.07.1999. It is thus clear that the Society itself has requested for a fresh consideration and fresh Resolution on the basis of the eligibility laid down by Resolution 09.07.1999. After after issuance of allotment letter dated 11.12.2003 by which list of eligible members was asked for, in response to which Society has sent its communication dated 10.06.2004 stating the following: "...The final list of members eligible as on 11.12.2003 by scrutiny of said list as per terms and conditions under the Government Resolution through the Land Branch will be accepted to the Society. Also, the waiting list of total 33 members has been present till date through the Society and it will be sent to the Land Branch at the necessary time. 21. Thus, the Society was conscious of the fact that eligibility of members has to be seen as on 11.12.2003 that is the date on which Letter of Intent was issued in pursuance of allotment. The Society having accepted the aforesaid clause of eligibility and accepted the offer of allotment as given by the Authority, we fail to see that how the eligibility as on 11.12.2003 be permitted to be questioned. 22. There is one more fact which needs to be noted. The Authority has proposed allotment of 13,700 sq.mtr of land which is apparent from its Resolution dated 01.09.2003 as well as letter dated 11.12.2003. After scrutinising the list of eligibility, ultimately, the allotment was made only for land admeasuring 10,700 sq.mtr. by letter dated 09.12.2005. The Authority had not taken into consideration the area for noneligible members while finalising the list and due to the aforesaid reasons the area allotted to the Society has been reduced from 13,700 sq.mtr. To 10,700 sq.mtr. | 1[ds]12. The letter dated 05.11.1998 refers to Disposal of Land Regulations. At this juncture, we may notice the above Regulations which were amended on 29.04.1997. The amended Regulation, 1997 has been brought on the record by the appellants themselves through rejoinderaffidavit. In the Amendment Regulation Clause (iA) has been added which is to the following effect: "(iA) If half of the premium shall not be paid within one month or in case of Government within two months, if permitted by the Metropolitan Commissioner, the Agreement concluded with the Authority shall stand determined and the Earnest Money deposited by Intending Lessee along with its tender or offer shall stand forfeited to the Authority without prejudice to the rights and powers of Authority to recover compensation for loss or damage, if any suffered in consequence of such breach of the Intending Lessee to so pay half of the premium to the Authority. Likewise, if the balance premium shall not be paid within twelve months as provided hereto before, the Agreement concluded with the Authority shall stand determined and the Earnest Money paid by him along with its tender or offer together with 25 per cent of the premium shall be forfeited to the Authority without prejudice to the right and powers of the Authority to recover compensation for loss or damage, if any, suffered in consequence of such default of the Intending Lessee.In response to letter dated 27.04.2001, the Authority wrote a letter dated 03.05.2001 to the Society forwarding the Resolution dated 09.07.1999 and requesting the Society to go through the terms and conditions and communicate Societys willingness so that further action be taken. The Society vide letter dated 10.05.2001 communicated its willingness to abide by the Resolution dated 09.07.1999 and thereafter Resolution dated 01.09.2003 was passed for allotment of land. In pursuance of Resolution dated 01.09.2003, letter dated 11.12.2003 was issued by the Authority to the Society. The Authority vide letter dated 11.12.2003 informed that lease premium may be charged at Rs.2500/ per sq.mtr. instead of Rs.1400/ per sq. mtr. as was earlier approved. From the aforesaid sequence of events, it is clear that the allotment dated 01.09.2003 was a fresh allotment of land on a higher premium that is Rs.2500/ per sqr. mtr. Earlier allotment dated 07.06.1997 had lapsed due to non fulfilment of the conditions as required by the Disposal of Land Regulations, 1977 as noted above. Thus, the allotment dated 01.09.2003 was on the basis of the fresh proposal relying on the Government of Maharashtra Resolution dated 09.07.1999. We, thus, are of the view that the High Court is right in its conclusion that allotment dated 01.09.2003 was on the basis of fresh proposal of the Society and same has no nexus with respect to Resolution dated 07.06.1997.It is true that Resolution dated 01.09.2003 modifies condition No.(c) as was contained in Resolution 07.06.1997. Condition No.(c) was with regard to amount of premium per sq.mtr. which was Rs.1400/. The Resolution dated 01.09.2003 modifies the said amount as Rs.2500/ per sq. mtr. The modification of above condition has been specifically mentioned since earlier the Authority has offered the plot on Rs.1400/ per sq. mtr. which was subsequently made as Rs.2500/ per sq.mtr. As noted above the Resolution dated 07.06.1997 itself was not honoured by the Society and it lapsed as per statutory Regulations noted above.The fresh allotment was made on 01.09.2003 in pursuance of which Letter of Intent was issued on 11.12.2003, thus, the eligibility has to be seen as per condition of AnnexureA of the Government Resolution dated 09.07.1999. On the strength of Resolution dated 01.09.2003 in so far as it modifies the rate of premium per sq.mtr., it cannot be said that the same allotment which was made on 07.06.1997 has been continued on 01.09.2003 and the eligibility of members has to be pegged on the date of Resolution dated 07.06.1997 or 05.11.1998 i.e. issue of Letter of Intent. We, thus, do not find any substance in the above submission of the learned counsel of the appellants.The submission of the learned counsel for the appellants that eligibility with regard to being in service has to be seen on the date 07.06.1997 or 05.11.1998, thus, cannot be accepted. The Society itself has given approval vide its communication dated 10.05.2001 to consider the allotment to the Society in its forthcoming meeting on 17.05.2001 on the basis of Government of Maharashtra Resolution dated 09.07.1999. It is thus clear that the Society itself has requested for a fresh consideration and fresh Resolution on the basis of the eligibility laid down by Resolution 09.07.1999. After after issuance of allotment letter dated 11.12.2003 by which list of eligible members was asked for, in response to which Society has sent its communication dated 10.06.2004 stating the following: "...The final list of members eligible as on 11.12.2003 by scrutiny of said list as per terms and conditions under the Government Resolution through the Land Branch will be accepted to the Society. Also, the waiting list of total 33 members has been present till date through the Society and it will be sent to the Land Branch at the necessary time.Thus, the Society was conscious of the fact that eligibility of members has to be seen as on 11.12.2003 that is the date on which Letter of Intent was issued in pursuance of allotment. The Society having accepted the aforesaid clause of eligibility and accepted the offer of allotment as given by the Authority, we fail to see that how the eligibility as on 11.12.2003 be permitted to be questioned.e is one more fact which needs to be noted. The Authority has proposed allotment of 13,700 sq.mtr of land which is apparent from its Resolution dated 01.09.2003 as well as letter dated 11.12.2003.After scrutinising the list of eligibility, ultimately, the allotment was made only for land admeasuring 10,700 sq.mtr. by letter dated 09.12.2005. The Authority had not taken into consideration the area for noneligible members while finalising the list and due to the aforesaid reasons the area allotted to the Society has been reduced from 13,700 sq.mtr. To 10,700 sq.mtr. | 1 | 3,513 | 1,102 | ### Instruction:
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1999 as was approved by the Authority for the allotment of land to the MMRDA ClassIV Employees Cooperative Housing Society at Panchpakhadi. We are in a readiness to make the necessary payment for taking the possession of the land of 13,700 sq.mtr. area on the terms prescribed in the above referred Government of Maharashtra Resolution. Thanking you, Yours faithfully, (A.V. Ghangurde) Chairman. 16. In response to letter dated 27.04.2001, the Authority wrote a letter dated 03.05.2001 to the Society forwarding the Resolution dated 09.07.1999 and requesting the Society to go through the terms and conditions and communicate Societys willingness so that further action be taken. The Society vide letter dated 10.05.2001 communicated its willingness to abide by the Resolution dated 09.07.1999 and thereafter Resolution dated 01.09.2003 was passed for allotment of land. In pursuance of Resolution dated 01.09.2003, letter dated 11.12.2003 was issued by the Authority to the Society. The Authority vide letter dated 11.12.2003 informed that lease premium may be charged at Rs.2500/ per sq.mtr. instead of Rs.1400/ per sq. mtr. as was earlier approved. From the aforesaid sequence of events, it is clear that the allotment dated 01.09.2003 was a fresh allotment of land on a higher premium that is Rs.2500/ per sqr. mtr. Earlier allotment dated 07.06.1997 had lapsed due to non fulfilment of the conditions as required by the Disposal of Land Regulations, 1977 as noted above. Thus, the allotment dated 01.09.2003 was on the basis of the fresh proposal relying on the Government of Maharashtra Resolution dated 09.07.1999. We, thus, are of the view that the High Court is right in its conclusion that allotment dated 01.09.2003 was on the basis of fresh proposal of the Society and same has no nexus with respect to Resolution dated 07.06.1997. 17. Learned counsel for the appellants relying on Resolution dated 01.09.2003 submits that the Resolution dated 01.09.2003 clearly mentions that it modifies condition No.3 contained in earlier Resolution dated 07.06.1997 which clearly means that Resolution dated 01.09.2003 is in continuation of earlier Resolution, hence, the eligibility of the members have to be seen on 07.06.1997 or 05.11.1998. He relies on the following portion of Resolution dated 01.09.2003: "RESOLVED THAT, in exercise of power conferred under SubSection 2 of Section 3 of the Mumbai Metropolitan Region Development Authority Act, 1974 and making modification in Condition No.c contained in its resolution dated 727 passed in the 88 th meeting held on 7.6.1997 and as proposed in paragraph 6 of the item note, the authority allots the land situated at Chitalhar, Manpada, Thane to the MMRDA employees cooperative housing society on the following terms and conditions. 18. It is true that Resolution dated 01.09.2003 modifies condition No.(c) as was contained in Resolution 07.06.1997. Condition No.(c) was with regard to amount of premium per sq.mtr. which was Rs.1400/. The Resolution dated 01.09.2003 modifies the said amount as Rs.2500/ per sq. mtr. The modification of above condition has been specifically mentioned since earlier the Authority has offered the plot on Rs.1400/ per sq. mtr. which was subsequently made as Rs.2500/ per sq.mtr. As noted above the Resolution dated 07.06.1997 itself was not honoured by the Society and it lapsed as per statutory Regulations noted above. 19. The fresh allotment was made on 01.09.2003 in pursuance of which Letter of Intent was issued on 11.12.2003, thus, the eligibility has to be seen as per condition of AnnexureA of the Government Resolution dated 09.07.1999. On the strength of Resolution dated 01.09.2003 in so far as it modifies the rate of premium per sq.mtr., it cannot be said that the same allotment which was made on 07.06.1997 has been continued on 01.09.2003 and the eligibility of members has to be pegged on the date of Resolution dated 07.06.1997 or 05.11.1998 i.e. issue of Letter of Intent. We, thus, do not find any substance in the above submission of the learned counsel of the appellants. 20. The submission of the learned counsel for the appellants that eligibility with regard to being in service has to be seen on the date 07.06.1997 or 05.11.1998, thus, cannot be accepted. The Society itself has given approval vide its communication dated 10.05.2001 to consider the allotment to the Society in its forthcoming meeting on 17.05.2001 on the basis of Government of Maharashtra Resolution dated 09.07.1999. It is thus clear that the Society itself has requested for a fresh consideration and fresh Resolution on the basis of the eligibility laid down by Resolution 09.07.1999. After after issuance of allotment letter dated 11.12.2003 by which list of eligible members was asked for, in response to which Society has sent its communication dated 10.06.2004 stating the following: "...The final list of members eligible as on 11.12.2003 by scrutiny of said list as per terms and conditions under the Government Resolution through the Land Branch will be accepted to the Society. Also, the waiting list of total 33 members has been present till date through the Society and it will be sent to the Land Branch at the necessary time. 21. Thus, the Society was conscious of the fact that eligibility of members has to be seen as on 11.12.2003 that is the date on which Letter of Intent was issued in pursuance of allotment. The Society having accepted the aforesaid clause of eligibility and accepted the offer of allotment as given by the Authority, we fail to see that how the eligibility as on 11.12.2003 be permitted to be questioned. 22. There is one more fact which needs to be noted. The Authority has proposed allotment of 13,700 sq.mtr of land which is apparent from its Resolution dated 01.09.2003 as well as letter dated 11.12.2003. After scrutinising the list of eligibility, ultimately, the allotment was made only for land admeasuring 10,700 sq.mtr. by letter dated 09.12.2005. The Authority had not taken into consideration the area for noneligible members while finalising the list and due to the aforesaid reasons the area allotted to the Society has been reduced from 13,700 sq.mtr. To 10,700 sq.mtr.
### Response:
1
### Explanation:
juncture, we may notice the above Regulations which were amended on 29.04.1997. The amended Regulation, 1997 has been brought on the record by the appellants themselves through rejoinderaffidavit. In the Amendment Regulation Clause (iA) has been added which is to the following effect: "(iA) If half of the premium shall not be paid within one month or in case of Government within two months, if permitted by the Metropolitan Commissioner, the Agreement concluded with the Authority shall stand determined and the Earnest Money deposited by Intending Lessee along with its tender or offer shall stand forfeited to the Authority without prejudice to the rights and powers of Authority to recover compensation for loss or damage, if any suffered in consequence of such breach of the Intending Lessee to so pay half of the premium to the Authority. Likewise, if the balance premium shall not be paid within twelve months as provided hereto before, the Agreement concluded with the Authority shall stand determined and the Earnest Money paid by him along with its tender or offer together with 25 per cent of the premium shall be forfeited to the Authority without prejudice to the right and powers of the Authority to recover compensation for loss or damage, if any, suffered in consequence of such default of the Intending Lessee.In response to letter dated 27.04.2001, the Authority wrote a letter dated 03.05.2001 to the Society forwarding the Resolution dated 09.07.1999 and requesting the Society to go through the terms and conditions and communicate Societys willingness so that further action be taken. The Society vide letter dated 10.05.2001 communicated its willingness to abide by the Resolution dated 09.07.1999 and thereafter Resolution dated 01.09.2003 was passed for allotment of land. In pursuance of Resolution dated 01.09.2003, letter dated 11.12.2003 was issued by the Authority to the Society. The Authority vide letter dated 11.12.2003 informed that lease premium may be charged at Rs.2500/ per sq.mtr. instead of Rs.1400/ per sq. mtr. as was earlier approved. From the aforesaid sequence of events, it is clear that the allotment dated 01.09.2003 was a fresh allotment of land on a higher premium that is Rs.2500/ per sqr. mtr. Earlier allotment dated 07.06.1997 had lapsed due to non fulfilment of the conditions as required by the Disposal of Land Regulations, 1977 as noted above. Thus, the allotment dated 01.09.2003 was on the basis of the fresh proposal relying on the Government of Maharashtra Resolution dated 09.07.1999. We, thus, are of the view that the High Court is right in its conclusion that allotment dated 01.09.2003 was on the basis of fresh proposal of the Society and same has no nexus with respect to Resolution dated 07.06.1997.It is true that Resolution dated 01.09.2003 modifies condition No.(c) as was contained in Resolution 07.06.1997. Condition No.(c) was with regard to amount of premium per sq.mtr. which was Rs.1400/. The Resolution dated 01.09.2003 modifies the said amount as Rs.2500/ per sq. mtr. The modification of above condition has been specifically mentioned since earlier the Authority has offered the plot on Rs.1400/ per sq. mtr. which was subsequently made as Rs.2500/ per sq.mtr. As noted above the Resolution dated 07.06.1997 itself was not honoured by the Society and it lapsed as per statutory Regulations noted above.The fresh allotment was made on 01.09.2003 in pursuance of which Letter of Intent was issued on 11.12.2003, thus, the eligibility has to be seen as per condition of AnnexureA of the Government Resolution dated 09.07.1999. On the strength of Resolution dated 01.09.2003 in so far as it modifies the rate of premium per sq.mtr., it cannot be said that the same allotment which was made on 07.06.1997 has been continued on 01.09.2003 and the eligibility of members has to be pegged on the date of Resolution dated 07.06.1997 or 05.11.1998 i.e. issue of Letter of Intent. We, thus, do not find any substance in the above submission of the learned counsel of the appellants.The submission of the learned counsel for the appellants that eligibility with regard to being in service has to be seen on the date 07.06.1997 or 05.11.1998, thus, cannot be accepted. The Society itself has given approval vide its communication dated 10.05.2001 to consider the allotment to the Society in its forthcoming meeting on 17.05.2001 on the basis of Government of Maharashtra Resolution dated 09.07.1999. It is thus clear that the Society itself has requested for a fresh consideration and fresh Resolution on the basis of the eligibility laid down by Resolution 09.07.1999. After after issuance of allotment letter dated 11.12.2003 by which list of eligible members was asked for, in response to which Society has sent its communication dated 10.06.2004 stating the following: "...The final list of members eligible as on 11.12.2003 by scrutiny of said list as per terms and conditions under the Government Resolution through the Land Branch will be accepted to the Society. Also, the waiting list of total 33 members has been present till date through the Society and it will be sent to the Land Branch at the necessary time.Thus, the Society was conscious of the fact that eligibility of members has to be seen as on 11.12.2003 that is the date on which Letter of Intent was issued in pursuance of allotment. The Society having accepted the aforesaid clause of eligibility and accepted the offer of allotment as given by the Authority, we fail to see that how the eligibility as on 11.12.2003 be permitted to be questioned.e is one more fact which needs to be noted. The Authority has proposed allotment of 13,700 sq.mtr of land which is apparent from its Resolution dated 01.09.2003 as well as letter dated 11.12.2003.After scrutinising the list of eligibility, ultimately, the allotment was made only for land admeasuring 10,700 sq.mtr. by letter dated 09.12.2005. The Authority had not taken into consideration the area for noneligible members while finalising the list and due to the aforesaid reasons the area allotted to the Society has been reduced from 13,700 sq.mtr. To 10,700 sq.mtr.
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Bongaigaon Refinery & P.C. Ltd Vs. Girish Chandra Sarmah | Deputy General Manager; Shri T.V.John, CM/DGM (Finance) and Shri P.K.Gogoi, SM/CM (Project-Civil) were the members along with the respondent. All these three Committees have processed the deal and it is only the respondent has been made a scapegoat. After going through the report and the finding recorded by the Division Bench of the High Court, we are of opinion that in fact the Division Bench correctly assessed the situation that the respondent alone was made a scapegoat whereas the decision by all three committees was unanimous decision by all these members participating in the negotiations and the price was finalized accordingly. It is not the respondent alone can be held responsible when the decision was taken by the committees. If the decision of the Committee stinks, it cannot be said that the respondent was alone stink, it will be arbitrary. If all fish stink, pick one and say it stinks only is unfair in the matter of unanimous decision of the Committee. In all the three charges, the respondent has been found to be guilty for not assessing the reasonable price in his report submitted by him where the price indicated by the owner of the land was Rs.30 lakhs. The appointment of Shri I.Sharma as a valuer for land valuation was not also the decision of the respondent alone and the exploration of soil and rock strata given to the company, M/s. ESS Pvt. Ltd. was also not the decision of the respondent alone. Therefore, all the three charges which have been framed against the respondent as if he is alone responsible for the deal is not the correct approach. It is also not necessary that the land owner who has given the offer at one point of time at Rs.30 lakhs to stick to that. Instead she has intimated the appellant company by her letter quoting the price at Rs.61 lakhs and that was subsequently negotiated and brought out to Rs.50.01 lakhs. The preliminary report submitted by the respondent to the Director (Commercial) was after discussion with the land owner at the cost of Rs.30 lakhs yet this cannot work as an estoppel against the land owner. May be the land owner at one point of time might have offered the land at Rs.30 lakhs but that report cannot operate as estoppel against the land owner that she cannot jag up the price for the land. In fact when the Price Negotiating Committee asked for written proposal from the land owner, she quoted at Rs.61 lakhs and ultimately the Price Negotiating Committee after taking into consideration all the factors negotiated at Rs.50.01 lakhs for 5 acres of land. This was the joint decision of the Price Negotiating Committee which was headed by Shri S.C.Goswami, General Manager (Marketing) as the Chairman. Therefore, from the above discussion, we are of opinion that the view taken in these set of facts by the Division Bench cannot be said to be wrong. 8. So far as the legal proposition as contended by learned Additional Solicitor General with regard to appreciation of evidence is concerned, there is no quarrel that the Courts cannot sit as appellate authority over the domestic enquiries but in the present case what appears us is that the respondent has become a scapegoat in order to make someone responsible for no fault of his. He alone was targeted for the simple reason that he submitted preliminary report where the price of the land proposed by the land owner was Rs.30 lakhs. But this was tentative price given by the land owner and the authorities negotiated with the land owner and she quoted the price at Rs.61 lakhs and thereafter they again negotiated with her. The background was fully known to Shri S.C.Goswami, General Manager (Marketing) who was the Chairman of the Tender Negotiating Committee and even otherwise also just because that one of the Officers has submitted a preliminary report intimating the price given by the landowner as Rs.30 lakhs for 7 acres of land, that does not bind the land owner to sell the land for similar price, later on if she wriggles out, for which the officer of the appellant company who had inquired from the land owner cannot be found guilty. The respondent cannot be held responsible for the same and more so in the present case the price has been negotiated by the Price Negotiating Committee. Therefore, simply because a preliminary report was submitted by the respondent and all the three Committees in which he was a member along with others cannot disown their liability. If the respondent is targeted then all the members of the Committees are equally responsible. Therefore, such finding given by the enquiring authority cannot be countenanced. Similarly, so far as the appointment of Shri I.Sharma is concerned, the respondent alone was not responsible. 9. Learned Additional Solicitor General has submitted that since learned counsel for the respondent-writ petitioner has already abandoned the plea of perversity i.e. that the finding is perverse, the same is not open for learned counsel for the respondent writ petitioner to press again before the Division Bench of the High Court. Since the writ appeal is in continuation of the original order passed in the writ jurisdiction by learned Single Judge, it cannot operate as an estoppel against learned counsel for the respondent to press the same. If the finding recorded by the Inquiring Officer is not sound and it relates to perversity then the appellate court in writ appeal cannot estop the counsel from raising the same. More so, the Division Bench after considering the matter has found that the whole approach was perverse because the respondent alone has been made a scapegoat. When the decision of all the three committees was unanimous, then to take one and put the entire blame on him is definitely perverse approach and the Court cannot stand to the technicalities so as to defeat the ends of justice. Thus, the submission of learned Additional Solicitor General has no merit. | 0[ds]9. Learned Additional Solicitor General has submitted that since learned counsel for thet petitioner has already abandoned the plea of perversity i.e. that the finding is perverse, the same is not open for learned counsel for the respondent writ petitioner to press again before the Division Bench of the High Court. Since the writ appeal is in continuation of the original order passed in the writ jurisdiction by learned Single Judge, it cannot operate as an estoppel against learned counsel for the respondent to press the same. If the finding recorded by the Inquiring Officer is not sound and it relates to perversity then the appellate court in writ appeal cannot estop the counsel from raising the same. More so, the Division Bench after considering the matter has found that the whole approach was perverse because the respondent alone has been made a scapegoat. When the decision of all the three committees was unanimous, then to take one and put the entire blame on him is definitely perverse approach and the Court cannot stand to the technicalities so as to defeat the ends of justice. Thus, the submission of learned Additional Solicitor General has no merit. | 0 | 3,539 | 216 | ### 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:
Deputy General Manager; Shri T.V.John, CM/DGM (Finance) and Shri P.K.Gogoi, SM/CM (Project-Civil) were the members along with the respondent. All these three Committees have processed the deal and it is only the respondent has been made a scapegoat. After going through the report and the finding recorded by the Division Bench of the High Court, we are of opinion that in fact the Division Bench correctly assessed the situation that the respondent alone was made a scapegoat whereas the decision by all three committees was unanimous decision by all these members participating in the negotiations and the price was finalized accordingly. It is not the respondent alone can be held responsible when the decision was taken by the committees. If the decision of the Committee stinks, it cannot be said that the respondent was alone stink, it will be arbitrary. If all fish stink, pick one and say it stinks only is unfair in the matter of unanimous decision of the Committee. In all the three charges, the respondent has been found to be guilty for not assessing the reasonable price in his report submitted by him where the price indicated by the owner of the land was Rs.30 lakhs. The appointment of Shri I.Sharma as a valuer for land valuation was not also the decision of the respondent alone and the exploration of soil and rock strata given to the company, M/s. ESS Pvt. Ltd. was also not the decision of the respondent alone. Therefore, all the three charges which have been framed against the respondent as if he is alone responsible for the deal is not the correct approach. It is also not necessary that the land owner who has given the offer at one point of time at Rs.30 lakhs to stick to that. Instead she has intimated the appellant company by her letter quoting the price at Rs.61 lakhs and that was subsequently negotiated and brought out to Rs.50.01 lakhs. The preliminary report submitted by the respondent to the Director (Commercial) was after discussion with the land owner at the cost of Rs.30 lakhs yet this cannot work as an estoppel against the land owner. May be the land owner at one point of time might have offered the land at Rs.30 lakhs but that report cannot operate as estoppel against the land owner that she cannot jag up the price for the land. In fact when the Price Negotiating Committee asked for written proposal from the land owner, she quoted at Rs.61 lakhs and ultimately the Price Negotiating Committee after taking into consideration all the factors negotiated at Rs.50.01 lakhs for 5 acres of land. This was the joint decision of the Price Negotiating Committee which was headed by Shri S.C.Goswami, General Manager (Marketing) as the Chairman. Therefore, from the above discussion, we are of opinion that the view taken in these set of facts by the Division Bench cannot be said to be wrong. 8. So far as the legal proposition as contended by learned Additional Solicitor General with regard to appreciation of evidence is concerned, there is no quarrel that the Courts cannot sit as appellate authority over the domestic enquiries but in the present case what appears us is that the respondent has become a scapegoat in order to make someone responsible for no fault of his. He alone was targeted for the simple reason that he submitted preliminary report where the price of the land proposed by the land owner was Rs.30 lakhs. But this was tentative price given by the land owner and the authorities negotiated with the land owner and she quoted the price at Rs.61 lakhs and thereafter they again negotiated with her. The background was fully known to Shri S.C.Goswami, General Manager (Marketing) who was the Chairman of the Tender Negotiating Committee and even otherwise also just because that one of the Officers has submitted a preliminary report intimating the price given by the landowner as Rs.30 lakhs for 7 acres of land, that does not bind the land owner to sell the land for similar price, later on if she wriggles out, for which the officer of the appellant company who had inquired from the land owner cannot be found guilty. The respondent cannot be held responsible for the same and more so in the present case the price has been negotiated by the Price Negotiating Committee. Therefore, simply because a preliminary report was submitted by the respondent and all the three Committees in which he was a member along with others cannot disown their liability. If the respondent is targeted then all the members of the Committees are equally responsible. Therefore, such finding given by the enquiring authority cannot be countenanced. Similarly, so far as the appointment of Shri I.Sharma is concerned, the respondent alone was not responsible. 9. Learned Additional Solicitor General has submitted that since learned counsel for the respondent-writ petitioner has already abandoned the plea of perversity i.e. that the finding is perverse, the same is not open for learned counsel for the respondent writ petitioner to press again before the Division Bench of the High Court. Since the writ appeal is in continuation of the original order passed in the writ jurisdiction by learned Single Judge, it cannot operate as an estoppel against learned counsel for the respondent to press the same. If the finding recorded by the Inquiring Officer is not sound and it relates to perversity then the appellate court in writ appeal cannot estop the counsel from raising the same. More so, the Division Bench after considering the matter has found that the whole approach was perverse because the respondent alone has been made a scapegoat. When the decision of all the three committees was unanimous, then to take one and put the entire blame on him is definitely perverse approach and the Court cannot stand to the technicalities so as to defeat the ends of justice. Thus, the submission of learned Additional Solicitor General has no merit.
### Response:
0
### Explanation:
9. Learned Additional Solicitor General has submitted that since learned counsel for thet petitioner has already abandoned the plea of perversity i.e. that the finding is perverse, the same is not open for learned counsel for the respondent writ petitioner to press again before the Division Bench of the High Court. Since the writ appeal is in continuation of the original order passed in the writ jurisdiction by learned Single Judge, it cannot operate as an estoppel against learned counsel for the respondent to press the same. If the finding recorded by the Inquiring Officer is not sound and it relates to perversity then the appellate court in writ appeal cannot estop the counsel from raising the same. More so, the Division Bench after considering the matter has found that the whole approach was perverse because the respondent alone has been made a scapegoat. When the decision of all the three committees was unanimous, then to take one and put the entire blame on him is definitely perverse approach and the Court cannot stand to the technicalities so as to defeat the ends of justice. Thus, the submission of learned Additional Solicitor General has no merit.
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The Maharashtra Power Development Vs. Dabhol Power Company & Others | specifying the removal and/or election of the substitute shareholder Director and pending such general meeting shall procure that the Board shall appoint such candidate. If any Shareholder Director ceases to hold office the Members shall procure the office the Members shall procure the election of substitute nominated by the Member who appointed such Shareholder Director.79. This article can also be analyzed conveniently by dividing it in three sentences.Sentence I Any shareholder director nominated and appointed pursuant to this Article 10 may at any time be removed and substituted by the member that nominated such shareholder director.Sentence II The members agree to procure that any election pursuant to Article 10.3 and any such removal and/or election shall take place at a general meeting of the company to be held as soon as reasonably practicable after receipt from the applicable member of a written notice served on each of the other embers or specifying the removal and/or election of the substitute shareholder Director and pending such general meeting shall procure that the Board shall appoint such candidate.Sentence III If any shareholder director ceases to hold office, the members shall procure the election of substitute nominated by the member who appointed such shareholder director.80. Sentence I deals with the situation of removal and substitution by election of the shareholder directors, nominated under Article 10.2 or elected under Article 10.3. Sentence II interalia provides that the board shall appoint such candidate pending such general meeting until the election pursuant to Article 10.3. Sentence III makes a provision that if any shareholder director ceases to hold the office, the member shall procure the election of substitute nominated by the member who appointed such shareholder director. In other words, the shareholder director who has ceased to hold the office could only be elected in the general meting. To that extent, there is substance in the submission of Mr. Andhyarujina, the learned senior counsel for the petitioner. Though Mr. Chidambaram, the learned senior counsel for the respondents 2 to 5 submitted that sentence II which ends within the crucial words, and pending such general meeting shall procure that the board shall appoint such candidates and therefore, a shareholder director can be appointed before the next general meeting, we are afraid, the submission of Mr. Chidambaram is inconsistent with the plain language of Article 10.4. Sentences I and II of Article 10.4 deal with the removal and substitution and the nomination until the next general meeting in that contingency but where the shareholder director has ceased to hold the office like by way of resignation, sentence III of Article 10.4 comes into play and shall be applicable and that only provides for election at the general meeting and not appointment by the board. That is the legal position, yet, that does not improve the case of the petitioner since by nomination of respondent Nos.6 to 9 vide letter dated 8th October, 2002, they had not ipso facto become members of the Board. As already indicated they have to be elected at the general meeting. In any case such act of nomination by no stretch of imagination can be said to be oppression in the facts and circumstances of the instant case.81. As regards the contention that the respondent Nos.6 to 9 could not have been nominated vide letter dated 8th October, 2002 because EMC was in liquidation and was not authorized to nominate any directors, suffice it to say firstly that EMC is not a party impleaded in the company petition and, therefore, in their absence this aspect cannot be gone into. Besides that, in the proceedings under section 397, the correctness of the order of the Supreme Court in Mauritius appointing the provisional liquidators but at the same time allowing board to function and continue to manage the company affairs in all respects, can hardly be gone into.82. All in all, the nomination of four persons as the shareholders to represent EMC by the letter dated 8th October, 2002 cannot be treated as an act of oppression.Re : (v)83. Since the answer to the points Re (ii)(a) to (d), (iii)(a) and (b) is in the negative and with reference to point Re (iv) we have clarified the legal position about the proposed nomination of Respondents 6 to 9, no further discussion is needed with regard to this point.Re : (vi)84. Mr. Janak Dwarkadas, learned senior counsel for respondent No.1 strenuously urged that the petitioner has not come to the court with clean hands and rather approached the court for a collateral motive. This aspect need not detain us any longer in view of the observations made by the Company Law Board in paragraph No.26 of its order. Te relevant observations read thus-As far as public interest is concerned, I am in full agreement with the submissions of the learned counsel for the respondents that action towards enforcement of contractual rights against a government could never be construed to be against public interest. Any way, since in the rejoinder arguments, the learned counsel for the petitioner submitted that the petitioner is not against the prosecution of the arbitration proceedings but is questioning the context in which the arbitration proceedings were reactivated, this issue has become academic. Therefore, it cannot be said that the petition is filed for an improper motive.85. Since the learned senior counsel for the petitioner only pressed the appeals on the ground of oppression and not on the ground of public interest, the aforesaid observation of the Company Law Board calls for no interference. We overrule the objection of the respondent No.1 that the petition suffers from collateral motive.86. In what we have discussed above, we hold that the petitioner has failed to establish that the company affairs are being conducted in the manner oppressive to the petitioner as a shareholder. The petitioner also failed to show that the facts would justify in making of the winding up order on the ground that it was just and equitable that the company should be wound up. | 0[ds]31. How could the decision to pursue arbitration proceedings be oppressive. As a matter of fact, before the Company Law Board, ultimately, it was submitted that the petitioner was not against the prosecution of legal proceedings but was only questioning the context in which the respondent Nos.2 and 4 reactivated the arbitration proceedings. The interest of the company is paramount and cannot be made subordinate to the interest of the shareholders. The directors owe a fiduciary duty to the company to diligently prosecute and defend the legal proceedings. The decision, therefore, to pursue arbitration proceedings has to be viewed in that context. The decision of serial No.5 is in respect of a suit brought by certain contractors including GEBechtel in the Supreme Court of New York against the company for amounts owing to those contractors for work done. This decision is stoutly criticized and it is submitted that the purpose of packing the Board was for selfish purpose of GE and Bechtel.32. It is true that in the resolution, the names of the contractors are not disclosed but dies it lead to an inference that it was so done to disguise. The petition is not specific and necessary facts in this regard are not pleaded. We have, therefore, to take the resolution on its face. The amount claimed in the suit as was told to us during the course of arguments is: (a)US$ 19,702, 239.51 + Rs.138,001, 164.83; and (b)US$ in excess of 35 millions. The resolution reads that the mater has been presented before the board of directors on an early occasion and the directors considered it appropriate to admit the liability for the previously certified amounts viz. count I admitted liability of US$ 19,369,144.86 + Rs.138,001,164.83 and Count II was decided to be contested in full.The nomination of respondents 6 to 9 by EMC vide letter dated 8th October, 2002 was legal or not, shall have to be seen in the light of Article 10.4 but by such nomination, they did not stand appointed to the Board of the company and such action of EMC, we are afraid, cannot be construed, an act of oppression by GEBechtel. The shareholder has unquestioned right to elect directors in accord with the Companies Act and Articles of Association of the company and the nomination of respondents 6 to 9 by the EMC which admittedly has 65.85% equity share holding in the company has to be seen as an exercise of that right in corporate democracy. If the petitioner decided to nominate its two directors for election in the AGM held on 9.9.2002 when its sole nominee director resigned on 2.5.2002, what is wrong in the action of EMC to nominate its four directors vide letter dated 8.10.2002 though its directors had earlier resigned in the month of April, 2002. Of course, the appointment or election of these proposed four directors has to be as per law.It is true that the principles enunciated in Ebrahimis case as noticed above have been held by the Supreme Court to be sound principles but it has been stated in unambiguous terms that the limited company should be treated asshould not be easily accepted. If the apparent structure of the company is not real structure and on lifting the veil, it is found that in reality it is the partnership, the principles of dissolution of partnership may apply but that is not the case here. The company was incorporated by EMC, EEC and CIPM. The petitioner was not in the picture at the time of incorporation. The petitioner joined as a shareholder after incorporation of DPC. The share holding is not equal. There is no deadlock that way. The original promoters and the petitioner as subsequent share holder have voluntarily and knowingly bind themselves by the provisions of the Companies Act. There is no personal relationship amongst shareholders. It is true that the Articles of Association provide restriction on the transfer of members interest in the company and reflect the understanding amongst shareholders for participation in conduct of the business but taking overall facts and circumstances of the case as noticed above, we find it difficult to extend the principles ofto the company.45. We, therefore, are unable to accept that actions of respondents 2 and 4 bear upon the general pattern of oppression and that they intend to hijack the management of the company or their actions lack probity.Out of the total number of thirteen directors, the ten directors are required to be nominees of shareholders under Article 10.2. Any person can be elected to fill the remaining three vacancies. As per the second part. Obviously, if there is financing agreement or more than one financing agreement, the election of Individuals as directors to the extent required under the financial agreement/s shall have to be procured. However, if there is no financing agreement or that there is less than three financial agreements, the vacancy 11, 12 or 13, as the case may be, can be filled by the shareholders. This seems to us to be reasonable construction of Article 10.13 on 9th September, 2002, admittedly, only two lenders had financing agreements under which hey were entitled to have a representative each. So 11 and 12 vacancies go to financial institutions. The shareholders were entitled to elect Mr. Peter Freeman to fill the 13th vacancy in the AGM. Merely because no reference was made of Article 10.13 in his nomination, that would not render his election invalid. The Articles of Association do not prescribe any qualification for the director. The filing of the vacancy of a director for the 13th position under Article 10.13 has nothing to do with the nomination of one director each by GEBechtel under Article 10.2. It, therefore, cannot be held and rightly held to be not so by the Company Law Board and the Company Judge that election of Mr. Peter Freeman at the AGM of 9th September, 2002 was illegal.Since the learned senior counsel for the petitioner only pressed the appeals on the ground of oppression and not on the ground of public interest, the aforesaid observation of the Company Law Board calls for no interference. We overrule the objection of the respondent No.1 that the petition suffers from collateral motive.86. In what we have discussed above, we hold that the petitioner has failed to establish that the company affairs are being conducted in the manner oppressive to the petitioner as a shareholder. The petitioner also failed to show that the facts would justify in making of the winding up order on the ground that it was just and equitable that the company should be wound up. | 0 | 23,096 | 1,208 | ### 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:
specifying the removal and/or election of the substitute shareholder Director and pending such general meeting shall procure that the Board shall appoint such candidate. If any Shareholder Director ceases to hold office the Members shall procure the office the Members shall procure the election of substitute nominated by the Member who appointed such Shareholder Director.79. This article can also be analyzed conveniently by dividing it in three sentences.Sentence I Any shareholder director nominated and appointed pursuant to this Article 10 may at any time be removed and substituted by the member that nominated such shareholder director.Sentence II The members agree to procure that any election pursuant to Article 10.3 and any such removal and/or election shall take place at a general meeting of the company to be held as soon as reasonably practicable after receipt from the applicable member of a written notice served on each of the other embers or specifying the removal and/or election of the substitute shareholder Director and pending such general meeting shall procure that the Board shall appoint such candidate.Sentence III If any shareholder director ceases to hold office, the members shall procure the election of substitute nominated by the member who appointed such shareholder director.80. Sentence I deals with the situation of removal and substitution by election of the shareholder directors, nominated under Article 10.2 or elected under Article 10.3. Sentence II interalia provides that the board shall appoint such candidate pending such general meeting until the election pursuant to Article 10.3. Sentence III makes a provision that if any shareholder director ceases to hold the office, the member shall procure the election of substitute nominated by the member who appointed such shareholder director. In other words, the shareholder director who has ceased to hold the office could only be elected in the general meting. To that extent, there is substance in the submission of Mr. Andhyarujina, the learned senior counsel for the petitioner. Though Mr. Chidambaram, the learned senior counsel for the respondents 2 to 5 submitted that sentence II which ends within the crucial words, and pending such general meeting shall procure that the board shall appoint such candidates and therefore, a shareholder director can be appointed before the next general meeting, we are afraid, the submission of Mr. Chidambaram is inconsistent with the plain language of Article 10.4. Sentences I and II of Article 10.4 deal with the removal and substitution and the nomination until the next general meeting in that contingency but where the shareholder director has ceased to hold the office like by way of resignation, sentence III of Article 10.4 comes into play and shall be applicable and that only provides for election at the general meeting and not appointment by the board. That is the legal position, yet, that does not improve the case of the petitioner since by nomination of respondent Nos.6 to 9 vide letter dated 8th October, 2002, they had not ipso facto become members of the Board. As already indicated they have to be elected at the general meeting. In any case such act of nomination by no stretch of imagination can be said to be oppression in the facts and circumstances of the instant case.81. As regards the contention that the respondent Nos.6 to 9 could not have been nominated vide letter dated 8th October, 2002 because EMC was in liquidation and was not authorized to nominate any directors, suffice it to say firstly that EMC is not a party impleaded in the company petition and, therefore, in their absence this aspect cannot be gone into. Besides that, in the proceedings under section 397, the correctness of the order of the Supreme Court in Mauritius appointing the provisional liquidators but at the same time allowing board to function and continue to manage the company affairs in all respects, can hardly be gone into.82. All in all, the nomination of four persons as the shareholders to represent EMC by the letter dated 8th October, 2002 cannot be treated as an act of oppression.Re : (v)83. Since the answer to the points Re (ii)(a) to (d), (iii)(a) and (b) is in the negative and with reference to point Re (iv) we have clarified the legal position about the proposed nomination of Respondents 6 to 9, no further discussion is needed with regard to this point.Re : (vi)84. Mr. Janak Dwarkadas, learned senior counsel for respondent No.1 strenuously urged that the petitioner has not come to the court with clean hands and rather approached the court for a collateral motive. This aspect need not detain us any longer in view of the observations made by the Company Law Board in paragraph No.26 of its order. Te relevant observations read thus-As far as public interest is concerned, I am in full agreement with the submissions of the learned counsel for the respondents that action towards enforcement of contractual rights against a government could never be construed to be against public interest. Any way, since in the rejoinder arguments, the learned counsel for the petitioner submitted that the petitioner is not against the prosecution of the arbitration proceedings but is questioning the context in which the arbitration proceedings were reactivated, this issue has become academic. Therefore, it cannot be said that the petition is filed for an improper motive.85. Since the learned senior counsel for the petitioner only pressed the appeals on the ground of oppression and not on the ground of public interest, the aforesaid observation of the Company Law Board calls for no interference. We overrule the objection of the respondent No.1 that the petition suffers from collateral motive.86. In what we have discussed above, we hold that the petitioner has failed to establish that the company affairs are being conducted in the manner oppressive to the petitioner as a shareholder. The petitioner also failed to show that the facts would justify in making of the winding up order on the ground that it was just and equitable that the company should be wound up.
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No.5 is in respect of a suit brought by certain contractors including GEBechtel in the Supreme Court of New York against the company for amounts owing to those contractors for work done. This decision is stoutly criticized and it is submitted that the purpose of packing the Board was for selfish purpose of GE and Bechtel.32. It is true that in the resolution, the names of the contractors are not disclosed but dies it lead to an inference that it was so done to disguise. The petition is not specific and necessary facts in this regard are not pleaded. We have, therefore, to take the resolution on its face. The amount claimed in the suit as was told to us during the course of arguments is: (a)US$ 19,702, 239.51 + Rs.138,001, 164.83; and (b)US$ in excess of 35 millions. The resolution reads that the mater has been presented before the board of directors on an early occasion and the directors considered it appropriate to admit the liability for the previously certified amounts viz. count I admitted liability of US$ 19,369,144.86 + Rs.138,001,164.83 and Count II was decided to be contested in full.The nomination of respondents 6 to 9 by EMC vide letter dated 8th October, 2002 was legal or not, shall have to be seen in the light of Article 10.4 but by such nomination, they did not stand appointed to the Board of the company and such action of EMC, we are afraid, cannot be construed, an act of oppression by GEBechtel. The shareholder has unquestioned right to elect directors in accord with the Companies Act and Articles of Association of the company and the nomination of respondents 6 to 9 by the EMC which admittedly has 65.85% equity share holding in the company has to be seen as an exercise of that right in corporate democracy. If the petitioner decided to nominate its two directors for election in the AGM held on 9.9.2002 when its sole nominee director resigned on 2.5.2002, what is wrong in the action of EMC to nominate its four directors vide letter dated 8.10.2002 though its directors had earlier resigned in the month of April, 2002. Of course, the appointment or election of these proposed four directors has to be as per law.It is true that the principles enunciated in Ebrahimis case as noticed above have been held by the Supreme Court to be sound principles but it has been stated in unambiguous terms that the limited company should be treated asshould not be easily accepted. If the apparent structure of the company is not real structure and on lifting the veil, it is found that in reality it is the partnership, the principles of dissolution of partnership may apply but that is not the case here. The company was incorporated by EMC, EEC and CIPM. The petitioner was not in the picture at the time of incorporation. The petitioner joined as a shareholder after incorporation of DPC. The share holding is not equal. There is no deadlock that way. The original promoters and the petitioner as subsequent share holder have voluntarily and knowingly bind themselves by the provisions of the Companies Act. There is no personal relationship amongst shareholders. It is true that the Articles of Association provide restriction on the transfer of members interest in the company and reflect the understanding amongst shareholders for participation in conduct of the business but taking overall facts and circumstances of the case as noticed above, we find it difficult to extend the principles ofto the company.45. We, therefore, are unable to accept that actions of respondents 2 and 4 bear upon the general pattern of oppression and that they intend to hijack the management of the company or their actions lack probity.Out of the total number of thirteen directors, the ten directors are required to be nominees of shareholders under Article 10.2. Any person can be elected to fill the remaining three vacancies. As per the second part. Obviously, if there is financing agreement or more than one financing agreement, the election of Individuals as directors to the extent required under the financial agreement/s shall have to be procured. However, if there is no financing agreement or that there is less than three financial agreements, the vacancy 11, 12 or 13, as the case may be, can be filled by the shareholders. This seems to us to be reasonable construction of Article 10.13 on 9th September, 2002, admittedly, only two lenders had financing agreements under which hey were entitled to have a representative each. So 11 and 12 vacancies go to financial institutions. The shareholders were entitled to elect Mr. Peter Freeman to fill the 13th vacancy in the AGM. Merely because no reference was made of Article 10.13 in his nomination, that would not render his election invalid. The Articles of Association do not prescribe any qualification for the director. The filing of the vacancy of a director for the 13th position under Article 10.13 has nothing to do with the nomination of one director each by GEBechtel under Article 10.2. It, therefore, cannot be held and rightly held to be not so by the Company Law Board and the Company Judge that election of Mr. Peter Freeman at the AGM of 9th September, 2002 was illegal.Since the learned senior counsel for the petitioner only pressed the appeals on the ground of oppression and not on the ground of public interest, the aforesaid observation of the Company Law Board calls for no interference. We overrule the objection of the respondent No.1 that the petition suffers from collateral motive.86. In what we have discussed above, we hold that the petitioner has failed to establish that the company affairs are being conducted in the manner oppressive to the petitioner as a shareholder. The petitioner also failed to show that the facts would justify in making of the winding up order on the ground that it was just and equitable that the company should be wound up.
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Ganpati Joti Kumbhar Vs. Jayasingrao Abasaheb & Others | the language of S. 88(1)(b). The lease is in respect of lands held on lease for the benefit of an industrial or commercial undertaking.Mr. Desai has pointed out that the meaning of the expression held may better be understood by a reference to the expression to hold which occurs in S. 3(11), Land Revenue Code. That this course is permissible will be clear from S. 2(21) Bombay Tenancy and Agricultural Lands Act, 1948, which provides :"Words and expressions used in this Act but not defined shall have the meaning assigned to them in the Bombay Land Revenue Code, 1879, and the Transfer of Property Act, 1882, as the case may be."Section 3(11), Bombay Land Revenue Code provides that to hold land, or to be a landholder or holder of land means to be lawfully in possession of land, whether such possession is actual or not. In this connection it is necessary to examine the argument which has been pressed upon us by Mr. Kotwal. He contends that it cannot reasonably be said of the limited company that the company is holding lands upon a lease in so far as the lands in possession of the two applicants are concerned. He says that the tenants, who are the applicants in the two special applications, were in actual physical possession and they were also in lawful possession of the lands demised.If these persons were, therefore, lawfully in possession of their respective lands, it is not possible to accept the argument that the company would, at the same time, hold those lands in its possession. It is true that the two different persons would not be in a position to physically hold the lands in their possession at one and the same time. If a tenant is in possession, then no other person can be in possession because the landlord in these circumstances would be in constructive possession of the property and Mr. Kotwals contention is that S. 88(1)(b) requires that the person must be in lawful possession of the property.Now, if the interest which was conveyed by the Rajesaheb to the company was the transfer of a limited interest which still remained in him after the transfer of the right to enjoy the property in favour of the tenants, who are the applicants in the two special applications, it was the transfer of the remaining interest in the landlord which was conferred upon the limited company. After the expiry of the period of the two leases the Rajesaheb, as a landlord, would have the right to recover possession. That right was transferred in favour of the limited company and it is clear that there can be a transfer of a part of the interest held by the landlord.Likewise the Rajesaheb had a right to recover rent. That right also was conferred upon the limited company. In so far as there was a right to recover the amount of the rent, it was a right which remained in the landlord i.e. Rajesaheb and there was the transfer of that limited right.It was, therefore, the transfer of a limited interest in favour of the company. The only question is whether it can be said of the company that the company was in possession of the lands given to them under the lease.Now, so long as the tenants were in actual physical possession the company could not claim to be in actual physical possession because the two rights would conflict and so long as the tenants had a right to remain lawfully in possession, the occupancy could not, at the same time, claim to be in actual physical possession of the lands in dispute. But if the right to recover rent was conferred upon the company I do not see why it should not be held that the company was not in constructive possession of the lands in dispute.The company was not merely a Collector of the amount of the rent like an ordinary Mehtaji or a servant of the Rajasaheb. Under a document executed in favour of the company the right to recover rent was specifically transferred and I do not think that it would be a violence of language to suggest that by transferring the right to recover possession, it cannot reasonably be said that the company was not in constructive possession of the lands in dispute.If the company was therefore in constructive possession of the lands in dispute, it seems to us that that is sufficient possession for the purpose of S. 88(1)(b). On all these grounds, we think that the view taken by the tribunal is right.8. But then Mr. Kotwal has argued that it was his contention that the company in whose favour the lease was executed on 19-2-1949 was a nominal company or a bogus company.This is denied by the company. It is, therefore, a disputed question of fact and this disputed question of fact cannot be decided upon a writ petition. He also contended that if the lease of 19-2-1949 were permitted to stand, it would result in circumventing the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.Mr. Kotwal says that the applicants in the two special applications were tenants under the leases executed in their favour, and therefore, they were entitled to take advantage of the provisions of the Act. This argument seeks to invoke sympathy, but it is not convincing.There is nothing in the Act to suggest that the execution of a lease like the one of 19-2-1949 is invalid.There is no suggestion that the lease is illegal. If the lease is a perfectly legal lease in the sense that the owner has a right to grant the lease, it is not understood as to why we should not give effect to the full operation of the lease because persons like the applicants in the two special applications would thereby have their rights, if any, adversely affected. In our view, therefore, none of the arguments are valid and there is no ground to interfere. | 0[ds]It is obvious that onthe Rajesaheb of Kagal could not actually convey to the company the interest which the Rajesaheb of Kagal had already conveyed in favour of the tenants who are the applicants in the two special applications. That interest was the right to enjoy the property and so long as the leases were in operation, the Rajesaheb could not effectively transfer the right to enjoy the property in favour of the company.But two rights were conferred upon the company by the lease ofThe first of these was the right to recover the rent from the tenants i.e. from the applicants in the two special applications. The lease says that the right to recover the rent which was in the Rajesaheb was given to the company. The lease also says that the right which the Rajesaheb had to recover actual physical possession after the expiration of the periods of the leases was also conveyed to the company. If transfer of property can take place with respect to property in present and also with respect to property in future, it is difficult to see as to why the lease should not be an effective lease even with respect to the property in the possession of the tenants.It may be that the limited company would not be entitled to actual physical possession so long as the tenants were in lawful possession under their respective leases.the present case although the Rajesaheb had executed the two leases in favour of the tenants, he had still in him the reversion and that reversion is composed of various rights e.g., he has a right to recover the rent from his tenants; he has a right to recover possession after the expiration of the periods of the leases after due notice to the tenants and these two rights have been conferred upon the limited company by thethe lease ofand this lease was executed at a time when the Bombay Tenancy and Agricultural Lands Act, 1948, was not made applicable to the place from which these mattersshows that although the leasehold interest given to the company was to arise in future in respect of the lands which were in possession of the tenants, it is still effective as a lease. If, therefore,the lease ofwas effective not merely with respect to the lands which were given to the company other than the lands in possession of the tenants, the lease was equally effective with respect to the lands which were then in the possession of the tenants.But the lease was to be effective from a future date which would bein the one case andin the other. If this is the true position in law, it is difficult to see as to whythe lease ofwould not fall within the language of S. 88(1)(b). The lease is in respect of lands held on lease for the benefit of an industrial or commercialif the interest which was conveyed by the Rajesaheb to the company was the transfer of a limited interest which still remained in him after the transfer of the right to enjoy the property in favour of the tenants, who are the applicants in the two special applications, it was the transfer of the remaining interest in the landlord which was conferred upon the limited company. After the expiry of the period of the two leases the Rajesaheb, as a landlord, would have the right to recover possession. That right was transferred in favour of the limited company and it is clear that there can be a transfer of a part of the interest held by the landlord.Likewise the Rajesaheb had a right to recover rent. That right also was conferred upon the limited company. In so far as there was a right to recover the amount of the rent, it was a right which remained in the landlord i.e. Rajesaheb and there was the transfer of that limited right.It was, therefore, the transfer of a limited interest in favour of the company. The only question is whether it can be said of the company that the company was in possession of the lands given to them under the lease.Now, so long as the tenants were in actual physical possession the company could not claim to be in actual physical possession because the two rights would conflict and so long as the tenants had a right to remain lawfully in possession, the occupancy could not, at the same time, claim to be in actual physical possession of the lands in dispute. But if the right to recover rent was conferred upon the company I do not see why it should not be held that the company was not in constructive possession of the lands in dispute.The company was not merely a Collector of the amount of the rent like an ordinary Mehtaji or a servant of the Rajasaheb. Under a document executed in favour of the company the right to recover rent was specifically transferred and I do not think that it would be a violence of language to suggest that by transferring the right to recover possession, it cannot reasonably be said that the company was not in constructive possession of the lands in dispute.If the company was therefore in constructive possession of the lands in dispute, it seems to us that that is sufficient possession for the purpose of S. 88(1)(b). On all these grounds, we think that the view taken by the tribunal is right.t then Mr. Kotwal has argued that it was his contention that the company in whose favour the lease was executed onwas a nominal company or a boguscompany.This is denied by the company. It is, therefore, a disputed question of fact and this disputed question of fact cannot be decided upon a writ petition. Healso contended that ifthe lease ofe permitted to stand, it would result in circumventing the provisions of the Bombay Tenancy and Agricultural Lands Act,is no suggestion that the lease is illegal. If the lease is a perfectly legal lease in the sense that the owner has a right to grant the lease, it is not understood as to why we should not give effect to the full operation of the lease because persons like the applicants in the two special applications would thereby have their rights, if any, adversely affected. In our view, therefore, none of the arguments are valid and there is no ground to interfere. | 0 | 3,837 | 1,146 | ### Instruction:
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the language of S. 88(1)(b). The lease is in respect of lands held on lease for the benefit of an industrial or commercial undertaking.Mr. Desai has pointed out that the meaning of the expression held may better be understood by a reference to the expression to hold which occurs in S. 3(11), Land Revenue Code. That this course is permissible will be clear from S. 2(21) Bombay Tenancy and Agricultural Lands Act, 1948, which provides :"Words and expressions used in this Act but not defined shall have the meaning assigned to them in the Bombay Land Revenue Code, 1879, and the Transfer of Property Act, 1882, as the case may be."Section 3(11), Bombay Land Revenue Code provides that to hold land, or to be a landholder or holder of land means to be lawfully in possession of land, whether such possession is actual or not. In this connection it is necessary to examine the argument which has been pressed upon us by Mr. Kotwal. He contends that it cannot reasonably be said of the limited company that the company is holding lands upon a lease in so far as the lands in possession of the two applicants are concerned. He says that the tenants, who are the applicants in the two special applications, were in actual physical possession and they were also in lawful possession of the lands demised.If these persons were, therefore, lawfully in possession of their respective lands, it is not possible to accept the argument that the company would, at the same time, hold those lands in its possession. It is true that the two different persons would not be in a position to physically hold the lands in their possession at one and the same time. If a tenant is in possession, then no other person can be in possession because the landlord in these circumstances would be in constructive possession of the property and Mr. Kotwals contention is that S. 88(1)(b) requires that the person must be in lawful possession of the property.Now, if the interest which was conveyed by the Rajesaheb to the company was the transfer of a limited interest which still remained in him after the transfer of the right to enjoy the property in favour of the tenants, who are the applicants in the two special applications, it was the transfer of the remaining interest in the landlord which was conferred upon the limited company. After the expiry of the period of the two leases the Rajesaheb, as a landlord, would have the right to recover possession. That right was transferred in favour of the limited company and it is clear that there can be a transfer of a part of the interest held by the landlord.Likewise the Rajesaheb had a right to recover rent. That right also was conferred upon the limited company. In so far as there was a right to recover the amount of the rent, it was a right which remained in the landlord i.e. Rajesaheb and there was the transfer of that limited right.It was, therefore, the transfer of a limited interest in favour of the company. The only question is whether it can be said of the company that the company was in possession of the lands given to them under the lease.Now, so long as the tenants were in actual physical possession the company could not claim to be in actual physical possession because the two rights would conflict and so long as the tenants had a right to remain lawfully in possession, the occupancy could not, at the same time, claim to be in actual physical possession of the lands in dispute. But if the right to recover rent was conferred upon the company I do not see why it should not be held that the company was not in constructive possession of the lands in dispute.The company was not merely a Collector of the amount of the rent like an ordinary Mehtaji or a servant of the Rajasaheb. Under a document executed in favour of the company the right to recover rent was specifically transferred and I do not think that it would be a violence of language to suggest that by transferring the right to recover possession, it cannot reasonably be said that the company was not in constructive possession of the lands in dispute.If the company was therefore in constructive possession of the lands in dispute, it seems to us that that is sufficient possession for the purpose of S. 88(1)(b). On all these grounds, we think that the view taken by the tribunal is right.8. But then Mr. Kotwal has argued that it was his contention that the company in whose favour the lease was executed on 19-2-1949 was a nominal company or a bogus company.This is denied by the company. It is, therefore, a disputed question of fact and this disputed question of fact cannot be decided upon a writ petition. He also contended that if the lease of 19-2-1949 were permitted to stand, it would result in circumventing the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.Mr. Kotwal says that the applicants in the two special applications were tenants under the leases executed in their favour, and therefore, they were entitled to take advantage of the provisions of the Act. This argument seeks to invoke sympathy, but it is not convincing.There is nothing in the Act to suggest that the execution of a lease like the one of 19-2-1949 is invalid.There is no suggestion that the lease is illegal. If the lease is a perfectly legal lease in the sense that the owner has a right to grant the lease, it is not understood as to why we should not give effect to the full operation of the lease because persons like the applicants in the two special applications would thereby have their rights, if any, adversely affected. In our view, therefore, none of the arguments are valid and there is no ground to interfere.
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in favour of the company.But two rights were conferred upon the company by the lease ofThe first of these was the right to recover the rent from the tenants i.e. from the applicants in the two special applications. The lease says that the right to recover the rent which was in the Rajesaheb was given to the company. The lease also says that the right which the Rajesaheb had to recover actual physical possession after the expiration of the periods of the leases was also conveyed to the company. If transfer of property can take place with respect to property in present and also with respect to property in future, it is difficult to see as to why the lease should not be an effective lease even with respect to the property in the possession of the tenants.It may be that the limited company would not be entitled to actual physical possession so long as the tenants were in lawful possession under their respective leases.the present case although the Rajesaheb had executed the two leases in favour of the tenants, he had still in him the reversion and that reversion is composed of various rights e.g., he has a right to recover the rent from his tenants; he has a right to recover possession after the expiration of the periods of the leases after due notice to the tenants and these two rights have been conferred upon the limited company by thethe lease ofand this lease was executed at a time when the Bombay Tenancy and Agricultural Lands Act, 1948, was not made applicable to the place from which these mattersshows that although the leasehold interest given to the company was to arise in future in respect of the lands which were in possession of the tenants, it is still effective as a lease. If, therefore,the lease ofwas effective not merely with respect to the lands which were given to the company other than the lands in possession of the tenants, the lease was equally effective with respect to the lands which were then in the possession of the tenants.But the lease was to be effective from a future date which would bein the one case andin the other. If this is the true position in law, it is difficult to see as to whythe lease ofwould not fall within the language of S. 88(1)(b). The lease is in respect of lands held on lease for the benefit of an industrial or commercialif the interest which was conveyed by the Rajesaheb to the company was the transfer of a limited interest which still remained in him after the transfer of the right to enjoy the property in favour of the tenants, who are the applicants in the two special applications, it was the transfer of the remaining interest in the landlord which was conferred upon the limited company. After the expiry of the period of the two leases the Rajesaheb, as a landlord, would have the right to recover possession. That right was transferred in favour of the limited company and it is clear that there can be a transfer of a part of the interest held by the landlord.Likewise the Rajesaheb had a right to recover rent. That right also was conferred upon the limited company. In so far as there was a right to recover the amount of the rent, it was a right which remained in the landlord i.e. Rajesaheb and there was the transfer of that limited right.It was, therefore, the transfer of a limited interest in favour of the company. The only question is whether it can be said of the company that the company was in possession of the lands given to them under the lease.Now, so long as the tenants were in actual physical possession the company could not claim to be in actual physical possession because the two rights would conflict and so long as the tenants had a right to remain lawfully in possession, the occupancy could not, at the same time, claim to be in actual physical possession of the lands in dispute. But if the right to recover rent was conferred upon the company I do not see why it should not be held that the company was not in constructive possession of the lands in dispute.The company was not merely a Collector of the amount of the rent like an ordinary Mehtaji or a servant of the Rajasaheb. Under a document executed in favour of the company the right to recover rent was specifically transferred and I do not think that it would be a violence of language to suggest that by transferring the right to recover possession, it cannot reasonably be said that the company was not in constructive possession of the lands in dispute.If the company was therefore in constructive possession of the lands in dispute, it seems to us that that is sufficient possession for the purpose of S. 88(1)(b). On all these grounds, we think that the view taken by the tribunal is right.t then Mr. Kotwal has argued that it was his contention that the company in whose favour the lease was executed onwas a nominal company or a boguscompany.This is denied by the company. It is, therefore, a disputed question of fact and this disputed question of fact cannot be decided upon a writ petition. Healso contended that ifthe lease ofe permitted to stand, it would result in circumventing the provisions of the Bombay Tenancy and Agricultural Lands Act,is no suggestion that the lease is illegal. If the lease is a perfectly legal lease in the sense that the owner has a right to grant the lease, it is not understood as to why we should not give effect to the full operation of the lease because persons like the applicants in the two special applications would thereby have their rights, if any, adversely affected. In our view, therefore, none of the arguments are valid and there is no ground to interfere.
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Ahmad Hafiz Khan Vs. Mohammad Hasan Khan | Civil Judge and his successive appeals to the District Judge and the High Court also failed. The judgment of the High Court was passed on December 24, 1959, and the present appeal is filed against that judgment with the special leave of this Court. The contention of the appellant is that the cultivating rights in the sir lands could not be the subject-matter of sale in execution of the decree in view of S. 43 of the Abolition Act. This argument was not accepted by the High Court and it is contended that the decision of the High Court is erroneous. In our opinion the contention must be sustained.3. Under the Central Provinces Tenancy Act, 1920, a proprietor losing his right to occupy sir land, as a proprietor, became from the date of such loss of right an occupancy tenant of sir lands. This was provided by S. 49 of the Act which, in so far as relevant to the present purpose, read as follows :"49. (l) A proprietor, who temporarily or permanently loses, whether under a decree or order of a Civil Court or a transfer or otherwise, his right to occupy his sir land, in whole or in part, as a proprietor, shall, at the date of such loss, become an occupancy tenant of such sir land except in the following cases,-(a) when a transfer of such sir land is made by him expressly agreeing to transfer his right to cultivate such sir land; or(b) when such sir land is sold in execution of, or foreclosed under a decree of a Civil Court which expressly directs the sale or foreclosure of his right to cultivate such sir land".(The other sub-sections are not relevant).4. The effect of the loss of proprietorship by reason of the Abolition Act is almost the same except that a new right is created in the quondam proprietor in respect of his sir lands. On the passing of the proprietary interest to the State what remains to the proprietor is his cultivating rights in the sir fields and the Abolition Act provides in S. 4 (2) that the proprietor "shall continue to retain the possession of his ....... home-farm land." "Home-farm" is defined by S. 2 (g) (i) as"land recorded as sir and Khudkasht in the name of the proprietor in the annual papers for the year 1948-49."Thus by the operation of the Abolition Act, the proprietor ceases to be the proprietor of the estate or village including the sir lands appurtenant to the proprietorship. But the cultivating rights in the sir lands which were his home-farm are saved to him and under S. 38 of the Abolition Act he becomes a malik makbuza of these fields. The Abolition Act having deprived the proprietors of their proprietary interest gave some protection to them in respect of their new rights in the home-farm which has become the malik makbuza of the proprietor. Section 43 of the Abolition Act provided as follows:"Any land which immediately before the date of vesting, was held in absolute occupancy or occupancy right or recorded as sir land, shall not be liable to attachment or sale in execution of a decree or order for the recovery of any debt incurred before the date of vesting except where such debt was validly secured by mortgage of or a charge on the absolute occupancy or occupancy land or the cultivating right in the sir land.By this section attachment and sale of the cultivating right in sir lands are barred unless there is a mortgage of or a charge on, the cultivating rights. The section applies to decrees in respect of debts prior to the vesting in the State as in the case here.5. In the present case the attachment was before, and the sale after the date when the Abolition Act came into force in this area. There was no mortgage of or charge on the cultivating rights in sir. The decree-holder Mohd. Yusaf had only a money-decree and the attachment cannot said to have created a charge on the attached property so as to make it a secured debt within the latter part of S. 43. There being no secured debt and the cultivating rights not having been mortgaged or charged there could be no sale of these fields after the Abolition Act came into force. The sale was, therefore, without jurisdiction, and thus illegal.6. The learned Single Judge in the High Court relied upon a Division Bench ruling of his own Court reported in Govind Prasad v. Pawan Kumar, 1955 Nag LJ 678, where it was held that after the Abolition Act an attachment of the proprietary share in the village including the sir and khudkasht lands appurtenant thereto made before the Abolition Act got transferred to the home-farm after the appointed date. It is argued that if the attachment could subsist on the home-farm then the home-farm could also be sold. In the ruling the question whether a sale of the cultivating rights in the home-farm could take place after the Abolition Act came into force was not considered at all. There the attachment had been effected before the Abolition Act came into force and it was held that the attachment must continue on the home-farm. It was not noticed that the attachment would be useless if the sale could not take place and the attention of the Bench does not appear to have been drawn to the provisions of S. 43 of the Abolition Act, otherwise the Bench would have mentioned it. In any event, the words of S.13 are quite clear and the cultivating rights in the sir and khudkasht land which became under the Act the home-farm of the proprietor are protected against sale except where those cultivating rights were the subject of a mortgage or a charge created by the proprietor. That condition does not exist in the present case and the sale, therefore must be declared to be without jurisdiction and ordered to be set aside. | 1[ds]5. In the present case the attachment was before, and the sale after the date when the Abolition Act came into force in this area. There was no mortgage of or charge on the cultivating rights in sir. The decree-holder Mohd. Yusaf had only a money-decree and the attachment cannot said to have created a charge on the attached property so as to make it a secured debt within the latter part of S. 43. There being no secured debt and the cultivating rights not having been mortgaged or charged there could be no sale of these fields after the Abolition Act came into force. The sale was, therefore, without jurisdiction, and thus illegal.6. The learned Single Judge in the High Court relied upon a Division Bench ruling of his own Court reported in Govind Prasad v. Pawan Kumar, 1955 Nag LJ 678, where it was held that after the Abolition Act an attachment of the proprietary share in the village including the sir and khudkasht lands appurtenant thereto made before the Abolition Act got transferred to the home-farm after the appointed date. It is argued that if the attachment could subsist on the home-farm then the home-farm could also be sold. In the ruling the question whether a sale of the cultivating rights in the home-farm could take place after the Abolition Act came into force was not considered at all. There the attachment had been effected before the Abolition Act came into force and it was held that the attachment must continue on the home-farm. It was not noticed that the attachment would be useless if the sale could not take place and the attention of the Bench does not appear to have been drawn to the provisions of S. 43 of the Abolition Act, otherwise the Bench would have mentioned it. In any event, the words of S.13 are quite clear and the cultivating rights in the sir and khudkasht land which became under the Act the home-farm of the proprietor are protected against sale except where those cultivating rights were the subject of a mortgage or a charge created by the proprietor. That condition does not exist in the present case and the sale, therefore must be declared to be without jurisdiction and ordered to be set aside. | 1 | 1,435 | 410 | ### 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:
Civil Judge and his successive appeals to the District Judge and the High Court also failed. The judgment of the High Court was passed on December 24, 1959, and the present appeal is filed against that judgment with the special leave of this Court. The contention of the appellant is that the cultivating rights in the sir lands could not be the subject-matter of sale in execution of the decree in view of S. 43 of the Abolition Act. This argument was not accepted by the High Court and it is contended that the decision of the High Court is erroneous. In our opinion the contention must be sustained.3. Under the Central Provinces Tenancy Act, 1920, a proprietor losing his right to occupy sir land, as a proprietor, became from the date of such loss of right an occupancy tenant of sir lands. This was provided by S. 49 of the Act which, in so far as relevant to the present purpose, read as follows :"49. (l) A proprietor, who temporarily or permanently loses, whether under a decree or order of a Civil Court or a transfer or otherwise, his right to occupy his sir land, in whole or in part, as a proprietor, shall, at the date of such loss, become an occupancy tenant of such sir land except in the following cases,-(a) when a transfer of such sir land is made by him expressly agreeing to transfer his right to cultivate such sir land; or(b) when such sir land is sold in execution of, or foreclosed under a decree of a Civil Court which expressly directs the sale or foreclosure of his right to cultivate such sir land".(The other sub-sections are not relevant).4. The effect of the loss of proprietorship by reason of the Abolition Act is almost the same except that a new right is created in the quondam proprietor in respect of his sir lands. On the passing of the proprietary interest to the State what remains to the proprietor is his cultivating rights in the sir fields and the Abolition Act provides in S. 4 (2) that the proprietor "shall continue to retain the possession of his ....... home-farm land." "Home-farm" is defined by S. 2 (g) (i) as"land recorded as sir and Khudkasht in the name of the proprietor in the annual papers for the year 1948-49."Thus by the operation of the Abolition Act, the proprietor ceases to be the proprietor of the estate or village including the sir lands appurtenant to the proprietorship. But the cultivating rights in the sir lands which were his home-farm are saved to him and under S. 38 of the Abolition Act he becomes a malik makbuza of these fields. The Abolition Act having deprived the proprietors of their proprietary interest gave some protection to them in respect of their new rights in the home-farm which has become the malik makbuza of the proprietor. Section 43 of the Abolition Act provided as follows:"Any land which immediately before the date of vesting, was held in absolute occupancy or occupancy right or recorded as sir land, shall not be liable to attachment or sale in execution of a decree or order for the recovery of any debt incurred before the date of vesting except where such debt was validly secured by mortgage of or a charge on the absolute occupancy or occupancy land or the cultivating right in the sir land.By this section attachment and sale of the cultivating right in sir lands are barred unless there is a mortgage of or a charge on, the cultivating rights. The section applies to decrees in respect of debts prior to the vesting in the State as in the case here.5. In the present case the attachment was before, and the sale after the date when the Abolition Act came into force in this area. There was no mortgage of or charge on the cultivating rights in sir. The decree-holder Mohd. Yusaf had only a money-decree and the attachment cannot said to have created a charge on the attached property so as to make it a secured debt within the latter part of S. 43. There being no secured debt and the cultivating rights not having been mortgaged or charged there could be no sale of these fields after the Abolition Act came into force. The sale was, therefore, without jurisdiction, and thus illegal.6. The learned Single Judge in the High Court relied upon a Division Bench ruling of his own Court reported in Govind Prasad v. Pawan Kumar, 1955 Nag LJ 678, where it was held that after the Abolition Act an attachment of the proprietary share in the village including the sir and khudkasht lands appurtenant thereto made before the Abolition Act got transferred to the home-farm after the appointed date. It is argued that if the attachment could subsist on the home-farm then the home-farm could also be sold. In the ruling the question whether a sale of the cultivating rights in the home-farm could take place after the Abolition Act came into force was not considered at all. There the attachment had been effected before the Abolition Act came into force and it was held that the attachment must continue on the home-farm. It was not noticed that the attachment would be useless if the sale could not take place and the attention of the Bench does not appear to have been drawn to the provisions of S. 43 of the Abolition Act, otherwise the Bench would have mentioned it. In any event, the words of S.13 are quite clear and the cultivating rights in the sir and khudkasht land which became under the Act the home-farm of the proprietor are protected against sale except where those cultivating rights were the subject of a mortgage or a charge created by the proprietor. That condition does not exist in the present case and the sale, therefore must be declared to be without jurisdiction and ordered to be set aside.
### Response:
1
### Explanation:
5. In the present case the attachment was before, and the sale after the date when the Abolition Act came into force in this area. There was no mortgage of or charge on the cultivating rights in sir. The decree-holder Mohd. Yusaf had only a money-decree and the attachment cannot said to have created a charge on the attached property so as to make it a secured debt within the latter part of S. 43. There being no secured debt and the cultivating rights not having been mortgaged or charged there could be no sale of these fields after the Abolition Act came into force. The sale was, therefore, without jurisdiction, and thus illegal.6. The learned Single Judge in the High Court relied upon a Division Bench ruling of his own Court reported in Govind Prasad v. Pawan Kumar, 1955 Nag LJ 678, where it was held that after the Abolition Act an attachment of the proprietary share in the village including the sir and khudkasht lands appurtenant thereto made before the Abolition Act got transferred to the home-farm after the appointed date. It is argued that if the attachment could subsist on the home-farm then the home-farm could also be sold. In the ruling the question whether a sale of the cultivating rights in the home-farm could take place after the Abolition Act came into force was not considered at all. There the attachment had been effected before the Abolition Act came into force and it was held that the attachment must continue on the home-farm. It was not noticed that the attachment would be useless if the sale could not take place and the attention of the Bench does not appear to have been drawn to the provisions of S. 43 of the Abolition Act, otherwise the Bench would have mentioned it. In any event, the words of S.13 are quite clear and the cultivating rights in the sir and khudkasht land which became under the Act the home-farm of the proprietor are protected against sale except where those cultivating rights were the subject of a mortgage or a charge created by the proprietor. That condition does not exist in the present case and the sale, therefore must be declared to be without jurisdiction and ordered to be set aside.
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Preetam Singh (Dead) By Lrs. and Others Vs. Assistant Director of Company | and prayed that entries be corrected in favour of the Gaon Sabha. The appellants contested the objections before the Consolidation Officer. 3. Their case was that the land in dispute was under the tenancy of some people when the U.P. Zamindari Abolition Act was in force. The same did not vest in the Gaon Sabha as unoccupied land. The Ashudhi Tehsildar during the correction of the records operation found Gurbux Singh a nd Harbhajan Singh in possession of the land in dispute and ordered them to be recorded as Seerdars by order dated 25-7-1957. On the basis of such corrected records Gurbux Singh and Harbhajan Singh obtained Bhoomidari rights under the provisions of the U.P. Zamindari Abolition Act, 1952. On 1-6-1959, those Bhoomidars sold the land to the appellants and thereafter the names of the appellants as Bhoomidars were recorded in the revenue records, continuously till consolidation operations commenced.The Consolidation Officer sustained the objection of the Gaon Sabha by his order dated 21-2-1970 ordering expansion of the names of the appellants from the revenue records. The appellants appeal before the Settlement Officer ( Consolidation) was allowed on 22-8-1970. A remand was effected to the Consolidation Officer for a fresh decision, after giving an opportunity to the appellants to prove that they had even acquired ownership rights by adverse possession. On the ground of the appellants being owners by purchase the Settlement Officer (Consolidation) observed that the disputed land had vested in the Gaon Sabha, as apparently the tenants had abandoned the land without creating any rights in favour of the predecessors-in-title of the appellants and sequally none in favour of the appellants. On remand the Consolidation Officer again allowed the objection of the Gaon Sabha on 31-1-1971. The Settlement Officer (Consolidation) dismissed their appeal on 20-3-1976. The appellants filed a revision petition under Section 48 of the Act before the Assistant Director (Consolidation). The appellants raised the plea before the Assistant Director (Consolidation) that the re was no evidence on record to hold that the previous recorded tenants had abandoned the land in dispute and such findings recorded by the Settlement Officer was passed on no evidence. The Assistant Director (Consolidation) did not entertain the plea and dismissed the revision petition, whereupon the appellants were constrained to move the High Court in writ jurisdiction. A learned Single Judge, before whom the writ petition was placed referred the writ petition to a division bench as in his opinion the law needed to be straightened as to whether the findings recorded by the Settlement Officer (Consolidation) in its remand order was open to correction in revisional jurisdiction of the Assistant Director (Consolidation) as instantly attempted, since that remand order of the Settlement Officer (Consolidation) had not been directly challenged in revision. The High Court took the view that the remand order of the Settlement Officer became final, since it was not independently challenged and what was challenged was the subsequent order of the Settlement Officer (Consolidation), which came about after remand and which stood challenged in revision before the Assistant Director (Consolidation). We have heard learned counsel for the appellants. We can safely say on the strength of the two precedents of this Court in Jasraj Inder Singh vs. Hemraj Multanchand and Smt. S ukhrani (dead) by LRs and others vs. Hari Shanker and others that the appellants should succeed. In the former case this Court expressed its view that "the remand order by the High Court is a finding at an intermediate stage of the same litigation. The appeal before the Supreme Court is from the suit as a whole and, therefore, the entire subject matter is available for adjudication before it....... Otherwise the whole lis for the first time came to the Supreme Court and the High Courts finding at an intermediate stage does not prevent examination of the position of law by the Supreme Court. Intermediate stages of the litigation and orders passed at those stages have a provisional finality....... The contention barred before the High Court is still available to be canvassed before this Court when it seeks to pronounce finally on the entirety of the suit......." * In the later case this Court expressed the view "that though a decision given at an earlier stage of the suit will bind the parties at a later stage of the same suit, it is equally well settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher court is not precluded from considering the matter again at a later stage of the same litigation." * 4. When the matter was in revision before the Assistant director (Consolidation), he had the entire matter before him and his jurisdiction was unfettered. While in seisin of the matter in his revisional jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand. In other words, in exercise of revisional ju risdiction the Assistant Director (Consolidation) could examine the finding recorded by the Settlement Officer as to the abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli. That power as a superior court the Assistant Director (Consolidation) had, even if the remand order of the Settlement Officer had not been specifically put to challenge in separate and independent proceedings. It is noteworthy that the Court of the Assistant Director (Consolidation) is a court of revisional jurisdiction otherwise having suo moto power to correct any order of the subordinate officer. In this situation the Assistant Director (Consolidation) should not have felt fettered in doing complete justice between the parties when the entire matter was before him. The war of legalistics fought in the High Court was of no material benefit to the appellants. A decision on merit covering the entire controversy was due from the Assistant Director (Consolidation).Thus | 1[ds]4. When the matter was in revision before the Assistant director (Consolidation), he had the entire matter before him and his jurisdiction was unfettered. While in seisin of the matter in his revisional jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand. In other words, in exercise of revisional ju risdiction the Assistant Director (Consolidation) could examine the finding recorded by the Settlement Officer as to the abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli. That power as a superior court the Assistant Director (Consolidation) had, even if the remand order of the Settlement Officer had not been specifically put to challenge in separate and independent proceedings. It is noteworthy that the Court of the Assistant Director (Consolidation) is a court of revisional jurisdiction otherwise having suo moto power to correct any order of the subordinate officer. In this situation the Assistant Director (Consolidation) should not have felt fettered in doing complete justice between the parties when the entire matter was before him. The war of legalistics fought in the High Court was of no material benefit to the appellants. A decision on merit covering the entire controversy was due from the Assistant Director (Consolidation). | 1 | 1,325 | 256 | ### 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 prayed that entries be corrected in favour of the Gaon Sabha. The appellants contested the objections before the Consolidation Officer. 3. Their case was that the land in dispute was under the tenancy of some people when the U.P. Zamindari Abolition Act was in force. The same did not vest in the Gaon Sabha as unoccupied land. The Ashudhi Tehsildar during the correction of the records operation found Gurbux Singh a nd Harbhajan Singh in possession of the land in dispute and ordered them to be recorded as Seerdars by order dated 25-7-1957. On the basis of such corrected records Gurbux Singh and Harbhajan Singh obtained Bhoomidari rights under the provisions of the U.P. Zamindari Abolition Act, 1952. On 1-6-1959, those Bhoomidars sold the land to the appellants and thereafter the names of the appellants as Bhoomidars were recorded in the revenue records, continuously till consolidation operations commenced.The Consolidation Officer sustained the objection of the Gaon Sabha by his order dated 21-2-1970 ordering expansion of the names of the appellants from the revenue records. The appellants appeal before the Settlement Officer ( Consolidation) was allowed on 22-8-1970. A remand was effected to the Consolidation Officer for a fresh decision, after giving an opportunity to the appellants to prove that they had even acquired ownership rights by adverse possession. On the ground of the appellants being owners by purchase the Settlement Officer (Consolidation) observed that the disputed land had vested in the Gaon Sabha, as apparently the tenants had abandoned the land without creating any rights in favour of the predecessors-in-title of the appellants and sequally none in favour of the appellants. On remand the Consolidation Officer again allowed the objection of the Gaon Sabha on 31-1-1971. The Settlement Officer (Consolidation) dismissed their appeal on 20-3-1976. The appellants filed a revision petition under Section 48 of the Act before the Assistant Director (Consolidation). The appellants raised the plea before the Assistant Director (Consolidation) that the re was no evidence on record to hold that the previous recorded tenants had abandoned the land in dispute and such findings recorded by the Settlement Officer was passed on no evidence. The Assistant Director (Consolidation) did not entertain the plea and dismissed the revision petition, whereupon the appellants were constrained to move the High Court in writ jurisdiction. A learned Single Judge, before whom the writ petition was placed referred the writ petition to a division bench as in his opinion the law needed to be straightened as to whether the findings recorded by the Settlement Officer (Consolidation) in its remand order was open to correction in revisional jurisdiction of the Assistant Director (Consolidation) as instantly attempted, since that remand order of the Settlement Officer (Consolidation) had not been directly challenged in revision. The High Court took the view that the remand order of the Settlement Officer became final, since it was not independently challenged and what was challenged was the subsequent order of the Settlement Officer (Consolidation), which came about after remand and which stood challenged in revision before the Assistant Director (Consolidation). We have heard learned counsel for the appellants. We can safely say on the strength of the two precedents of this Court in Jasraj Inder Singh vs. Hemraj Multanchand and Smt. S ukhrani (dead) by LRs and others vs. Hari Shanker and others that the appellants should succeed. In the former case this Court expressed its view that "the remand order by the High Court is a finding at an intermediate stage of the same litigation. The appeal before the Supreme Court is from the suit as a whole and, therefore, the entire subject matter is available for adjudication before it....... Otherwise the whole lis for the first time came to the Supreme Court and the High Courts finding at an intermediate stage does not prevent examination of the position of law by the Supreme Court. Intermediate stages of the litigation and orders passed at those stages have a provisional finality....... The contention barred before the High Court is still available to be canvassed before this Court when it seeks to pronounce finally on the entirety of the suit......." * In the later case this Court expressed the view "that though a decision given at an earlier stage of the suit will bind the parties at a later stage of the same suit, it is equally well settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher court is not precluded from considering the matter again at a later stage of the same litigation." * 4. When the matter was in revision before the Assistant director (Consolidation), he had the entire matter before him and his jurisdiction was unfettered. While in seisin of the matter in his revisional jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand. In other words, in exercise of revisional ju risdiction the Assistant Director (Consolidation) could examine the finding recorded by the Settlement Officer as to the abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli. That power as a superior court the Assistant Director (Consolidation) had, even if the remand order of the Settlement Officer had not been specifically put to challenge in separate and independent proceedings. It is noteworthy that the Court of the Assistant Director (Consolidation) is a court of revisional jurisdiction otherwise having suo moto power to correct any order of the subordinate officer. In this situation the Assistant Director (Consolidation) should not have felt fettered in doing complete justice between the parties when the entire matter was before him. The war of legalistics fought in the High Court was of no material benefit to the appellants. A decision on merit covering the entire controversy was due from the Assistant Director (Consolidation).Thus
### Response:
1
### Explanation:
4. When the matter was in revision before the Assistant director (Consolidation), he had the entire matter before him and his jurisdiction was unfettered. While in seisin of the matter in his revisional jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand. In other words, in exercise of revisional ju risdiction the Assistant Director (Consolidation) could examine the finding recorded by the Settlement Officer as to the abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli. That power as a superior court the Assistant Director (Consolidation) had, even if the remand order of the Settlement Officer had not been specifically put to challenge in separate and independent proceedings. It is noteworthy that the Court of the Assistant Director (Consolidation) is a court of revisional jurisdiction otherwise having suo moto power to correct any order of the subordinate officer. In this situation the Assistant Director (Consolidation) should not have felt fettered in doing complete justice between the parties when the entire matter was before him. The war of legalistics fought in the High Court was of no material benefit to the appellants. A decision on merit covering the entire controversy was due from the Assistant Director (Consolidation).
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