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Gwalior Rayon Silk Manufacturing (Weaving) Company Limited Vs. State of Madhya Pradesh and Others | the third appeal is by the Gwalior Rayon Silk Manufacturing (Weaving) Company. We shall refer hereinafter to the State as the appellant and the Gwalior Rayon Silk Manufacturing (Weaving) Company as the respondent. The respondent was established in Gwalior after an agreement with the Ruler of the then Gwalior State dated April 7, 1947. By that agreement the Ruler agreed to exempt the respondent "from payment of all taxes and/or duties, in any form or nature whatsoever, on its incomes, profits and gains of business, levied or to be hereinafter levied in the Gwalior State, or any part thereof, for a period of twelve years reckoned from the date on which the factory or factories has or have started working or starts or start working". The Gwalior State merged thereafter in the United State of Madhya Bharat and when the Constitution came into force on January 26, 1950, the United Sate of Madhya Bharat became the Part B State of Madhya Bharat. The Legislature of the State of Madhya Bharat passed the M.B. Sales Tax Act, 1950 (No. 30 of 1950) which was brought into force from May 1, 1950. In consequence thereof the Sales Tax Officer started proceedings to levy sales tax on the sales made by the respondent. Thereupon the respondent filed a suit (No. 6 of 1953) in the Court of the District Judge, Gwalior, in which he contended that the State of Madhya Bharat was bound by the agreement of April 7, 1947, in view of Article 295(2) of the Constitution and therefore it was not open to the State of Madhya Bharat or its officers to levy sales tax on the sales made by the respondent. The respondent therefore prayed for a declaration that it was exempt from sales tax for the period mentioned in the agreement and that a perpetual injunction be issued against the State of Madhya Bharat prohibiting it from realising sales tax for one year, which had already been assessed, and further prohibiting it from imposing any sales tax on the respondent till the end of June, 1962. Later, however, the respondent filed a writ petition under Article 226 of the Constitution on September 23, 1960, in which it put forward the same contention and prayed for the same reliefs with the addition that the assessments which had been made for the years from 1950-51 to 1956-57 should be quashed and the tax paid refunded. The suit was dismissed by the District Judge and the respondent went in appeal to the High Court.2. This appeal was heard along with the writ petition and was allowed. As to the writ petition the High Court held that in view of Article 295(2) of the Constitution the exemption granted by the agreement of April 7, 1947, still continued and the assessments made against the respondent for the years 1950-51 to 1956-57 must therefore be quashed. As to the prayer for refund, the High Court rejected it on the basis of the decision of this Court in Sales Tax Officer v. Kanhaiya Lal ([1959] S.C.R. 1350; 9 S.T.C. 747), where it was held that in exercising the discretion as to refund the court must have regard to estoppel, acquiescence, limitation and the like. The High Court found that the respondent had not given any detail of the tax paid and nothing had also been said as to how considerations of estoppel, acquiescence, limitation etc. did not apply. In these circumstances the prayer for refund was rejected. The High Court however issued a direction restraining the State of Madhya Pradesh and its officers from making any assessment under the M.B. Sales Tax Act or the Madhya Pradesh General Sales Tax Act and from levying or collecting the tax in contravention of the exemption granted by the agreement of April 7, 1947, and quashed the proceedings taken by the Sales Tax Authorities in contravention of the said exemption.This decision has led to three appeals before us, (i) by the appellant against the order decreeing the suit (Appeal No. 855); (ii) by the appellant against the order in the writ petition restraining it from making any assessment under the M.B. Sales Tax Act or the Madhya Pradesh General Sales Tax Act in contravention of the exemption granted under the agreement of April 7, 1947, and quashing all assessment proceedings taken thereunder (Appeal No. 849); and (ii) by the respondent against the order refusing refund in the writ petition (Appeal No. 848).3. These appeals were heard by us along with civil appeals in Union of India v. Gwalior Rayon Silk Manufacturing (Weaving) Company Limited (C. As. 934 and 935 of 1963; since reported at [1964] 53 I.T.R. 466), judgment in which has just been delivered. In those appeals we had to consider the effect of this agreement after April 1, 1950, in view of the legislative provisions made thereafter, and we have held therein that though the agreement of April 7, 1947, might cast an obligation on the Government of India under Article 295(1)(b), the legislative provisions made from April 1, 1950, would supersede the agreement and thereafter the legislative provisions would prevail in spite of the obligation cast on the Government of Indian by Article 295(1)(b). The principle of that decision in our opinion applies to Article 295(2) also under which the obligation in the present case devolved on the Part B State of Madhya Bharat, and in that view the legislative provisions made by the M.B. Sales Tax Act, 1950, or the Madhya Pradesh General Sales Tax Act, 1958, would prevail as against the agreement. In this view of the matter the appeals of the appellant must succeed and the appeal of the respondent must fail.In view of this decision it is unnecessary for us to consider whether the exemption granted by the agreement of April 7, 1947, would cover sales tax also. Even if it does, that would be of no assistance to the respondent in view of the legislative provision made after April 1, 1950. | 1[ds]3. These appeals were heard by us along with civil appeals in Union of India v. Gwalior Rayon Silk Manufacturing (Weaving) Company Limited (C. As. 934 and 935 of 1963; since reported at [1964] 53 I.T.R. 466), judgment in which has just been delivered. In those appeals we had to consider the effect of this agreement after April 1, 1950, in view of the legislative provisions made thereafter, and we have held therein that though the agreement of April 7, 1947, might cast an obligation on the Government of India under Article 295(1)(b), the legislative provisions made from April 1, 1950, would supersede the agreement and thereafter the legislative provisions would prevail in spite of the obligation cast on the Government of Indian by Article 295(1)(b). The principle of that decision in our opinion applies to Article 295(2) also under which the obligation in the present case devolved on the Part B State of Madhya Bharat, and in that view the legislative provisions made by the M.B. Sales Tax Act, 1950, or the Madhya Pradesh General Sales Tax Act, 1958, would prevail as against the agreement. In this view of the matter the appeals of the appellant must succeed and the appeal of the respondent must fail.In view of this decision it is unnecessary for us to consider whether the exemption granted by the agreement of April 7, 1947, would cover sales tax also. Even if it does, that would be of no assistance to the respondent in view of the legislative provision made after April 1, | 1 | 1,192 | 309 | ### Instruction:
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the third appeal is by the Gwalior Rayon Silk Manufacturing (Weaving) Company. We shall refer hereinafter to the State as the appellant and the Gwalior Rayon Silk Manufacturing (Weaving) Company as the respondent. The respondent was established in Gwalior after an agreement with the Ruler of the then Gwalior State dated April 7, 1947. By that agreement the Ruler agreed to exempt the respondent "from payment of all taxes and/or duties, in any form or nature whatsoever, on its incomes, profits and gains of business, levied or to be hereinafter levied in the Gwalior State, or any part thereof, for a period of twelve years reckoned from the date on which the factory or factories has or have started working or starts or start working". The Gwalior State merged thereafter in the United State of Madhya Bharat and when the Constitution came into force on January 26, 1950, the United Sate of Madhya Bharat became the Part B State of Madhya Bharat. The Legislature of the State of Madhya Bharat passed the M.B. Sales Tax Act, 1950 (No. 30 of 1950) which was brought into force from May 1, 1950. In consequence thereof the Sales Tax Officer started proceedings to levy sales tax on the sales made by the respondent. Thereupon the respondent filed a suit (No. 6 of 1953) in the Court of the District Judge, Gwalior, in which he contended that the State of Madhya Bharat was bound by the agreement of April 7, 1947, in view of Article 295(2) of the Constitution and therefore it was not open to the State of Madhya Bharat or its officers to levy sales tax on the sales made by the respondent. The respondent therefore prayed for a declaration that it was exempt from sales tax for the period mentioned in the agreement and that a perpetual injunction be issued against the State of Madhya Bharat prohibiting it from realising sales tax for one year, which had already been assessed, and further prohibiting it from imposing any sales tax on the respondent till the end of June, 1962. Later, however, the respondent filed a writ petition under Article 226 of the Constitution on September 23, 1960, in which it put forward the same contention and prayed for the same reliefs with the addition that the assessments which had been made for the years from 1950-51 to 1956-57 should be quashed and the tax paid refunded. The suit was dismissed by the District Judge and the respondent went in appeal to the High Court.2. This appeal was heard along with the writ petition and was allowed. As to the writ petition the High Court held that in view of Article 295(2) of the Constitution the exemption granted by the agreement of April 7, 1947, still continued and the assessments made against the respondent for the years 1950-51 to 1956-57 must therefore be quashed. As to the prayer for refund, the High Court rejected it on the basis of the decision of this Court in Sales Tax Officer v. Kanhaiya Lal ([1959] S.C.R. 1350; 9 S.T.C. 747), where it was held that in exercising the discretion as to refund the court must have regard to estoppel, acquiescence, limitation and the like. The High Court found that the respondent had not given any detail of the tax paid and nothing had also been said as to how considerations of estoppel, acquiescence, limitation etc. did not apply. In these circumstances the prayer for refund was rejected. The High Court however issued a direction restraining the State of Madhya Pradesh and its officers from making any assessment under the M.B. Sales Tax Act or the Madhya Pradesh General Sales Tax Act and from levying or collecting the tax in contravention of the exemption granted by the agreement of April 7, 1947, and quashed the proceedings taken by the Sales Tax Authorities in contravention of the said exemption.This decision has led to three appeals before us, (i) by the appellant against the order decreeing the suit (Appeal No. 855); (ii) by the appellant against the order in the writ petition restraining it from making any assessment under the M.B. Sales Tax Act or the Madhya Pradesh General Sales Tax Act in contravention of the exemption granted under the agreement of April 7, 1947, and quashing all assessment proceedings taken thereunder (Appeal No. 849); and (ii) by the respondent against the order refusing refund in the writ petition (Appeal No. 848).3. These appeals were heard by us along with civil appeals in Union of India v. Gwalior Rayon Silk Manufacturing (Weaving) Company Limited (C. As. 934 and 935 of 1963; since reported at [1964] 53 I.T.R. 466), judgment in which has just been delivered. In those appeals we had to consider the effect of this agreement after April 1, 1950, in view of the legislative provisions made thereafter, and we have held therein that though the agreement of April 7, 1947, might cast an obligation on the Government of India under Article 295(1)(b), the legislative provisions made from April 1, 1950, would supersede the agreement and thereafter the legislative provisions would prevail in spite of the obligation cast on the Government of Indian by Article 295(1)(b). The principle of that decision in our opinion applies to Article 295(2) also under which the obligation in the present case devolved on the Part B State of Madhya Bharat, and in that view the legislative provisions made by the M.B. Sales Tax Act, 1950, or the Madhya Pradesh General Sales Tax Act, 1958, would prevail as against the agreement. In this view of the matter the appeals of the appellant must succeed and the appeal of the respondent must fail.In view of this decision it is unnecessary for us to consider whether the exemption granted by the agreement of April 7, 1947, would cover sales tax also. Even if it does, that would be of no assistance to the respondent in view of the legislative provision made after April 1, 1950.
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3. These appeals were heard by us along with civil appeals in Union of India v. Gwalior Rayon Silk Manufacturing (Weaving) Company Limited (C. As. 934 and 935 of 1963; since reported at [1964] 53 I.T.R. 466), judgment in which has just been delivered. In those appeals we had to consider the effect of this agreement after April 1, 1950, in view of the legislative provisions made thereafter, and we have held therein that though the agreement of April 7, 1947, might cast an obligation on the Government of India under Article 295(1)(b), the legislative provisions made from April 1, 1950, would supersede the agreement and thereafter the legislative provisions would prevail in spite of the obligation cast on the Government of Indian by Article 295(1)(b). The principle of that decision in our opinion applies to Article 295(2) also under which the obligation in the present case devolved on the Part B State of Madhya Bharat, and in that view the legislative provisions made by the M.B. Sales Tax Act, 1950, or the Madhya Pradesh General Sales Tax Act, 1958, would prevail as against the agreement. In this view of the matter the appeals of the appellant must succeed and the appeal of the respondent must fail.In view of this decision it is unnecessary for us to consider whether the exemption granted by the agreement of April 7, 1947, would cover sales tax also. Even if it does, that would be of no assistance to the respondent in view of the legislative provision made after April 1,
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Paul Parambi, Chief Promoter, Springs Chs Limited & Another Vs. The Bombay Dyeing and Manufacturing Company Limited & Another | the flats as a co-operative society, or as the case may be, a company. The promoter is obliged to join in the application for membership of a co-operative society or in case of a company even in respect of flats, which have not been taken or which remained unsold. However, the legislature has taken care not to deprive the promoter of his right to dispose of the remaining flats in accordance with the provisions of MOFA, 1963. Therefore, a balancing act has been performed. Just as there is a regulation of the promotion of construction, sale, management and transfer of the ownership flats, equally, the right that is created in the promoter to dispose of the flats, which have not been taken by persons joining to form an organisation, remains unaffected and untouched. The principle of statutory interpretation, which harmonises and enables both statutes to co-exist without any conflict or collusion ought to be placed, therefore, on the statutory provisions in question.45. In Principles of Statutory Interpretation by Justice G. P. Singh, 14th Edition, the learned author, emphasises and points out the essence of the rule of harmonious construction. That is that none of the provisions should be reduced to "useless lumber" or "dead letter". That is not harmonious construction. These principles have also been applied in resolving the conflict between two different Acts as well. We have applied that very principle. We do not think that while holding as above, we have nullified the effect and impact of either of the statutes. There is no basis for the complaint that if the interpretation as suggested and placed by us is upheld, then, it will not be possible to submit the property to the MAO Act. We do not think that language of Sub-section (2) of Section 10 gives any room for such complaint at all.46. We, therefore, find that Respondent No.2 had completely misdirected itself in rejecting the application for registration of the Petitioner on the ground that this purported Deed of Declaration was challenged in a suit that is pending in this Court. It was the duty of Respondent No.2 to give full effect to Section 10(2) of the MOFA, 1963 and to examine whether the Declaration executed and registered under the MAO Act was in consonance with the MAO Act before it came to the conclusion that there was a bar from considering the application of the Petitioners for forming a co-operative society. This exercise, we find has not been undertaken by Respondent No.2 at all and he has completely abdicated his duty in this regard.47. We also find from the facts of the present case that the unilateral Declaration has been executed behind the back of the flat purchasers. When they purchased their flats, the respective flat purchasers were never informed that the property they were purchasing was going to be submitted to the provisions of the MAO Act. In fact, clause 24 of one of the agreements executed with the flat purchasers reads as follows:-"24. The Purchaser/s along with the other purchasers of premises in the said Residential Building shall join in forming and registering the Society or association of flat owners or Limited Company to be known by such name as the Promoter may decide and for this purpose also from time to time sign and execute the application for registration and/or membership and other papers and documents necessary for the formation and registration of the Society or Limited Company or an association of flat owners and for becoming a member, including the bye-laws of the proposed Society and duly fill in, sign and return to the Promoter within 15 days of the same being forwarded by the Promoter to Flat Purchasers, so as to enable the Promoter to register the organization of the Flat Purchasers under Section 10 of the said Act, within the time limit prescribed by Rule 8 of the Maharashtra Ownership Flats (Regulation of the Promotion of the Construction, Sale, Management and Transfer) Rules, 1964. No objection shall be taken by the Purchaser/s if any changes or modifications are made in the draft bye-laws, or the Memorandum and/or Articles of Association or Declaration, as may be required by the Registrar of Co-operative Societies or the Registrar appointed under the Apartment Ownership Act or the Registrar of Companies, as the case may be, or any other Competent Authority."48. In fact on reading this clause, it is clear that Respondent No.1 never categorically informed the flat purchasers that the property was being subjected to the provisions of the MAO Act. The indication would be otherwise. Further more, as mentioned earlier, the 1st Respondent had itself given an undertaking to the Municipal Commissioner on 11th June, 2010 (page 971 and 972 of the compilation Vol. V) that the ownership of the structure and other appurtenant user shall vest in all the owners and that the 1st Respondent is planning to form a proposed society of the said building which it proposes to construct. Further more, as late as 20th October, 2011, a receipt has been issued to one of the flat purchasers which indicates that part of the money that Respondent No.1 has received from said flat purchaser is towards formation of the society. The said receipt reads as under:-"ReceiptReceived with thanks from Mr. Nitin Radheshyam Agarwal & Mrs. Nikita Nitin Agarwal a sum of Rs.26,95,504.00 (Rs. Twenty Six Lakh Ninety Five Thousand Five Hundred Four Only) vide cheque/ DD No. 293214603 dated 20-Oct-2011 drawn on Wire Transfer Amount received towards flat cost addl. adm. chsg. legal chgs, install, of water, electricity, Gas connection, Formation of Soc. Dev. Chgs. Club Facility and Service Tax for 4 BHK facing West-2104 in the building proposed to be called "Springs"."49. We, therefore, find that this unilateral execution and registration of the Deed of Declaration by Respondent No.1 submitting the property to the provisions of the MAO Act cannot be an impediment in Respondent No.2 considering the application of the Petitioners for formation of a co-operative society. | 1[ds]We have also carefully perused the impugned order. Before we deal with the rival contentions, it would be necessary to note the objects and reasons of MOFA, 1963 as well as the MAO Act and several of its provisions. The objects and reasons of the MOFA, 1963 indicate that initially the Government of Maharashtra appointed a committee known as the Paymaster Committee to study and report various aspects of the business of construction and sale of flats on ownership basis. The Committee submitted its report to the Government of Maharashtra on 29th June, 1961. On the basis of the findings of this Committee, the Government introduced a Bill. The object behind the legislation was to see that there is integrity of purpose on the part of the promoter and that there is willingness and earnestof the flat purchaser and to solve the enormous problem of housing to some extent. It is in these circumstances, that MOFA, 1963 was promulgated. The preamble of this Act would show that it is enacted to regulate in the State of Maharashtra, the promotion of construction, sale, management and transfer of flats taken on ownership basis.The first proviso to Section 10(1) and which was inserted by the Legislature in 2008 stipulates that if the Promoter failed within the prescribed period (which is a period of four months as prescribed by Rule 8 of the said Rules) to submit the application to the Registrar for registration of the society in the manner provided in the MaharashtraCooperative Societies Act, 1960,then, the Competent Authority may, upon receiving an application from the person who has taken flats from the said promoter, direct the District Deputy Registrar, Deputy Registrar, or as the case may be, the Assistant Registrar concerned to register the society. The second proviso that was inserted stipulates that no such direction could be given by the Competent Authority without first verifying the authenticity of the applicants request and giving the concerned promoter a reasonable opportunity of being heard. This is basically the Legislative history behind Section 10. The other sections of MOFA, 1963 are not really germane for the purpose of the disputes raised before us and hence we are not referring to the same.27. Having noted the relevant provisions of MOFA, 1963, we now turn our attention to the provisions of the MAO Act. The object and reasons of the MAO Act would reveal that consequent upon the shortage of lands in urban areas, the majority of citizens of urban areas of the State could not think in terms of owning houses on individual basis. Though there was an overgrowing tendency to constructflats, apartments and the like on ownership basis, persons purchasing flats, tenements or apartments did not have a marketable title thereto and could not obtain any loan by mortgaging such flats, tenements etc. Consequently, tenements constructed by Housing Boards for example could not be sold to the tenants who could not raise any loan on the security of such tenements. The result of this was that an enormous amount of capital was locked up which could otherwise be utilised for new constructions to meet the increasing demands for housing. It was therefore considered expedient that each apartment should, for all purposes, constitute a heritable and transferable immovable property, and that suitable legislation should provide for all matters connected therewith. The Legislature felt that such a measure would not only enable many a person to own his apartment, but it would at the same time enable institutions like the Housing Boards, to utilize their locked up capital in the construction of new buildings. Keeping these objects in mind, the MAO Act was brought into force w.e.f. 19th February, 1971.As the section itself stipulates that MAO Act applies only to the property, the sole owner, or all of the owners of which, submit the same to the provisions of this Act by duly executing and registering a Declaration as more particularly provided therein. In other words, if there is more than one owner of the property then all of them have to join in executing and registering a Declaration as contemplated under the said Act. Conversely, what becomes clear is that if there are more owners than one, a single owner cannot unilaterally submit the property to the provisions of the MAO Act.Having noted and analysed the provisions of these two Acts (namely MOFA, 1963 and the MAO Act), we shall now turn our attention to the contentions raised before us by the respective parties. The first contention raised by Mr. Dhakephalkar was that Section 10(2) of MOFA, 1963, and more particularly the embargo to form asociety, should be read with and subject to Section 10(1). He submitted that Section 10(1) stipulates that as soon as a minimum number of persons required to form acooperative society or acompany have taken flats, thePromoter shall within the prescribed period, submit an application to the Registrar for registration of acooperative society oras the case may be, a company. The prescribed period as mentioned in Section 10(1) is a period of four months as more particularly set out in Rule 8 of the said Rules. He submitted that this period of four months that has been prescribed in Section 10(1) has to also apply to a promoter when he seeks to execute and register a Declaration by submitting the property to the provisions of MAO Act. If this was not done within the prescribed period (four months), then the embargo as set out in Section 10(2) would not come into play and the flat purchasers would not be barred or precluded from seeking registration of asociety.34. As far as this contention is concerned, we are unable to agree with the submissions of Mr. Dhakephalkar. In our opinion, and as rightly submitted by Mr. Chinoy, such an interpretation / construction would becontrary to the settled principles. If we are to accept the interpretation of Mr. Dhakephalkar, the same would amount torewriting / adding words to theunambiguous language of Section 10(2) and which would result in the said provision being substantially altered. If in fact the intention of the Legislature was to prescribe a definite period by which a promoter was to submit the property to the provisions of the MAO Act [before the embargo as set out in Section 10(2) came into play], it would have specifically done so. It could have simply provided for one more option in Section 10(1). We find considerable force in the argument of Mr. Chinoy that Section 10(2) is an independent provision under which no time period has been prescribed for submitting the property to the MAO Act so long as the same is done prior to an application being filed for registration of acooperative society ora company, as the case may be. We are clearly of the view that if we were to accept the interpretation of the Petitioners, the same would restrict and negate the plain and clear language of Section 10(2) by reading words into the statute that are conspicuous by their absence. Thus, to our mind, this would be contrary to the basic canons of interpretation and construction of a Statute. We, therefore, are unable to agree with the submissions of Mr. Dhakelpahlar that before the embargo as stipulated in Section 10(2) can kick in, the promoter has to submit the property to the provisions of the MAO Act within a period of four months after a minimum number of persons required to form acooperative society ora company have taken the flats. This contention of Mr. Dhakephalkar is, therefore, rejected.35. Notwithstanding the aforesaid, the next contention of Mr. Dhakephalkar was that there was no impediment in registering asociety under Section 10(2) of the MOFA, 1963, because the Promoter (Respondent No.1 in the present case) had not complied with the conditions contained therein, namely, that the Promoter had not informed the Registrar as defined in the MaharashtraCooperative Societies Act, 1960about submitting the property to the provisions of the MAO Act. This being the position, the bar under Section 10(2) would not apply, was the submission.36. We find considerable force in this argument. Section 10(2) of MOFA, 1963 [and as reproduced by us earlier] clearly stipuates that if any property consisting of a building or buildings is constructed or to be constructed and the Promoter submits such property to the provisions of the MAO Act by executing and registering a Declaration as provided by that Act, then the Promoter shall inform the Registrar of the same as defined in the MCS Act accordingly. Only once both these conditions are fulfilled [namely execution and registration and thereafter initmation], it would be unlawful to form anycooperative society ora company. Section 2(24) of the MCS Act defines the word "Registrar", as a person appointed to be the Registrar ofsocieties under the MCS Act. Section 3 of the MCS Act talks about the Registrar and his subordinates and reads asRegistrar and his subordinates.The State Government may appoint a person to be the Registrar of Cooperative Societies for the State; and may appoint one or more persons to assist such Registrar (with such designations, and in such local areas or throughout the State, as it may specify in that behalf, and may, by general or special order, confer on any such person or persons all or any of the powers of the Registrar under this Act. The person or persons so appointed to assist the Registrar and on whom any powers of the Registrar are conferred, shall work under the general guidance, superintendence and control of the Registrar. They shall be subordinate to the Registrar, and subordination of such persons amongst themselves shall be such as may be determined by the State Government.On reading these two provisions [sections 3 and 3A], what becomes clear is that the Registrar is an authority that is superior to the Assistant Registrar. Section 10(2) of MOFA, 1963 clearly stipulates that once a Deed of Declaration has been executed and registered under the provisions of the MAO Act, intimation of the same has to be given to the Registrar as defined under the provisions of the MCS Act. It is only once both these conditions are fulfilled [namely execution and registration and thereafter initmation], would it be unlawful to register asociety. In the facts of the present case, it is an admitted fact that the intimation as contemplated under Section 10(2) [dated 4th October, 2011] was not given to the Registrar as defined under the MCS Act. This intimation can be found at page 903 (compilation Vol. V). This letter is admittedly addressed to the office of the Assistant Registrar and not to the Registrar as defined under the provisions of the MCS Act. This being the factual position, we find considerable force in the argument of Mr. Dhakephalkar that this intimation addressed to the Assistant Registrar, who being an authority subordinate to the Registrar, is no intimation at all as contemplated under Section 10(2) of the MOFA, 1963. It is now well settled that when a statute provides that a particular act needs to be done in a particular manner, it has to be done in that manner and no other. If one needs to refer to any decision in support of the aforesaid proposition a reference to a decision of the Supreme Court in the case of State of Kerala v. Kerala Rare EarthMinerals Ltd. (2016) 6 SCC 323 would beIt is well settled that if the law requires a particular thing to be done in a particular manner, then, in order to be valid the act must be done in the prescribed manner alone. (See CIT v. Anjum M.H. Ghaswala [CIT v. Anjum M.H. Ghaswala, (2002) 1 SCC 633 ], Captain Sube Singh v. Lt. Governor of Delhi [Captain Sube Singhv. Lt. Governor of Delhi, (2004) 6 SCC 440 ] , State of U.P. v. Singhara Singh [State of U.P. v. Singhara Singh, AIR 1964 SC 358 : (1964) 1 Cri LJ 263 and Mohinder Singh Gill v. Chief Election Commr. [Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405 ] Absence of the Central Governments approval to reservation and a notification as required by Sectiontherefore, renders the State Governments claim of reservation untenable till such time a valid reservation is made in accordance with law. It is trite that the State Governments general executive power cannot be invoked to make a reservation dehors Sectionsupplied)39. This is more so, when one considers the language of Section 10(2) which makes it unlawful to register asociety, once a Deed of Declaration is executed and registered by the Promoter and intimation is given of the same to the Registrar as defined under the MCS Act. We are clearly of the view that looking to the language of Section 10(2) of the MOFA, 1963, the same has to be strictly complied with, especially taking into consideration that the flat purchasers lose their right to form asociety. In the facts of the present case, admittedly, an intimation as contemplated under Section 10(2) was not given to the Registrar as defined under the provisions of the MCS Act, but was given to the Assistant Registrar, who is an officer subordinate to the Registrar. If the Legislature intended that the embargo as set out in section 10(2) would apply only once the intimation was given to the Registrar, and who was the Superior Officer, then full effect has to be given to the said provision. This is not having been done, we are clearly of the view that there was no impediment / bar under Section 10(2) from considering the application of the flat purchasers for registering the Petitioner No.2 society. Consequently, we find that the order passed by Respondent No.2 cannot be sustained in law.40. Even otherwise, considering the provisions of the MOFA, 1963 read with the provisions of the MAO Act, we find that the order of Respondent No.2 cannot be sustained. Section 10(1) of MOFA, 1963 inter alia provides that, once a minimum number of persons required to form acooperative society ora company have takenthe promoter shallwithin the prescribed period submit an application to the Registrar for registration of the organisation of persons who take the flats as asociety or, as the case may be, as a company. The first proviso to Section 10(1) stipulates that if the Promoter fails within the prescribed period to submit an application to the Registrar for registration of the society as provided in Section 10(1), the Competent Authority (Section 5A of the MOFA, 1963) may, upon receiving an application from the persons who have taken flats from the said promoter, direct the District Deputy Registrar, Deputy Registrar or as the case may be Assistant Registrar concerned, to register the society. Section 10(2) provides that if any property consisting of building or buildings is constructed or to be constructed and the Promoter submits such property to the provisions of the MAO Act, by executing and registering a Declaration as provided by that Act, then the Promoter shall inform the Registrar as defined in MCS Act accordingly, and in such case, it shall not be lawful to form any cooperative society/company. Looking at the clear, unambiguous language of Section 10(2), what becomes clear is that before it becomes unlawful to form anySociety, two conditions have to be fulfilled namely, (i) the Promoter has to submit said property to the provisions of the MAO Act by executing and registering a Declaration as provided by that Act; and (ii) the Promoter informs the Registrar (as defined in MCS Act) about the same. Since, the first condition to be fulfilled under Section 10(2) is that the promoter should submit the property to the provisions of the MAO Act, by executing a registering a Declaration as provided by that Act, one would also have to refer to the provisions of the MAO Act. Section 2 of the MAO Act clearly stipulates that it applies only to a property, the sole owner, or all of the owners of which submit the same to the provisions of the MAO Act by duly executing and registering a Declaration. In other words, if the property that is submitted to the provisions of the MAO Act belongs to more than one owner, all would have to join in executing the Deed of Declaration, failing which the applicability of the Act itself would not arise. The word "apartment" has also been defined in Section 3(a) to mean a part of the property intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors or part or parts thereof in a building, intended to be used for the reasons set out in the said definition. The word "building" is defined in Section 3(e) to mean a building containing of five or more apartments, or two or more buildings, each containing two or more apartments, with a total of five or more apartments for all such buildings, and comprising a part of the property. In turn "property" has been defined in Section 3(r) to mean the land, the building, all improvements and structures thereon, and all easements, rights and appurtenances belonging thereto, and all articles of personal property intended for use in connection therewith, which have been, or are intended to be, submitted to the provisions of the MAO Act.41. In the facts of the present case as set out earlier, the purported Deed of Declaration was registered by Respondent No.1 only on 28th September, 2011. However, much prior thereto, by the year 2009, Respondent No.1 had admittedly sold and disposed of about 80 % of the flats by executing individual sale agreements with the flat purchasers. In fact by the end of the year 2006 itself, Respondent No.1 had sold more than 10 flats in the said building. This being the factual position, looking at the provisions of Section 2 as well as the definitions as set out in Section 3 of the words "apartment", "building" and "property", we do not think that Respondent No.1 could have unilaterally executed a Deed of Declaration on 28th September, 2011 under the provisions of the MAO Act. This is for the simple reason that Section 2 clearly provides that the MAO Act applies only to a property, the sole owner or all of the owners of which submit the same to the provisions of the MAO Act. Looking to the definitions of the words "apartment", "building" and "property", as on 28th September, 2011 (the date on which the Deed of Declaration was executed) Respondent No.1 could not be said to be the sole owner of the property as it had already disposed of 80% of the flats in the building constructed by it. This being the position, this unilateral execution and registration of the Deed of Declaration (dated 28th September, 2011) wascontrary to the provisions of the MAO Act and could not be considered as a Declaration at all for the purposes of Section 10(2) of MOFA, 1963. We have reached this conclusion because the language of Section 10(2) clearly stipulates that if the promoter submits a property to the provisions of the MAO Act, the same is to be done by executing and registering a Declaration as provided by that Act. This clearly postulates that if the Declaration is not as per the provisions of the MAO Act, the bar under Section 10(2) [making it unlawful to form acooperative society ora company] would not be attracted.42. The Maharashtra Apartment Ownership Act, 1970 is an Act to provide for the ownership of an individual apartment in a building and to make such apartment heritable and transferable property. The MAO Act applies only if thefor its application set out in Section 2 thereof are fulfilled. The word "declaration", which finds repeated reference in Section 2 is defined in Section 3(j) to mean the instrument by which the property is submitted to the provisions of MAO Act, as provided by section 2, which words and figures were substituted for the words "as hereinafter provided" by Maharashtra Act 53 of 1974. The definition does not end here and says further, and such Declaration as from time to time may be lawfully amended. Once the Declaration is an instrument, then, for it to have complete legal effect, it has to be in conformity with Section 11 and by Section 13, its registration is compulsory. Therefore, when the legislature employs the words "as provided by that Act" in(2) of Section 10 of MOFA, it means that the provisions of the MAO Act are duly complied with. Therefore, as provided by that Act means in conformity and in accordance with the provisions of the MAO Act. Unless there is material before the Registrar, which would establish and prove that the promoter submitted the property to the provisions of MAO Act by executing and registering a declaration as provided by that Act, then alone it shall not be lawful to form anysociety of persons, who have taken the flats. The legislature has employed and used these words with a specific intent and purpose.43. The MAO Act provides for ownership of an individual apartment in a building and to make such apartment heritable and transferable property and that Act has been enacted in 1970. On the date of that enactment, the MOFA, 1963 was already in existence and in force. MOFA, 1963 seeks to regulate, in the State of Maharashtra, promotion of the construction, sale, management and transfer of flats on ownership basis. When the competent legislature realised that consequent on the acute shortage of houses in several areas of the State of Maharashtra, there were abuses, malpractices and difficulties relating to above matters and those are increasing, that it decided to step in and make the law. Once this is the purpose which is sought to be achieved and the MAO Act contemplating, by Section 14, removal from provisions of that Act, then, all the more we cannot place an interpretation on(2) of Section 10 of MOFA, 1963 which would either clash with the MAO Act or render it nugatory. Equally, we cannot place such an interpretation on the provisions of the MAO Act (the later Act), which would nullify the effect of MOFA, 1963 namely, the earlier Act. That Act is specifically referred to in the Schedule to the MAO Act and Section 27 thereof.44. Once we are of the opinion that the provisions of both enactments having more or less a common underlying theme, namely, to give legal recognition and status to an apartment as a property, make it heritable and transferable and equally its construction, sale, management and transfer needs to be regulated so as to enable the flat takers/purchasers to utilise and enjoy it fully, then an interpretation which will allow both to operate in their respective fields, must be placed on their provisions. No interpretation which creates disharmony or conflict between two such enactments can be placed for that would be destructive of the legislative regime. If the aim, object and purpose of both legislations is understood, then, there is no hesitation in rejecting the contentions of Mr. Chinoy that in the facts and circumstances of the present case, it was not lawful to register asociety. We are of the opinion that(2) of Section 10 would operate provided the promoter has submitted the property to the provisions of the MAO Act in terms thereof and that the information of the same is given to the Registrar. It is only in such cases that it shall not be lawful to form anycooperative society ora company. Mr. Chinoys arguments overlook the fact that there could be different and distinct legal entities that would be formed and in terms of(1) of Section 10. It could be acooperative society orcompany. It is formed by persons who have taken flats. It is the promoters obligation and duty to submit an application for registration of the organisation of persons who take the flats as asociety, or as the case may be, a company. The promoter is obliged to join in the application for membership of acooperative society orin case of a company even in respect of flats, which have not been taken or which remained unsold. However, the legislature has taken care not to deprive the promoter of his right to dispose of the remaining flats in accordance with the provisions of MOFA, 1963. Therefore, a balancing act has been performed. Just as there is a regulation of the promotion of construction, sale, management and transfer of the ownership flats, equally, the right that is created in the promoter to dispose of the flats, which have not been taken by persons joining to form an organisation, remains unaffected and untouched. The principle of statutory interpretation, which harmonises and enables both statutes towithout any conflict or collusion ought to be placed, therefore, on the statutory provisions in question.45. In Principles of Statutory Interpretation by Justice G. P. Singh, 14th Edition, the learned author, emphasises and points out the essence of the rule of harmonious construction. That is that none of the provisions should be reduced to "useless lumber" or "dead letter". That is not harmonious construction. These principles have also been applied in resolving the conflict between two different Acts as well. We have applied that very principle. We do not think that while holding as above, we have nullified the effect and impact of either of the statutes. There is no basis for the complaint that if the interpretation as suggested and placed by us is upheld, then, it will not be possible to submit the property to the MAO Act. We do not think that language of(2) of Section 10 gives any room for such complaint at all.46. We, therefore, find that Respondent No.2 had completely misdirected itself in rejecting the application for registration of the Petitioner on the ground that this purported Deed of Declaration was challenged in a suit that is pending in this Court. It was the duty of Respondent No.2 to give full effect to Section 10(2) of the MOFA, 1963 and to examine whether the Declaration executed and registered under the MAO Act was in consonance with the MAO Act before it came to the conclusion that there was a bar from considering the application of the Petitioners for forming asociety. This exercise, we find has not been undertaken by Respondent No.2 at all and he has completely abdicated his duty in this regard.47. We also find from the facts of the present case that the unilateral Declaration has been executed behind the back of the flat purchasers. When they purchased their flats, the respective flat purchasers were never informed that the property they were purchasing was going to be submitted to the provisions of the MAO Act. In fact, clause 24 of one of the agreements executed with the flat purchasers reads asThe Purchaser/s along with the other purchasers of premises in the said Residential Building shall join in forming and registering the Society or association of flat owners or Limited Company to be known by such name as the Promoter may decide and for this purpose also from time to time sign and execute the application for registration and/or membership and other papers and documents necessary for the formation and registration of the Society or Limited Company or an association of flat owners and for becoming a member, including theof the proposed Society and duly fill in, sign and return to the Promoter within 15 days of the same being forwarded by the Promoter to Flat Purchasers, so as to enable the Promoter to register the organization of the Flat Purchasers under Section 10 of the said Act, within the time limit prescribed by Rule 8 of the Maharashtra Ownership Flats (Regulation of the Promotion of the Construction, Sale, Management and Transfer) Rules, 1964. No objection shall be taken by the Purchaser/s if any changes or modifications are made in the draftor the Memorandum and/or Articles of Association or Declaration, as may be required by the Registrar ofSocieties or the Registrar appointed under the Apartment Ownership Act or the Registrar of Companies, as the case may be, or any other Competent Authority."48. In fact on reading this clause, it is clear that Respondent No.1 never categorically informed the flat purchasers that the property was being subjected to the provisions of the MAO Act. The indication would be otherwise. Further more, as mentioned earlier, the 1st Respondent had itself given an undertaking to the Municipal Commissioner on 11th June, 2010 (page 971 and 972 of the compilation Vol. V) that the ownership of the structure and other appurtenant user shall vest in all the owners and that the 1st Respondent is planning to form a proposed society of the said building which it proposes to construct. Further more, as late as 20th October, 2011, a receipt has been issued to one of the flat purchasers which indicates that part of the money that Respondent No.1 has received from said flat purchaser is towards formation of the society. The said receipt reads aswith thanks from Mr. Nitin Radheshyam AgarwalMrs. Nikita Nitin Agarwal a sum of Rs.26,95,504.00 (Rs. Twenty Six Lakh Ninety Five Thousand Five Hundred Four Only) vide cheque/ DD No. 293214603 dateddrawn on Wire Transfer Amount received towards flat cost addl. adm. chsg. legal chgs, install, of water, electricity, Gas connection, Formation of Soc. Dev. Chgs. Club Facility and Service Tax for 4 BHK facingin the building proposed to be called "Springs"."49. We, therefore, find that this unilateral execution and registration of the Deed of Declaration by Respondent No.1 submitting the property to the provisions of the MAO Act cannot be an impediment in Respondent No.2 considering the application of the Petitioners for formation of a | 1 | 14,687 | 5,632 | ### 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 flats as a co-operative society, or as the case may be, a company. The promoter is obliged to join in the application for membership of a co-operative society or in case of a company even in respect of flats, which have not been taken or which remained unsold. However, the legislature has taken care not to deprive the promoter of his right to dispose of the remaining flats in accordance with the provisions of MOFA, 1963. Therefore, a balancing act has been performed. Just as there is a regulation of the promotion of construction, sale, management and transfer of the ownership flats, equally, the right that is created in the promoter to dispose of the flats, which have not been taken by persons joining to form an organisation, remains unaffected and untouched. The principle of statutory interpretation, which harmonises and enables both statutes to co-exist without any conflict or collusion ought to be placed, therefore, on the statutory provisions in question.45. In Principles of Statutory Interpretation by Justice G. P. Singh, 14th Edition, the learned author, emphasises and points out the essence of the rule of harmonious construction. That is that none of the provisions should be reduced to "useless lumber" or "dead letter". That is not harmonious construction. These principles have also been applied in resolving the conflict between two different Acts as well. We have applied that very principle. We do not think that while holding as above, we have nullified the effect and impact of either of the statutes. There is no basis for the complaint that if the interpretation as suggested and placed by us is upheld, then, it will not be possible to submit the property to the MAO Act. We do not think that language of Sub-section (2) of Section 10 gives any room for such complaint at all.46. We, therefore, find that Respondent No.2 had completely misdirected itself in rejecting the application for registration of the Petitioner on the ground that this purported Deed of Declaration was challenged in a suit that is pending in this Court. It was the duty of Respondent No.2 to give full effect to Section 10(2) of the MOFA, 1963 and to examine whether the Declaration executed and registered under the MAO Act was in consonance with the MAO Act before it came to the conclusion that there was a bar from considering the application of the Petitioners for forming a co-operative society. This exercise, we find has not been undertaken by Respondent No.2 at all and he has completely abdicated his duty in this regard.47. We also find from the facts of the present case that the unilateral Declaration has been executed behind the back of the flat purchasers. When they purchased their flats, the respective flat purchasers were never informed that the property they were purchasing was going to be submitted to the provisions of the MAO Act. In fact, clause 24 of one of the agreements executed with the flat purchasers reads as follows:-"24. The Purchaser/s along with the other purchasers of premises in the said Residential Building shall join in forming and registering the Society or association of flat owners or Limited Company to be known by such name as the Promoter may decide and for this purpose also from time to time sign and execute the application for registration and/or membership and other papers and documents necessary for the formation and registration of the Society or Limited Company or an association of flat owners and for becoming a member, including the bye-laws of the proposed Society and duly fill in, sign and return to the Promoter within 15 days of the same being forwarded by the Promoter to Flat Purchasers, so as to enable the Promoter to register the organization of the Flat Purchasers under Section 10 of the said Act, within the time limit prescribed by Rule 8 of the Maharashtra Ownership Flats (Regulation of the Promotion of the Construction, Sale, Management and Transfer) Rules, 1964. No objection shall be taken by the Purchaser/s if any changes or modifications are made in the draft bye-laws, or the Memorandum and/or Articles of Association or Declaration, as may be required by the Registrar of Co-operative Societies or the Registrar appointed under the Apartment Ownership Act or the Registrar of Companies, as the case may be, or any other Competent Authority."48. In fact on reading this clause, it is clear that Respondent No.1 never categorically informed the flat purchasers that the property was being subjected to the provisions of the MAO Act. The indication would be otherwise. Further more, as mentioned earlier, the 1st Respondent had itself given an undertaking to the Municipal Commissioner on 11th June, 2010 (page 971 and 972 of the compilation Vol. V) that the ownership of the structure and other appurtenant user shall vest in all the owners and that the 1st Respondent is planning to form a proposed society of the said building which it proposes to construct. Further more, as late as 20th October, 2011, a receipt has been issued to one of the flat purchasers which indicates that part of the money that Respondent No.1 has received from said flat purchaser is towards formation of the society. The said receipt reads as under:-"ReceiptReceived with thanks from Mr. Nitin Radheshyam Agarwal & Mrs. Nikita Nitin Agarwal a sum of Rs.26,95,504.00 (Rs. Twenty Six Lakh Ninety Five Thousand Five Hundred Four Only) vide cheque/ DD No. 293214603 dated 20-Oct-2011 drawn on Wire Transfer Amount received towards flat cost addl. adm. chsg. legal chgs, install, of water, electricity, Gas connection, Formation of Soc. Dev. Chgs. Club Facility and Service Tax for 4 BHK facing West-2104 in the building proposed to be called "Springs"."49. We, therefore, find that this unilateral execution and registration of the Deed of Declaration by Respondent No.1 submitting the property to the provisions of the MAO Act cannot be an impediment in Respondent No.2 considering the application of the Petitioners for formation of a co-operative society.
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is formed by persons who have taken flats. It is the promoters obligation and duty to submit an application for registration of the organisation of persons who take the flats as asociety, or as the case may be, a company. The promoter is obliged to join in the application for membership of acooperative society orin case of a company even in respect of flats, which have not been taken or which remained unsold. However, the legislature has taken care not to deprive the promoter of his right to dispose of the remaining flats in accordance with the provisions of MOFA, 1963. Therefore, a balancing act has been performed. Just as there is a regulation of the promotion of construction, sale, management and transfer of the ownership flats, equally, the right that is created in the promoter to dispose of the flats, which have not been taken by persons joining to form an organisation, remains unaffected and untouched. The principle of statutory interpretation, which harmonises and enables both statutes towithout any conflict or collusion ought to be placed, therefore, on the statutory provisions in question.45. In Principles of Statutory Interpretation by Justice G. P. Singh, 14th Edition, the learned author, emphasises and points out the essence of the rule of harmonious construction. That is that none of the provisions should be reduced to "useless lumber" or "dead letter". That is not harmonious construction. These principles have also been applied in resolving the conflict between two different Acts as well. We have applied that very principle. We do not think that while holding as above, we have nullified the effect and impact of either of the statutes. There is no basis for the complaint that if the interpretation as suggested and placed by us is upheld, then, it will not be possible to submit the property to the MAO Act. We do not think that language of(2) of Section 10 gives any room for such complaint at all.46. We, therefore, find that Respondent No.2 had completely misdirected itself in rejecting the application for registration of the Petitioner on the ground that this purported Deed of Declaration was challenged in a suit that is pending in this Court. It was the duty of Respondent No.2 to give full effect to Section 10(2) of the MOFA, 1963 and to examine whether the Declaration executed and registered under the MAO Act was in consonance with the MAO Act before it came to the conclusion that there was a bar from considering the application of the Petitioners for forming asociety. This exercise, we find has not been undertaken by Respondent No.2 at all and he has completely abdicated his duty in this regard.47. We also find from the facts of the present case that the unilateral Declaration has been executed behind the back of the flat purchasers. When they purchased their flats, the respective flat purchasers were never informed that the property they were purchasing was going to be submitted to the provisions of the MAO Act. In fact, clause 24 of one of the agreements executed with the flat purchasers reads asThe Purchaser/s along with the other purchasers of premises in the said Residential Building shall join in forming and registering the Society or association of flat owners or Limited Company to be known by such name as the Promoter may decide and for this purpose also from time to time sign and execute the application for registration and/or membership and other papers and documents necessary for the formation and registration of the Society or Limited Company or an association of flat owners and for becoming a member, including theof the proposed Society and duly fill in, sign and return to the Promoter within 15 days of the same being forwarded by the Promoter to Flat Purchasers, so as to enable the Promoter to register the organization of the Flat Purchasers under Section 10 of the said Act, within the time limit prescribed by Rule 8 of the Maharashtra Ownership Flats (Regulation of the Promotion of the Construction, Sale, Management and Transfer) Rules, 1964. No objection shall be taken by the Purchaser/s if any changes or modifications are made in the draftor the Memorandum and/or Articles of Association or Declaration, as may be required by the Registrar ofSocieties or the Registrar appointed under the Apartment Ownership Act or the Registrar of Companies, as the case may be, or any other Competent Authority."48. In fact on reading this clause, it is clear that Respondent No.1 never categorically informed the flat purchasers that the property was being subjected to the provisions of the MAO Act. The indication would be otherwise. Further more, as mentioned earlier, the 1st Respondent had itself given an undertaking to the Municipal Commissioner on 11th June, 2010 (page 971 and 972 of the compilation Vol. V) that the ownership of the structure and other appurtenant user shall vest in all the owners and that the 1st Respondent is planning to form a proposed society of the said building which it proposes to construct. Further more, as late as 20th October, 2011, a receipt has been issued to one of the flat purchasers which indicates that part of the money that Respondent No.1 has received from said flat purchaser is towards formation of the society. The said receipt reads aswith thanks from Mr. Nitin Radheshyam AgarwalMrs. Nikita Nitin Agarwal a sum of Rs.26,95,504.00 (Rs. Twenty Six Lakh Ninety Five Thousand Five Hundred Four Only) vide cheque/ DD No. 293214603 dateddrawn on Wire Transfer Amount received towards flat cost addl. adm. chsg. legal chgs, install, of water, electricity, Gas connection, Formation of Soc. Dev. Chgs. Club Facility and Service Tax for 4 BHK facingin the building proposed to be called "Springs"."49. We, therefore, find that this unilateral execution and registration of the Deed of Declaration by Respondent No.1 submitting the property to the provisions of the MAO Act cannot be an impediment in Respondent No.2 considering the application of the Petitioners for formation of a
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Central Weaving & Manufacturing Company, Bombay Vs. Mill Mazdoor Sabha, Bombay & Another | to be the earnings during the accounting year and therefore that amount could not be deducted from net profit. As regards capital, the Tribunal accepted the workmens contention that it came to Rs. 3, 52, 457 only and a return at 8.5% on that amount only was claimable as a prior charge. The Tribunal accepted the workmens calculations and allowed bonus at the maximum rate of 20% as demanded by them. Aggrieved by the award, the appellant filed the writ petition which the High Court dismissed summarily presumably on the ground that the said award did not contain any error of law apparent on the face of the record. 2. The only question therefore which counsel raised before us was that the Tribunal was in error in not deducting the said amount of customs duty refund from the net profit and in not allowing as a prior charge return at 8.5% on the whole of the said amount of Rs. 8, 30, 460. 3. As regards the amount of customs duty, the profit and loss account produced by the appellant before the Tribunal showed the refund amount of Rs. 2, 06, 060 on the credit side. On the expenditure side, the appellant had debited sundry amounts, such as excise duty, interest, rent, etc. for the appellant admitted that the appellant was maintaining its accounts on mercantile system and therefore amounts would be credited and debited as they accrued due and not when they were actually received or expended. The amounts debited on the expenditure side, therefore, must have been so done as and when they became due and not when they were actually paid. On the credit side also, the amounts would be credited not when they were received but as and when they accrued due. The amount of customs duty refund consequently would have to be credited as earnings when it was allowed or, and became payable and not when it was actually refunded. That being the position, the Tribunal was clearly right in refusing to deduct the amount of customs duty refund from the said amount of net profit. 4. As to the return on capital, the appellant under Section 6(d), read with Schedule III would be entitled to deduct from the gross profits a return at 8.5% either on the paid up equity share capital as at the commencement of the accounting year if it were to be treated as a company, or a like return on the capital invested by its proprietors as evidenced from its books of accounts at the commencement of the accounting year. We do not, however, understand how the appellant claimed return at 8.5% on Rs. 8, 30, 460 as that amount was shown in the balance-sheet as on December 31, 1964 and not at the commencement of the year. Besides, the said amount has been shown in the balance-sheet as consisting of two items, one of Rs. 3, 52, 157 on which the Tribunal allowed return at 8.5% and the other of Rs. 4, 78, 302.62 being the loss carried forward from the pervious year. One fails to understand how under Section 6(d), read with Schedule III the appellant could possibly have treated the loss carried forward from the precious year as capital invested in the establishment and claim a return thereon. Even as regards Rs. 3, 52, 157, Tribunal was clearly in error in permitting return at 8.5% on that amount, as assuming that it treated that amount as capital brought in the establishment, that amount was not the capital at the commencement but at the close of the year. The amount shown at the commencement of the year was Rs. 3, 59, 090 and if at all any return was to be allowed it would have to be on that amount. But it is clear from the balance-sheet that neither the amount of Rs. 3, 59, 090 not the amount of Rs. 3, 52, 157 could be accepted as capital on which a return at 8.5% under Schedule III has to be allowed. The reason for saying so is that the said two amounts were shown in the balance-sheet as balance to the credit of the proprietors in the account headed as "the proprietors account" at the commencement and at the close of the accounting year. Prima facie, the heading of the account would mean that the appellant maintained a current account in the name of the proprietors, macks Hard (P.) Ltd. That account cannot necessarily mean, unless properly proved (which was never done), that the said two amounts represented the capital brought in or invested in the establishment by the proprietors. For ought we know the said amounts might as well represent past profits due to or advances made from time to time by the proprietors. In either case the balance at the foot of the account would not mean capital. Since no attempt was made to show that the said amounts represented either paid up equity share capital or capital invested by the proprietors at the commencement of the year, the Tribunal ought not to have allowed return at 8.5% on the said balance of Rs. 3, 52, 157 and its deduction as a prior charge from the gross profits. It appears that the Tribunal was misled into accepting the said amount of Rs. 3, 52, 157 as capital brought in by the proprietors without the appellant having produced and proof thereof and also because the workmen had shown Rs. 5, 43, 774 in their said calculations as capital on the basis of the Kachha balance-sheet supplied to them. We are, however, not in a position to revise the calculations made by the Tribunal as the workmen have not filed any appeal against that part of the Tribunals award. In our view the appellants contention for the deduction of the customs duty refund and for return on Rs. 8, 30, 460 and its deduction from the gross profits were untenable and were rightly rejected by the Tribunal. | 0[ds]3. As regards the amount of customs duty, the profit and loss account produced by the appellant before the Tribunal showed the refund amount of Rs. 2, 06, 060 on the credit side. On the expenditure side, the appellant had debited sundry amounts, such as excise duty, interest, rent, etc. for the appellant admitted that the appellant was maintaining its accounts on mercantile system and therefore amounts would be credited and debited as they accrued due and not when they were actually received or expended. The amounts debited on the expenditure side, therefore, must have been so done as and when they became due and not when they were actually paid. On the credit side also, the amounts would be credited not when they were received but as and when they accrued due. The amount of customs duty refund consequently would have to be credited as earnings when it was allowed or, and became payable and not when it was actually refunded. That being the position, the Tribunal was clearly right in refusing to deduct the amount of customs duty refund from the said amount of net profit4. As to the return on capital, the appellant under Section 6(d), read with Schedule III would be entitled to deduct from the gross profits a return at 8.5% either on the paid up equity share capital as at the commencement of the accounting year if it were to be treated as a company, or a like return on the capital invested by its proprietors as evidenced from its books of accounts at the commencement of the accounting year. We do not, however, understand how the appellant claimed return at 8.5% on Rs. 8, 30, 460 as that amount was shown in the balance-sheet as on December 31, 1964 and not at the commencement of the year. Besides, the said amount has been shown in the balance-sheet as consisting of two items, one of Rs. 3, 52, 157 on which the Tribunal allowed return at 8.5% and the other of Rs. 4, 78, 302.62 being the loss carried forward from the pervious year. One fails to understand how under Section 6(d), read with Schedule III the appellant could possibly have treated the loss carried forward from the precious year as capital invested in the establishment and claim a return thereon. Even as regards Rs. 3, 52, 157, Tribunal was clearly in error in permitting return at 8.5% on that amount, as assuming that it treated that amount as capital brought in the establishment, that amount was not the capital at the commencement but at the close of the year. The amount shown at the commencement of the year was Rs. 3, 59, 090 and if at all any return was to be allowed it would have to be on that amount. But it is clear from the balance-sheet that neither the amount of Rs. 3, 59, 090 not the amount of Rs. 3, 52, 157 could be accepted as capital on which a return at 8.5% under Schedule III has to be allowed. The reason for saying so is that the said two amounts were shown in the balance-sheet as balance to the credit of the proprietors in the account headed as "the proprietors account" at the commencement and at the close of the accounting year. Prima facie, the heading of the account would mean that the appellant maintained a current account in the name of the proprietors, macks Hard (P.) Ltd. That account cannot necessarily mean, unless properly proved (which was never done), that the said two amounts represented the capital brought in or invested in the establishment by the proprietors. For ought we know the said amounts might as well represent past profits due to or advances made from time to time by the proprietors. In either case the balance at the foot of the account would not mean capital. Since no attempt was made to show that the said amounts represented either paid up equity share capital or capital invested by the proprietors at the commencement of the year, the Tribunal ought not to have allowed return at 8.5% on the said balance of Rs. 3, 52, 157 and its deduction as a prior charge from the gross profits. It appears that the Tribunal was misled into accepting the said amount of Rs. 3, 52, 157 as capital brought in by the proprietors without the appellant having produced and proof thereof and also because the workmen had shown Rs. 5, 43, 774 in their said calculations as capital on the basis of the Kachha balance-sheet supplied to them. We are, however, not in a position to revise the calculations made by the Tribunal as the workmen have not filed any appeal against that part of the Tribunals award. In our view the appellants contention for the deduction of the customs duty refund and for return on Rs. 8, 30, 460 and its deduction from the gross profits were untenable and were rightly rejected by the Tribunal. | 0 | 1,719 | 948 | ### 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 be the earnings during the accounting year and therefore that amount could not be deducted from net profit. As regards capital, the Tribunal accepted the workmens contention that it came to Rs. 3, 52, 457 only and a return at 8.5% on that amount only was claimable as a prior charge. The Tribunal accepted the workmens calculations and allowed bonus at the maximum rate of 20% as demanded by them. Aggrieved by the award, the appellant filed the writ petition which the High Court dismissed summarily presumably on the ground that the said award did not contain any error of law apparent on the face of the record. 2. The only question therefore which counsel raised before us was that the Tribunal was in error in not deducting the said amount of customs duty refund from the net profit and in not allowing as a prior charge return at 8.5% on the whole of the said amount of Rs. 8, 30, 460. 3. As regards the amount of customs duty, the profit and loss account produced by the appellant before the Tribunal showed the refund amount of Rs. 2, 06, 060 on the credit side. On the expenditure side, the appellant had debited sundry amounts, such as excise duty, interest, rent, etc. for the appellant admitted that the appellant was maintaining its accounts on mercantile system and therefore amounts would be credited and debited as they accrued due and not when they were actually received or expended. The amounts debited on the expenditure side, therefore, must have been so done as and when they became due and not when they were actually paid. On the credit side also, the amounts would be credited not when they were received but as and when they accrued due. The amount of customs duty refund consequently would have to be credited as earnings when it was allowed or, and became payable and not when it was actually refunded. That being the position, the Tribunal was clearly right in refusing to deduct the amount of customs duty refund from the said amount of net profit. 4. As to the return on capital, the appellant under Section 6(d), read with Schedule III would be entitled to deduct from the gross profits a return at 8.5% either on the paid up equity share capital as at the commencement of the accounting year if it were to be treated as a company, or a like return on the capital invested by its proprietors as evidenced from its books of accounts at the commencement of the accounting year. We do not, however, understand how the appellant claimed return at 8.5% on Rs. 8, 30, 460 as that amount was shown in the balance-sheet as on December 31, 1964 and not at the commencement of the year. Besides, the said amount has been shown in the balance-sheet as consisting of two items, one of Rs. 3, 52, 157 on which the Tribunal allowed return at 8.5% and the other of Rs. 4, 78, 302.62 being the loss carried forward from the pervious year. One fails to understand how under Section 6(d), read with Schedule III the appellant could possibly have treated the loss carried forward from the precious year as capital invested in the establishment and claim a return thereon. Even as regards Rs. 3, 52, 157, Tribunal was clearly in error in permitting return at 8.5% on that amount, as assuming that it treated that amount as capital brought in the establishment, that amount was not the capital at the commencement but at the close of the year. The amount shown at the commencement of the year was Rs. 3, 59, 090 and if at all any return was to be allowed it would have to be on that amount. But it is clear from the balance-sheet that neither the amount of Rs. 3, 59, 090 not the amount of Rs. 3, 52, 157 could be accepted as capital on which a return at 8.5% under Schedule III has to be allowed. The reason for saying so is that the said two amounts were shown in the balance-sheet as balance to the credit of the proprietors in the account headed as "the proprietors account" at the commencement and at the close of the accounting year. Prima facie, the heading of the account would mean that the appellant maintained a current account in the name of the proprietors, macks Hard (P.) Ltd. That account cannot necessarily mean, unless properly proved (which was never done), that the said two amounts represented the capital brought in or invested in the establishment by the proprietors. For ought we know the said amounts might as well represent past profits due to or advances made from time to time by the proprietors. In either case the balance at the foot of the account would not mean capital. Since no attempt was made to show that the said amounts represented either paid up equity share capital or capital invested by the proprietors at the commencement of the year, the Tribunal ought not to have allowed return at 8.5% on the said balance of Rs. 3, 52, 157 and its deduction as a prior charge from the gross profits. It appears that the Tribunal was misled into accepting the said amount of Rs. 3, 52, 157 as capital brought in by the proprietors without the appellant having produced and proof thereof and also because the workmen had shown Rs. 5, 43, 774 in their said calculations as capital on the basis of the Kachha balance-sheet supplied to them. We are, however, not in a position to revise the calculations made by the Tribunal as the workmen have not filed any appeal against that part of the Tribunals award. In our view the appellants contention for the deduction of the customs duty refund and for return on Rs. 8, 30, 460 and its deduction from the gross profits were untenable and were rightly rejected by the Tribunal.
### Response:
0
### Explanation:
3. As regards the amount of customs duty, the profit and loss account produced by the appellant before the Tribunal showed the refund amount of Rs. 2, 06, 060 on the credit side. On the expenditure side, the appellant had debited sundry amounts, such as excise duty, interest, rent, etc. for the appellant admitted that the appellant was maintaining its accounts on mercantile system and therefore amounts would be credited and debited as they accrued due and not when they were actually received or expended. The amounts debited on the expenditure side, therefore, must have been so done as and when they became due and not when they were actually paid. On the credit side also, the amounts would be credited not when they were received but as and when they accrued due. The amount of customs duty refund consequently would have to be credited as earnings when it was allowed or, and became payable and not when it was actually refunded. That being the position, the Tribunal was clearly right in refusing to deduct the amount of customs duty refund from the said amount of net profit4. As to the return on capital, the appellant under Section 6(d), read with Schedule III would be entitled to deduct from the gross profits a return at 8.5% either on the paid up equity share capital as at the commencement of the accounting year if it were to be treated as a company, or a like return on the capital invested by its proprietors as evidenced from its books of accounts at the commencement of the accounting year. We do not, however, understand how the appellant claimed return at 8.5% on Rs. 8, 30, 460 as that amount was shown in the balance-sheet as on December 31, 1964 and not at the commencement of the year. Besides, the said amount has been shown in the balance-sheet as consisting of two items, one of Rs. 3, 52, 157 on which the Tribunal allowed return at 8.5% and the other of Rs. 4, 78, 302.62 being the loss carried forward from the pervious year. One fails to understand how under Section 6(d), read with Schedule III the appellant could possibly have treated the loss carried forward from the precious year as capital invested in the establishment and claim a return thereon. Even as regards Rs. 3, 52, 157, Tribunal was clearly in error in permitting return at 8.5% on that amount, as assuming that it treated that amount as capital brought in the establishment, that amount was not the capital at the commencement but at the close of the year. The amount shown at the commencement of the year was Rs. 3, 59, 090 and if at all any return was to be allowed it would have to be on that amount. But it is clear from the balance-sheet that neither the amount of Rs. 3, 59, 090 not the amount of Rs. 3, 52, 157 could be accepted as capital on which a return at 8.5% under Schedule III has to be allowed. The reason for saying so is that the said two amounts were shown in the balance-sheet as balance to the credit of the proprietors in the account headed as "the proprietors account" at the commencement and at the close of the accounting year. Prima facie, the heading of the account would mean that the appellant maintained a current account in the name of the proprietors, macks Hard (P.) Ltd. That account cannot necessarily mean, unless properly proved (which was never done), that the said two amounts represented the capital brought in or invested in the establishment by the proprietors. For ought we know the said amounts might as well represent past profits due to or advances made from time to time by the proprietors. In either case the balance at the foot of the account would not mean capital. Since no attempt was made to show that the said amounts represented either paid up equity share capital or capital invested by the proprietors at the commencement of the year, the Tribunal ought not to have allowed return at 8.5% on the said balance of Rs. 3, 52, 157 and its deduction as a prior charge from the gross profits. It appears that the Tribunal was misled into accepting the said amount of Rs. 3, 52, 157 as capital brought in by the proprietors without the appellant having produced and proof thereof and also because the workmen had shown Rs. 5, 43, 774 in their said calculations as capital on the basis of the Kachha balance-sheet supplied to them. We are, however, not in a position to revise the calculations made by the Tribunal as the workmen have not filed any appeal against that part of the Tribunals award. In our view the appellants contention for the deduction of the customs duty refund and for return on Rs. 8, 30, 460 and its deduction from the gross profits were untenable and were rightly rejected by the Tribunal.
|
O.J. Coelho Vs. M/S. Fgp Limited & Others | copy of the application for VRS, accepting the application and directing his release by the end of the month. There is no material on record to show that Mr. Srinivasan who was a Technical manager had any authority to accept the complainants application. We have stated here-in-above that the complainants witness Mr. Talathi has categorically asserted in his evidence that the persons who could accept an application for VRS made by the employee were either the Managing director or the President of the company. It is also surprising that an endorsement was made on the copy of the applicant and not on the original application in the records of the company. We do not feel it necessary to dialate further on this aspect of the matter. 8. The Industrial Court and the learned single Judge have also concluded that the complainant of the complainant was filed beyond the period of limitation prescribed under Section 28 of the MRTU & PULP Act 1971 and that there was no adequate ground for condonation of delay. In this regard, the Advocate for the complainant relied upon the Judgment of the Apex Court in the case of Collector, Land Acquisition, Anantnag and Anr. V/s. Mst. Katiji & Ors. reported in AIR 1987 Supreme Court 1353, in which the Apex Court has observed as under:- Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. Every days delay must be explained does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 9. In the present case, we are not condoning the delay but are required to consider a different issue as to whether the non condonation of delay by the Industrial court as found to have been correctly done by a single Judge of this court can be said to be perverse. In our view, the Industrial court has rightly held that the reason given for the late filing of the complaint viz. that the unfair labour practices committed were of a continuing and recurring nature, was not tenable, is correct. The benefits under VRS become grantable immediately on the acceptance of an application of the claimant. In the present case it can be seen that the respondent-company vide its letter dated 25.8.1994 had categorically informed the complainant that VRS had not been granted to him and that his services were terminated on the footing that he had abandoned his service. The learned Advocate for the complainant contended that thereafter he has written several letters but in our view, once the employee was categorically informed that VRS has not been granted to him, the mere writing of letter claiming dues could not be by itself a sufficient ground for condoning the gross delay in filing the complaint. We find that after this letter dated 25.8.1996 there is a delay of almost 1 year and 8 months as the complaint came to be filed on 24.5.1996. In our view, the reasons for non-condoning of the delay as contained in the impugned Judgment cannot be said to be perverse. Apart from this we have already concluded here-in-above that there is no merit in the applicants contention relating to his application for VRS being accepted. This is another ground as to why ratio of the Apex Court in the judgment cited would not be applicable to the present case. 10. The Industrial court has further held that the complainant was not a workmen within the meaning of Section 3(5) of the MRTU & PULP Act 1971. This finding has been confirmed in the impugned order passed by a single Judge of this court. It appears that the designation of the complainant at the time when he applied for VRS was Manager-Sales Tax/Fixed Assets. We are aware that a designation by itself would not be definitive test to decide whether an employee can be said to be a workman. The Industrial Court however, has perused the evidence pertaining to the nature of the complainants job while in service. A reference has been made to several promotions granted to the complainant. The Industrial court referred to several letters which were produced in the evidence in which the complainant had signed as a Manager. It is noted that the letter (Exh.C-18) indicated that the complainant was representing the company in sales tax matters and was writing letters to the Bank under his signature for part payment of sales tax. That the sales tax returns were being signed by the complainant in the capacity of Manager-Sales Tax and the complainant was also dealing with the different departments in relation to sales tax matters. The Industrial court concluded that these activities could not be said to be purely clerical in nature. In order to escape from the rigorous of these letters, the complainant had deposed that he was writing such letters under the instructions of his superior Mr. Joshi. The Industrial court however, concluded that these letters indicated that he had signed as a Manager and the persons who had typed and dictated the letters were below his grade. The Industrial Court concluded that the job being done by the complainant could not be said to be clerical in nature but indicated that the complainant was working in a managerial capacity. The single Judge has concurred with the reasons given by the Industrial court. In our view, there is no reason to hold that the conclusion based on these findings can be said to be perverse. | 0[ds]9. In the present case, we are not condoning the delay but are required to consider a different issue as to whether the non condonation of delay by the Industrial court as found to have been correctly done by a single Judge of this court can be said to be perverse. In our view, the Industrial court has rightly held that the reason given for the late filing of the complaint viz. that the unfair labour practices committed were of a continuing and recurring nature, was not tenable, is correct. The benefits under VRS become grantable immediately on the acceptance of an application of the claimant. In the present case it can be seen that they vide its letter dated 25.8.1994 had categorically informed the complainant that VRS had not been granted to him and that his services were terminated on the footing that he had abandoned his service. The learned Advocate for the complainant contended that thereafter he has written several letters but in our view, once the employee was categorically informed that VRS has not been granted to him, the mere writing of letter claiming dues could not be by itself a sufficient ground for condoning the gross delay in filing the complaint. We find that after this letter dated 25.8.1996 there is a delay of almost 1 year and 8 months as the complaint came to be filed on 24.5.1996. In our view, the reasons forg of the delay as contained in the impugned Judgment cannot be said to be perverse. Apart from this we have already concludede that there is no merit in the applicants contention relating to his application for VRS being accepted. This is another ground as to why ratio of the Apex Court in the judgment cited would not be applicable to the present case10. The Industrial court has further held that the complainant was not a workmen within the meaning of Section 3(5) of the MRTU & PULP Act 1971. This finding has been confirmed in the impugned order passed by a single Judge of this court. It appears that the designation of the complainant at the time when he applied for VRS wass Tax/Fixed Assets. We are aware that a designation by itself would not be definitive test to decide whether an employee can be said to be a workman. The Industrial Court however, has perused the evidence pertaining to the nature of the complainants job while in service. A reference has been made to several promotions granted to the complainant. The Industrial court referred to several letters which were produced in the evidence in which the complainant had signed as a Manager. It is noted that the letter) indicated that the complainant was representing the company in sales tax matters and was writing letters to the Bank under his signature for part payment of sales tax. That the sales tax returns were being signed by the complainant in the capacity ofs Tax and the complainant was also dealing with the different departments in relation to sales tax matters. The Industrial court concluded that these activities could not be said to be purely clerical in nature. In order to escape from the rigorous of these letters, the complainant had deposed that he was writing such letters under the instructions of his superior Mr. Joshi. The Industrial court however, concluded that these letters indicated that he had signed as a Manager and the persons who had typed and dictated the letters were below his grade. The Industrial Court concluded that the job being done by the complainant could not be said to be clerical in nature but indicated that the complainant was working in a managerial capacity. The single Judge has concurred with the reasons given by the Industrial court. In our view, there is no reason to hold that the conclusion based on these findings can be said to be perverse. | 0 | 5,247 | 696 | ### 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:
copy of the application for VRS, accepting the application and directing his release by the end of the month. There is no material on record to show that Mr. Srinivasan who was a Technical manager had any authority to accept the complainants application. We have stated here-in-above that the complainants witness Mr. Talathi has categorically asserted in his evidence that the persons who could accept an application for VRS made by the employee were either the Managing director or the President of the company. It is also surprising that an endorsement was made on the copy of the applicant and not on the original application in the records of the company. We do not feel it necessary to dialate further on this aspect of the matter. 8. The Industrial Court and the learned single Judge have also concluded that the complainant of the complainant was filed beyond the period of limitation prescribed under Section 28 of the MRTU & PULP Act 1971 and that there was no adequate ground for condonation of delay. In this regard, the Advocate for the complainant relied upon the Judgment of the Apex Court in the case of Collector, Land Acquisition, Anantnag and Anr. V/s. Mst. Katiji & Ors. reported in AIR 1987 Supreme Court 1353, in which the Apex Court has observed as under:- Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. Every days delay must be explained does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 9. In the present case, we are not condoning the delay but are required to consider a different issue as to whether the non condonation of delay by the Industrial court as found to have been correctly done by a single Judge of this court can be said to be perverse. In our view, the Industrial court has rightly held that the reason given for the late filing of the complaint viz. that the unfair labour practices committed were of a continuing and recurring nature, was not tenable, is correct. The benefits under VRS become grantable immediately on the acceptance of an application of the claimant. In the present case it can be seen that the respondent-company vide its letter dated 25.8.1994 had categorically informed the complainant that VRS had not been granted to him and that his services were terminated on the footing that he had abandoned his service. The learned Advocate for the complainant contended that thereafter he has written several letters but in our view, once the employee was categorically informed that VRS has not been granted to him, the mere writing of letter claiming dues could not be by itself a sufficient ground for condoning the gross delay in filing the complaint. We find that after this letter dated 25.8.1996 there is a delay of almost 1 year and 8 months as the complaint came to be filed on 24.5.1996. In our view, the reasons for non-condoning of the delay as contained in the impugned Judgment cannot be said to be perverse. Apart from this we have already concluded here-in-above that there is no merit in the applicants contention relating to his application for VRS being accepted. This is another ground as to why ratio of the Apex Court in the judgment cited would not be applicable to the present case. 10. The Industrial court has further held that the complainant was not a workmen within the meaning of Section 3(5) of the MRTU & PULP Act 1971. This finding has been confirmed in the impugned order passed by a single Judge of this court. It appears that the designation of the complainant at the time when he applied for VRS was Manager-Sales Tax/Fixed Assets. We are aware that a designation by itself would not be definitive test to decide whether an employee can be said to be a workman. The Industrial Court however, has perused the evidence pertaining to the nature of the complainants job while in service. A reference has been made to several promotions granted to the complainant. The Industrial court referred to several letters which were produced in the evidence in which the complainant had signed as a Manager. It is noted that the letter (Exh.C-18) indicated that the complainant was representing the company in sales tax matters and was writing letters to the Bank under his signature for part payment of sales tax. That the sales tax returns were being signed by the complainant in the capacity of Manager-Sales Tax and the complainant was also dealing with the different departments in relation to sales tax matters. The Industrial court concluded that these activities could not be said to be purely clerical in nature. In order to escape from the rigorous of these letters, the complainant had deposed that he was writing such letters under the instructions of his superior Mr. Joshi. The Industrial court however, concluded that these letters indicated that he had signed as a Manager and the persons who had typed and dictated the letters were below his grade. The Industrial Court concluded that the job being done by the complainant could not be said to be clerical in nature but indicated that the complainant was working in a managerial capacity. The single Judge has concurred with the reasons given by the Industrial court. In our view, there is no reason to hold that the conclusion based on these findings can be said to be perverse.
### Response:
0
### Explanation:
9. In the present case, we are not condoning the delay but are required to consider a different issue as to whether the non condonation of delay by the Industrial court as found to have been correctly done by a single Judge of this court can be said to be perverse. In our view, the Industrial court has rightly held that the reason given for the late filing of the complaint viz. that the unfair labour practices committed were of a continuing and recurring nature, was not tenable, is correct. The benefits under VRS become grantable immediately on the acceptance of an application of the claimant. In the present case it can be seen that they vide its letter dated 25.8.1994 had categorically informed the complainant that VRS had not been granted to him and that his services were terminated on the footing that he had abandoned his service. The learned Advocate for the complainant contended that thereafter he has written several letters but in our view, once the employee was categorically informed that VRS has not been granted to him, the mere writing of letter claiming dues could not be by itself a sufficient ground for condoning the gross delay in filing the complaint. We find that after this letter dated 25.8.1996 there is a delay of almost 1 year and 8 months as the complaint came to be filed on 24.5.1996. In our view, the reasons forg of the delay as contained in the impugned Judgment cannot be said to be perverse. Apart from this we have already concludede that there is no merit in the applicants contention relating to his application for VRS being accepted. This is another ground as to why ratio of the Apex Court in the judgment cited would not be applicable to the present case10. The Industrial court has further held that the complainant was not a workmen within the meaning of Section 3(5) of the MRTU & PULP Act 1971. This finding has been confirmed in the impugned order passed by a single Judge of this court. It appears that the designation of the complainant at the time when he applied for VRS wass Tax/Fixed Assets. We are aware that a designation by itself would not be definitive test to decide whether an employee can be said to be a workman. The Industrial Court however, has perused the evidence pertaining to the nature of the complainants job while in service. A reference has been made to several promotions granted to the complainant. The Industrial court referred to several letters which were produced in the evidence in which the complainant had signed as a Manager. It is noted that the letter) indicated that the complainant was representing the company in sales tax matters and was writing letters to the Bank under his signature for part payment of sales tax. That the sales tax returns were being signed by the complainant in the capacity ofs Tax and the complainant was also dealing with the different departments in relation to sales tax matters. The Industrial court concluded that these activities could not be said to be purely clerical in nature. In order to escape from the rigorous of these letters, the complainant had deposed that he was writing such letters under the instructions of his superior Mr. Joshi. The Industrial court however, concluded that these letters indicated that he had signed as a Manager and the persons who had typed and dictated the letters were below his grade. The Industrial Court concluded that the job being done by the complainant could not be said to be clerical in nature but indicated that the complainant was working in a managerial capacity. The single Judge has concurred with the reasons given by the Industrial court. In our view, there is no reason to hold that the conclusion based on these findings can be said to be perverse.
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GWALIOR DEVELOPMENT AUTHORITY GWALIOR Vs. SUBHASH SAXENA & OTHERS | 31203 of 2014 is filed by the State of Madhya Pradesh challenging the Judgment in Writ Appeal No. 48 of 2014. Writ Appeal No. 48 of 2014 was filed by the State and it came to be dismissed on the basis of the Judgment in Writ Appeal No. 327 of 2013, which was filed by Respondent Nos. 3 and 4 in Writ Petition No. 8199 of 2003. It is to be noticed that the State was the first respondent in the Writ Petition. The Judgment in Writ Appeal No. 327 of 2013, having been dismissed, and the State being party to the same, it was incumbent upon the State to challenge the Judgment in Writ Appeal No. 327 of 2013. The State in the Special Leave Petition has challenged only the Judgment in Writ Appeal No. 48 of 2014, which was rendered, no doubt, following the Judgment in Writ Appeal No. 327 of 2013. The Judgment in Writ Appeal No. 327 of 2013 would remain final as regards the State of Madhya Pradesh. Therefore, it may not be legal or proper to further consider the challenge at the instance of the State, when it is directed only against the Judgment in Writ Appeal No. 48 of 2014. Similarly, we notice that Special Leave Petition, filed by the GDA is directed against the Judgment in Writ Appeal No. 481 of 2013. It is true that Writ Appeal No. 481 of 2013 was filed by the GDA against Order in Writ Petition No. 8199 of 2003, (as can be seen from Annexure-P16 at page-101 of the paper book). In Writ Appeal No. 327 of 2013, filed by the private parties in the very same Writ Petition, and wherein, the GDA was, admittedly, a party, viz., Writ Appeal No. 327 of 2013, the Division Bench has upheld the Judgment of the learned Single Judge. The GDA, being the party therein, challenged only the Judgment in Writ Appeal No. 481 of 2013, which was the Appeal filed by the GDA. It cannot be permitted to be proceeded with, as it would result in the Judgment in Writ Appeal No. 327 of 2013, which has become final, as far as GDA is concerned, becoming inconsistent with any Judgment, which we may render in favour of the GDA. 30. As far as the Special Leave Petitions, filed by the private parties are concerned, they are three in number. They have obtained the permission of this Court. We have noticed that initially Government had published a final Gradation List as on 01.07.1995. Therein the first respondent was shown at serial no. 2 in the Cadre of Assistant Engineer and he was shown as absorbed. Only Shri B.B. Mathur and Shri Devdutt Mishra, Assistant Engineers, working in the GDA, approached the Government. Government, no doubt, issued direction dated 30.07.2003, to delete the name of the first respondent. This, undoubtedly, led to the Writ Petition No. 8199 of 2003. Respondent Nos. 3 and 4 therein were Shri B.B. Mathur and Shri Devdutt Mishra. They were the persons, who had challenged the seniority of the first respondent. We notice that Shri Shirish More, one amongst the petitioners before us, who had filed Special Leave Petition, after getting permission, came to be promoted on 10.10.1991 to the post of Assistant Engineer. In the combined Gradation List dated 29.11.2006, in fact, he is shown at serial no. 82A. Shri B.B. Mathur and Shri Devdutt Mishra were shown at serial nos. 54 and 59. The other two Special Leave Petitioners before us, viz., Shri G.N. Singh and Shri Nishat Azim were at serial nos. 58 and 56, respectively. What we would notice is, none of the petitioners before us, viz., the employees, have even challenged the final Seniority List dated 01.07.2003, as per which, respondent no.1, was shown at serial no.2, in the final Gradation List. Further, we may notice that if they were relying on the fact that the parties-respondents in the writ petition filed by the first respondent and the appellants before the High Court, were following up on their behalf also, then, the fact that Shri Bharat Bihari Mathur and Shri Dev Dutt Mishra have filed the Special Leave Petition before this Court and the petition stands dismissed, would be an obstacle for entertaining their case. The further fact that even the Review Petition was dismissed and what is more, a Curative Petition was dismissed, would stand in their way, all the more. Having regard to the passage of time, which has also witnessed dismissal of the Special Leave Petitions by the appellants (private respondents in the Writ Petition filed by the first respondent), Review and Curative Petition, at any rate, we do not think that we should disturb the impugned judgment. 31. The fact of the matter is that first respondent was transferred in the year 1988 as Assistant Engineer and he joined in GDA immediately thereafter and he continued to work there. In fact, as noticed in the first final seniority list dated 01.07.2003, he is shown as absorbed in the GDA. It may be true that in the letter dated 09.11.1995, it is not specifically stated that respondent was absorbed in the GDA, and it is indicated that his name will be included in the Joint Gradation List of the remaining SADA (i.e., the SADA not abolished under the notification dated 22.6.1995). It is further indicated that he is the employee of the Housing and Environment Department. As regards, determining seniority w.e.f. 1994, when first respondent would complete 12 years as Sub Engineer, it is tied up with the issue of the illegality of his promotion in 1987 without completing 12 years. More importantly, even proceeding to discern any merit that seniority should, at least, be governed with reference to the requirement of 12 years, in the facts of this case, for reasons we have indicated already, we decline to interfere, bearing in mind also Article 136 of the Constitution of India, which has facilitated these appeals. | 0[ds]23. The power of supervision and control goes to acts and proceedings of the officers appointed under Section 3 and the authorities constituted under the Act. It means that the authority relates to the decisions or acts, which are taken by officers appointed under Section 3, or the authorities under the Act. It may not extend to power to control the service of the employees of the authority or SADA. In fact, the Division Bench of the High court in M.D. Awasthy v. State of M.P. and Another 1988 SCC OnLine MP 86 dealing with the case where the petitioner therein, who was the employee of the Development Authority, was transferred to a Town Improvement Trust. This was passed with the approval of the Chairman of the Development Authority. By another order his service was terminated, which was also approved by the Chairman. There Orders were challenged. The Division Bench, inter alia, held as follows:… Reference to sections 72 and 73 on which reliance was placed only authorise the State government to hive power of superintendence and control over the acts and proceedings of the officers appointed under section 3 and the authorities constituted under the Act. Certainly this will not include a power to call back the services of any officer, jr. servants of the Development Authority and to place those services under the disposal of altogether a different authority. Reference to section 73 is also misplaced as it only provides that the authorities constituted under the Act shall be bound by such directions in the matter of policy as may be given to them by the State Government...24. The counsel for the State Government has rightly not placed reliance on Section 73 which relates to power to issue directions in the matter of policy.25. As far as the contention against the very promotion made in the year 1987 of the first respondent being flawed on the basis of the order, which was issued, providing that the PWD rules would apply and thus the first respondent who was appointed as Sub Engineer required 12 years to be promoted as an Assistant Engineer, what is clear is, the first respondent was promoted in the year 1987. Promotion was based on Seniority-cum-merit. There is no dispute that his employer, viz., SADA Malajkhand, was competent to take a decision otherwise.The High Court finds that the objection is raised after twenty years. It is found that no instruction was given to SADA, Malajkhand. There was no provision in the rules. After 27 years, the promotion could not be revisited. In fact, after the promotion it was the Government, which transferred him as an Assistant Engineer and posted him at GDA. The view taken in the matter in the circumstances cannot be faulted. In the final seniority list dated 01.07.2003 wherein the first respondent was shown at Serial No.2, the final upgradation list of Assistant Engineer indicated that he was absorbed. This is a list which is brought out by the GDA itself.28. However, in the impugned judgment, it is found that Government framed the Madhya Pradesh Development Authority Service officers and servants Recruitment Rules, 1988. The High court has relied upon Rule 3 of the 1976 and 1988 Rules to find that Government was authorised to transfer an employee from one Authority to another Authority and that the transfer of respondent no.1 was in accordance with the rules. We cannot accept the argument of the State that it was a case of deputation in the facts. We have noticed that Section 72 does not also support the claim.29. Special Leave Petition (Civil) No. 31203 of 2014 is filed by the State of Madhya Pradesh challenging the Judgment in Writ Appeal No. 48 of 2014. Writ Appeal No. 48 of 2014 was filed by the State and it came to be dismissed on the basis of the Judgment in Writ Appeal No. 327 of 2013, which was filed by Respondent Nos. 3 and 4 in Writ Petition No. 8199 of 2003. It is to be noticed that the State was the first respondent in the Writ Petition. The Judgment in Writ Appeal No. 327 of 2013, having been dismissed, and the State being party to the same, it was incumbent upon the State to challenge the Judgment in Writ Appeal No. 327 of 2013. The State in the Special Leave Petition has challenged only the Judgment in Writ Appeal No. 48 of 2014, which was rendered, no doubt, following the Judgment in Writ Appeal No. 327 of 2013. The Judgment in Writ Appeal No. 327 of 2013 would remain final as regards the State of Madhya Pradesh. Therefore, it may not be legal or proper to further consider the challenge at the instance of the State, when it is directed only against the Judgment in Writ Appeal No. 48 of 2014. Similarly, we notice that Special Leave Petition, filed by the GDA is directed against the Judgment in Writ Appeal No. 481 of 2013. It is true that Writ Appeal No. 481 of 2013 was filed by the GDA against Order in Writ Petition No. 8199 of 2003, (as can be seen from Annexure-P16 at page-101 of the paper book). In Writ Appeal No. 327 of 2013, filed by the private parties in the very same Writ Petition, and wherein, the GDA was, admittedly, a party, viz., Writ Appeal No. 327 of 2013, the Division Bench has upheld the Judgment of the learned Single Judge. The GDA, being the party therein, challenged only the Judgment in Writ Appeal No. 481 of 2013, which was the Appeal filed by the GDA. It cannot be permitted to be proceeded with, as it would result in the Judgment in Writ Appeal No. 327 of 2013, which has become final, as far as GDA is concerned, becoming inconsistent with any Judgment, which we may render in favour of the GDA.30. As far as the Special Leave Petitions, filed by the private parties are concerned, they are three in number. They have obtained the permission of this Court. We have noticed that initially Government had published a final Gradation List as on 01.07.1995. Therein the first respondent was shown at serial no. 2 in the Cadre of Assistant Engineer and he was shown as absorbed. Only Shri B.B. Mathur and Shri Devdutt Mishra, Assistant Engineers, working in the GDA, approached the Government. Government, no doubt, issued direction dated 30.07.2003, to delete the name of the first respondent. This, undoubtedly, led to the Writ Petition No. 8199 of 2003. Respondent Nos. 3 and 4 therein were Shri B.B. Mathur and Shri Devdutt Mishra. They were the persons, who had challenged the seniority of the first respondent. We notice that Shri Shirish More, one amongst the petitioners before us, who had filed Special Leave Petition, after getting permission, came to be promoted on 10.10.1991 to the post of Assistant Engineer. In the combined Gradation List dated 29.11.2006, in fact, he is shown at serial no. 82A. Shri B.B. Mathur and Shri Devdutt Mishra were shown at serial nos. 54 and 59. The other two Special Leave Petitioners before us, viz., Shri G.N. Singh and Shri Nishat Azim were at serial nos. 58 and 56, respectively. What we would notice is, none of the petitioners before us, viz., the employees, have even challenged the final Seniority List dated 01.07.2003, as per which, respondent no.1, was shown at serial no.2, in the final Gradation List. Further, we may notice that if they were relying on the fact that the parties-respondents in the writ petition filed by the first respondent and the appellants before the High Court, were following up on their behalf also, then, the fact that Shri Bharat Bihari Mathur and Shri Dev Dutt Mishra have filed the Special Leave Petition before this Court and the petition stands dismissed, would be an obstacle for entertaining their case. The further fact that even the Review Petition was dismissed and what is more, a Curative Petition was dismissed, would stand in their way, all the more.Having regard to the passage of time, which has also witnessed dismissal of the Special Leave Petitions by the appellants (private respondents in the Writ Petition filed by the first respondent), Review and Curative Petition, at any rate, we do not think that we should disturb the impugned judgment.31. The fact of the matter is that first respondent was transferred in the year 1988 as Assistant Engineer and he joined in GDA immediately thereafter and he continued to work there. In fact, as noticed in the first final seniority list dated 01.07.2003, he is shown as absorbed in the GDA. It may be true that in the letter dated 09.11.1995, it is not specifically stated that respondent was absorbed in the GDA, and it is indicated that his name will be included in the Joint Gradation List of the remaining SADA (i.e., the SADA not abolished under the notification dated 22.6.1995). It is further indicated that he is the employee of the Housing and Environment Department. As regards, determining seniority w.e.f. 1994, when first respondent would complete 12 years as Sub Engineer, it is tied up with the issue of the illegality of his promotion in 1987 without completing 12 years. More importantly, even proceeding to discern any merit that seniority should, at least, be governed with reference to the requirement of 12 years, in the facts of this case, for reasons we have indicated already, we decline to interfere, bearing in mind also Article 136 of the Constitution of India, which has facilitated these appeals. | 0 | 6,265 | 1,816 | ### 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:
31203 of 2014 is filed by the State of Madhya Pradesh challenging the Judgment in Writ Appeal No. 48 of 2014. Writ Appeal No. 48 of 2014 was filed by the State and it came to be dismissed on the basis of the Judgment in Writ Appeal No. 327 of 2013, which was filed by Respondent Nos. 3 and 4 in Writ Petition No. 8199 of 2003. It is to be noticed that the State was the first respondent in the Writ Petition. The Judgment in Writ Appeal No. 327 of 2013, having been dismissed, and the State being party to the same, it was incumbent upon the State to challenge the Judgment in Writ Appeal No. 327 of 2013. The State in the Special Leave Petition has challenged only the Judgment in Writ Appeal No. 48 of 2014, which was rendered, no doubt, following the Judgment in Writ Appeal No. 327 of 2013. The Judgment in Writ Appeal No. 327 of 2013 would remain final as regards the State of Madhya Pradesh. Therefore, it may not be legal or proper to further consider the challenge at the instance of the State, when it is directed only against the Judgment in Writ Appeal No. 48 of 2014. Similarly, we notice that Special Leave Petition, filed by the GDA is directed against the Judgment in Writ Appeal No. 481 of 2013. It is true that Writ Appeal No. 481 of 2013 was filed by the GDA against Order in Writ Petition No. 8199 of 2003, (as can be seen from Annexure-P16 at page-101 of the paper book). In Writ Appeal No. 327 of 2013, filed by the private parties in the very same Writ Petition, and wherein, the GDA was, admittedly, a party, viz., Writ Appeal No. 327 of 2013, the Division Bench has upheld the Judgment of the learned Single Judge. The GDA, being the party therein, challenged only the Judgment in Writ Appeal No. 481 of 2013, which was the Appeal filed by the GDA. It cannot be permitted to be proceeded with, as it would result in the Judgment in Writ Appeal No. 327 of 2013, which has become final, as far as GDA is concerned, becoming inconsistent with any Judgment, which we may render in favour of the GDA. 30. As far as the Special Leave Petitions, filed by the private parties are concerned, they are three in number. They have obtained the permission of this Court. We have noticed that initially Government had published a final Gradation List as on 01.07.1995. Therein the first respondent was shown at serial no. 2 in the Cadre of Assistant Engineer and he was shown as absorbed. Only Shri B.B. Mathur and Shri Devdutt Mishra, Assistant Engineers, working in the GDA, approached the Government. Government, no doubt, issued direction dated 30.07.2003, to delete the name of the first respondent. This, undoubtedly, led to the Writ Petition No. 8199 of 2003. Respondent Nos. 3 and 4 therein were Shri B.B. Mathur and Shri Devdutt Mishra. They were the persons, who had challenged the seniority of the first respondent. We notice that Shri Shirish More, one amongst the petitioners before us, who had filed Special Leave Petition, after getting permission, came to be promoted on 10.10.1991 to the post of Assistant Engineer. In the combined Gradation List dated 29.11.2006, in fact, he is shown at serial no. 82A. Shri B.B. Mathur and Shri Devdutt Mishra were shown at serial nos. 54 and 59. The other two Special Leave Petitioners before us, viz., Shri G.N. Singh and Shri Nishat Azim were at serial nos. 58 and 56, respectively. What we would notice is, none of the petitioners before us, viz., the employees, have even challenged the final Seniority List dated 01.07.2003, as per which, respondent no.1, was shown at serial no.2, in the final Gradation List. Further, we may notice that if they were relying on the fact that the parties-respondents in the writ petition filed by the first respondent and the appellants before the High Court, were following up on their behalf also, then, the fact that Shri Bharat Bihari Mathur and Shri Dev Dutt Mishra have filed the Special Leave Petition before this Court and the petition stands dismissed, would be an obstacle for entertaining their case. The further fact that even the Review Petition was dismissed and what is more, a Curative Petition was dismissed, would stand in their way, all the more. Having regard to the passage of time, which has also witnessed dismissal of the Special Leave Petitions by the appellants (private respondents in the Writ Petition filed by the first respondent), Review and Curative Petition, at any rate, we do not think that we should disturb the impugned judgment. 31. The fact of the matter is that first respondent was transferred in the year 1988 as Assistant Engineer and he joined in GDA immediately thereafter and he continued to work there. In fact, as noticed in the first final seniority list dated 01.07.2003, he is shown as absorbed in the GDA. It may be true that in the letter dated 09.11.1995, it is not specifically stated that respondent was absorbed in the GDA, and it is indicated that his name will be included in the Joint Gradation List of the remaining SADA (i.e., the SADA not abolished under the notification dated 22.6.1995). It is further indicated that he is the employee of the Housing and Environment Department. As regards, determining seniority w.e.f. 1994, when first respondent would complete 12 years as Sub Engineer, it is tied up with the issue of the illegality of his promotion in 1987 without completing 12 years. More importantly, even proceeding to discern any merit that seniority should, at least, be governed with reference to the requirement of 12 years, in the facts of this case, for reasons we have indicated already, we decline to interfere, bearing in mind also Article 136 of the Constitution of India, which has facilitated these appeals.
### Response:
0
### Explanation:
Petition (Civil) No. 31203 of 2014 is filed by the State of Madhya Pradesh challenging the Judgment in Writ Appeal No. 48 of 2014. Writ Appeal No. 48 of 2014 was filed by the State and it came to be dismissed on the basis of the Judgment in Writ Appeal No. 327 of 2013, which was filed by Respondent Nos. 3 and 4 in Writ Petition No. 8199 of 2003. It is to be noticed that the State was the first respondent in the Writ Petition. The Judgment in Writ Appeal No. 327 of 2013, having been dismissed, and the State being party to the same, it was incumbent upon the State to challenge the Judgment in Writ Appeal No. 327 of 2013. The State in the Special Leave Petition has challenged only the Judgment in Writ Appeal No. 48 of 2014, which was rendered, no doubt, following the Judgment in Writ Appeal No. 327 of 2013. The Judgment in Writ Appeal No. 327 of 2013 would remain final as regards the State of Madhya Pradesh. Therefore, it may not be legal or proper to further consider the challenge at the instance of the State, when it is directed only against the Judgment in Writ Appeal No. 48 of 2014. Similarly, we notice that Special Leave Petition, filed by the GDA is directed against the Judgment in Writ Appeal No. 481 of 2013. It is true that Writ Appeal No. 481 of 2013 was filed by the GDA against Order in Writ Petition No. 8199 of 2003, (as can be seen from Annexure-P16 at page-101 of the paper book). In Writ Appeal No. 327 of 2013, filed by the private parties in the very same Writ Petition, and wherein, the GDA was, admittedly, a party, viz., Writ Appeal No. 327 of 2013, the Division Bench has upheld the Judgment of the learned Single Judge. The GDA, being the party therein, challenged only the Judgment in Writ Appeal No. 481 of 2013, which was the Appeal filed by the GDA. It cannot be permitted to be proceeded with, as it would result in the Judgment in Writ Appeal No. 327 of 2013, which has become final, as far as GDA is concerned, becoming inconsistent with any Judgment, which we may render in favour of the GDA.30. As far as the Special Leave Petitions, filed by the private parties are concerned, they are three in number. They have obtained the permission of this Court. We have noticed that initially Government had published a final Gradation List as on 01.07.1995. Therein the first respondent was shown at serial no. 2 in the Cadre of Assistant Engineer and he was shown as absorbed. Only Shri B.B. Mathur and Shri Devdutt Mishra, Assistant Engineers, working in the GDA, approached the Government. Government, no doubt, issued direction dated 30.07.2003, to delete the name of the first respondent. This, undoubtedly, led to the Writ Petition No. 8199 of 2003. Respondent Nos. 3 and 4 therein were Shri B.B. Mathur and Shri Devdutt Mishra. They were the persons, who had challenged the seniority of the first respondent. We notice that Shri Shirish More, one amongst the petitioners before us, who had filed Special Leave Petition, after getting permission, came to be promoted on 10.10.1991 to the post of Assistant Engineer. In the combined Gradation List dated 29.11.2006, in fact, he is shown at serial no. 82A. Shri B.B. Mathur and Shri Devdutt Mishra were shown at serial nos. 54 and 59. The other two Special Leave Petitioners before us, viz., Shri G.N. Singh and Shri Nishat Azim were at serial nos. 58 and 56, respectively. What we would notice is, none of the petitioners before us, viz., the employees, have even challenged the final Seniority List dated 01.07.2003, as per which, respondent no.1, was shown at serial no.2, in the final Gradation List. Further, we may notice that if they were relying on the fact that the parties-respondents in the writ petition filed by the first respondent and the appellants before the High Court, were following up on their behalf also, then, the fact that Shri Bharat Bihari Mathur and Shri Dev Dutt Mishra have filed the Special Leave Petition before this Court and the petition stands dismissed, would be an obstacle for entertaining their case. The further fact that even the Review Petition was dismissed and what is more, a Curative Petition was dismissed, would stand in their way, all the more.Having regard to the passage of time, which has also witnessed dismissal of the Special Leave Petitions by the appellants (private respondents in the Writ Petition filed by the first respondent), Review and Curative Petition, at any rate, we do not think that we should disturb the impugned judgment.31. The fact of the matter is that first respondent was transferred in the year 1988 as Assistant Engineer and he joined in GDA immediately thereafter and he continued to work there. In fact, as noticed in the first final seniority list dated 01.07.2003, he is shown as absorbed in the GDA. It may be true that in the letter dated 09.11.1995, it is not specifically stated that respondent was absorbed in the GDA, and it is indicated that his name will be included in the Joint Gradation List of the remaining SADA (i.e., the SADA not abolished under the notification dated 22.6.1995). It is further indicated that he is the employee of the Housing and Environment Department. As regards, determining seniority w.e.f. 1994, when first respondent would complete 12 years as Sub Engineer, it is tied up with the issue of the illegality of his promotion in 1987 without completing 12 years. More importantly, even proceeding to discern any merit that seniority should, at least, be governed with reference to the requirement of 12 years, in the facts of this case, for reasons we have indicated already, we decline to interfere, bearing in mind also Article 136 of the Constitution of India, which has facilitated these appeals.
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Satish Chander Aggarwal by L.Rs Vs. Shyam Lal Om Prakash, Arhti and Ors | Kurian Joseph, J.1. The original owner-landlord/Mr. Satish Chander Aggarwal (who is no more) filed an application for eviction in the year 1975 on the ground of bona fide requirement for expansion of family business in the name and style of M/s. Roop Krishna Traders.2. The Rent Controller dismissed the petition. The First Appellate Authority reversed the finding and granted eviction, on a finding that the premises was required for the business of the landlord. It is on record that the First Appellate Authority had undertaken a spot inspection so as to satisfy himself as to the bona fide need of the landlord.3. The aggrieved tenant carried the matter before the High Court in a petition under Article 226 of the Constitution of India. In the meanwhile Mr. Satish Chander Aggarwal died on 04.07.2005. The death occurred after the order passed by the Rent Controller as well as the First Appellate Authority.4. The High Court, taking note of the fact that the original landlord has expired, declined to go into the question of bona fide requirement. According to the High Court, the bona fide requirement of the father is one thing and the bona fide requirement of the son and daughter, who have been continuing the business of the father, is a distinct cause of action and the same need to be separately established. Therefore, granting liberty to the surviving legal heirs to pursue the eviction in accordance with law, the writ petition was allowed setting aside the order passed by the First Appellate Authority. Aggrieved the appeal.5. Heard Mr. A.K. Ganguli, learned senior counsel and Mr. Sanjay Bansal, learned counsel, appearing for the appellants and Mr. Arun Aggarwal, learned counsel appearing for Respondent Nos.1 and 2.6. The crucial question is, whether the bona fide requirement, as established by the original landlord/Mr. Satish Chander Aggarwal, would meet the requirement under Section 21(a) of the U.P. Urban Building Act as far as surviving legal heirs are concerned. It is not in dispute that the business that had been carried on by Late Mr. Satish Chander Aggarwal is being continued by his legal heirs. It is a family business. If that be so, the requirement, as established and which has been upheld by the Appellate Authority after conducting even a spot inspection, in our view, satisfies the requirements of bona fide need of the landlord. No doubt, in a given case the bona fide requirement of the original landlord and that of the surviving legal heirs may vary. But in the case before us, since it is family business and since the landlord has established the requirement of the premises for the family business, we are of the view that it is not necessary to relegate the legal heirs for another round of litigation for eviction. | 1[ds]It is not in dispute that the business that had been carried on by Late Mr. Satish Chander Aggarwal is being continued by his legal heirs. It is a family business. If that be so, the requirement, as established and which has been upheld by the Appellate Authority after conducting even a spot inspection, in our view, satisfies the requirements of bona fide need of the landlord. No doubt, in a given case the bona fide requirement of the original landlord and that of the surviving legal heirs may vary. But in the case before us, since it is family business and since the landlord has established the requirement of the premises for the family business, we are of the view that it is not necessary to relegate the legal heirs for another round of litigation for eviction. | 1 | 515 | 154 | ### 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:
Kurian Joseph, J.1. The original owner-landlord/Mr. Satish Chander Aggarwal (who is no more) filed an application for eviction in the year 1975 on the ground of bona fide requirement for expansion of family business in the name and style of M/s. Roop Krishna Traders.2. The Rent Controller dismissed the petition. The First Appellate Authority reversed the finding and granted eviction, on a finding that the premises was required for the business of the landlord. It is on record that the First Appellate Authority had undertaken a spot inspection so as to satisfy himself as to the bona fide need of the landlord.3. The aggrieved tenant carried the matter before the High Court in a petition under Article 226 of the Constitution of India. In the meanwhile Mr. Satish Chander Aggarwal died on 04.07.2005. The death occurred after the order passed by the Rent Controller as well as the First Appellate Authority.4. The High Court, taking note of the fact that the original landlord has expired, declined to go into the question of bona fide requirement. According to the High Court, the bona fide requirement of the father is one thing and the bona fide requirement of the son and daughter, who have been continuing the business of the father, is a distinct cause of action and the same need to be separately established. Therefore, granting liberty to the surviving legal heirs to pursue the eviction in accordance with law, the writ petition was allowed setting aside the order passed by the First Appellate Authority. Aggrieved the appeal.5. Heard Mr. A.K. Ganguli, learned senior counsel and Mr. Sanjay Bansal, learned counsel, appearing for the appellants and Mr. Arun Aggarwal, learned counsel appearing for Respondent Nos.1 and 2.6. The crucial question is, whether the bona fide requirement, as established by the original landlord/Mr. Satish Chander Aggarwal, would meet the requirement under Section 21(a) of the U.P. Urban Building Act as far as surviving legal heirs are concerned. It is not in dispute that the business that had been carried on by Late Mr. Satish Chander Aggarwal is being continued by his legal heirs. It is a family business. If that be so, the requirement, as established and which has been upheld by the Appellate Authority after conducting even a spot inspection, in our view, satisfies the requirements of bona fide need of the landlord. No doubt, in a given case the bona fide requirement of the original landlord and that of the surviving legal heirs may vary. But in the case before us, since it is family business and since the landlord has established the requirement of the premises for the family business, we are of the view that it is not necessary to relegate the legal heirs for another round of litigation for eviction.
### Response:
1
### Explanation:
It is not in dispute that the business that had been carried on by Late Mr. Satish Chander Aggarwal is being continued by his legal heirs. It is a family business. If that be so, the requirement, as established and which has been upheld by the Appellate Authority after conducting even a spot inspection, in our view, satisfies the requirements of bona fide need of the landlord. No doubt, in a given case the bona fide requirement of the original landlord and that of the surviving legal heirs may vary. But in the case before us, since it is family business and since the landlord has established the requirement of the premises for the family business, we are of the view that it is not necessary to relegate the legal heirs for another round of litigation for eviction.
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UNION OF INDIA Vs. BRIG.BALBIR SINGH (RETD.) | Engineers (Recruitment and Conditions of Service) Rules, 2016 (hereinafter referred to as ?the IDSE Rules?) are not applicable to the Respondent and he cannot seek the same grade pay as IDSE officers working as Chief Engineers. By relying on the judgment of this Court in Confederation of Ex. Servicemen Associations v. Union of India (2006) 8 SCC 399 , the learned Additional Solicitor General argued that the classification between defence personnel and other than defence personnel is reasonable and valid. It was further contended on behalf of the Appellants that the conditions of service of Commissioned Officers in the Army and civilian Chief Engineers are entirely different. Commissioned Officers are liable to be posted anywhere in the country including hard field areas such as Jammu and Kashmir and the North East, unlike civilian engineers who do not have an all-India liability. It was further submitted on behalf of the Appellants that the hierarchy of the ranks in the Indian Army are completely different from that of the IDSE. The pay structure and conditions of service are different and the Army Officers are entitled to Military Service Pay of Rs.15,000/- per month which is not available to their civilian counterparts. That apart, several other facilities in material form such as canteen facilities, mess, ration etc. are provided to the Army Officers, which disentitle them to seek parity with civilian Chief Engineers. 5. Countering the submissions on behalf of the Appellants, Mr. Rajeev Manglik, learned counsel for the Respondent submitted that the IDSE (Service Conditions) Rules are applicable only in respect of the 15 posts of civilian Chief Engineers and that the said Rules do not govern the recruitment and conditions of service of Army Officers and the posts earmarked for them. He relied upon the recommendations of the 6 th Central Pay Commission by which the concept of grade pay and running pay band for various posts were introduced. According to Mr. Manglik, seniority of a post shall depend upon the grade pay drawn. It was further submitted that though the appointment of Respondent in MES is on a tenure basis, he is not disentitled from claiming parity of grade pay at par with his civilian counterparts. The learned counsel for the Respondent made it clear that the benefit claimed by the Respondent is only for the period during which he worked in the MES. 6. The contention of the Appellants is that the MES is governed by the provisions of the Military Engineer Services (Army Personnel) Regulations, 1989, (hereinafter referred to as MES Regulations) which are framed under Section 192 of the Army Act, 1950. Regulation 3 of the said Regulations provides for a number of posts and proportion or percentage of the Army Officers belonging to the Corps of Engineers in the MES for each post. In so far as the executive appointment of Chief Engineer is concerned, the total number of posts is 37, out of which 50 % of the posts are filled by Army Officers. In addition, 27 civilian and 9 military officers of the rank of the Chief Engineer are on staff appointment. 7. The IDSE Rules regulate the method of recruitment and conditions of service of persons appointed to the Indian Defence Service of Engineers in the Ministry of Defence, Government of India. Rule 3 of the IDSE Rules deals with the constitution of the Indian Defence Service of Engineers. The service in the Indian Defence Service of Engineers, according to Rule 3, shall consist of posts specified in Schedule I. The post of Chief Engineer, Senior Administrative Grade is shown against Serial No.3 of Schedule-I. The total number of posts of Chief Engineers are 45. The pay scale of Chief Engineer, Senior Administrative Grade is Rs.37400-67000 in pay band – 4. The grade pay applicable to the post of Chief Engineer, Senior Administrative Grade is Rs.10,000/-. It is categorically laid down in Rule 12 of the IDSE Rules that the Rules shall not apply to Army Officers appointed on a tenure basis as they are governed by the Army Act and the Rules framed thereunder. There is no dispute that the Respondent was appointed on a tenure basis in accordance with the MES Regulations. Therefore, there cannot be any doubt that the IDSE Rules are not applicable to the Respondent. As such, we are unable to accept the submission made on behalf of the Respondent that the IDSE Rules are applicable only to the 15 civilian posts and not to the others. 8. The Army Officers forming a separate class in comparison to the civilian employees is a point which is no more res integra. In Confederation of Ex. Servicemen Associations (supra) and Union of India v. Capt. Gurdev Singh 2019 SCC OnLine SC 173 this Court has clearly laid down that the classification of military personnel as different class from non-military personnel is permissible and valid. The submissions made on behalf of the Appellant that the Army Officers serving in the MES as Chief Engineers continue to get the same benefits and perks attached to the post of Brigadier has not been controverted by the Respondent. Though there is no dispute that the principle of ‘equal pay for equal work? is applicable even to tenure or temporary appointments, in view of the IDSE Rules which govern the grade pay of the post of the Chief Engineer, Senior Administrative Grade, we are of the opinion that the Respondent is not entitled to claim parity with members of the IDSE. The validity of the IDSE Rules has not been challenged by the Respondent. We do not see any force in the submission of the Respondent that grade pay should be made available to all persons working as Chief Engineers irrespective of the source. We are in agreement with the Appellants that the Respondent continues to be a Brigadier for all practical purposes and is entitled for the benefits attached to the post of Brigadier, irrespective of the place and post in which he works. | 1[ds]7. The IDSE Rules regulate the method of recruitment and conditions of service of persons appointed to the Indian Defence Service of Engineers in the Ministry of Defence, Government of India. Rule 3 of the IDSE Rules deals with the constitution of the Indian Defence Service of Engineers. The service in the Indian Defence Service of Engineers, according to Rule 3, shall consist of posts specified in Schedule I. The post of Chief Engineer, Senior Administrative Grade is shown against Serial No.3 of Schedule-I. The total number of posts of Chief Engineers are 45. The pay scale of Chief Engineer, Senior Administrative Grade is Rs.37400-67000 in pay band – 4. The grade pay applicable to the post of Chief Engineer, Senior Administrative Grade is Rs.10,000/-. It is categorically laid down in Rule 12 of the IDSE Rules that the Rules shall not apply to Army Officers appointed on a tenure basis as they are governed by the Army Act and the Rules framed thereunder. There is no dispute that the Respondent was appointed on a tenure basis in accordance with the MES Regulations. Therefore, there cannot be any doubt that the IDSE Rules are not applicable to the Respondent. As such, we are unable to accept the submission made on behalf of the Respondent that the IDSE Rules are applicable only to the 15 civilian posts and not to the others.The Army Officers forming a separate class in comparison to the civilian employees is a point which is no more res integra. In Confederation of Ex. Servicemen Associations (supra) and Union of India v. Capt. Gurdev Singh 2019 SCC OnLine SC 173 this Court has clearly laid down that the classification of military personnel as different class from non-military personnel is permissible and valid. The submissions made on behalf of the Appellant that the Army Officers serving in the MES as Chief Engineers continue to get the same benefits and perks attached to the post of Brigadier has not been controverted by the Respondent. Though there is no dispute that the principle of ‘equal pay for equal work? is applicable even to tenure or temporary appointments, in view of the IDSE Rules which govern the grade pay of the post of the Chief Engineer, Senior Administrative Grade, we are of the opinion that the Respondent is not entitled to claim parity with members of the IDSE. The validity of the IDSE Rules has not been challenged by the Respondent. We do not see any force in the submission of the Respondent that grade pay should be made available to all persons working as Chief Engineers irrespective of the source. We are in agreement with the Appellants that the Respondent continues to be a Brigadier for all practical purposes and is entitled for the benefits attached to the post of Brigadier, irrespective of the place and post in which he works. | 1 | 1,698 | 521 | ### 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:
Engineers (Recruitment and Conditions of Service) Rules, 2016 (hereinafter referred to as ?the IDSE Rules?) are not applicable to the Respondent and he cannot seek the same grade pay as IDSE officers working as Chief Engineers. By relying on the judgment of this Court in Confederation of Ex. Servicemen Associations v. Union of India (2006) 8 SCC 399 , the learned Additional Solicitor General argued that the classification between defence personnel and other than defence personnel is reasonable and valid. It was further contended on behalf of the Appellants that the conditions of service of Commissioned Officers in the Army and civilian Chief Engineers are entirely different. Commissioned Officers are liable to be posted anywhere in the country including hard field areas such as Jammu and Kashmir and the North East, unlike civilian engineers who do not have an all-India liability. It was further submitted on behalf of the Appellants that the hierarchy of the ranks in the Indian Army are completely different from that of the IDSE. The pay structure and conditions of service are different and the Army Officers are entitled to Military Service Pay of Rs.15,000/- per month which is not available to their civilian counterparts. That apart, several other facilities in material form such as canteen facilities, mess, ration etc. are provided to the Army Officers, which disentitle them to seek parity with civilian Chief Engineers. 5. Countering the submissions on behalf of the Appellants, Mr. Rajeev Manglik, learned counsel for the Respondent submitted that the IDSE (Service Conditions) Rules are applicable only in respect of the 15 posts of civilian Chief Engineers and that the said Rules do not govern the recruitment and conditions of service of Army Officers and the posts earmarked for them. He relied upon the recommendations of the 6 th Central Pay Commission by which the concept of grade pay and running pay band for various posts were introduced. According to Mr. Manglik, seniority of a post shall depend upon the grade pay drawn. It was further submitted that though the appointment of Respondent in MES is on a tenure basis, he is not disentitled from claiming parity of grade pay at par with his civilian counterparts. The learned counsel for the Respondent made it clear that the benefit claimed by the Respondent is only for the period during which he worked in the MES. 6. The contention of the Appellants is that the MES is governed by the provisions of the Military Engineer Services (Army Personnel) Regulations, 1989, (hereinafter referred to as MES Regulations) which are framed under Section 192 of the Army Act, 1950. Regulation 3 of the said Regulations provides for a number of posts and proportion or percentage of the Army Officers belonging to the Corps of Engineers in the MES for each post. In so far as the executive appointment of Chief Engineer is concerned, the total number of posts is 37, out of which 50 % of the posts are filled by Army Officers. In addition, 27 civilian and 9 military officers of the rank of the Chief Engineer are on staff appointment. 7. The IDSE Rules regulate the method of recruitment and conditions of service of persons appointed to the Indian Defence Service of Engineers in the Ministry of Defence, Government of India. Rule 3 of the IDSE Rules deals with the constitution of the Indian Defence Service of Engineers. The service in the Indian Defence Service of Engineers, according to Rule 3, shall consist of posts specified in Schedule I. The post of Chief Engineer, Senior Administrative Grade is shown against Serial No.3 of Schedule-I. The total number of posts of Chief Engineers are 45. The pay scale of Chief Engineer, Senior Administrative Grade is Rs.37400-67000 in pay band – 4. The grade pay applicable to the post of Chief Engineer, Senior Administrative Grade is Rs.10,000/-. It is categorically laid down in Rule 12 of the IDSE Rules that the Rules shall not apply to Army Officers appointed on a tenure basis as they are governed by the Army Act and the Rules framed thereunder. There is no dispute that the Respondent was appointed on a tenure basis in accordance with the MES Regulations. Therefore, there cannot be any doubt that the IDSE Rules are not applicable to the Respondent. As such, we are unable to accept the submission made on behalf of the Respondent that the IDSE Rules are applicable only to the 15 civilian posts and not to the others. 8. The Army Officers forming a separate class in comparison to the civilian employees is a point which is no more res integra. In Confederation of Ex. Servicemen Associations (supra) and Union of India v. Capt. Gurdev Singh 2019 SCC OnLine SC 173 this Court has clearly laid down that the classification of military personnel as different class from non-military personnel is permissible and valid. The submissions made on behalf of the Appellant that the Army Officers serving in the MES as Chief Engineers continue to get the same benefits and perks attached to the post of Brigadier has not been controverted by the Respondent. Though there is no dispute that the principle of ‘equal pay for equal work? is applicable even to tenure or temporary appointments, in view of the IDSE Rules which govern the grade pay of the post of the Chief Engineer, Senior Administrative Grade, we are of the opinion that the Respondent is not entitled to claim parity with members of the IDSE. The validity of the IDSE Rules has not been challenged by the Respondent. We do not see any force in the submission of the Respondent that grade pay should be made available to all persons working as Chief Engineers irrespective of the source. We are in agreement with the Appellants that the Respondent continues to be a Brigadier for all practical purposes and is entitled for the benefits attached to the post of Brigadier, irrespective of the place and post in which he works.
### Response:
1
### Explanation:
7. The IDSE Rules regulate the method of recruitment and conditions of service of persons appointed to the Indian Defence Service of Engineers in the Ministry of Defence, Government of India. Rule 3 of the IDSE Rules deals with the constitution of the Indian Defence Service of Engineers. The service in the Indian Defence Service of Engineers, according to Rule 3, shall consist of posts specified in Schedule I. The post of Chief Engineer, Senior Administrative Grade is shown against Serial No.3 of Schedule-I. The total number of posts of Chief Engineers are 45. The pay scale of Chief Engineer, Senior Administrative Grade is Rs.37400-67000 in pay band – 4. The grade pay applicable to the post of Chief Engineer, Senior Administrative Grade is Rs.10,000/-. It is categorically laid down in Rule 12 of the IDSE Rules that the Rules shall not apply to Army Officers appointed on a tenure basis as they are governed by the Army Act and the Rules framed thereunder. There is no dispute that the Respondent was appointed on a tenure basis in accordance with the MES Regulations. Therefore, there cannot be any doubt that the IDSE Rules are not applicable to the Respondent. As such, we are unable to accept the submission made on behalf of the Respondent that the IDSE Rules are applicable only to the 15 civilian posts and not to the others.The Army Officers forming a separate class in comparison to the civilian employees is a point which is no more res integra. In Confederation of Ex. Servicemen Associations (supra) and Union of India v. Capt. Gurdev Singh 2019 SCC OnLine SC 173 this Court has clearly laid down that the classification of military personnel as different class from non-military personnel is permissible and valid. The submissions made on behalf of the Appellant that the Army Officers serving in the MES as Chief Engineers continue to get the same benefits and perks attached to the post of Brigadier has not been controverted by the Respondent. Though there is no dispute that the principle of ‘equal pay for equal work? is applicable even to tenure or temporary appointments, in view of the IDSE Rules which govern the grade pay of the post of the Chief Engineer, Senior Administrative Grade, we are of the opinion that the Respondent is not entitled to claim parity with members of the IDSE. The validity of the IDSE Rules has not been challenged by the Respondent. We do not see any force in the submission of the Respondent that grade pay should be made available to all persons working as Chief Engineers irrespective of the source. We are in agreement with the Appellants that the Respondent continues to be a Brigadier for all practical purposes and is entitled for the benefits attached to the post of Brigadier, irrespective of the place and post in which he works.
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Gulam Abbas Vs. Haji Kayyum Ali & Ors | the attendant circumstances and the whole course of conduct of which it forms a part. In other words, the principle of an equitable estoppel, far from being opposed to any principle of Muslim law will be found, on investigation, to be completely in consonance with it. 12. As already indicated, while the Madras view is based upon the erroneous assumption that a renunciation of a claim to inherit in future is in itself illegal or prohibited by Muslim law, the view of the Allahabad High Court, expressed by Suleman, C. J., in Latafat Hussains case, AIR 1936 All 573 (supra), while fully recognising that "under the Mahomedan law relinquishment by an heir who has no interest in the lifetime of his ancestor is invalid and void", correctly lays down that such an abandonment may, nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued. After considering several decisions, including the Full Bench of the Madras High Court in Asa Beevis case, ILR 41 Mad 365 = (AIR 1918 Mad 119) (supra), Suleman, C. J., observed at page 575 :"The question of estoppel is really a question arising under the Contract Act and the Evidence Act, and is not a question strictly arising under the Mahomedan Law". He pointed out (at pages 575-576) :"It has been held in this Court that contingent reversioners can enter into a contract for consideration which may be held binding on them in case they actually succeed to the estate : See 19 All LJ 799 = (AIR 1922 All 297 ) and 21 ALJ 235 = (AIR 1923 All 387 ). It was pointed out in 24 All LJ 873, at pp. 876-877 = (AIR 1926 All 715), that although a reversionary right cannot be the subject of a transfer, for such a transfer is prohibited by Section 6, T. P. Act, there was nothing to prevent a reversioner from so acting as to estop himself by his own conduct from subsequently claiming a property to which he may succeed. Among other cases reliance was placed on the pronouncement of their Lordships of the Privy Council in ILR 40 All 487 = (AIR 1918 PC 70), where a reversioner was held bound by a compromise to which he was a party". 13. Incidentally, we may observe that, in Mohammad Ali Khan v. Nisar Ali Khan, AIR 1928 Oudh 67 the Oudh Chief has relied upon Hurmoot-ool-Nisa Begums case, (1871) 17 Suth WR 108 (PC) (supra) to hold that "according to Mahomedan Law there may be renunciation of the right to inheritance and such renunciation need not be express but may be implied from the ceasing or desisting from prosecuting a claim maintainable against another". 14. As we are clearly of opinion that there is nothing in law to bar the application of the principle of estoppel, contained in Section 115 of the Evidence Act against the Plaintiff and Defendant No. 4, upon the totality of facts found by the final Court of facts, which were apparently accepted by the High Court, it is not necessary for us to deal at length with the question whether the facts found could give rise to the inference of a "family settlement" in a technical sense. 15. It is true that in Latafat Hussains case, AIR 1936 All 573 (supra), Suleman, C. J., had observed that the conclusion of the Subordinate Court, that there had been an arrangement between a husband and a wife "in the nature of a family settlement which is binding on the plaintiff", was correct. This was held upon circumstances which indicated that a husband would not have executed a deed of Wakf if the wife had not relinquished her claim to inheritance. In other words, an arrangement which may avoid future disputes in the family, even though it may not technically be a settlement or definition of actually disputed claims, was referred to broadly as a "family arrangement". It was in this wide sense that, in the case before us also, the first appellate Court had considered the whole set of facts and circumstances examined by it to be sufficient to raise the inference of what it described as "a family settlement". 16. As our law relating to family arrangements is based on English law, we may refer here to a definition of a family arrangement in Halsburys Laws of England, 3rd Edn. Vol. 17, p. 215-216 where we find : "A family arrangement is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour". We also find there : "The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term family arrangement is applied". It is pointed out there : "Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements". 17. As we have already indicated, it is enough for the decision of this case that the plaintiff and defendant No. 4 were estopped by their conduct, on an application of Section 115 Evidence Act, from claiming any right to inheritance which accrued to them, on their fathers death, covered by the deeds of relinquishment for consideration, irrespective of the question whether the deeds could operate as legally valid and effective surrenders of their spes successions. Upon the facts and circumstances in the case found by the Courts below we hold that the plaintiff and defendant No. 4 could not, when rights of inheritance vested in them at the time of their fathers death, claim these as such a claim would be barred by estoppel. | 1[ds]14. As we are clearly of opinion that there is nothing in law to bar the application of the principle of estoppel, contained in Section 115 of the Evidence Act against the Plaintiff and Defendant No. 4, upon the totality of facts found by the final Court of facts, which were apparently accepted by the High Court, it is not necessary for us to deal at length with the question whether the facts found could give rise to the inference of a "family settlement" in a technical sense15. It is true that in Latafat Hussains case, AIR 1936 All 573 (supra), Suleman, C. J., had observed that the conclusion of the Subordinate Court, that there had been an arrangement between a husband and a wife "in the nature of a family settlement which is binding on the plaintiff", was correct. This was held upon circumstances which indicated that a husband would not have executed a deed of Wakf if the wife had not relinquished her claim to inheritance. In other words, an arrangement which may avoid future disputes in the family, even though it may not technically be a settlement or definition of actually disputed claims, was referred to broadly as a "family arrangement". It was in this wide sense that, in the case before us also, the first appellate Court had considered the whole set of facts and circumstances examined by it to be sufficient to raise the inference of what it described as "a family settlement"16. As our law relating to family arrangements is based on English law, we may refer here to a definition of a family arrangement in Halsburys Laws of England, 3rd Edn. Vol. 17, p. 215-216 where we find : "A family arrangement is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour". We also find there : "The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term family arrangement is applied". It is pointed out there : "Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements"17. As we have already indicated, it is enough for the decision of this case that the plaintiff and defendant No. 4 were estopped by their conduct, on an application of Section 115 Evidence Act, from claiming any right to inheritance which accrued to them, on their fathers death, covered by the deeds of relinquishment for consideration, irrespective of the question whether the deeds could operate as legally valid and effective surrenders of their spes successions. Upon the facts and circumstances in the case found by the Courts below we hold that the plaintiff and defendant No. 4 could not, when rights of inheritance vested in them at the time of their fathers death, claim these as such a claim would be barred by estoppel. | 1 | 3,722 | 596 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the attendant circumstances and the whole course of conduct of which it forms a part. In other words, the principle of an equitable estoppel, far from being opposed to any principle of Muslim law will be found, on investigation, to be completely in consonance with it. 12. As already indicated, while the Madras view is based upon the erroneous assumption that a renunciation of a claim to inherit in future is in itself illegal or prohibited by Muslim law, the view of the Allahabad High Court, expressed by Suleman, C. J., in Latafat Hussains case, AIR 1936 All 573 (supra), while fully recognising that "under the Mahomedan law relinquishment by an heir who has no interest in the lifetime of his ancestor is invalid and void", correctly lays down that such an abandonment may, nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued. After considering several decisions, including the Full Bench of the Madras High Court in Asa Beevis case, ILR 41 Mad 365 = (AIR 1918 Mad 119) (supra), Suleman, C. J., observed at page 575 :"The question of estoppel is really a question arising under the Contract Act and the Evidence Act, and is not a question strictly arising under the Mahomedan Law". He pointed out (at pages 575-576) :"It has been held in this Court that contingent reversioners can enter into a contract for consideration which may be held binding on them in case they actually succeed to the estate : See 19 All LJ 799 = (AIR 1922 All 297 ) and 21 ALJ 235 = (AIR 1923 All 387 ). It was pointed out in 24 All LJ 873, at pp. 876-877 = (AIR 1926 All 715), that although a reversionary right cannot be the subject of a transfer, for such a transfer is prohibited by Section 6, T. P. Act, there was nothing to prevent a reversioner from so acting as to estop himself by his own conduct from subsequently claiming a property to which he may succeed. Among other cases reliance was placed on the pronouncement of their Lordships of the Privy Council in ILR 40 All 487 = (AIR 1918 PC 70), where a reversioner was held bound by a compromise to which he was a party". 13. Incidentally, we may observe that, in Mohammad Ali Khan v. Nisar Ali Khan, AIR 1928 Oudh 67 the Oudh Chief has relied upon Hurmoot-ool-Nisa Begums case, (1871) 17 Suth WR 108 (PC) (supra) to hold that "according to Mahomedan Law there may be renunciation of the right to inheritance and such renunciation need not be express but may be implied from the ceasing or desisting from prosecuting a claim maintainable against another". 14. As we are clearly of opinion that there is nothing in law to bar the application of the principle of estoppel, contained in Section 115 of the Evidence Act against the Plaintiff and Defendant No. 4, upon the totality of facts found by the final Court of facts, which were apparently accepted by the High Court, it is not necessary for us to deal at length with the question whether the facts found could give rise to the inference of a "family settlement" in a technical sense. 15. It is true that in Latafat Hussains case, AIR 1936 All 573 (supra), Suleman, C. J., had observed that the conclusion of the Subordinate Court, that there had been an arrangement between a husband and a wife "in the nature of a family settlement which is binding on the plaintiff", was correct. This was held upon circumstances which indicated that a husband would not have executed a deed of Wakf if the wife had not relinquished her claim to inheritance. In other words, an arrangement which may avoid future disputes in the family, even though it may not technically be a settlement or definition of actually disputed claims, was referred to broadly as a "family arrangement". It was in this wide sense that, in the case before us also, the first appellate Court had considered the whole set of facts and circumstances examined by it to be sufficient to raise the inference of what it described as "a family settlement". 16. As our law relating to family arrangements is based on English law, we may refer here to a definition of a family arrangement in Halsburys Laws of England, 3rd Edn. Vol. 17, p. 215-216 where we find : "A family arrangement is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour". We also find there : "The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term family arrangement is applied". It is pointed out there : "Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements". 17. As we have already indicated, it is enough for the decision of this case that the plaintiff and defendant No. 4 were estopped by their conduct, on an application of Section 115 Evidence Act, from claiming any right to inheritance which accrued to them, on their fathers death, covered by the deeds of relinquishment for consideration, irrespective of the question whether the deeds could operate as legally valid and effective surrenders of their spes successions. Upon the facts and circumstances in the case found by the Courts below we hold that the plaintiff and defendant No. 4 could not, when rights of inheritance vested in them at the time of their fathers death, claim these as such a claim would be barred by estoppel.
### Response:
1
### Explanation:
14. As we are clearly of opinion that there is nothing in law to bar the application of the principle of estoppel, contained in Section 115 of the Evidence Act against the Plaintiff and Defendant No. 4, upon the totality of facts found by the final Court of facts, which were apparently accepted by the High Court, it is not necessary for us to deal at length with the question whether the facts found could give rise to the inference of a "family settlement" in a technical sense15. It is true that in Latafat Hussains case, AIR 1936 All 573 (supra), Suleman, C. J., had observed that the conclusion of the Subordinate Court, that there had been an arrangement between a husband and a wife "in the nature of a family settlement which is binding on the plaintiff", was correct. This was held upon circumstances which indicated that a husband would not have executed a deed of Wakf if the wife had not relinquished her claim to inheritance. In other words, an arrangement which may avoid future disputes in the family, even though it may not technically be a settlement or definition of actually disputed claims, was referred to broadly as a "family arrangement". It was in this wide sense that, in the case before us also, the first appellate Court had considered the whole set of facts and circumstances examined by it to be sufficient to raise the inference of what it described as "a family settlement"16. As our law relating to family arrangements is based on English law, we may refer here to a definition of a family arrangement in Halsburys Laws of England, 3rd Edn. Vol. 17, p. 215-216 where we find : "A family arrangement is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour". We also find there : "The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term family arrangement is applied". It is pointed out there : "Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements"17. As we have already indicated, it is enough for the decision of this case that the plaintiff and defendant No. 4 were estopped by their conduct, on an application of Section 115 Evidence Act, from claiming any right to inheritance which accrued to them, on their fathers death, covered by the deeds of relinquishment for consideration, irrespective of the question whether the deeds could operate as legally valid and effective surrenders of their spes successions. Upon the facts and circumstances in the case found by the Courts below we hold that the plaintiff and defendant No. 4 could not, when rights of inheritance vested in them at the time of their fathers death, claim these as such a claim would be barred by estoppel.
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Ram Kishun & Others Vs. State of U.P. & Others | exercise of judicial discretion. (See also: M/s. Kayjay Industries (P) Ltd. v. M/s. Asnew Drums (P) Ltd. & Ors., AIR 1974 S 1331; Union Bank of India v. Official Liquidator High Court of Calcutta & Ors., AIR 2000 SC 3642 ; B. Arvind kumar v. Govt. of India & Ors., (2007) 5 SCC 745 ; and M/s. Transcore v. Union of India & Anr., AIR 2007 SC 712 ). 21. In Divya Manufacturing Co. (P) Ltd. & Anr. v. Union Bank of India & Ors., AIR 2000 SC 2346 , this Court held that a confirmed sale can be set aside on the ground of material irregularity or fraud. The court does not become functus officio after the sale is confirmed. In Valji Khimji and Company v. Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd. & Ors., (2008) 9 SCC 299 , the Court held that auction sale should be set aside only if there is a fundamental error in the procedure of auction e.g. not giving wide publication or on evidence that property could have fetched more value or there is somebody to offer substantially increased amount and not only a little over the auction price. Involvement of any kind of fraud would vitiate the auction sale. 22. In FCS Software Solutions Ltd. v. La Medical Devices Ltd. & Ors., (2008) 10 SCC 440 , this Court considered a case where after confirmation of auction sale it was found that valuation of movable and immovable properties, fixation of reserve price, inventory of Plant and Machineries had not been made in proclamation of sale, nor disclosed at time of sale notice. Therefore, in such a fact-situation, the sale was set aside after its confirmation. 23. In view of the above, the law can be summarised to the effect that the recovery of the public dues must be made strictly in accordance with the procedure prescribed by law. The liability of a surety is co-extensive with that of principal debtor. In case there are more than one surety the liability is to be divided equally among the sureties for unpaid amount of loan. Once the sale has been confirmed it cannot be set aside unless a fundamental procedural error has occurred or sale certificate had been obtained by mis-representation or fraud. 24. Learned counsel for the parties are not in a position to point out the specific rules under which the recovery was to be made. Thus, the aforesaid legal principles have been considered on general principles of law as argued by them. The instant case is required to be examined in the light of the aforesaid settled legal propositions. Admittedly, the father of the appellants stood guarantor when Ganga Prasad took loan from the bank. Though there are some documents to show that there were two guarantors but who was the other guarantor is not evident from the record, nor such a plea had ever been taken by the appellants before the courts below. As the appellants had inherited the estate of the guarantor, they are liable to meet the liability of unpaid amount. The appellants land admeasuring 1 bigha and 10 biswas was sold for Rs.25,000/-. It cannot be held, even by any stretch of imagination, that the land had been sold at a heaper rate, for the reasons, that the land belonging to Ganga Prasad (principal debtor) measuring 3 bighas and 2 biswas in the same village in a close proximity of time had been sold for a sum of Rs.6,000/- only. More so, elder brother of the appellant no.1 Ram Swaroop had participated in the auction and given the bid of Rs.20,000/- for the land in dispute. In view of the above, the submission made by Shri Garg that property worth Rs.2,00,000/- had been sold at a throw away price of Rs.25,000/- is not worth acceptance.25. No fundamental procedural error had been pointed out which would vitiate the order of confirmation of sale and issuance of sale certificate.26. The total amount of loan sanctioned in favour of Ganga Prasad was Rs.4,425/-. The Collector issued citation for recovery of Rs.10,574/- on 13.1.1986 and the total amount to be recovered including principal amount, interest, collection charges etc. came to Rs.14,483.15P. The property of Ganga Prasad had been sold for a sum of Rs.6,000/-. So, the total amount to be recovered remained about Rs.8,500/-. The appellants land had been sold for Rs.25,000/- i.e., three times the amount which was to be recovered. In the facts and circumstances of this case, instead of putting this whole land admeasuring 1 bigha and 10 biswas, the sale of 1/3rd of this land could have served the purpose. Therefore, there had been material irregularity in putting the entire property to auction.27. In case, the auctioning authority had received Rs.25,000/- from the respondent no.4 as a sale consideration after adjusting the outstanding dues of Rs.8,500/-, the balance amount of Rs.16,500/- ought to have been paid to the appellants. There is nothing on record to show that authorities had ever adopted such a course.28. In view of the above, the auction sale stood vitiated and all the consequential proceedings are liable to be quashed. However, for the reasons best known to the appellants, they have neither impleaded the Bank (creditor) nor any of the legal heirs of Ganga Prasad (principal debtor). In such a fact-situation, it becomes difficult to proceed with the case any further.29. Be that as it may, the respondent No.4 had been put in possession of the land more than two decades ago and he had made improvements. This Court has consistently held that such a possession should not be disturbed at a belated stage for the reason that such a person would have spent his whole life savings in improving the land and making developments thereon which may include the construction of residences etc. (See: State of Gujarat v. Patel Raghav Natha & Ors., AIR 1969 SC 1297 ; and Brij Lal v. Board of Revenue & Ors., AIR 1994 S 1128). | 0[ds]Admittedly, the father of the appellants stood guarantor when Ganga Prasad took loan from the bank. Though there are some documents to show that there were two guarantors but who was the other guarantor is not evident from the record, nor such a plea had ever been taken by the appellants before the courts below. As the appellants had inherited the estate of the guarantor, they are liable to meet the liability of unpaidappellants land admeasuring 1 bigha and 10 biswas was sold for Rs.25,000/-. It cannot be held, even by any stretch of imagination, that the land had been sold at a heaper rate, for the reasons, that the land belonging to Ganga Prasad (principal debtor) measuring 3 bighas and 2 biswas in the same village in a close proximity of time had been sold for a sum of Rs.6,000/- only. More so, elder brother of the appellant no.1 Ram Swaroop had participated in the auction and given the bid of Rs.20,000/- for the land in dispute. In view of the above, the submission made by Shri Garg that property worth Rs.2,00,000/- had been sold at a throw away price of Rs.25,000/- is not worth acceptance.25. No fundamental procedural error had been pointed out which would vitiate the order of confirmation of sale and issuance of sale certificate.26. The total amount of loan sanctioned in favour of Ganga Prasad was Rs.4,425/-. The Collector issued citation for recovery of Rs.10,574/- on 13.1.1986 and the total amount to be recovered including principal amount, interest, collection charges etc. came to Rs.14,483.15P. The property of Ganga Prasad had been sold for a sum of Rs.6,000/-. So, the total amount to be recovered remained about Rs.8,500/-. The appellants land had been sold for Rs.25,000/- i.e., three times the amount which was to be recovered. In the facts and circumstances of this case, instead of putting this whole land admeasuring 1 bigha and 10 biswas, the sale of 1/3rd of this land could have served the purpose. Therefore, there had been material irregularity in putting the entire property to auction.27. In case, the auctioning authority had received Rs.25,000/- from the respondent no.4 as a sale consideration after adjusting the outstanding dues of Rs.8,500/-, the balance amount of Rs.16,500/- ought to have been paid to the appellants. There is nothing on record to show that authorities had ever adopted such a course.28. In view of the above, the auction sale stood vitiated and all the consequential proceedings are liable to befor the reasons best known to the appellants, they have neither impleaded the Bank (creditor) nor any of the legal heirs of Ganga Prasad (principal debtor). In such a fact-situation, it becomes difficult to proceed with the case any further.29. Be that as it may, the respondent No.4 had been put in possession of the land more than two decades ago and he had madeCourt has consistently held that such a possession should not be disturbed at a belated stage for the reason that such a person would have spent his whole life savings in improving the land and making developments thereon which may include the construction of residences etc. (See: State of Gujarat v. Patel Raghav Natha & Ors., AIR 1969 SC 1297 ; and Brij Lal v. Board of Revenue & Ors., AIR 1994 S 1128). | 0 | 3,856 | 611 | ### 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:
exercise of judicial discretion. (See also: M/s. Kayjay Industries (P) Ltd. v. M/s. Asnew Drums (P) Ltd. & Ors., AIR 1974 S 1331; Union Bank of India v. Official Liquidator High Court of Calcutta & Ors., AIR 2000 SC 3642 ; B. Arvind kumar v. Govt. of India & Ors., (2007) 5 SCC 745 ; and M/s. Transcore v. Union of India & Anr., AIR 2007 SC 712 ). 21. In Divya Manufacturing Co. (P) Ltd. & Anr. v. Union Bank of India & Ors., AIR 2000 SC 2346 , this Court held that a confirmed sale can be set aside on the ground of material irregularity or fraud. The court does not become functus officio after the sale is confirmed. In Valji Khimji and Company v. Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd. & Ors., (2008) 9 SCC 299 , the Court held that auction sale should be set aside only if there is a fundamental error in the procedure of auction e.g. not giving wide publication or on evidence that property could have fetched more value or there is somebody to offer substantially increased amount and not only a little over the auction price. Involvement of any kind of fraud would vitiate the auction sale. 22. In FCS Software Solutions Ltd. v. La Medical Devices Ltd. & Ors., (2008) 10 SCC 440 , this Court considered a case where after confirmation of auction sale it was found that valuation of movable and immovable properties, fixation of reserve price, inventory of Plant and Machineries had not been made in proclamation of sale, nor disclosed at time of sale notice. Therefore, in such a fact-situation, the sale was set aside after its confirmation. 23. In view of the above, the law can be summarised to the effect that the recovery of the public dues must be made strictly in accordance with the procedure prescribed by law. The liability of a surety is co-extensive with that of principal debtor. In case there are more than one surety the liability is to be divided equally among the sureties for unpaid amount of loan. Once the sale has been confirmed it cannot be set aside unless a fundamental procedural error has occurred or sale certificate had been obtained by mis-representation or fraud. 24. Learned counsel for the parties are not in a position to point out the specific rules under which the recovery was to be made. Thus, the aforesaid legal principles have been considered on general principles of law as argued by them. The instant case is required to be examined in the light of the aforesaid settled legal propositions. Admittedly, the father of the appellants stood guarantor when Ganga Prasad took loan from the bank. Though there are some documents to show that there were two guarantors but who was the other guarantor is not evident from the record, nor such a plea had ever been taken by the appellants before the courts below. As the appellants had inherited the estate of the guarantor, they are liable to meet the liability of unpaid amount. The appellants land admeasuring 1 bigha and 10 biswas was sold for Rs.25,000/-. It cannot be held, even by any stretch of imagination, that the land had been sold at a heaper rate, for the reasons, that the land belonging to Ganga Prasad (principal debtor) measuring 3 bighas and 2 biswas in the same village in a close proximity of time had been sold for a sum of Rs.6,000/- only. More so, elder brother of the appellant no.1 Ram Swaroop had participated in the auction and given the bid of Rs.20,000/- for the land in dispute. In view of the above, the submission made by Shri Garg that property worth Rs.2,00,000/- had been sold at a throw away price of Rs.25,000/- is not worth acceptance.25. No fundamental procedural error had been pointed out which would vitiate the order of confirmation of sale and issuance of sale certificate.26. The total amount of loan sanctioned in favour of Ganga Prasad was Rs.4,425/-. The Collector issued citation for recovery of Rs.10,574/- on 13.1.1986 and the total amount to be recovered including principal amount, interest, collection charges etc. came to Rs.14,483.15P. The property of Ganga Prasad had been sold for a sum of Rs.6,000/-. So, the total amount to be recovered remained about Rs.8,500/-. The appellants land had been sold for Rs.25,000/- i.e., three times the amount which was to be recovered. In the facts and circumstances of this case, instead of putting this whole land admeasuring 1 bigha and 10 biswas, the sale of 1/3rd of this land could have served the purpose. Therefore, there had been material irregularity in putting the entire property to auction.27. In case, the auctioning authority had received Rs.25,000/- from the respondent no.4 as a sale consideration after adjusting the outstanding dues of Rs.8,500/-, the balance amount of Rs.16,500/- ought to have been paid to the appellants. There is nothing on record to show that authorities had ever adopted such a course.28. In view of the above, the auction sale stood vitiated and all the consequential proceedings are liable to be quashed. However, for the reasons best known to the appellants, they have neither impleaded the Bank (creditor) nor any of the legal heirs of Ganga Prasad (principal debtor). In such a fact-situation, it becomes difficult to proceed with the case any further.29. Be that as it may, the respondent No.4 had been put in possession of the land more than two decades ago and he had made improvements. This Court has consistently held that such a possession should not be disturbed at a belated stage for the reason that such a person would have spent his whole life savings in improving the land and making developments thereon which may include the construction of residences etc. (See: State of Gujarat v. Patel Raghav Natha & Ors., AIR 1969 SC 1297 ; and Brij Lal v. Board of Revenue & Ors., AIR 1994 S 1128).
### Response:
0
### Explanation:
Admittedly, the father of the appellants stood guarantor when Ganga Prasad took loan from the bank. Though there are some documents to show that there were two guarantors but who was the other guarantor is not evident from the record, nor such a plea had ever been taken by the appellants before the courts below. As the appellants had inherited the estate of the guarantor, they are liable to meet the liability of unpaidappellants land admeasuring 1 bigha and 10 biswas was sold for Rs.25,000/-. It cannot be held, even by any stretch of imagination, that the land had been sold at a heaper rate, for the reasons, that the land belonging to Ganga Prasad (principal debtor) measuring 3 bighas and 2 biswas in the same village in a close proximity of time had been sold for a sum of Rs.6,000/- only. More so, elder brother of the appellant no.1 Ram Swaroop had participated in the auction and given the bid of Rs.20,000/- for the land in dispute. In view of the above, the submission made by Shri Garg that property worth Rs.2,00,000/- had been sold at a throw away price of Rs.25,000/- is not worth acceptance.25. No fundamental procedural error had been pointed out which would vitiate the order of confirmation of sale and issuance of sale certificate.26. The total amount of loan sanctioned in favour of Ganga Prasad was Rs.4,425/-. The Collector issued citation for recovery of Rs.10,574/- on 13.1.1986 and the total amount to be recovered including principal amount, interest, collection charges etc. came to Rs.14,483.15P. The property of Ganga Prasad had been sold for a sum of Rs.6,000/-. So, the total amount to be recovered remained about Rs.8,500/-. The appellants land had been sold for Rs.25,000/- i.e., three times the amount which was to be recovered. In the facts and circumstances of this case, instead of putting this whole land admeasuring 1 bigha and 10 biswas, the sale of 1/3rd of this land could have served the purpose. Therefore, there had been material irregularity in putting the entire property to auction.27. In case, the auctioning authority had received Rs.25,000/- from the respondent no.4 as a sale consideration after adjusting the outstanding dues of Rs.8,500/-, the balance amount of Rs.16,500/- ought to have been paid to the appellants. There is nothing on record to show that authorities had ever adopted such a course.28. In view of the above, the auction sale stood vitiated and all the consequential proceedings are liable to befor the reasons best known to the appellants, they have neither impleaded the Bank (creditor) nor any of the legal heirs of Ganga Prasad (principal debtor). In such a fact-situation, it becomes difficult to proceed with the case any further.29. Be that as it may, the respondent No.4 had been put in possession of the land more than two decades ago and he had madeCourt has consistently held that such a possession should not be disturbed at a belated stage for the reason that such a person would have spent his whole life savings in improving the land and making developments thereon which may include the construction of residences etc. (See: State of Gujarat v. Patel Raghav Natha & Ors., AIR 1969 SC 1297 ; and Brij Lal v. Board of Revenue & Ors., AIR 1994 S 1128).
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S. Hardip Singh and Another Vs. Income Tax Officer, Amritsar, and Others | UNTWALIA, J.1. This is an appeal by certificate from the order of the High Court of Punjab and Haryana dismissing the appellants writ application in limine. Sandak Transport Company (Private) Ltd. is a private limited company. The two appellants were its directors. One of them was a managing director. A resolution was passed on the 13th November, 1961, for a voluntary liquidation of the company at the instance of its creditors. In respect of some years ending with the assessment year 1964-65, a huge amount of income-tax to the tune of Rs. 1, 34, 319 remained due from the company. The ITO issued a notice on 7th of February, 1970, against appellant No. 2 under s. 179 of the I.T. Act, 1961, hereinafter called " the Act ", to show cause why action should not be taken against the directors of the company for realisation of the arrears of income-tax due from the company. A similar notice was issued to appellant No. 1 on the 11 th of November, 1970. Both the appellants filed their show cause before the ITO mainly taking the stand that since the company had gone into liquidation before the Act had come into force, action under s. 179 could not be taken against them. Some other points were also taken in the show cause filed by the appellants but it is not necessary to state them as the only point pressed in this court is in relation to the jurisdiction of the ITO under s. 179 of the Act The ITO rejected the appellants pleas by his order dated the 31st December, 1970. The appellants went in revision before the CIT. It was, rejected on 31st January, 1972. Thereafter, when proceedings were taken for realisation of the income-tax arrears aforesaid against the appellants they moved the High Court for the quashing of the proceedings and the orders under s. 179 of the Act. As already stated the High Court rejected their application in limine, but certificate to appeal to this court was granted only because of the rule of valuation then prevalentSection 179 of the Act as it stood at the relevant time reads as follows:" 179. Liability of directors of Private company in liquidation.--Not- withstanding anything contained in the Companies Act, 1956 (1 of 1956), when any private company is wound up after the commencement of this Act, and any tax assessed on the company, whether before or in the course of or after its liquidation, in respect of any income of any previous year cannot be recovered, then, every person who was a director of the private company at any time during the relevant previous year shall be jointly and severally liable for the payment of such tax unless he proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company."2. The section was amended in 1975 making it more stringent against the directors of a private company, but we are not concerned with the said amendment in this case.3. There are three stages when a company goes into liquidation, namely :(1) the commencement of the winding-up of the company ;(2) the continuation of the proceeding or the steps for winding-up ; and(3) the final winding-up and dissolution of the company.4. If all the three stages were complete before the Act came into force on and from the 1st April, 1962, obviously s. 179 will not be attracted. If all the three stages happened after the commencement of the Act, it is manifest that s. 179 would undoubtedly be attracted. But the difficulty presented before us by learned counsel for the appellants was because of some speciality of the facts of this case; the commencement of the winding-up of the company began on a date which was prior to the date of commencement of the Act. As it appears from the orders of the ITO and the Commissioner the company had not even till then been finally wound up and dissolved. The proceedings for its winding-up were pending. The submission, therefore, is that in such a case s. 179 will not be attracted. We have no difficulty in rejecting this argument. In our opinion, the section will be attracted if any one or more of the three events occurred after the commencement of the Act even though the first or the first and second events had happened earlier. The section was meant also to net a case like the instant one where it was resolved that the private company should be sent to liquidation and nobody cared to pay the huge arrears of income-tax due from it. The directors were sought to be caught exactly for this purpose. When the company goes into liquidation it becomes difficult for the department to realise its dues from the assets of the company and more so when the company has been finally wound up and dissolved. The directors, therefore, have been made liable to pay such dues. Section 179 is meant to squarely cover such a case also and the appellants cannot escape their liability for the dues. The proceedings were rightly initiated against them for realisation of the dues. The High Court was perfectly justified in dismissing the appellants writ petition in limine5. | 0[ds]There are three stages when a company goes into liquidation, namely :(1) the commencement of the winding-up of the company ;(2) the continuation of the proceeding or the steps for winding-up ; and(3) the final winding-up and dissolution of the company.If all the three stages were complete before the Act came into force on and from the 1st April, 1962, obviously s. 179 will not be attracted. If all the three stages happened after the commencement of the Act, it is manifest that s. 179 would undoubtedly be attracted. But the difficulty presented before us by learned counsel for the appellants was because of some speciality of the facts of this case; the commencement of the winding-up of the company began on a date which was prior to the date of commencement of the Act. As it appears from the orders of the ITO and the Commissioner the company had not even till then been finally wound up and dissolved. The proceedings for its winding-up wereour opinion, the section will be attracted if any one or more of the three events occurred after the commencement of the Act even though the first or the first and second events had happened earlier. The section was meant also to net a case like the instant one where it was resolved that the private company should be sent to liquidation and nobody cared to pay the huge arrears of income-tax due from it. The directors were sought to be caught exactly for this purpose. When the company goes into liquidation it becomes difficult for the department to realise its dues from the assets of the company and more so when the company has been finally wound up and dissolved. The directors, therefore, have been made liable to pay such dues. Section 179 is meant to squarely cover such a case also and the appellants cannot escape their liability for the dues. The proceedings were rightly initiated against them for realisation of the dues. The High Court was perfectly justified in dismissing the appellants writ petition in limine | 0 | 980 | 377 | ### 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:
UNTWALIA, J.1. This is an appeal by certificate from the order of the High Court of Punjab and Haryana dismissing the appellants writ application in limine. Sandak Transport Company (Private) Ltd. is a private limited company. The two appellants were its directors. One of them was a managing director. A resolution was passed on the 13th November, 1961, for a voluntary liquidation of the company at the instance of its creditors. In respect of some years ending with the assessment year 1964-65, a huge amount of income-tax to the tune of Rs. 1, 34, 319 remained due from the company. The ITO issued a notice on 7th of February, 1970, against appellant No. 2 under s. 179 of the I.T. Act, 1961, hereinafter called " the Act ", to show cause why action should not be taken against the directors of the company for realisation of the arrears of income-tax due from the company. A similar notice was issued to appellant No. 1 on the 11 th of November, 1970. Both the appellants filed their show cause before the ITO mainly taking the stand that since the company had gone into liquidation before the Act had come into force, action under s. 179 could not be taken against them. Some other points were also taken in the show cause filed by the appellants but it is not necessary to state them as the only point pressed in this court is in relation to the jurisdiction of the ITO under s. 179 of the Act The ITO rejected the appellants pleas by his order dated the 31st December, 1970. The appellants went in revision before the CIT. It was, rejected on 31st January, 1972. Thereafter, when proceedings were taken for realisation of the income-tax arrears aforesaid against the appellants they moved the High Court for the quashing of the proceedings and the orders under s. 179 of the Act. As already stated the High Court rejected their application in limine, but certificate to appeal to this court was granted only because of the rule of valuation then prevalentSection 179 of the Act as it stood at the relevant time reads as follows:" 179. Liability of directors of Private company in liquidation.--Not- withstanding anything contained in the Companies Act, 1956 (1 of 1956), when any private company is wound up after the commencement of this Act, and any tax assessed on the company, whether before or in the course of or after its liquidation, in respect of any income of any previous year cannot be recovered, then, every person who was a director of the private company at any time during the relevant previous year shall be jointly and severally liable for the payment of such tax unless he proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company."2. The section was amended in 1975 making it more stringent against the directors of a private company, but we are not concerned with the said amendment in this case.3. There are three stages when a company goes into liquidation, namely :(1) the commencement of the winding-up of the company ;(2) the continuation of the proceeding or the steps for winding-up ; and(3) the final winding-up and dissolution of the company.4. If all the three stages were complete before the Act came into force on and from the 1st April, 1962, obviously s. 179 will not be attracted. If all the three stages happened after the commencement of the Act, it is manifest that s. 179 would undoubtedly be attracted. But the difficulty presented before us by learned counsel for the appellants was because of some speciality of the facts of this case; the commencement of the winding-up of the company began on a date which was prior to the date of commencement of the Act. As it appears from the orders of the ITO and the Commissioner the company had not even till then been finally wound up and dissolved. The proceedings for its winding-up were pending. The submission, therefore, is that in such a case s. 179 will not be attracted. We have no difficulty in rejecting this argument. In our opinion, the section will be attracted if any one or more of the three events occurred after the commencement of the Act even though the first or the first and second events had happened earlier. The section was meant also to net a case like the instant one where it was resolved that the private company should be sent to liquidation and nobody cared to pay the huge arrears of income-tax due from it. The directors were sought to be caught exactly for this purpose. When the company goes into liquidation it becomes difficult for the department to realise its dues from the assets of the company and more so when the company has been finally wound up and dissolved. The directors, therefore, have been made liable to pay such dues. Section 179 is meant to squarely cover such a case also and the appellants cannot escape their liability for the dues. The proceedings were rightly initiated against them for realisation of the dues. The High Court was perfectly justified in dismissing the appellants writ petition in limine5.
### Response:
0
### Explanation:
There are three stages when a company goes into liquidation, namely :(1) the commencement of the winding-up of the company ;(2) the continuation of the proceeding or the steps for winding-up ; and(3) the final winding-up and dissolution of the company.If all the three stages were complete before the Act came into force on and from the 1st April, 1962, obviously s. 179 will not be attracted. If all the three stages happened after the commencement of the Act, it is manifest that s. 179 would undoubtedly be attracted. But the difficulty presented before us by learned counsel for the appellants was because of some speciality of the facts of this case; the commencement of the winding-up of the company began on a date which was prior to the date of commencement of the Act. As it appears from the orders of the ITO and the Commissioner the company had not even till then been finally wound up and dissolved. The proceedings for its winding-up wereour opinion, the section will be attracted if any one or more of the three events occurred after the commencement of the Act even though the first or the first and second events had happened earlier. The section was meant also to net a case like the instant one where it was resolved that the private company should be sent to liquidation and nobody cared to pay the huge arrears of income-tax due from it. The directors were sought to be caught exactly for this purpose. When the company goes into liquidation it becomes difficult for the department to realise its dues from the assets of the company and more so when the company has been finally wound up and dissolved. The directors, therefore, have been made liable to pay such dues. Section 179 is meant to squarely cover such a case also and the appellants cannot escape their liability for the dues. The proceedings were rightly initiated against them for realisation of the dues. The High Court was perfectly justified in dismissing the appellants writ petition in limine
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Life Insurance Corp. Of India Vs. Sanjeev Builders Pvt Ltd | creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).Under Order XXII Rule 10 CPC, when there has been an assignment or devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against person to or upon whom such interest has been assigned or devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. When the plaintiff assigns/transfers the suit during the pendency of the suit, the assignee is entitled to be brought on record and continue the suit. Order XXII Rule 10 CPC enables only continuance of the suit by the leave of the court. It is the duty of the court to decide whether leave to be granted or not to the person or to the assignee to continue the suit. The discretion to implead or not to implead parties who apply to continue the suit must be exercised judiciously and not arbitrarily.13. The High Court was not right in holding that mere alleged transfer/assignment of the agreement would be sufficient to grant leave to respondent No.3 to continue the suit. From the filing of the suit in 1986, over the years, valuable right of defence accrued to the appellant; such valuable right of defence cannot be defeated by granting leave to the third respondent to continue the suit in the application filed under Order XXII Rule 10 CPC after 27 years of filing of the suit. The learned Single Judge was not right in saying that impleading respondent No.3 as Plaintiff No.3 would cause no prejudice to the appellant and that the issues can be raised at the time of trial.14. In a suit for specific performance, application for impleadment must be filed within a reasonable time. Considering the question of impleadment of party in a suit for specific performance after referring to various judgments, in Vidur Impex and Traders Private Limited and Others v. Tosh Apartments Private Limited and Others, 2012(4) R.C.R.(Civil) 308 : 2012(4) Recent Apex Judgments (R.A.J.) 363 : (2012) 8 SCC 384 summarized the principles as under:-"41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment."In light of the above principles, considering the case in hand, in our view, the application filed for impleading respondent No.3 as Plaintiff No.3 was not filed within reasonable time. No explanation is offered for such an inordinate delay of 27 years, which was not kept in view by the High Court.15. Be it noted that an application under Order XXII Rule 10 CPC seeking leave of the court to continue the suit by the assignee/third respondent was not actually filed. Chamber Summons No.187 of 2014 was straight away filed praying to amend the suit which would have been the consequential amendment, had the leave to continue the suit been granted by the court.16. As pointed out earlier, the application was filed after 27 years of filing of the suit. Of course, the power to allow the amendment of suit is wide and the court should not adopt hyper technical approach. In considering amendment applications, court should adopt liberal approach and amendments are to be allowed to avoid multiplicity of litigations. We are conscious that mere delay is not a ground for rejecting the amendment. But in the case in hand, the parties are not rustic litigants; all the respondents are companies and the dispute between the parties is a commercial litigation. In such facts and circumstances, the amendment prayed in the Chamber Summons filed under Order XXII Rule 10 CPC ought not to have been allowed, as the same would cause serious prejudice to the appellant. In our view, the impugned order, allowing Chamber Summons No.187 of 2014 filed after 27 years of the suit would take away the substantial rights of defence accrued to the appellant and the same cannot be sustained. | 1[ds]11. Applying the above principle to the case in hand, we find that the order allowing the application impleading respondent No.3 as assignee (Order XXII Rule 10 CPC) after 27 years of filing of the suit vitally affects the valuable rights of the appellant. The order allowing amendment of plaint by impleading respondent No.3 as Plaintiff No.3 on the basis of alleged assignment of agreement dated 24.08.1987 decides a vital question which concerns the rights of the parties and hence is a judgment to maintain the Letters Patent Appeal. In our view, allowing of such application after 27 years of filing suit for specific performance would cause serious prejudice to thedepriving valuable right of defence available to the appellant and hence the order of Single Judge allowing the Chamber Summons is a judgment within the meaning of Clause 15 of the Letters Patent Appeal.12. The stand of respondent No.3 is that it claims as an assignee of the rights of respondent Nos.1 and 2 and that it has the right to continue the suit under Order XXII Rule 10 CPC and the provisions of limitation, do not apply to such an application.The High Court was not right in holding that mere alleged transfer/assignment of the agreement would be sufficient to grant leave to respondent No.3 to continue the suit. From the filing of the suit in 1986, over the years, valuable right of defence accrued to the appellant; such valuable right of defence cannot be defeated by granting leave to the third respondent to continue the suit in the application filed under Order XXII Rule 10 CPC after 27 years of filing of the suit. The learned Single Judge was not right in saying that impleading respondent No.3 as Plaintiff No.3 would cause no prejudice to the appellant and that the issues can be raised at the time of trial.14. In a suit for specific performance, application for impleadment must be filed within a reasonablelight of the above principles, considering the case in hand, in our view, the application filed for impleading respondent No.3 as Plaintiff No.3 was not filed within reasonable time. No explanation is offered for such an inordinate delay of 27 years, which was not kept in view by the High Court.15. Be it noted that an application under Order XXII Rule 10 CPC seeking leave of the court to continue the suit by the assignee/third respondent was not actually filed. Chamber Summons No.187 of 2014 was straight away filed praying to amend the suit which would have been the consequential amendment, had the leave to continue the suit been granted by the court.16. As pointed out earlier, the application was filed after 27 years of filing of the suit. Of course, the power to allow the amendment of suit is wide and the court should not adopt hyper technical approach. In considering amendment applications, court should adopt liberal approach and amendments are to be allowed to avoid multiplicity of litigations. We are conscious that mere delay is not a ground for rejecting the amendment. But in the case in hand, the parties are not rustic litigants; all the respondents are companies and the dispute between the parties is a commercial litigation. In such facts and circumstances, the amendment prayed in the Chamber Summons filed under Order XXII Rule 10 CPC ought not to have been allowed, as the same would cause serious prejudice to the appellant. In our view, the impugned order, allowing Chamber Summons No.187 of 2014 filed after 27 years of the suit would take away the substantial rights of defence accrued to the appellant and the same cannot be sustained. | 1 | 3,231 | 654 | ### 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:
creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).Under Order XXII Rule 10 CPC, when there has been an assignment or devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against person to or upon whom such interest has been assigned or devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. When the plaintiff assigns/transfers the suit during the pendency of the suit, the assignee is entitled to be brought on record and continue the suit. Order XXII Rule 10 CPC enables only continuance of the suit by the leave of the court. It is the duty of the court to decide whether leave to be granted or not to the person or to the assignee to continue the suit. The discretion to implead or not to implead parties who apply to continue the suit must be exercised judiciously and not arbitrarily.13. The High Court was not right in holding that mere alleged transfer/assignment of the agreement would be sufficient to grant leave to respondent No.3 to continue the suit. From the filing of the suit in 1986, over the years, valuable right of defence accrued to the appellant; such valuable right of defence cannot be defeated by granting leave to the third respondent to continue the suit in the application filed under Order XXII Rule 10 CPC after 27 years of filing of the suit. The learned Single Judge was not right in saying that impleading respondent No.3 as Plaintiff No.3 would cause no prejudice to the appellant and that the issues can be raised at the time of trial.14. In a suit for specific performance, application for impleadment must be filed within a reasonable time. Considering the question of impleadment of party in a suit for specific performance after referring to various judgments, in Vidur Impex and Traders Private Limited and Others v. Tosh Apartments Private Limited and Others, 2012(4) R.C.R.(Civil) 308 : 2012(4) Recent Apex Judgments (R.A.J.) 363 : (2012) 8 SCC 384 summarized the principles as under:-"41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment."In light of the above principles, considering the case in hand, in our view, the application filed for impleading respondent No.3 as Plaintiff No.3 was not filed within reasonable time. No explanation is offered for such an inordinate delay of 27 years, which was not kept in view by the High Court.15. Be it noted that an application under Order XXII Rule 10 CPC seeking leave of the court to continue the suit by the assignee/third respondent was not actually filed. Chamber Summons No.187 of 2014 was straight away filed praying to amend the suit which would have been the consequential amendment, had the leave to continue the suit been granted by the court.16. As pointed out earlier, the application was filed after 27 years of filing of the suit. Of course, the power to allow the amendment of suit is wide and the court should not adopt hyper technical approach. In considering amendment applications, court should adopt liberal approach and amendments are to be allowed to avoid multiplicity of litigations. We are conscious that mere delay is not a ground for rejecting the amendment. But in the case in hand, the parties are not rustic litigants; all the respondents are companies and the dispute between the parties is a commercial litigation. In such facts and circumstances, the amendment prayed in the Chamber Summons filed under Order XXII Rule 10 CPC ought not to have been allowed, as the same would cause serious prejudice to the appellant. In our view, the impugned order, allowing Chamber Summons No.187 of 2014 filed after 27 years of the suit would take away the substantial rights of defence accrued to the appellant and the same cannot be sustained.
### Response:
1
### Explanation:
11. Applying the above principle to the case in hand, we find that the order allowing the application impleading respondent No.3 as assignee (Order XXII Rule 10 CPC) after 27 years of filing of the suit vitally affects the valuable rights of the appellant. The order allowing amendment of plaint by impleading respondent No.3 as Plaintiff No.3 on the basis of alleged assignment of agreement dated 24.08.1987 decides a vital question which concerns the rights of the parties and hence is a judgment to maintain the Letters Patent Appeal. In our view, allowing of such application after 27 years of filing suit for specific performance would cause serious prejudice to thedepriving valuable right of defence available to the appellant and hence the order of Single Judge allowing the Chamber Summons is a judgment within the meaning of Clause 15 of the Letters Patent Appeal.12. The stand of respondent No.3 is that it claims as an assignee of the rights of respondent Nos.1 and 2 and that it has the right to continue the suit under Order XXII Rule 10 CPC and the provisions of limitation, do not apply to such an application.The High Court was not right in holding that mere alleged transfer/assignment of the agreement would be sufficient to grant leave to respondent No.3 to continue the suit. From the filing of the suit in 1986, over the years, valuable right of defence accrued to the appellant; such valuable right of defence cannot be defeated by granting leave to the third respondent to continue the suit in the application filed under Order XXII Rule 10 CPC after 27 years of filing of the suit. The learned Single Judge was not right in saying that impleading respondent No.3 as Plaintiff No.3 would cause no prejudice to the appellant and that the issues can be raised at the time of trial.14. In a suit for specific performance, application for impleadment must be filed within a reasonablelight of the above principles, considering the case in hand, in our view, the application filed for impleading respondent No.3 as Plaintiff No.3 was not filed within reasonable time. No explanation is offered for such an inordinate delay of 27 years, which was not kept in view by the High Court.15. Be it noted that an application under Order XXII Rule 10 CPC seeking leave of the court to continue the suit by the assignee/third respondent was not actually filed. Chamber Summons No.187 of 2014 was straight away filed praying to amend the suit which would have been the consequential amendment, had the leave to continue the suit been granted by the court.16. As pointed out earlier, the application was filed after 27 years of filing of the suit. Of course, the power to allow the amendment of suit is wide and the court should not adopt hyper technical approach. In considering amendment applications, court should adopt liberal approach and amendments are to be allowed to avoid multiplicity of litigations. We are conscious that mere delay is not a ground for rejecting the amendment. But in the case in hand, the parties are not rustic litigants; all the respondents are companies and the dispute between the parties is a commercial litigation. In such facts and circumstances, the amendment prayed in the Chamber Summons filed under Order XXII Rule 10 CPC ought not to have been allowed, as the same would cause serious prejudice to the appellant. In our view, the impugned order, allowing Chamber Summons No.187 of 2014 filed after 27 years of the suit would take away the substantial rights of defence accrued to the appellant and the same cannot be sustained.
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DALIP SINGH Vs. STATE OF HARYANA | the allottee has defeated the very purpose of allotment of such industrial plot. 17. Learned senior counsel for the appellants has also drawn our attention to the judgment of High Court of Punjab and Haryana at Chandigarh passed in CWP No.15672 of 2008 Anup Chauhan v. The Financial Commissioner & Secretary and others wherein the High Court directed the Respondent Authority to consider the claim of the petitioner. However, the facts of the case in hand have to be distinguished from those of the Anup Chauhan case. In the writ petition, the petitioners had applied for an extension till 2006 to complete the project and had also paid the extension fee for the same and the Estate Officer had passed an order on 30.11.2004 resuming the plot and in such facts, the High Court set aside the order of resumption of plot. 18. Similarly, in another case relied upon by the appellants, i.e. Haryana Urban Development Authority, Faridabad & Another v. Mrs. Manu Gupta and another in RSA No.908 of 2012, the appeal filed by HUDA was dismissed with a direction that HUDA cannot be allowed to take advantage of their own wrong and burden the respondent with further payment, despite their making the payment under the order of the court, which the appellant HUDA deliberately avoided to accept. But in the case in hand, it is the appellants who have defaulted in fulfilling the terms and conditions of the allotment letter for a long time of about twenty years. 19. All the judgments relied upon by the appellants are distinguishable on facts. Even assuming that for some other allottees, order of resumption of plot had been quashed/cancelled, the appellants cannot claim equality of treatment. Article 14 is a positive concept and cannot be enforced by a citizen in a negative manner. In State of Orissa and another v. Mamata Mohanty (2011) 3 SCC 436 , it was held as under:- 56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Admn. v. Jagjit Singh (1995) 1 SCC 745 , Yogesh Kumar v. Govt. of NCT of Delhi (2003) 3 SCC 548 , Anand Buttons Ltd. v. State of Haryana (2005) 9 SCC 164 , K.K. Bhalla v. State of M.P. (2006) 3 SCC 581 , Krishan Bhatt v. State of J&K (2008) 9 SCC 24 , Upendra Narayan Singh (2009) 5 SCC 65 and Union of India v. Kartick Chandra Mondal (2010) 2 SCC 422 ) 20. This Court issued notice (vide order dated 07.01.2015) on the basis of submissions made on behalf of the appellants that they are agreeable to pay the present market value of the plot in question. The learned senior counsel Mr. Nidhesh Gupta appearing for the appellants submitted that the appellants are ready to pay the present market value of the plot in question. Refuting the said submission, the learned counsel for HUDA has submitted that at present, there is no HUDA policy to allot the resumed industrial plot on the current market price. It was submitted that allotment of industrial plots at present is governed by Estate Management Procedure (EMP), 2011 and the subsequent EMP, 2015 as per which, industrial plot is to be allotted or disposed of only as per Regulation/policy. It was submitted that industrial plots are disposed of as per EMP and in this regard, the learned counsel has drawn our attention to the counter filed as to the EMP governing the allotment of the industrial plots including the invitation of applications through advertisements. When allotment of industrial plots is thus governed by EMP, the prayer of the appellants that they are ready to pay the current market rate for the industrial plot cannot be considered. 21. The allotment of Industrial Plot No.306, Industrial Area, Phase-II, Panchkula in 1984 to Rabinder Nath was in his capacity as Managing Director of M/s Shiva Dairy & Oil Mills. The plot was thus allotted to the partnership firm. The appellants have not been able to show as to how they stepped into the shoes of the partnership firm, apart from the mere fact that they are legal heirs of Rabinder Nath. As discussed earlier, at the time of making application for allotment of industrial plot, the applicant has to clearly disclose all the facts regarding the type of industry to be started, licence if necessary under law, project report, estimated cost of project, details regarding time required in completing the project, details of employees required, source of fund etc. The project so submitted is then approved by the competent authority after considering its viability. The applicants are then issued letter of intent/provisional allotment letter with condition to complete the other formalities within the stipulated period of time and after completion of formalities, regular allotment letter is issued in favour of the applicant. As pointed out earlier, the undertaking of the production as per the approved project is the foundation for the allotment of the industrial plots which is with twin object of economic development and generation of employment opportunities. Over the years, the State has undergone substantive changes and economic growth. Land/industrial plots now becoming very scarce, governed by the present EMP, the appellants cannot seek for revocation of resumption by contending that they are ready to pay the current market rate. 22. The court can interfere with the revocation of resumption of land only if the executive has not carried out its duty or acted in violation of the procedure. Clause (11) of the terms and conditions of allotment clearly stipulates that in the event of breach of any of the conditions of transfer, the Estate Officer may resume the land in accordance with the provisions of Section 17 of the HUDA Act, 1977. | 0[ds]10. With a view to ensure rapid industrial growth on sustainable basis to achieve the twin objects of economic development and generation of adequate employment, the industrial estates/areas were established in order to achieve the said purpose, the industrial policy was framed by the State of Haryana aiming at balancing regional development. After completion of various formalities, Industrial Plot No.306, Industrial Area,, Panchkula was allotted vide letter dated 25.07.1984 and possession thereof was delivered on 19.09.1984. The undertaking of the production as per the approved project is the foundation for the allotment of industrial plots. These plots are allotted at a very reasonable rate/concessional rate with a view to provide incentives to the allottees/entrepreneurs with intent to encourage industrialization and growth in employment opportunities. These allotments are not only governed by the provisions of the HUDA Act, 1977 and the Rules and Regulations framed thereunder but also by the provisions of the industrial policy of the State of HaryanaThe appellants have admittedly not commenced the industrial production on the plot for twenty long years after allotment and delivery of possession. The appellants seem to have woken upon only after issuance of the Show Cause Notice. Evidently, there is breach of condition of allotment of the plot13. As pointed out earlier, the allotment of industrial plot was with the twin objects of economic development and generation of adequate employment. In order to achieve the said purpose, the industrial policy was framed by the State of Haryana aiming at balanced regional development and with a view to generate adequate employment. The allotment of industrial plot was at concessional rate and was subject to terms and conditions and the allottee was bound to comply with the terms and conditions. In such kind of allotment of industrial plots, based on government industrial policy with twin objectives of economic development and generation of adequate employment, sympathy cannot be the ground for considering the case of the appellants as to theire of the terms and conditions of allotment especially for twenty long years after the allotment15. As discussed earlier, the industrial plots were allotted at a very reasonable rates/concessional rates with a view to provide incentives to the allottees/entrepreneurs with intent to ensure industrial growth and economic development of the State and generation of adequate employment opportunities. These allotments are not only governed by the provisions of HUDA Act, 1977 Rules and Regulations framed thereunder but also by the provisions of the industrial policy of the State. Construction of building and commencement of production are the integral part of the terms and conditions of the order of allotment. The appellate and Revisional authority as well as the High Court cannot be faulted for the observation that the buildings were not constructed for twenty long years after allotment. If the construction of the building was really complete, the appellants could have very well filed the completion certificate; but that was not to be so.In the case in hand, per contra, the allottee has failed to complete construction within the stipulated time as per condition No.18 and commence production for a period of almost twenty years despite there being a clear stipulation in the allotment letter requiring them to complete construction within a period of two years. They have also failed to explain sufficient cause for this inordinate delay occasioned by them. As rightly held by the authorities, the allottee has defeated the very purpose of allotment of such industrial plot20. This Court issued notice (vide order dated 07.01.2015) on the basis of submissions made on behalf of the appellants that they are agreeable to pay the present market value of the plot in question.21. The allotment of Industrial Plot No.306, Industrial Area,, Panchkula in 1984 to Rabinder Nath was in his capacity as Managing Director of M/s Shiva Dairy & Oil Mills. The plot was thus allotted to the partnership firm. The appellants have not been able to show as to how they stepped into the shoes of the partnership firm, apart from the mere fact that they are legal heirs of Rabinder Nath. As discussed earlier, at the time of making application for allotment of industrial plot, the applicant has to clearly disclose all the facts regarding the type of industry to be started, licence if necessary under law, project report, estimated cost of project, details regarding time required in completing the project, details of employees required, source of fund etc. The project so submitted is then approved by the competent authority after considering its viability. The applicants are then issued letter of intent/provisional allotment letter with condition to complete the other formalities within the stipulated period of time and after completion of formalities, regular allotment letter is issued in favour of the applicant. As pointed out earlier, the undertaking of the production as per the approved project is the foundation for the allotment of the industrial plots which is with twin object of economic development and generation of employment opportunities. Over the years, the State has undergone substantive changes and economic growth. Land/industrial plots now becoming very scarce, governed by the present EMP, the appellants cannot seek for revocation of resumption by contending that they are ready to pay the current market rate22. The court can interfere with the revocation of resumption of land only if the executive has not carried out its duty or acted in violation of the procedure. Clause (11) of the terms and conditions of allotment clearly stipulates that in the event of breach of any of the conditions of transfer, the Estate Officer may resume the land in accordance with the provisions of Section 17 of the HUDA Act, 1977. | 0 | 4,110 | 1,020 | ### 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:
the allottee has defeated the very purpose of allotment of such industrial plot. 17. Learned senior counsel for the appellants has also drawn our attention to the judgment of High Court of Punjab and Haryana at Chandigarh passed in CWP No.15672 of 2008 Anup Chauhan v. The Financial Commissioner & Secretary and others wherein the High Court directed the Respondent Authority to consider the claim of the petitioner. However, the facts of the case in hand have to be distinguished from those of the Anup Chauhan case. In the writ petition, the petitioners had applied for an extension till 2006 to complete the project and had also paid the extension fee for the same and the Estate Officer had passed an order on 30.11.2004 resuming the plot and in such facts, the High Court set aside the order of resumption of plot. 18. Similarly, in another case relied upon by the appellants, i.e. Haryana Urban Development Authority, Faridabad & Another v. Mrs. Manu Gupta and another in RSA No.908 of 2012, the appeal filed by HUDA was dismissed with a direction that HUDA cannot be allowed to take advantage of their own wrong and burden the respondent with further payment, despite their making the payment under the order of the court, which the appellant HUDA deliberately avoided to accept. But in the case in hand, it is the appellants who have defaulted in fulfilling the terms and conditions of the allotment letter for a long time of about twenty years. 19. All the judgments relied upon by the appellants are distinguishable on facts. Even assuming that for some other allottees, order of resumption of plot had been quashed/cancelled, the appellants cannot claim equality of treatment. Article 14 is a positive concept and cannot be enforced by a citizen in a negative manner. In State of Orissa and another v. Mamata Mohanty (2011) 3 SCC 436 , it was held as under:- 56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Admn. v. Jagjit Singh (1995) 1 SCC 745 , Yogesh Kumar v. Govt. of NCT of Delhi (2003) 3 SCC 548 , Anand Buttons Ltd. v. State of Haryana (2005) 9 SCC 164 , K.K. Bhalla v. State of M.P. (2006) 3 SCC 581 , Krishan Bhatt v. State of J&K (2008) 9 SCC 24 , Upendra Narayan Singh (2009) 5 SCC 65 and Union of India v. Kartick Chandra Mondal (2010) 2 SCC 422 ) 20. This Court issued notice (vide order dated 07.01.2015) on the basis of submissions made on behalf of the appellants that they are agreeable to pay the present market value of the plot in question. The learned senior counsel Mr. Nidhesh Gupta appearing for the appellants submitted that the appellants are ready to pay the present market value of the plot in question. Refuting the said submission, the learned counsel for HUDA has submitted that at present, there is no HUDA policy to allot the resumed industrial plot on the current market price. It was submitted that allotment of industrial plots at present is governed by Estate Management Procedure (EMP), 2011 and the subsequent EMP, 2015 as per which, industrial plot is to be allotted or disposed of only as per Regulation/policy. It was submitted that industrial plots are disposed of as per EMP and in this regard, the learned counsel has drawn our attention to the counter filed as to the EMP governing the allotment of the industrial plots including the invitation of applications through advertisements. When allotment of industrial plots is thus governed by EMP, the prayer of the appellants that they are ready to pay the current market rate for the industrial plot cannot be considered. 21. The allotment of Industrial Plot No.306, Industrial Area, Phase-II, Panchkula in 1984 to Rabinder Nath was in his capacity as Managing Director of M/s Shiva Dairy & Oil Mills. The plot was thus allotted to the partnership firm. The appellants have not been able to show as to how they stepped into the shoes of the partnership firm, apart from the mere fact that they are legal heirs of Rabinder Nath. As discussed earlier, at the time of making application for allotment of industrial plot, the applicant has to clearly disclose all the facts regarding the type of industry to be started, licence if necessary under law, project report, estimated cost of project, details regarding time required in completing the project, details of employees required, source of fund etc. The project so submitted is then approved by the competent authority after considering its viability. The applicants are then issued letter of intent/provisional allotment letter with condition to complete the other formalities within the stipulated period of time and after completion of formalities, regular allotment letter is issued in favour of the applicant. As pointed out earlier, the undertaking of the production as per the approved project is the foundation for the allotment of the industrial plots which is with twin object of economic development and generation of employment opportunities. Over the years, the State has undergone substantive changes and economic growth. Land/industrial plots now becoming very scarce, governed by the present EMP, the appellants cannot seek for revocation of resumption by contending that they are ready to pay the current market rate. 22. The court can interfere with the revocation of resumption of land only if the executive has not carried out its duty or acted in violation of the procedure. Clause (11) of the terms and conditions of allotment clearly stipulates that in the event of breach of any of the conditions of transfer, the Estate Officer may resume the land in accordance with the provisions of Section 17 of the HUDA Act, 1977.
### Response:
0
### Explanation:
10. With a view to ensure rapid industrial growth on sustainable basis to achieve the twin objects of economic development and generation of adequate employment, the industrial estates/areas were established in order to achieve the said purpose, the industrial policy was framed by the State of Haryana aiming at balancing regional development. After completion of various formalities, Industrial Plot No.306, Industrial Area,, Panchkula was allotted vide letter dated 25.07.1984 and possession thereof was delivered on 19.09.1984. The undertaking of the production as per the approved project is the foundation for the allotment of industrial plots. These plots are allotted at a very reasonable rate/concessional rate with a view to provide incentives to the allottees/entrepreneurs with intent to encourage industrialization and growth in employment opportunities. These allotments are not only governed by the provisions of the HUDA Act, 1977 and the Rules and Regulations framed thereunder but also by the provisions of the industrial policy of the State of HaryanaThe appellants have admittedly not commenced the industrial production on the plot for twenty long years after allotment and delivery of possession. The appellants seem to have woken upon only after issuance of the Show Cause Notice. Evidently, there is breach of condition of allotment of the plot13. As pointed out earlier, the allotment of industrial plot was with the twin objects of economic development and generation of adequate employment. In order to achieve the said purpose, the industrial policy was framed by the State of Haryana aiming at balanced regional development and with a view to generate adequate employment. The allotment of industrial plot was at concessional rate and was subject to terms and conditions and the allottee was bound to comply with the terms and conditions. In such kind of allotment of industrial plots, based on government industrial policy with twin objectives of economic development and generation of adequate employment, sympathy cannot be the ground for considering the case of the appellants as to theire of the terms and conditions of allotment especially for twenty long years after the allotment15. As discussed earlier, the industrial plots were allotted at a very reasonable rates/concessional rates with a view to provide incentives to the allottees/entrepreneurs with intent to ensure industrial growth and economic development of the State and generation of adequate employment opportunities. These allotments are not only governed by the provisions of HUDA Act, 1977 Rules and Regulations framed thereunder but also by the provisions of the industrial policy of the State. Construction of building and commencement of production are the integral part of the terms and conditions of the order of allotment. The appellate and Revisional authority as well as the High Court cannot be faulted for the observation that the buildings were not constructed for twenty long years after allotment. If the construction of the building was really complete, the appellants could have very well filed the completion certificate; but that was not to be so.In the case in hand, per contra, the allottee has failed to complete construction within the stipulated time as per condition No.18 and commence production for a period of almost twenty years despite there being a clear stipulation in the allotment letter requiring them to complete construction within a period of two years. They have also failed to explain sufficient cause for this inordinate delay occasioned by them. As rightly held by the authorities, the allottee has defeated the very purpose of allotment of such industrial plot20. This Court issued notice (vide order dated 07.01.2015) on the basis of submissions made on behalf of the appellants that they are agreeable to pay the present market value of the plot in question.21. The allotment of Industrial Plot No.306, Industrial Area,, Panchkula in 1984 to Rabinder Nath was in his capacity as Managing Director of M/s Shiva Dairy & Oil Mills. The plot was thus allotted to the partnership firm. The appellants have not been able to show as to how they stepped into the shoes of the partnership firm, apart from the mere fact that they are legal heirs of Rabinder Nath. As discussed earlier, at the time of making application for allotment of industrial plot, the applicant has to clearly disclose all the facts regarding the type of industry to be started, licence if necessary under law, project report, estimated cost of project, details regarding time required in completing the project, details of employees required, source of fund etc. The project so submitted is then approved by the competent authority after considering its viability. The applicants are then issued letter of intent/provisional allotment letter with condition to complete the other formalities within the stipulated period of time and after completion of formalities, regular allotment letter is issued in favour of the applicant. As pointed out earlier, the undertaking of the production as per the approved project is the foundation for the allotment of the industrial plots which is with twin object of economic development and generation of employment opportunities. Over the years, the State has undergone substantive changes and economic growth. Land/industrial plots now becoming very scarce, governed by the present EMP, the appellants cannot seek for revocation of resumption by contending that they are ready to pay the current market rate22. The court can interfere with the revocation of resumption of land only if the executive has not carried out its duty or acted in violation of the procedure. Clause (11) of the terms and conditions of allotment clearly stipulates that in the event of breach of any of the conditions of transfer, the Estate Officer may resume the land in accordance with the provisions of Section 17 of the HUDA Act, 1977.
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SR. ANTHONY @ ANTHONY SWAMY Vs. MANAGING DIRECTOR KSRTC | extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co. Ltd.) xxxx xxxx xxxx 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of loss of future earnings, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. 11. In Nagarajappa vs. Divisional Manager, Oriental Insurance Company Limited, 2011 (13) SCC 323, the physical disability of the upper limb was determined as 68% in proportion to 22-23% of the whole-body. This court opined as follows: 9. On perusal of the doctors evidence with respect to the nature of injuries suffered by the appellant, the appellant was found, inter alia, to be suffering from the following disabilities as a result of the accident— gross deformity of the left forearm, wrist and hand, wasting and weakness of the muscles of the left upper limb and shortening of the left upper limb by 1 cm. As a result, the doctor stated that the appellant could not work as a coolie and could not also do any other manual work. The doctor assessed permanent residual physical disability of the upper limb at 68% and 22-23% of the whole body. 10. The appellant is working as a manual labourer, for which he requires the use of both his hands. The fact that the accident has left him with one useless hand will severely affect his ability to perform his work as a coolie or any other manual work, and this has also been certified by the doctor. Thus, while awarding compensation it has to be kept in mind that the appellant is to do manual work for the rest of his life without full use of his left hand, and this is bound to affect the quality of his work and also his ability to find work considering his disability. Hence, while computing loss of future income, disability should be taken to be 68% and not 20%, as was done by the Tribunal and the High Court. Our view is supported by the ratio in Raj Kumar and from the fact that the appellant is severely hampered and perhaps forever handicapped from performing his occupation as a coolie. 12. The High Court also erred in granting a sum of Rs.50,000/- only towards future medical expenses. PW.3 deposed that the appellant would require three more replacements of the artificial left leg during his lifetime. | 1[ds]6. We have considered the submissions on behalf of the parties. The appellant was initially taken to the government hospital on the date of the accident but was shifted to a private hospital on 25.02.2010 where he remained as an inpatient till 16.09.2010 and also underwent surgery requiring amputation of his left leg from above the knee. PW.3, the treating doctor, deposed that the appellant had suffered Type III B commuted fracture of Tibia and Fibula of the left leg with an active infection of Chronic Osteomyelitis emanating foul smell which prevented him from mixing and socialising in public. There was no alternative to amputation and fixation of an artificial leg. The physical disability suffered by the appellant of the left lower limb was assessed at 75% which was about 37.5% of the whole body. PW.3 further opined that the appellant had suffered shortening of the left lower limb by 3 cms. He could not stand independently or walk without aid of a walker or attendant. The appellant cannot sit cross legged, squat or use an Indian toilet. He could not climb up and down a staircase. The appellant was incapable of any manual work including painting. The appellant who was 45 years of age, considering average life expectancy of 65 years would require at least three further replacements of the artificial limb in his lifetime, the cost of which was assessed at approximately between Rs.75,000 to Rs.1,50,000/-.7. The High Court enhanced the monthly income of the appellant to Rs.5,500/-. He has been awarded a sum of Rs.1,00,000/- towards pain and suffering and Rs.7,350/- towards medical expenses along with Rs.21,000/- for attendant charges. The loss of earnings during the period of treatment has been enhanced by the High Court to Rs.66,000/-. Conveyance charges have been paid at Rs.10,000/-. We find no reason to interfere to the aforesaid extent.8. The physical disability of the appellant without any reasoning has been assessed at 25% of the whole body with which we are unable to concur. The compensation granted towards loss of future earning on account of disability at Rs.2,31,000/- is considered grossly inadequate in the facts and circumstances of the case, as also the compensation of Rs.50,000/- towards future medical expenses and only Rs.25,000/- towards loss of amenities.9. PW.3 had assessed the physical functional disability of the left leg of the appellant at 75% and total body disability at 37.5%. The High Court has considered it proper to assess the physical disability at 25% of the whole body only. There is no discussion for this reduction in percentage, much less any consideration of the nature of permanent functional disability suffered by the appellant. The extent of physical functional disability, in the facts of the case has to be considered in a manner so as to grant just and proper compensation to the appellant towards loss of future earning. The earning capacity of the appellant as on the date of the accident stands completely negated and not reduced. He has been rendered permanently incapable of working as a painter or do any manual work. Compensation for loss of future earning therefore has to be proper and just to enable him to live a life of dignity and not compensation which is elusive. If the 75% physical disability has rendered the appellant permanently disabled from pursuing his normal vocation or any similar work, it is difficult to comprehend the grant of compensation to him in ratio to the disability to the whole body. The appellant is therefore held entitled to compensation for loss of future earning based on his 75% permanent physical functional disability recalculated with the salary of Rs.5,500/-with multiplier of 14 at Rs. 6,93,000/-.12. The High Court also erred in granting a sum of Rs.50,000/- only towards future medical expenses. PW.3 deposed that the appellant would require three more replacements of the artificial left leg during his lifetime. | 1 | 2,253 | 699 | ### Instruction:
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extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co. Ltd.) xxxx xxxx xxxx 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of loss of future earnings, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. 11. In Nagarajappa vs. Divisional Manager, Oriental Insurance Company Limited, 2011 (13) SCC 323, the physical disability of the upper limb was determined as 68% in proportion to 22-23% of the whole-body. This court opined as follows: 9. On perusal of the doctors evidence with respect to the nature of injuries suffered by the appellant, the appellant was found, inter alia, to be suffering from the following disabilities as a result of the accident— gross deformity of the left forearm, wrist and hand, wasting and weakness of the muscles of the left upper limb and shortening of the left upper limb by 1 cm. As a result, the doctor stated that the appellant could not work as a coolie and could not also do any other manual work. The doctor assessed permanent residual physical disability of the upper limb at 68% and 22-23% of the whole body. 10. The appellant is working as a manual labourer, for which he requires the use of both his hands. The fact that the accident has left him with one useless hand will severely affect his ability to perform his work as a coolie or any other manual work, and this has also been certified by the doctor. Thus, while awarding compensation it has to be kept in mind that the appellant is to do manual work for the rest of his life without full use of his left hand, and this is bound to affect the quality of his work and also his ability to find work considering his disability. Hence, while computing loss of future income, disability should be taken to be 68% and not 20%, as was done by the Tribunal and the High Court. Our view is supported by the ratio in Raj Kumar and from the fact that the appellant is severely hampered and perhaps forever handicapped from performing his occupation as a coolie. 12. The High Court also erred in granting a sum of Rs.50,000/- only towards future medical expenses. PW.3 deposed that the appellant would require three more replacements of the artificial left leg during his lifetime.
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1
### Explanation:
6. We have considered the submissions on behalf of the parties. The appellant was initially taken to the government hospital on the date of the accident but was shifted to a private hospital on 25.02.2010 where he remained as an inpatient till 16.09.2010 and also underwent surgery requiring amputation of his left leg from above the knee. PW.3, the treating doctor, deposed that the appellant had suffered Type III B commuted fracture of Tibia and Fibula of the left leg with an active infection of Chronic Osteomyelitis emanating foul smell which prevented him from mixing and socialising in public. There was no alternative to amputation and fixation of an artificial leg. The physical disability suffered by the appellant of the left lower limb was assessed at 75% which was about 37.5% of the whole body. PW.3 further opined that the appellant had suffered shortening of the left lower limb by 3 cms. He could not stand independently or walk without aid of a walker or attendant. The appellant cannot sit cross legged, squat or use an Indian toilet. He could not climb up and down a staircase. The appellant was incapable of any manual work including painting. The appellant who was 45 years of age, considering average life expectancy of 65 years would require at least three further replacements of the artificial limb in his lifetime, the cost of which was assessed at approximately between Rs.75,000 to Rs.1,50,000/-.7. The High Court enhanced the monthly income of the appellant to Rs.5,500/-. He has been awarded a sum of Rs.1,00,000/- towards pain and suffering and Rs.7,350/- towards medical expenses along with Rs.21,000/- for attendant charges. The loss of earnings during the period of treatment has been enhanced by the High Court to Rs.66,000/-. Conveyance charges have been paid at Rs.10,000/-. We find no reason to interfere to the aforesaid extent.8. The physical disability of the appellant without any reasoning has been assessed at 25% of the whole body with which we are unable to concur. The compensation granted towards loss of future earning on account of disability at Rs.2,31,000/- is considered grossly inadequate in the facts and circumstances of the case, as also the compensation of Rs.50,000/- towards future medical expenses and only Rs.25,000/- towards loss of amenities.9. PW.3 had assessed the physical functional disability of the left leg of the appellant at 75% and total body disability at 37.5%. The High Court has considered it proper to assess the physical disability at 25% of the whole body only. There is no discussion for this reduction in percentage, much less any consideration of the nature of permanent functional disability suffered by the appellant. The extent of physical functional disability, in the facts of the case has to be considered in a manner so as to grant just and proper compensation to the appellant towards loss of future earning. The earning capacity of the appellant as on the date of the accident stands completely negated and not reduced. He has been rendered permanently incapable of working as a painter or do any manual work. Compensation for loss of future earning therefore has to be proper and just to enable him to live a life of dignity and not compensation which is elusive. If the 75% physical disability has rendered the appellant permanently disabled from pursuing his normal vocation or any similar work, it is difficult to comprehend the grant of compensation to him in ratio to the disability to the whole body. The appellant is therefore held entitled to compensation for loss of future earning based on his 75% permanent physical functional disability recalculated with the salary of Rs.5,500/-with multiplier of 14 at Rs. 6,93,000/-.12. The High Court also erred in granting a sum of Rs.50,000/- only towards future medical expenses. PW.3 deposed that the appellant would require three more replacements of the artificial left leg during his lifetime.
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M/S. Rajputana Textiles (Agencies) Ltd Vs. The Commissioner Of Income-Tax, Bombay City | carry on business. Sir George Rankin said at p. 81: "The question in such a case a, % the present must be "what is the object of the expenditure?" and it must be answered from the standpoint of the assessees at the time they made it-that is, when they were embarking upon the business of organizing agents for the company."Jones v. Leeming was a case of an isolated transaction. The finding was that it was not in the nature of trade. Commissioner of Inland Revenue v. Reinhold was decided on its own facts. Another case decided by this court upon which counsel for the appellant relied was Saroj Kumar Mazumdar v. Commissioner of Income-tax, West Bengal, Calcutta ([1959] SUPP. 2 S C.R. 846.) but that case was also decided on its own facts and it was held that there was no clear evidence in support of the inference of the Appellate Tribunal that the land was purchased with the sole intention of selling it later at a profit.9. The English and Scottish cases on which the appellant relied were considered by the House of Lords in Edwards v. Bairstow ([1956] A.C. 14.).In that case the assessees who were the respondents embarked on a joint venture to purchase and complete a spinning plant agreeing between themselves not to hold it but to make a quick resale. With that object in view they approached and there were diverse negotiations and the whole plant was sold in about two years time at a profit of about pound 18, 000 and for that purpose incurred commission for help in effecting sales, for insurance and other expenses. The General Commissioners found that it was not an adventure in the nature of trade to justify an assessment to income-tax under Case 1 of Schedule D to the Income-tax Act, 1918. It was held that the facts led inevitably to the conclusion that the transaction was an adventure in the nature of trade and that the Commissioners inference to the contrary should be set aside.10. Counsel for the respondent next relied on a Judgment of this Court in G. Venkataswami Naidu & Co. v. The Commissioner of Income-tax ([1959] SUPP. 1 S.C.R. 646.) in which it was held that the presence of all the relevant factors may help the Court to draw the inference that the transaction is in the nature of trade but it is not a matter of counting the number of facts and circumstances for and against. What is important is to consider the distinctive character and it is the total effect of all the relevant factors that determines the character of the transaction. All these cases are illustrative. As was said by Gajendragadkar, J., in the above mentioned case the totality of circumstances of a case and the pros and cons have to be considered and inference drawn from those facts whether a particular transaction was in the nature of trade or was merely an investment and the resulting excess from the transaction was therefore profit which was taxable or was merely an accretion to the capital. In the instant case the pi of its from the transaction that consisted of buying the Managing Agency of the Mill Company and the block of shares held by the Sassoons were in our view the profits of an adventure in the nature of trade. The two groups, Morarka and Bubnas, put Rs. 20 lacs into the assessee company which was floated for the acquisition of the Managing Agency and shares of the Mill Company which were beyond the holding capacity of the assessee company. That company never intended to hold the whole block of shares. It or its promoters before even entering into the agreement of purchase and during the course of negotiations for the purchase had entered into arrangements with different brokers for the sale of shares or at least of a bulk of those shares which were subsequently sold at a profit and but for that sale the transact-ion could not have been completed by the assessee company. The purchase of shares was not with the intention of holding them, the intention of the assessee was just the contrary and by the sale at a profit of the shares actually sold the assessee company expected to and did finance the completion of the transaction and thus was enabled to secure the Managing Agency and keep 6 lacs shares. This inescapably was a transaction of a commercial nature. It had all the attributes of an adventure in the nature of trade. The contention that dealing in buying and selling of shares was not one of its objects is without substance. The Investigation Commission found that dealing in shares was within the objects of the assessee company and this is one circumstance in the totality of the circumstances which must be considered, though by itself it is not determinative of the question. All the circumstances lead to the inference which was rightly drawn by the Investigation Commission and by the High Court. The answer to the first part of the question referred by the Investigation Commission must therefore be in the affirmative.It was contended that the question should not have been reframed and we have therefore proceeded to answer the question as framed by the Investigation Commission. In our opinion the question even as framed must be answered in the affirmative. The Notice of Motion to raise other questions in the High Court was rightly dismissed. Apart from the fact that the Notice of Motion was barred by time and there was no application for condonation of delay, the questions which were sought to be raised were rightly held either to be covered by the question answered or they did not arise at all. The constitutional question under Art. 14 of the Constitution cannot be raised in these proceedings because as we have said above this Court is exercising its advisory jurisdiction and its power is confined to the questions which arise in an appeal.11. | 0[ds]The jurisdiction which this Court exercises in appeal is of the same character and therefore any question which was not referred to the High Court cannot be allowed to be raised at this stage. Consequently the constitutional question in regard to discrimination under Art. 14 of the Constitution which is now sought to be raised cannot beis not necessary to adjudicate upon this argument because in our opinion taking the question as referred to be a proper question arising out of the report of the Investigation Commission the answer to the first part thereof would, still be in the affirmative. Inconsidering the question whether the transaction is or is not an adventure in the nature of trade we have to take into consideration the intention of the assessee keeping in view the "legal requirements which are associated with the concept of trade orthe present case the facts as shown were entirelyG. Venkataswami Naidu & Co. v. The Commissioner of Income-tax ([1959] SUPP. 1 S.C.R. 646.) in which it was held that the presence of all the relevant factors may help the Court to draw the inference that the transaction is in the nature of trade but it is not a matter of counting the number of facts and circumstances for and against. What is important is to consider the distinctive character and it is the total effect of all the relevant factors that determines the character of the transaction. All these cases are illustrative. As was said by Gajendragadkar, J., in the above mentioned case the totality of circumstances of a case and the pros and cons have to be considered and inference drawn from those facts whether a particular transaction was in the nature of trade or was merely an investment and the resulting excess from the transaction was therefore profit which was taxable or was merely an accretion to the capital. In the instant case the pi of its from the transaction that consisted of buying the Managing Agency of the Mill Company and the block of shares held by the Sassoons were in our view the profits of an adventure in the nature ofcompany never intended to hold the whole block of shares. It or its promoters before even entering into the agreement of purchase and during the course of negotiations for the purchase had entered into arrangements with different brokers for the sale of shares or at least of a bulk of those shares which were subsequently sold at a profit and but for that sale the transact-ion could not have been completed by the assessee company. The purchase of shares was not with the intention of holding them, the intention of the assessee was just the contrary and by the sale at a profit of the shares actually sold the assessee company expected to and did finance the completion of the transaction and thus was enabled to secure the Managing Agency and keep 6 lacs shares. This inescapably was a transaction of a commercial nature. It had all the attributes of an adventure in the nature of trade. The contention that dealing in buying and selling of shares was not one of its objects is without substance. The Investigation Commission found that dealing in shares was within the objects of the assessee company and this is one circumstance in the totality of the circumstances which must be considered, though by itself it is not determinative of the question. All the circumstances lead to the inference which was rightly drawn by the Investigation Commission and by the High Court. The answer to the first part of the question referred by the Investigation Commission must therefore be in the affirmative.Itwas contended that the question should not have been reframedand we have therefore proceeded to answer the question as framed by the Investigation Commission. In our opinion the question even as framed must be answered in the affirmative. The Notice of Motion to raise other questions in the High Court was rightly dismissed. Apart from the fact that the Notice of Motion was barred by time and there was no application for condonation of delay, the questions which were sought to be raised were rightly held either to be covered by the question answered or they did not arise at all. The constitutional question under Art. 14 of the Constitution cannot be raised in these proceedings because as we have said above this Court is exercising its advisory jurisdiction and its power is confined to the questions which arise in an appeal. | 0 | 4,249 | 797 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
carry on business. Sir George Rankin said at p. 81: "The question in such a case a, % the present must be "what is the object of the expenditure?" and it must be answered from the standpoint of the assessees at the time they made it-that is, when they were embarking upon the business of organizing agents for the company."Jones v. Leeming was a case of an isolated transaction. The finding was that it was not in the nature of trade. Commissioner of Inland Revenue v. Reinhold was decided on its own facts. Another case decided by this court upon which counsel for the appellant relied was Saroj Kumar Mazumdar v. Commissioner of Income-tax, West Bengal, Calcutta ([1959] SUPP. 2 S C.R. 846.) but that case was also decided on its own facts and it was held that there was no clear evidence in support of the inference of the Appellate Tribunal that the land was purchased with the sole intention of selling it later at a profit.9. The English and Scottish cases on which the appellant relied were considered by the House of Lords in Edwards v. Bairstow ([1956] A.C. 14.).In that case the assessees who were the respondents embarked on a joint venture to purchase and complete a spinning plant agreeing between themselves not to hold it but to make a quick resale. With that object in view they approached and there were diverse negotiations and the whole plant was sold in about two years time at a profit of about pound 18, 000 and for that purpose incurred commission for help in effecting sales, for insurance and other expenses. The General Commissioners found that it was not an adventure in the nature of trade to justify an assessment to income-tax under Case 1 of Schedule D to the Income-tax Act, 1918. It was held that the facts led inevitably to the conclusion that the transaction was an adventure in the nature of trade and that the Commissioners inference to the contrary should be set aside.10. Counsel for the respondent next relied on a Judgment of this Court in G. Venkataswami Naidu & Co. v. The Commissioner of Income-tax ([1959] SUPP. 1 S.C.R. 646.) in which it was held that the presence of all the relevant factors may help the Court to draw the inference that the transaction is in the nature of trade but it is not a matter of counting the number of facts and circumstances for and against. What is important is to consider the distinctive character and it is the total effect of all the relevant factors that determines the character of the transaction. All these cases are illustrative. As was said by Gajendragadkar, J., in the above mentioned case the totality of circumstances of a case and the pros and cons have to be considered and inference drawn from those facts whether a particular transaction was in the nature of trade or was merely an investment and the resulting excess from the transaction was therefore profit which was taxable or was merely an accretion to the capital. In the instant case the pi of its from the transaction that consisted of buying the Managing Agency of the Mill Company and the block of shares held by the Sassoons were in our view the profits of an adventure in the nature of trade. The two groups, Morarka and Bubnas, put Rs. 20 lacs into the assessee company which was floated for the acquisition of the Managing Agency and shares of the Mill Company which were beyond the holding capacity of the assessee company. That company never intended to hold the whole block of shares. It or its promoters before even entering into the agreement of purchase and during the course of negotiations for the purchase had entered into arrangements with different brokers for the sale of shares or at least of a bulk of those shares which were subsequently sold at a profit and but for that sale the transact-ion could not have been completed by the assessee company. The purchase of shares was not with the intention of holding them, the intention of the assessee was just the contrary and by the sale at a profit of the shares actually sold the assessee company expected to and did finance the completion of the transaction and thus was enabled to secure the Managing Agency and keep 6 lacs shares. This inescapably was a transaction of a commercial nature. It had all the attributes of an adventure in the nature of trade. The contention that dealing in buying and selling of shares was not one of its objects is without substance. The Investigation Commission found that dealing in shares was within the objects of the assessee company and this is one circumstance in the totality of the circumstances which must be considered, though by itself it is not determinative of the question. All the circumstances lead to the inference which was rightly drawn by the Investigation Commission and by the High Court. The answer to the first part of the question referred by the Investigation Commission must therefore be in the affirmative.It was contended that the question should not have been reframed and we have therefore proceeded to answer the question as framed by the Investigation Commission. In our opinion the question even as framed must be answered in the affirmative. The Notice of Motion to raise other questions in the High Court was rightly dismissed. Apart from the fact that the Notice of Motion was barred by time and there was no application for condonation of delay, the questions which were sought to be raised were rightly held either to be covered by the question answered or they did not arise at all. The constitutional question under Art. 14 of the Constitution cannot be raised in these proceedings because as we have said above this Court is exercising its advisory jurisdiction and its power is confined to the questions which arise in an appeal.11.
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0
### Explanation:
The jurisdiction which this Court exercises in appeal is of the same character and therefore any question which was not referred to the High Court cannot be allowed to be raised at this stage. Consequently the constitutional question in regard to discrimination under Art. 14 of the Constitution which is now sought to be raised cannot beis not necessary to adjudicate upon this argument because in our opinion taking the question as referred to be a proper question arising out of the report of the Investigation Commission the answer to the first part thereof would, still be in the affirmative. Inconsidering the question whether the transaction is or is not an adventure in the nature of trade we have to take into consideration the intention of the assessee keeping in view the "legal requirements which are associated with the concept of trade orthe present case the facts as shown were entirelyG. Venkataswami Naidu & Co. v. The Commissioner of Income-tax ([1959] SUPP. 1 S.C.R. 646.) in which it was held that the presence of all the relevant factors may help the Court to draw the inference that the transaction is in the nature of trade but it is not a matter of counting the number of facts and circumstances for and against. What is important is to consider the distinctive character and it is the total effect of all the relevant factors that determines the character of the transaction. All these cases are illustrative. As was said by Gajendragadkar, J., in the above mentioned case the totality of circumstances of a case and the pros and cons have to be considered and inference drawn from those facts whether a particular transaction was in the nature of trade or was merely an investment and the resulting excess from the transaction was therefore profit which was taxable or was merely an accretion to the capital. In the instant case the pi of its from the transaction that consisted of buying the Managing Agency of the Mill Company and the block of shares held by the Sassoons were in our view the profits of an adventure in the nature ofcompany never intended to hold the whole block of shares. It or its promoters before even entering into the agreement of purchase and during the course of negotiations for the purchase had entered into arrangements with different brokers for the sale of shares or at least of a bulk of those shares which were subsequently sold at a profit and but for that sale the transact-ion could not have been completed by the assessee company. The purchase of shares was not with the intention of holding them, the intention of the assessee was just the contrary and by the sale at a profit of the shares actually sold the assessee company expected to and did finance the completion of the transaction and thus was enabled to secure the Managing Agency and keep 6 lacs shares. This inescapably was a transaction of a commercial nature. It had all the attributes of an adventure in the nature of trade. The contention that dealing in buying and selling of shares was not one of its objects is without substance. The Investigation Commission found that dealing in shares was within the objects of the assessee company and this is one circumstance in the totality of the circumstances which must be considered, though by itself it is not determinative of the question. All the circumstances lead to the inference which was rightly drawn by the Investigation Commission and by the High Court. The answer to the first part of the question referred by the Investigation Commission must therefore be in the affirmative.Itwas contended that the question should not have been reframedand we have therefore proceeded to answer the question as framed by the Investigation Commission. In our opinion the question even as framed must be answered in the affirmative. The Notice of Motion to raise other questions in the High Court was rightly dismissed. Apart from the fact that the Notice of Motion was barred by time and there was no application for condonation of delay, the questions which were sought to be raised were rightly held either to be covered by the question answered or they did not arise at all. The constitutional question under Art. 14 of the Constitution cannot be raised in these proceedings because as we have said above this Court is exercising its advisory jurisdiction and its power is confined to the questions which arise in an appeal.
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M/S Badri Kedar Paper Pvt.Ltd Vs. U.P.Electricity Regulatory Commn | Tata Power Co. Ltd. and Others [(2004) 1 SCC 195] , West Bengal Electricity Regulatory Commission v. CESC Ltd. [(2002) 8 SCC 715] and Association of Industrial Electricity Users v. State of A.P. and Others [(2002) 3 SCC 711]10. It was contended that in LML Ltd. (supra), the regulations framed by the State had inadvertently not been placed; from a perusal whereof it would appear that it was the Commission only who could amend the tariff.11. We are unable to agree with Mr. Misra on any of the aforementioned contentions.When questioned, Mr. Misra conceded that the affidavit affirmed in support of the representation filed by the appellant as regards payment of the amount had not been brought to the notice of the High Court. Concededly again it had also not been contended before the High Court that in view of the aforementioned event subsequent to the filing of the writ application by the appellant, the writ petition became infructuous. Had such contention been raised before the High Court, it might not have exercised its discretionary jurisdiction. Such a contention had not only been raised before the High Court, the respondent No. 1 allowed the High Court to determine the issues arising therein on their own merit, without any demur whatsoever.In our opinion, the respondent No. 1 cannot be permitted to raise such a contention before us for the first time. Even otherwise in the affidavit, the appellant merely stated that even if a stay order is granted by the High Court, the six-monthly instalments would be paid regularly. Appellant had not contended that the writ petition would be withdrawn or even if the writ petition is allowed, it would not ask for refund of the amount deposited. It is neither in doubt nor in dispute that such an undertaking had to be given by the appellant only with a view to avoid disconnection of electrical energy. If by reason of the circular impugned before the High Court, the appellant was entitled to maintain a writ application; by reason of such representation, it did not waive its right.12. In LML Ltd. (supra), this Court proceeded on the basis that it was the Commission alone who had the exclusive jurisdiction to determine the tariff. In view of the provisions of the 1999 Act as also the regulations framed thereunder, as the law stands now, there cannot be any doubt or dispute that the Commission alone has the exclusive jurisdiction and even for the purpose of modification and/ or alteration of tariff, the Commission must be approached.13. Submission of Mr. Misra that in paragraphs 43 and 44 of the judgment this Court had held that sub-section (6) of Section 24 of the 1999 Act empowers the holders of the licence to modify the tariff, is incorrect.The tariff in terms of Sub-section (6) of Section 24 has to be modified by the licensee albeit in terms of a direction issued by the Commission, wheretobefore all procedures laid down in that behalf in terms of the regulations are required to be complied with. The statement made in paragraph 44 of the said decision cannot be read in isolation.14. There cannot further be any doubt or dispute in view of the binding precedent of this Court in Tata Power Co. Ltd. (supra), CESC Ltd. (supra) and Association of Industrial Electricity Users (supra) that the Commission has the exclusive jurisdiction to determine the tariff.15. This Court in LML Ltd. (supra), however, proceeded to hold in favour of the consumers of electrical energy on the premise that the respondent No. 1 is bound by the doctrine of promissory estoppel. The matter as regards fulfillment of the conditions of licence granted by the Commission in favour of the licensee is a matter between the parties thereto. If the Corporation fails to comply with any of the conditions laid down in the licence or violates the tariff, the licence of the licensee may be revoked. A penal action may also be taken. But the same would not mean that the licensee can be permitted to take advantage of its own wrong. It can approbate and reprobate, particularly when it is the beneficiary thereof. [See Halsburys Laws of England, Fourth Edition, Vol. 16, pages 1012-1013, Nagubai Ammal v. B. Shama Rao (1956) SCR 451, C. Beepathuma v. Velasari Shankaranarayana Kadambolithaya (1964) 5 SCR 836 and Ambu Nair and Kelu Nair (1932-33) 60 Indian Appeals 266 at 271-272] It is furthermore well known that even a right under a mandatory provision can be waived. [See Babulal Badriprasad Varma v. Surat Municipal Corporation & Ors. 2008 (8) SCALE 206 ] If it had made a representation pursuant whereto or in furtherance whereof a consumer of electrical energy had altered its position, the doctrine of promissory estoppel shall apply. The doctrine of promissory estoppel, it is now well-settled, applies also in the realm of a statute. [See State of Punjab v. Nestle India Ltd. and Another (2004) 6 SCC 465 and Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO and Others (2007) 5 SCC 447 ]16. It is not the contention of Mr. Misra that in the matter of implementation of tariff the doctrine of promissory estoppel will have no application. If it applies, correctness of LML Ltd. (supra) cannot be questioned.Furthermore, the Allahabad High Court in the first round of litigation was not required to go into the question as to whether the LML Ltd. could enforce a circular as against the Kanpur Electricity Supply Company although it did not make any representation. The question of the tariff prevailing over such circular did not arise therein as no such circular had been issued by the Kanpur Electricity Supply Company at all.17. The circular impugned before the High Court was undoubtedly issued pursuant to the judgment of the Division Bench of the Allahabad High Court but then whether having regard to the doctrine of promissory estoppel the same could have been withdrawn or not, further determination in that behalf was not warranted.18. | 1[ds]In our opinion, the respondent No. 1 cannot be permitted to raise such a contention before us for the first time. Even otherwise in the affidavit, the appellant merely stated that even if a stay order is granted by the High Court, the six-monthly instalments would be paid regularly. Appellant had not contended that the writ petition would be withdrawn or even if the writ petition is allowed, it would not ask for refund of the amount deposited. It is neither in doubt nor in dispute that such an undertaking had to be given by the appellant only with a view to avoid disconnection of electrical energy. If by reason of the circular impugned before the High Court, the appellant was entitled to maintain a writ application; by reason of such representation, it did not waive itsLML Ltd. (supra), this Court proceeded on the basis that it was the Commission alone who had the exclusive jurisdiction to determine the tariff. In view of the provisions of the 1999 Act as also the regulations framed thereunder, as the law stands now, there cannot be any doubt or dispute that the Commission alone has the exclusive jurisdiction and even for the purpose of modification and/ or alteration of tariff, the Commission must becircular impugned before the High Court was undoubtedly issued pursuant to the judgment of the Division Bench of the Allahabad High Court but then whether having regard to the doctrine of promissory estoppel the same could have been withdrawn or not, further determination in that behalf was not | 1 | 2,694 | 284 | ### 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:
Tata Power Co. Ltd. and Others [(2004) 1 SCC 195] , West Bengal Electricity Regulatory Commission v. CESC Ltd. [(2002) 8 SCC 715] and Association of Industrial Electricity Users v. State of A.P. and Others [(2002) 3 SCC 711]10. It was contended that in LML Ltd. (supra), the regulations framed by the State had inadvertently not been placed; from a perusal whereof it would appear that it was the Commission only who could amend the tariff.11. We are unable to agree with Mr. Misra on any of the aforementioned contentions.When questioned, Mr. Misra conceded that the affidavit affirmed in support of the representation filed by the appellant as regards payment of the amount had not been brought to the notice of the High Court. Concededly again it had also not been contended before the High Court that in view of the aforementioned event subsequent to the filing of the writ application by the appellant, the writ petition became infructuous. Had such contention been raised before the High Court, it might not have exercised its discretionary jurisdiction. Such a contention had not only been raised before the High Court, the respondent No. 1 allowed the High Court to determine the issues arising therein on their own merit, without any demur whatsoever.In our opinion, the respondent No. 1 cannot be permitted to raise such a contention before us for the first time. Even otherwise in the affidavit, the appellant merely stated that even if a stay order is granted by the High Court, the six-monthly instalments would be paid regularly. Appellant had not contended that the writ petition would be withdrawn or even if the writ petition is allowed, it would not ask for refund of the amount deposited. It is neither in doubt nor in dispute that such an undertaking had to be given by the appellant only with a view to avoid disconnection of electrical energy. If by reason of the circular impugned before the High Court, the appellant was entitled to maintain a writ application; by reason of such representation, it did not waive its right.12. In LML Ltd. (supra), this Court proceeded on the basis that it was the Commission alone who had the exclusive jurisdiction to determine the tariff. In view of the provisions of the 1999 Act as also the regulations framed thereunder, as the law stands now, there cannot be any doubt or dispute that the Commission alone has the exclusive jurisdiction and even for the purpose of modification and/ or alteration of tariff, the Commission must be approached.13. Submission of Mr. Misra that in paragraphs 43 and 44 of the judgment this Court had held that sub-section (6) of Section 24 of the 1999 Act empowers the holders of the licence to modify the tariff, is incorrect.The tariff in terms of Sub-section (6) of Section 24 has to be modified by the licensee albeit in terms of a direction issued by the Commission, wheretobefore all procedures laid down in that behalf in terms of the regulations are required to be complied with. The statement made in paragraph 44 of the said decision cannot be read in isolation.14. There cannot further be any doubt or dispute in view of the binding precedent of this Court in Tata Power Co. Ltd. (supra), CESC Ltd. (supra) and Association of Industrial Electricity Users (supra) that the Commission has the exclusive jurisdiction to determine the tariff.15. This Court in LML Ltd. (supra), however, proceeded to hold in favour of the consumers of electrical energy on the premise that the respondent No. 1 is bound by the doctrine of promissory estoppel. The matter as regards fulfillment of the conditions of licence granted by the Commission in favour of the licensee is a matter between the parties thereto. If the Corporation fails to comply with any of the conditions laid down in the licence or violates the tariff, the licence of the licensee may be revoked. A penal action may also be taken. But the same would not mean that the licensee can be permitted to take advantage of its own wrong. It can approbate and reprobate, particularly when it is the beneficiary thereof. [See Halsburys Laws of England, Fourth Edition, Vol. 16, pages 1012-1013, Nagubai Ammal v. B. Shama Rao (1956) SCR 451, C. Beepathuma v. Velasari Shankaranarayana Kadambolithaya (1964) 5 SCR 836 and Ambu Nair and Kelu Nair (1932-33) 60 Indian Appeals 266 at 271-272] It is furthermore well known that even a right under a mandatory provision can be waived. [See Babulal Badriprasad Varma v. Surat Municipal Corporation & Ors. 2008 (8) SCALE 206 ] If it had made a representation pursuant whereto or in furtherance whereof a consumer of electrical energy had altered its position, the doctrine of promissory estoppel shall apply. The doctrine of promissory estoppel, it is now well-settled, applies also in the realm of a statute. [See State of Punjab v. Nestle India Ltd. and Another (2004) 6 SCC 465 and Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO and Others (2007) 5 SCC 447 ]16. It is not the contention of Mr. Misra that in the matter of implementation of tariff the doctrine of promissory estoppel will have no application. If it applies, correctness of LML Ltd. (supra) cannot be questioned.Furthermore, the Allahabad High Court in the first round of litigation was not required to go into the question as to whether the LML Ltd. could enforce a circular as against the Kanpur Electricity Supply Company although it did not make any representation. The question of the tariff prevailing over such circular did not arise therein as no such circular had been issued by the Kanpur Electricity Supply Company at all.17. The circular impugned before the High Court was undoubtedly issued pursuant to the judgment of the Division Bench of the Allahabad High Court but then whether having regard to the doctrine of promissory estoppel the same could have been withdrawn or not, further determination in that behalf was not warranted.18.
### Response:
1
### Explanation:
In our opinion, the respondent No. 1 cannot be permitted to raise such a contention before us for the first time. Even otherwise in the affidavit, the appellant merely stated that even if a stay order is granted by the High Court, the six-monthly instalments would be paid regularly. Appellant had not contended that the writ petition would be withdrawn or even if the writ petition is allowed, it would not ask for refund of the amount deposited. It is neither in doubt nor in dispute that such an undertaking had to be given by the appellant only with a view to avoid disconnection of electrical energy. If by reason of the circular impugned before the High Court, the appellant was entitled to maintain a writ application; by reason of such representation, it did not waive itsLML Ltd. (supra), this Court proceeded on the basis that it was the Commission alone who had the exclusive jurisdiction to determine the tariff. In view of the provisions of the 1999 Act as also the regulations framed thereunder, as the law stands now, there cannot be any doubt or dispute that the Commission alone has the exclusive jurisdiction and even for the purpose of modification and/ or alteration of tariff, the Commission must becircular impugned before the High Court was undoubtedly issued pursuant to the judgment of the Division Bench of the Allahabad High Court but then whether having regard to the doctrine of promissory estoppel the same could have been withdrawn or not, further determination in that behalf was not
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State Of Bihar Vs. Rameshwar Pratap Narain Singhand Others | used in its ordinary well-accepted sense, of the person "who holds the land under the proprietor or a tenure-holder for the purpose of cultivation" and the word "under-raiyat " used in the equally well accepted and ordinary sense of "a person who holds land under a raiyat for the purpose of cultivation." It is necessary to remember in this connection that Art. 31A as first enacted by the Constitution (First Amendment) Act did not contain these words "raiyat, under-raiyat"; and that after the First Amendment the definition ran thus:-"the expression rights, in relation to an estate shall include any rights vesting in a proprietor, under-proprietor, tenure-holder or other intermediary and any rights or privileges in respect of land revenue."15. It was the Fourth amendment which in the year 1958 inserted the words "raiyat, under-raiyat" immediately after the words "tenure-holder". At that time laws had already been passed in most of the States for the acquisition of the rights of intermediaries in the estates; rights of raiyats or under-raiyats who might answer the description" intermediary" were also within the definition because of the use of the words "or other intermediary". The only reason for specifically including the rights of "raiyats" and "under-raiyats" in the definition could therefore be to extend the protection of Art. 31A to laws providing for acquisition by the State Government of rights of these "raiyats" or "under-raiyats". In the circumstances and in the particular setting in which the words "raiyat" or "under-raiyat" were introduced into the definition, it must be held that the words "or other intermediary" occurring at the end, do not qualify or colour the meaning to be attached to the tenures newly added.16. Another contention raised in support of the argument that the impugned law is not for acquisition of a right in an estate is that the right to hold a Mela is not a right in the lands at all. This contention is wholly unsound. Holding a hat, or bazaar or mela is only a mode of user by the owner of his land. Just as he can enjoy the land belonging to him in other ways, he can use it for the purpose of having a concourse of people-buyers and sellers and others for a hat or bazaar or mela-subject, as in the case of other user to the requirement that no nuisance is created and the legal rights of others are not infringed. Consequently, the right to hold a Mela has always been considered in this country to be an interest in land, an interest which the owner of the land can transfer to another along with the land or without the land.There can be no doubt therefore that the right of the proprietor of an estate to hold a Mela on his own land is a right in the "estate, being appurtenant to his ownership of the land; so also the right of a tenure-holder, who it has to be remembered is the owner of the land subject only to the payment of rent to the proprietor, to hold a mela on land forming part of the tenure.It is true that a licence to hold a Mela on anothers land in which no interest is transferred is not an interest in land; but there is no question here of the acquisition of any licence to hold a Mela at another persons land.The argument that the impugned law was not a law for acquisition of a right in the "estate" because the right to hold a mela was not a right in the land must therefore be rejected.17. Lastly, it was contended that long before the date of the amending Act the "estates" had ceased to exist as a consequence of the notifications issued under S. 3 of the Parent Act and consequently whatever was being acquired in 1959 could not be a right in an "estate". Here also we have to take note of the fact that the impugned provisions of the Amending Act were made retrospective with effect from the date of the original enactment so that we have to project ourselves to September 25, 1950, the date of the original enactment, and consider whether on that date the law provided for acquisition of a right in an "estate". Undoubtedly the "estates" did exist on that date and so the acquisition retrospectively provided for from that date was acquisition of a right in an estate.18. Even if we ignore the fact that the impugned provisions of the Amending Act were given retrospective effect there is no warrant for saying that what was being acquired was not a right in an "estate." "Estate" was defined in the Bihar Tenancy Act to mean "any land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands prepared and maintained under the law for the time being in force by the Collector of a District." It is not disputed before us that in spite of the fact that in consequence of notifications under Section 3 of the Act the "estates" had become vested in the State, these registers continued to be maintained at least up to the date of the Amending Act and even later. The position therefore is that the "estates" have become vested in the State but have still not ceased to be "estates".19. We have therefore come to the conclusion that the impugned provisions of the Amending Act is a law providing for the acquisition by the State of rights in an "estate" within the meaning of Art. 31A of the Constitution and consequently even if we assume that they are inconsistent with or take away or abridge any of the rights conferred by Arts. 14, 19 and 32 they are not void on that ground. The conclusion cannot therefore be escaped that the ex-intermediaries have not and the State has the right to hold melas on the Bakasht lands of which they have become occupancy raiyats under the provisions of S. 6. | 1[ds]That however is no reason to think that this legislation is not also concerned with land reform. It is however unnecessary for us to consider this question further, for whether it is a law as regards land reform or not, it is clearly and entirely as regards acquisition of property. The question of the legislature having attempted legislation not within its competence by putting it into the guise of legislation within its competence does not even arise. The conclusion that necessarily follows is that the amending legislation was within the legislative competence of the Bihar Legislature under Art. 246 of thecomplete answer to this question is furnished in favour of the State if this is a law within the saving provisions of Art. 31A. Art. 31A was enacted in the Constitution by the Constitution (First Amendment Act) with retrospective effect from the commencement of the Constitution. It was further amended by the Constitution (Fourth Amendment) Act, also with retrospective effect from the date of the commencement of the Constitution. This Article, provides inter alia, that notwithstanding anything contained in Art. 13, no law providing for the acquisition by the State of any estate or of any rights therein.........shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Arts. 19, 31 and 14 of the Constitution. Is the amending legislation a law "providing for the acquisition by the State of any estate or of any rights therein?" Two arguments have been advanced on behalf of the ex-intermediaries to convince us that it is not such a law. The first argument is that what the amending legislation provides for is not "acquisition" at all within the meaning of Art. 31A as it is not "acquisition" for a public purpose. It has been urged that the purpose is a mere augmentation of revenue.8. It does not appear to us that when the right of holding the Mela is taken over by the State the only purpose is the augmentation of revenue. There is scope for thinking that the legislature believed that melas would be better run and be more in the interests of the general public when run by the State than when they are left without control in the hands of private individuals with whom the profit motive is likely to be the sole guiding principle. It is unnecessary however to answer this question for, in our opinion, a law, may be a law providing for "acquisition" even though the purpose behind the acquisition is not a public purpose.9. It is important to notice that the constitution (Fourth Amendment) Act made important alterations in Art. 31 also. One of the amendments of Art. 31 was that cl. 2 now provides that no property shall be compulsorily acquired, (1) save for a public purpose, and (2) save by authority of a law which contains provisions for compensation for the property acquired and either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given. Then, Art. 31A provides inter alia that a law providing for "acquisition" will not be void on the ground that it is inconsistent with or takes away or abridges a right conferred by Art. 31. Reading the two articles together as they stand after the fourth amendment of the Constitution it becomes obvious that when Art. 31A speaks of a law of "acquisition" it contemplates a law which may be for acquisition, though not for a public purpose and lays down that even though this will be in violation of the fundamental right guaranteed by the first part of Art. 31 (2) the law will not be void because of suchhas to be noticed that the impugned provisions amending S. 4 and S. 6 and S. 7(b) have been given retrospective effect so that the parent Act of 1950 has to be read as containing on the very date of its enactment provisions in these sections not as originally enacted but as they stood after the amendment of 1959. In deciding whether rights of raiyats were being acquired or not we have to forget what happened in consequence of the unamended S. 6. Projecting ourselves to the date September 25. 1950, when the Presidents assent to the Bihar Land Reforms Act. 1950, was published in the Gazette and reading the Act as containing S. 4 and S. 6 as amended and also S. 7(b) it cannot but be held that what were being acquired by means of these provisions of the amending legislation giving retrospective effect were certain rights of the intermediaries. These intermediaries had not on September 25, 1950. ceased to be intermediaries and the fact that under the unamended provisions of S 6 they later on became occupancy raiyats should not be allowed to confuse the fact that the acquisition of certain properties by the amending legislation being itself with effect from September 25. 1950, what was being provided for was acquisition of intermediaries rights.It was the Fourth amendment which in the year 1958 inserted the words "raiyat, under-raiyat" immediately after the words "tenure-holder". At that time laws had already been passed in most of the States for the acquisition of the rights of intermediaries in the estates; rights of raiyats or under-raiyats who might answer the description" intermediary" were also within the definition because of the use of the words "or other intermediary". The only reason for specifically including the rights of "raiyats" and "under-raiyats" in the definition could therefore be to extend the protection of Art. 31A to laws providing for acquisition by the State Government of rights of these "raiyats" or "under-raiyats". In the circumstances and in the particular setting in which the words "raiyat" or "under-raiyat" were introduced into the definition, it must be held that the words "or other intermediary" occurring at the end, do not qualify or colour the meaning to be attached to the tenures newlycan be no doubt therefore that the right of the proprietor of an estate to hold a Mela on his own land is a right in the "estate, being appurtenant to his ownership of the land; so also the right of a tenure-holder, who it has to be remembered is the owner of the land subject only to the payment of rent to the proprietor, to hold a mela on land forming part of the tenure.It is true that a licence to hold a Mela on anothers land in which no interest is transferred is not an interest in land; but there is no question here of the acquisition of any licence to hold a Mela at another persons land.The argument that the impugned law was not a law for acquisition of a right in the "estate" because the right to hold a mela was not a right in the land must therefore bealso we have to take note of the fact that the impugned provisions of the Amending Act were made retrospective with effect from the date of the original enactment so that we have to project ourselves to September 25, 1950, the date of the original enactment, and consider whether on that date the law provided for acquisition of a right in an "estate". Undoubtedly the "estates" did exist on that date and so the acquisition retrospectively provided for from that date was acquisition of a right in an estate.18. Even if we ignore the fact that the impugned provisions of the Amending Act were given retrospective effect there is no warrant for saying that what was being acquired was not a right in an "estate." "Estate" was defined in the Bihar Tenancy Act to mean "any land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands prepared and maintained under the law for the time being in force by the Collector of a District." It is not disputed before us that in spite of the fact that in consequence of notifications under Section 3 of the Act the "estates" had become vested in the State, these registers continued to be maintained at least up to the date of the Amending Act and even later. The position therefore is that the "estates" have become vested in the State but have still not ceased to be "estates".19. We have therefore come to the conclusion that the impugned provisions of the Amending Act is a law providing for the acquisition by the State of rights in an "estate" within the meaning of Art. 31A of the Constitution and consequently even if we assume that they are inconsistent with or take away or abridge any of the rights conferred by Arts. 14, 19 and 32 they are not void on that ground. The conclusion cannot therefore be escaped that the ex-intermediaries have not and the State has the right to hold melas on the Bakasht lands of which they have become occupancy raiyats under the provisions of S. 6. | 1 | 4,352 | 1,672 | ### 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:
used in its ordinary well-accepted sense, of the person "who holds the land under the proprietor or a tenure-holder for the purpose of cultivation" and the word "under-raiyat " used in the equally well accepted and ordinary sense of "a person who holds land under a raiyat for the purpose of cultivation." It is necessary to remember in this connection that Art. 31A as first enacted by the Constitution (First Amendment) Act did not contain these words "raiyat, under-raiyat"; and that after the First Amendment the definition ran thus:-"the expression rights, in relation to an estate shall include any rights vesting in a proprietor, under-proprietor, tenure-holder or other intermediary and any rights or privileges in respect of land revenue."15. It was the Fourth amendment which in the year 1958 inserted the words "raiyat, under-raiyat" immediately after the words "tenure-holder". At that time laws had already been passed in most of the States for the acquisition of the rights of intermediaries in the estates; rights of raiyats or under-raiyats who might answer the description" intermediary" were also within the definition because of the use of the words "or other intermediary". The only reason for specifically including the rights of "raiyats" and "under-raiyats" in the definition could therefore be to extend the protection of Art. 31A to laws providing for acquisition by the State Government of rights of these "raiyats" or "under-raiyats". In the circumstances and in the particular setting in which the words "raiyat" or "under-raiyat" were introduced into the definition, it must be held that the words "or other intermediary" occurring at the end, do not qualify or colour the meaning to be attached to the tenures newly added.16. Another contention raised in support of the argument that the impugned law is not for acquisition of a right in an estate is that the right to hold a Mela is not a right in the lands at all. This contention is wholly unsound. Holding a hat, or bazaar or mela is only a mode of user by the owner of his land. Just as he can enjoy the land belonging to him in other ways, he can use it for the purpose of having a concourse of people-buyers and sellers and others for a hat or bazaar or mela-subject, as in the case of other user to the requirement that no nuisance is created and the legal rights of others are not infringed. Consequently, the right to hold a Mela has always been considered in this country to be an interest in land, an interest which the owner of the land can transfer to another along with the land or without the land.There can be no doubt therefore that the right of the proprietor of an estate to hold a Mela on his own land is a right in the "estate, being appurtenant to his ownership of the land; so also the right of a tenure-holder, who it has to be remembered is the owner of the land subject only to the payment of rent to the proprietor, to hold a mela on land forming part of the tenure.It is true that a licence to hold a Mela on anothers land in which no interest is transferred is not an interest in land; but there is no question here of the acquisition of any licence to hold a Mela at another persons land.The argument that the impugned law was not a law for acquisition of a right in the "estate" because the right to hold a mela was not a right in the land must therefore be rejected.17. Lastly, it was contended that long before the date of the amending Act the "estates" had ceased to exist as a consequence of the notifications issued under S. 3 of the Parent Act and consequently whatever was being acquired in 1959 could not be a right in an "estate". Here also we have to take note of the fact that the impugned provisions of the Amending Act were made retrospective with effect from the date of the original enactment so that we have to project ourselves to September 25, 1950, the date of the original enactment, and consider whether on that date the law provided for acquisition of a right in an "estate". Undoubtedly the "estates" did exist on that date and so the acquisition retrospectively provided for from that date was acquisition of a right in an estate.18. Even if we ignore the fact that the impugned provisions of the Amending Act were given retrospective effect there is no warrant for saying that what was being acquired was not a right in an "estate." "Estate" was defined in the Bihar Tenancy Act to mean "any land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands prepared and maintained under the law for the time being in force by the Collector of a District." It is not disputed before us that in spite of the fact that in consequence of notifications under Section 3 of the Act the "estates" had become vested in the State, these registers continued to be maintained at least up to the date of the Amending Act and even later. The position therefore is that the "estates" have become vested in the State but have still not ceased to be "estates".19. We have therefore come to the conclusion that the impugned provisions of the Amending Act is a law providing for the acquisition by the State of rights in an "estate" within the meaning of Art. 31A of the Constitution and consequently even if we assume that they are inconsistent with or take away or abridge any of the rights conferred by Arts. 14, 19 and 32 they are not void on that ground. The conclusion cannot therefore be escaped that the ex-intermediaries have not and the State has the right to hold melas on the Bakasht lands of which they have become occupancy raiyats under the provisions of S. 6.
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manner in which the compensation is to be determined and given. Then, Art. 31A provides inter alia that a law providing for "acquisition" will not be void on the ground that it is inconsistent with or takes away or abridges a right conferred by Art. 31. Reading the two articles together as they stand after the fourth amendment of the Constitution it becomes obvious that when Art. 31A speaks of a law of "acquisition" it contemplates a law which may be for acquisition, though not for a public purpose and lays down that even though this will be in violation of the fundamental right guaranteed by the first part of Art. 31 (2) the law will not be void because of suchhas to be noticed that the impugned provisions amending S. 4 and S. 6 and S. 7(b) have been given retrospective effect so that the parent Act of 1950 has to be read as containing on the very date of its enactment provisions in these sections not as originally enacted but as they stood after the amendment of 1959. In deciding whether rights of raiyats were being acquired or not we have to forget what happened in consequence of the unamended S. 6. Projecting ourselves to the date September 25. 1950, when the Presidents assent to the Bihar Land Reforms Act. 1950, was published in the Gazette and reading the Act as containing S. 4 and S. 6 as amended and also S. 7(b) it cannot but be held that what were being acquired by means of these provisions of the amending legislation giving retrospective effect were certain rights of the intermediaries. These intermediaries had not on September 25, 1950. ceased to be intermediaries and the fact that under the unamended provisions of S 6 they later on became occupancy raiyats should not be allowed to confuse the fact that the acquisition of certain properties by the amending legislation being itself with effect from September 25. 1950, what was being provided for was acquisition of intermediaries rights.It was the Fourth amendment which in the year 1958 inserted the words "raiyat, under-raiyat" immediately after the words "tenure-holder". At that time laws had already been passed in most of the States for the acquisition of the rights of intermediaries in the estates; rights of raiyats or under-raiyats who might answer the description" intermediary" were also within the definition because of the use of the words "or other intermediary". The only reason for specifically including the rights of "raiyats" and "under-raiyats" in the definition could therefore be to extend the protection of Art. 31A to laws providing for acquisition by the State Government of rights of these "raiyats" or "under-raiyats". In the circumstances and in the particular setting in which the words "raiyat" or "under-raiyat" were introduced into the definition, it must be held that the words "or other intermediary" occurring at the end, do not qualify or colour the meaning to be attached to the tenures newlycan be no doubt therefore that the right of the proprietor of an estate to hold a Mela on his own land is a right in the "estate, being appurtenant to his ownership of the land; so also the right of a tenure-holder, who it has to be remembered is the owner of the land subject only to the payment of rent to the proprietor, to hold a mela on land forming part of the tenure.It is true that a licence to hold a Mela on anothers land in which no interest is transferred is not an interest in land; but there is no question here of the acquisition of any licence to hold a Mela at another persons land.The argument that the impugned law was not a law for acquisition of a right in the "estate" because the right to hold a mela was not a right in the land must therefore bealso we have to take note of the fact that the impugned provisions of the Amending Act were made retrospective with effect from the date of the original enactment so that we have to project ourselves to September 25, 1950, the date of the original enactment, and consider whether on that date the law provided for acquisition of a right in an "estate". Undoubtedly the "estates" did exist on that date and so the acquisition retrospectively provided for from that date was acquisition of a right in an estate.18. Even if we ignore the fact that the impugned provisions of the Amending Act were given retrospective effect there is no warrant for saying that what was being acquired was not a right in an "estate." "Estate" was defined in the Bihar Tenancy Act to mean "any land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands prepared and maintained under the law for the time being in force by the Collector of a District." It is not disputed before us that in spite of the fact that in consequence of notifications under Section 3 of the Act the "estates" had become vested in the State, these registers continued to be maintained at least up to the date of the Amending Act and even later. The position therefore is that the "estates" have become vested in the State but have still not ceased to be "estates".19. We have therefore come to the conclusion that the impugned provisions of the Amending Act is a law providing for the acquisition by the State of rights in an "estate" within the meaning of Art. 31A of the Constitution and consequently even if we assume that they are inconsistent with or take away or abridge any of the rights conferred by Arts. 14, 19 and 32 they are not void on that ground. The conclusion cannot therefore be escaped that the ex-intermediaries have not and the State has the right to hold melas on the Bakasht lands of which they have become occupancy raiyats under the provisions of S. 6.
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Noor Aga Vs. State Of Punjab | hostile. Examination of the independent witnesses was all the more necessary inasmuch as there exist a large number of discrepancies in the statement of official witnesses in regard to search and seizure to which we may now take note of. 104. Discrepancies in the Statements of Official Witnesses 105. Section 50 of the Act provides for an option to be given. This Court in Baldev Singh (supra) quoted with approval the decision of the Supreme Court of United States in Miranda v. Arizona [(1966) 384 US 436] in the following terms: "The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be ‘right, just and fair." 106. Justness and fairness of a trial is also implicit in Article 21 of the Constitution. 107. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial. The courts, in order to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well known legal principles governing the same; wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. 108. Article 12 of the Universal Declaration of Human Rights provides for the Right to a fair trail. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land. It is one thing to say that even applying the well-known principles of law, they are found to be guilty of commission of offences for which they are charged but it is another thing to say that although they cannot be held guilty on the basis of the materials on record, they must suffer punishment in view of the past experience or otherwise. 109. PW1 states that he had asked the accused that a search be conducted under the Act before a Gazetted Officer or a Magistrate but the same was not mentioned in the panchnama Exhibit PC. If the evidence of PW1 in that behalf is correct, we fail to understand how PW2 satisfied himself that an option had been given to the accused to be searched before a gazetted officer. Exhibit PA shows that option to search was given after the recovery was made since it is stated therein: "After recovery the custom officer informed his senior officer and was asked whether I would like to present myself for personal search before a Magistrate or a Gazetted Officer". 110. The said document, therefore, indicates that the gazetted officer or the independent witnesses were not present at the time of purported recovery. Exhibit PC, however, shows the presence of independent witnesses at the time of recovery. The credibility of the statements, having regard to these vital discrepancies stands eroded. A person who is sought to be arrested or searched has some rights having regard to the decision of this Court in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416] . D.K. Basu rule states that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. This rule was also invoked in Balbir Singh (supra). 111. We are not oblivious that the decision of State of Himachal Pradesh v. Pawan Kumar [(2005) 4 SCC 350] wherein Section 50 of the Act having been held to be inapplicable in relation to a search of a bag but in this case the appellants person had also been searched. The High Court disregarded that although Exhibit PA may not affect a technical compliance of Section 50 of the Act on taking a complete and circumspect view of the materials brought on record, but the same, in our opinion, affect the credibility of the documentary evidence and the statements of the official witnesses, namely, PW1 and PW2. If origin of principle has not been followed and discrepancies and contradictions have occurred in the statements of PW1 and PW2 the same would cause doubt on the credibility of prosecution case and their claim of upholding procedure established by law in effecting recovery. CONCLUSION 112. Our aforementioned findings may be summarized as follows: 1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India. 2. However, procedural requirements laid down therein are required to be strictly complied with. 3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellants guilt. 4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecutions case must be held to be lacking in credibility. 5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law. 6. The investigation of the case was not fair. 113. | 1[ds]Our aforementioned findings may be summarized as follows:1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India2. However, procedural requirements laid down therein are required to be strictly complied with3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellants guilt4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecutions case must be held to be lacking in credibility5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law6. The investigation of the case was not fair | 1 | 19,997 | 188 | ### 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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hostile. Examination of the independent witnesses was all the more necessary inasmuch as there exist a large number of discrepancies in the statement of official witnesses in regard to search and seizure to which we may now take note of. 104. Discrepancies in the Statements of Official Witnesses 105. Section 50 of the Act provides for an option to be given. This Court in Baldev Singh (supra) quoted with approval the decision of the Supreme Court of United States in Miranda v. Arizona [(1966) 384 US 436] in the following terms: "The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be ‘right, just and fair." 106. Justness and fairness of a trial is also implicit in Article 21 of the Constitution. 107. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial. The courts, in order to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well known legal principles governing the same; wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question. 108. Article 12 of the Universal Declaration of Human Rights provides for the Right to a fair trail. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land. It is one thing to say that even applying the well-known principles of law, they are found to be guilty of commission of offences for which they are charged but it is another thing to say that although they cannot be held guilty on the basis of the materials on record, they must suffer punishment in view of the past experience or otherwise. 109. PW1 states that he had asked the accused that a search be conducted under the Act before a Gazetted Officer or a Magistrate but the same was not mentioned in the panchnama Exhibit PC. If the evidence of PW1 in that behalf is correct, we fail to understand how PW2 satisfied himself that an option had been given to the accused to be searched before a gazetted officer. Exhibit PA shows that option to search was given after the recovery was made since it is stated therein: "After recovery the custom officer informed his senior officer and was asked whether I would like to present myself for personal search before a Magistrate or a Gazetted Officer". 110. The said document, therefore, indicates that the gazetted officer or the independent witnesses were not present at the time of purported recovery. Exhibit PC, however, shows the presence of independent witnesses at the time of recovery. The credibility of the statements, having regard to these vital discrepancies stands eroded. A person who is sought to be arrested or searched has some rights having regard to the decision of this Court in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416] . D.K. Basu rule states that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. This rule was also invoked in Balbir Singh (supra). 111. We are not oblivious that the decision of State of Himachal Pradesh v. Pawan Kumar [(2005) 4 SCC 350] wherein Section 50 of the Act having been held to be inapplicable in relation to a search of a bag but in this case the appellants person had also been searched. The High Court disregarded that although Exhibit PA may not affect a technical compliance of Section 50 of the Act on taking a complete and circumspect view of the materials brought on record, but the same, in our opinion, affect the credibility of the documentary evidence and the statements of the official witnesses, namely, PW1 and PW2. If origin of principle has not been followed and discrepancies and contradictions have occurred in the statements of PW1 and PW2 the same would cause doubt on the credibility of prosecution case and their claim of upholding procedure established by law in effecting recovery. CONCLUSION 112. Our aforementioned findings may be summarized as follows: 1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India. 2. However, procedural requirements laid down therein are required to be strictly complied with. 3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellants guilt. 4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecutions case must be held to be lacking in credibility. 5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law. 6. The investigation of the case was not fair. 113.
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Our aforementioned findings may be summarized as follows:1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India2. However, procedural requirements laid down therein are required to be strictly complied with3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellants guilt4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecutions case must be held to be lacking in credibility5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law6. The investigation of the case was not fair
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Bata Shoe Company Private Limited Vs. D.N. Ganguly & Others | in all cases will be given an opportunity of offering his explanation before any decision is arrived at."It is said that the charge against these two workmen was only for absenting themselves; it was not therefore necessary to frame any charge-sheet against them. This is not quite correct so far as Jagdish Lal is concerned as will appear from the letter of dismissal sent to him; but assuming it to be so, Standing Orders provide that though the charge-sheet may be given no action can be taken against a workman for any misconduct unless he is given an opportunity of offering his explanation before any decision is arrived at. There is no proof in this case that any opportunity was given to these two workmen of offering their explanation before the decision of dismissal was arrived at in their case. In these circumstances even though no charge-sheet might have been necessary in the case of these two workmen their dismissal was against the provision of the Standing Orders, for no explanation was taken from them before arriving at the decision to dismiss them. The order of the tribunal with respect to these two workmen must be upheld.12. This brings us to the case of eleven workmen who are : Mohd. Mansoor (respondent 6), Ram Kuber Das (respondent 9), Ramasis (respondent 15), Modh Zafir (respondent 19), Mohd. Islam (respondent 20), Mohd. Zafir (respondent 22), Rajeshwar Prasad (respondent 26), Chirkut (respondent 27), Lal Das (respondent 43), Inderdip (respondent 47) and Mohd. Nazir (Respondent 58). In their case the tribunal held that though charge-sheets were issued to them, they could not be served and the inquiry took place without their knowing anything about the charges or the date of the inquiry. In those circumstances the tribunal held that the inquiry was no inquiry and therefore ordered their reinstatement. It is contended on behalf of the appellant that the case of these eleven workmen is similar to the case of forty-seven who refused to take the charge-sheers sent to them by registered post. In any case it is urged that the charge-sheets were notified on the notice-board and notices were issued in the newspapers and that should be deemed sufficient service of the charge-sheets on them. In this connection reliance was placed on Mckenzie and Co. Ltd. v. Its Workmen, (1959) Supp 1 SCR 222 : (AIR 1959 SC 389 ). In that case the Standing Orders provided that notice would be served on a workman by communicating the same orally to the workman concerned and/or by affixing the same on the companys notice-board and the company had acted in conformity with the Standing Orders by affixing the notices on its notice-board. It was found in that case that the company first sent notices by registered post acknowledgment due to the workmen concerned. When some of the notices came back unserved the company wrote to the secretary of the union asking for the addresses of the workmen but the secretary gave no reply to the letter. It was then that the company affixed the notices on the notice-board both inside and outside the mill-gate. In those circumstances it was held that the company did all that it could under the Standing Orders to serve the workmen and the affixing of the notices on the notice-board was sufficient service.13. The facts in the present case however are different. All that the Standing Orders provide is that the workmen charged with an offence shall receive a copy of such charge. It is also provided that a workman who refuses to accept the charge-sheet shall be deemed to have admitted the charge made against him. There is no provision in the Standing Orders for affixing such charge-sheets on the notice board of the company. The charge sheets in this case were sent to the eleven workmen by registered post and returned unserved, because they were not found in their villages. On the same day on which the charge-sheets were sent by registered post it appears that notices were issued in certain newspapers to the effect that a group of workmen under a common understanding had engaged in an illegal strike from February 23, 1954, and that all such workmen were liable to strong disciplinary action and that in consequence they had been charged under the Standing Orders and Rules of the company and such charge-sheets had been sent to them individually by registered post acknowledgment due and had also been displayed on the notice-boards inside and outside the factory gate and they were required to submit the explanations by March 9, 1954. These notices did not contain the names of the workmen to whom charge-sheets were sent and in whose case charge-sheets were displayed on the notice-boards. In the circumstances it can hardly be said that these eleven workmen would have notice that they were among those to whom charge-sheets had been sent or about whom charge-sheets had been displayed on the notice-boards. The proper course in our view was when the registered notices came back unserved in the case of these eleven workmen to publish notices in their names in some newspaper in the regional language with a wide circulation in Bihar along with the charges framed against them. It would have been a different matter if the Standing Orders had provided for service of charge-sheets through their display on the notice-boards of the appellant. In the absence of such provision, the proper course to take was what we have mentioned above. If that course had been taken, the appellant would have been justified in saying that it did all that it could to serve the workmen; but as that was not done, we agree with the tribunal that these eleven workmen had no notice of the charges against them and the date by which they had to submit their explanation as well as the date of inquiry. In these circumstances the order of the tribunal with respect of these eleven workmen must also be upheld. | 1[ds]5. It appears that after the dismissal of a large number of workmen consequent on the illegal strike that took place on February 23, 1954, there were conciliation proceedings before the Labour Commissioner, Bihar, with respect to these dismissal and other matters. These conciliation proceedings appear to have begun some time before May 1, 1954, for we find that on that day the Labour Commissioner wrote to the appellant that its objection that conciliation proceeding were illegal and without jurisdiction was baseless. It seems that efforts at conciliation continued right up to the end of August 1954, for we find another letter of August 31, 1954, from the Labour Commissioner to the appellant saying that he had heard that mutual negotiations were going on between the appellant and its workmen for the settlement of their dispute and September 2 had been fixed for that purpose. The Labour Commissioner therefore gave notice to the appellant that he would hold conciliation proceedings on September 3 at 3 p. m. in his office in case the disputes were not mutually settled before that date. It seems that an agreement was arrived at between the appellant and the union on September 2. In this agreement it was noted that 76 dismissed workmen had already been employed; it was further provided that 110 workmen would also be employed in the same manner as the seventy-six. Further 31 dismissed workmen were to remain dismissed and would not be considered for further employment or for any other benefit. 30 other dismissed workmen would for the time being remain dismissed and it would be decided later on between the union and the appellant whether their dismissal should be confirmed like those of 31 mentioned above or whether they should be given the option to wait for employment as and when vacancies arose or should be treated as retired on the date of dismissal in order to enable them to receive the benefits of gratuity and refund of provident fund. It may be added that the present references are with respect to sixty workmen out of these sixty-one. It seems that the Labour Commissioner was apprised of this settlement. Consequently he wrote on September 3, 1954, to the appellant that the conciliation proceedings proposed to be held on that date were cancelled. The Labour Commissioner further pointed out that the union was opposing reinstatement of certain workmen; he therefore proposed to hold further conciliation proceedings in the case of such workmen on September 6, 1954, at 3 p. m. before making his final recommendations to government in this matter. The appellant protested to the Labour Commissioner against the holding of any further conciliation proceedings after the agreement of September 2 and apparently did not attend the meeting fixed for September 6. Nothing further therefore seems to have taken place in the conciliation proceedings. Presumably the Labour Commissioner must have reported thereafter to the government under S. 12 (4) of the Industrial Disputes Act, No. XIV of 1947 (hereinafter called the Act). Then followed the two references by the government; the first on October 8, 1954, relating to 31 workmen and the other on January 15, 1955, relating to 29 workmen.Reading these two provisions along with S. 18 of the Act, it seems to us clear beyond doubt that a settlement which is made binding under S. 18 on the ground that it is arrived at in the course of conciliation proceedings is a settlement arrived at with the assistance and concurrence of the conciliation officer, for it is the duty of the conciliation officer to promote a right settlement and to do everything he can to induce the parties to come to a fair and amicable settlement of the dispute. It is only such a settlement which is arrived at while conciliation proceedings are pending that can be binding under S. 18.In the present case it is obvious that the Labour Commissioner took no steps to promote the actual agreement which was arrived at between the appellant and the union on September 2. The letter of August 31 made it clear that the Labour Commissioner would take action under S. 12(2) on September 3 if no mutual agreement was arrived at between the appellant and the union. It seems that a mutual agreement was arrived at between the appellant and the union without the assistance of the Labour Commissioner and it did not receive his concurrence even later; on the contrary evidence shows that the Labour Commissioner did not approve of the settlement which excluded the reinstatement of a large group of workmen and so he did not act under S. 12(3). In the circumstances such a mutual agreement could not be called a settlement arrived at in the course of conciliation proceedings even though it may be accepted that it was arrived at a time when conciliation proceedings were pending. A settlement which can be said to be arrived at in the course of conciliation proceedings is not only to be arrived at during the time the conciliation proceedings are pending but also to be arrived at with the assistance of the conciliation officer and his concurrence; such a settlement would be reported to the appropriate government under S. 12(3).In the present case the agreement of September 2, 1954 was not arrived at with the assistance and concurrence of the conciliation officer, namely, the Labour Commissioner, which will be clear from his letter of September 3, 1954. In the circumstances it is not a settlement which is binding under S. 18 of the Act and therefore will not bar a reference by the Government with respect to these sixty workmen.The next point that is urged is that it is not an industrial dispute but a dispute between the employer and its individual workmen, even though their number may be large and therefore the Government had no jurisdiction to make the references. We are of opinion that there is no force in this contention. We have already set out the history of the conciliation proceedings in this case. It is obvious from the letter of the Labour Commissioner dated September 3, 1954, that he must have made a report to the Government under S. 12(4) and it must be on that report that these references must have been made under S. 12(5) read with S. 10(1). It is not in dispute that originally the case of dismissal of a much larger number of workmen was under consideration during the conciliation proceedings but on September 2, 1954, a mutual agreement was arrived at between the appellant and the union, which in a sense excluded the case of these sixty workmen. The Labour Commissioner apparently was not prepared to concur with this action of the parties as appears from his letter of September 3 and must therefore have made a report to the Government under S. 12(4) which was followed by references under S. 10. In the circumstances we fail to understand how what began as an industrial dispute and was sponsored by the union, related to the dismissal of a much larger number of workmen (including these sixty) and as such became the subject-matter of conciliation proceedings under S. 12(1) would turn into an individual dispute because a mutual agreement was arrived at between the appellant and the union with which the Labour Commissioner was not in entire agreement and in consequence of which he apparently made a report to the Government under S. 12(4) which was followed by the two references under S. 10(1).In these circumstances we are satisfied that the references are not bad on the ground that an individual dispute had been referred to the tribunal forthe present case, however, the finding of the tribunal is that there was misconduct which merited dismissal under the Standing Orders and that the managerial inquiry was proper. In these circumstances those observations torn from their context cannot be applied to the facts of this case. The reasoning of the tribunal therefore that as these 47 workmen had not taken part in violence the appellant was not justified in dismissing them cannot be accepted on the facts of this case. The other reason given by the tribunal for setting aside the dismissal is that the appellant had taken back a large number of other employees who had taken similar part in the illegal strike and had absented themselves and there was no reason to discriminate between those employees and these 47 workmen. It is clear from the award of the tribunal that no discrimination was made when taking back the workmen on the ground that these workmen supported Shri Bari, for the award shows that a number of other workmen who supported Shri Bari were takenthe present case, however, the circumstances are different. It is not the appellant which has made the discrimination; in the present case so far as the appellant is concerned it was prepared to take back even those who supported Shri Bari and did actually take back a large number of such workmen. The genesis of the trouble in this case was a dispute within the union itself which led to the illegal strike, the history of which we have already given. The mutual agreement of September 2, 1954, shows that the union which represented the workmen was not agreeable that sixty-one workmen should be taken back and these forty-seven workmen are out of these sixty-one. The appellant in this case was therefore placed in the position that it had to choose between the large majority of workmen and sixty-one workmen whom the union did not want to be taken back. It was in these circumstances that the appellant did not take back those sixty-one workmen out of whom are these forty-seven. The charge of discrimination therefore cannot be properly laid at the door of the appellant in this case and if there is anybody to blame for it is the union. In these circumstances when the managerial inquiry was held to be proper and the misconduct committed is such as to deserve dismissal under the Standing Orders, there was no reason for the tribunal to interfere with the order of dismissal passed by the appellant in the case of these forty-seven workmen. It may be that participation in an illegal strike may not necessarily and in every case be punished with dismissal; but where an inquiry has been properly held and the employer has imposed the punishment of dismissal on the employee who has been guilty of the misconduct of joining the illegal strike, the tribunal should not interfere unless it finds unfair labour practice or victimisation against the employee.The facts in the present case however are different. All that the Standing Orders provide is that the workmen charged with an offence shall receive a copy of such charge. It is also provided that a workman who refuses to accept the charge-sheet shall be deemed to have admitted the charge made against him. There is no provision in the Standing Orders for affixing such charge-sheets on the notice board of the company. The charge sheets in this case were sent to the eleven workmen by registered post and returned unserved, because they were not found in their villages. On the same day on which the charge-sheets were sent by registered post it appears that notices were issued in certain newspapers to the effect that a group of workmen under a common understanding had engaged in an illegal strike from February 23, 1954, and that all such workmen were liable to strong disciplinary action and that in consequence they had been charged under the Standing Orders and Rules of the company and such charge-sheets had been sent to them individually by registered post acknowledgment due and had also been displayed on the notice-boards inside and outside the factory gate and they were required to submit the explanations by March 9, 1954. These notices did not contain the names of the workmen to whom charge-sheets were sent and in whose case charge-sheets were displayed on the notice-boards. In the circumstances it can hardly be said that these eleven workmen would have notice that they were among those to whom charge-sheets had been sent or about whom charge-sheets had been displayed on the notice-boards. The proper course in our view was when the registered notices came back unserved in the case of these eleven workmen to publish notices in their names in some newspaper in the regional language with a wide circulation in Bihar along with the charges framed against them. It would have been a different matter if the Standing Orders had provided for service of charge-sheets through their display on the notice-boards of the appellant. In the absence of such provision, the proper course to take was what we have mentioned above. If that course had been taken, the appellant would have been justified in saying that it did all that it could to serve the workmen; but as that was not done, we agree with the tribunal that these eleven workmen had no notice of the charges against them and the date by which they had to submit their explanation as well as the date of inquiry. In these circumstances the order of the tribunal with respect of these eleven workmen must also be upheld. | 1 | 5,540 | 2,375 | ### 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:
in all cases will be given an opportunity of offering his explanation before any decision is arrived at."It is said that the charge against these two workmen was only for absenting themselves; it was not therefore necessary to frame any charge-sheet against them. This is not quite correct so far as Jagdish Lal is concerned as will appear from the letter of dismissal sent to him; but assuming it to be so, Standing Orders provide that though the charge-sheet may be given no action can be taken against a workman for any misconduct unless he is given an opportunity of offering his explanation before any decision is arrived at. There is no proof in this case that any opportunity was given to these two workmen of offering their explanation before the decision of dismissal was arrived at in their case. In these circumstances even though no charge-sheet might have been necessary in the case of these two workmen their dismissal was against the provision of the Standing Orders, for no explanation was taken from them before arriving at the decision to dismiss them. The order of the tribunal with respect to these two workmen must be upheld.12. This brings us to the case of eleven workmen who are : Mohd. Mansoor (respondent 6), Ram Kuber Das (respondent 9), Ramasis (respondent 15), Modh Zafir (respondent 19), Mohd. Islam (respondent 20), Mohd. Zafir (respondent 22), Rajeshwar Prasad (respondent 26), Chirkut (respondent 27), Lal Das (respondent 43), Inderdip (respondent 47) and Mohd. Nazir (Respondent 58). In their case the tribunal held that though charge-sheets were issued to them, they could not be served and the inquiry took place without their knowing anything about the charges or the date of the inquiry. In those circumstances the tribunal held that the inquiry was no inquiry and therefore ordered their reinstatement. It is contended on behalf of the appellant that the case of these eleven workmen is similar to the case of forty-seven who refused to take the charge-sheers sent to them by registered post. In any case it is urged that the charge-sheets were notified on the notice-board and notices were issued in the newspapers and that should be deemed sufficient service of the charge-sheets on them. In this connection reliance was placed on Mckenzie and Co. Ltd. v. Its Workmen, (1959) Supp 1 SCR 222 : (AIR 1959 SC 389 ). In that case the Standing Orders provided that notice would be served on a workman by communicating the same orally to the workman concerned and/or by affixing the same on the companys notice-board and the company had acted in conformity with the Standing Orders by affixing the notices on its notice-board. It was found in that case that the company first sent notices by registered post acknowledgment due to the workmen concerned. When some of the notices came back unserved the company wrote to the secretary of the union asking for the addresses of the workmen but the secretary gave no reply to the letter. It was then that the company affixed the notices on the notice-board both inside and outside the mill-gate. In those circumstances it was held that the company did all that it could under the Standing Orders to serve the workmen and the affixing of the notices on the notice-board was sufficient service.13. The facts in the present case however are different. All that the Standing Orders provide is that the workmen charged with an offence shall receive a copy of such charge. It is also provided that a workman who refuses to accept the charge-sheet shall be deemed to have admitted the charge made against him. There is no provision in the Standing Orders for affixing such charge-sheets on the notice board of the company. The charge sheets in this case were sent to the eleven workmen by registered post and returned unserved, because they were not found in their villages. On the same day on which the charge-sheets were sent by registered post it appears that notices were issued in certain newspapers to the effect that a group of workmen under a common understanding had engaged in an illegal strike from February 23, 1954, and that all such workmen were liable to strong disciplinary action and that in consequence they had been charged under the Standing Orders and Rules of the company and such charge-sheets had been sent to them individually by registered post acknowledgment due and had also been displayed on the notice-boards inside and outside the factory gate and they were required to submit the explanations by March 9, 1954. These notices did not contain the names of the workmen to whom charge-sheets were sent and in whose case charge-sheets were displayed on the notice-boards. In the circumstances it can hardly be said that these eleven workmen would have notice that they were among those to whom charge-sheets had been sent or about whom charge-sheets had been displayed on the notice-boards. The proper course in our view was when the registered notices came back unserved in the case of these eleven workmen to publish notices in their names in some newspaper in the regional language with a wide circulation in Bihar along with the charges framed against them. It would have been a different matter if the Standing Orders had provided for service of charge-sheets through their display on the notice-boards of the appellant. In the absence of such provision, the proper course to take was what we have mentioned above. If that course had been taken, the appellant would have been justified in saying that it did all that it could to serve the workmen; but as that was not done, we agree with the tribunal that these eleven workmen had no notice of the charges against them and the date by which they had to submit their explanation as well as the date of inquiry. In these circumstances the order of the tribunal with respect of these eleven workmen must also be upheld.
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with which the Labour Commissioner was not in entire agreement and in consequence of which he apparently made a report to the Government under S. 12(4) which was followed by the two references under S. 10(1).In these circumstances we are satisfied that the references are not bad on the ground that an individual dispute had been referred to the tribunal forthe present case, however, the finding of the tribunal is that there was misconduct which merited dismissal under the Standing Orders and that the managerial inquiry was proper. In these circumstances those observations torn from their context cannot be applied to the facts of this case. The reasoning of the tribunal therefore that as these 47 workmen had not taken part in violence the appellant was not justified in dismissing them cannot be accepted on the facts of this case. The other reason given by the tribunal for setting aside the dismissal is that the appellant had taken back a large number of other employees who had taken similar part in the illegal strike and had absented themselves and there was no reason to discriminate between those employees and these 47 workmen. It is clear from the award of the tribunal that no discrimination was made when taking back the workmen on the ground that these workmen supported Shri Bari, for the award shows that a number of other workmen who supported Shri Bari were takenthe present case, however, the circumstances are different. It is not the appellant which has made the discrimination; in the present case so far as the appellant is concerned it was prepared to take back even those who supported Shri Bari and did actually take back a large number of such workmen. The genesis of the trouble in this case was a dispute within the union itself which led to the illegal strike, the history of which we have already given. The mutual agreement of September 2, 1954, shows that the union which represented the workmen was not agreeable that sixty-one workmen should be taken back and these forty-seven workmen are out of these sixty-one. The appellant in this case was therefore placed in the position that it had to choose between the large majority of workmen and sixty-one workmen whom the union did not want to be taken back. It was in these circumstances that the appellant did not take back those sixty-one workmen out of whom are these forty-seven. The charge of discrimination therefore cannot be properly laid at the door of the appellant in this case and if there is anybody to blame for it is the union. In these circumstances when the managerial inquiry was held to be proper and the misconduct committed is such as to deserve dismissal under the Standing Orders, there was no reason for the tribunal to interfere with the order of dismissal passed by the appellant in the case of these forty-seven workmen. It may be that participation in an illegal strike may not necessarily and in every case be punished with dismissal; but where an inquiry has been properly held and the employer has imposed the punishment of dismissal on the employee who has been guilty of the misconduct of joining the illegal strike, the tribunal should not interfere unless it finds unfair labour practice or victimisation against the employee.The facts in the present case however are different. All that the Standing Orders provide is that the workmen charged with an offence shall receive a copy of such charge. It is also provided that a workman who refuses to accept the charge-sheet shall be deemed to have admitted the charge made against him. There is no provision in the Standing Orders for affixing such charge-sheets on the notice board of the company. The charge sheets in this case were sent to the eleven workmen by registered post and returned unserved, because they were not found in their villages. On the same day on which the charge-sheets were sent by registered post it appears that notices were issued in certain newspapers to the effect that a group of workmen under a common understanding had engaged in an illegal strike from February 23, 1954, and that all such workmen were liable to strong disciplinary action and that in consequence they had been charged under the Standing Orders and Rules of the company and such charge-sheets had been sent to them individually by registered post acknowledgment due and had also been displayed on the notice-boards inside and outside the factory gate and they were required to submit the explanations by March 9, 1954. These notices did not contain the names of the workmen to whom charge-sheets were sent and in whose case charge-sheets were displayed on the notice-boards. In the circumstances it can hardly be said that these eleven workmen would have notice that they were among those to whom charge-sheets had been sent or about whom charge-sheets had been displayed on the notice-boards. The proper course in our view was when the registered notices came back unserved in the case of these eleven workmen to publish notices in their names in some newspaper in the regional language with a wide circulation in Bihar along with the charges framed against them. It would have been a different matter if the Standing Orders had provided for service of charge-sheets through their display on the notice-boards of the appellant. In the absence of such provision, the proper course to take was what we have mentioned above. If that course had been taken, the appellant would have been justified in saying that it did all that it could to serve the workmen; but as that was not done, we agree with the tribunal that these eleven workmen had no notice of the charges against them and the date by which they had to submit their explanation as well as the date of inquiry. In these circumstances the order of the tribunal with respect of these eleven workmen must also be upheld.
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State Of Bihar Vs. Jain Plastics & Chemicals Ltd | SHAH, J. Leave granted. Limited question involved in this appeal is - whether the High Court ought not to have exercised its jurisdiction under Article 226 of the Constitution of India for granting relief in case of alleged breach of contract. Settled law - writ is not the remedy for enforcing contractual obligations. It is to be reiterated that writ petition under Article 226 is not the proper proceeding for adjudicating such disputes. Under the law, it was open to the respondent to approach the Court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226. Despite the settled law, respondent filed CWJC No. 3968 of 1997 before the High Court of Patna challenging the decision taken by the appellants to deduct a sum of Rs. 15.24 lacs for the loss suffered from the bills of respondent-company while making the full and final payment. That writ petition was allowed despite the objection raised by the appellants that respondent committed breach of contract and the Court should not exercise its writ jurisdiction in such cases. L.P.A. No. 945 of 2000 was also dismissed by the High Court by its judgment and order dated 11.1.2001. Hence this appeal. The short facts are that the tender of respondent-company having its registered office at Jalgaon, Maharashtra for supply of PVC pipes and fittings at Patna and Hazipur was accepted and an agreement was executed on 22.2.1994. Estimated value for supplies was Rs. 5, 81, 92, 584.84 p. and Rs. 7, 37, 27, 421.96 p. at Patna and Hazipur respectively. As per the say of the appellants, respondent-company delayed the supplies. By letter dated 2.4.1994, supply of PVC pipes and fittings are suspended in respect of certain fittings. However, for immediate use, some pipes were ordered to be supplied. On record, it appears that parties exchanged correspondence for a long period. It was contended by the respondent-company that the authorities have wrongfully refused to return requisite road permits and other relevant papers and, therefore, it could not supply the PVC fittings within stipulated time. Finally, appellants terminated the contract on 10.12.1996 and purchased the fittings at a higher price. Therefore, while paying the final bill to the respondent, the difference of amount which was required to be incurred by the appellants was deducted.Respondent preferred the writ petition before the High Court. The learned single Judge arrived at the conclusion that the respondent-company was unable to supply the PVC fittings on account of failure or the refusal on the part of the appellants to supply the road permits and that the company cannot be faulted for non-supply of PVC fittings. Hence, the appellants cannot realise or deduct the extra money which they had to spend over purchase of the same. With regard to the adjudication of tangled question of facts in writ jurisdiction, the learned single Judge observed : "This Court has not in the present case, felt any difficulty in deciding the question of facts on the basis of affidavit evidence, and I have not felt the necessity of evidence of a civil suit in deciding the question of facts which is needed for disposal of the present writ petition." * Finally, the learned Judge directed the appellants to make the due amount of respondent-company with interest at the rate of 6%, within six months. The aforesaid order was confirmed in LPA. In our view, it is apparent that the order passed by the High Court on the face of it is illegal and erroneous. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in an properly instituted civil suit rather than by a Court exercising prerogative of issuing writs. | 1[ds]In our view, it is apparent that the order passed by the High Court on the face of it is illegal and erroneous. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in an properly instituted civil suit rather than by a Court exercising prerogative of issuing writs. | 1 | 853 | 165 | ### 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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SHAH, J. Leave granted. Limited question involved in this appeal is - whether the High Court ought not to have exercised its jurisdiction under Article 226 of the Constitution of India for granting relief in case of alleged breach of contract. Settled law - writ is not the remedy for enforcing contractual obligations. It is to be reiterated that writ petition under Article 226 is not the proper proceeding for adjudicating such disputes. Under the law, it was open to the respondent to approach the Court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226. Despite the settled law, respondent filed CWJC No. 3968 of 1997 before the High Court of Patna challenging the decision taken by the appellants to deduct a sum of Rs. 15.24 lacs for the loss suffered from the bills of respondent-company while making the full and final payment. That writ petition was allowed despite the objection raised by the appellants that respondent committed breach of contract and the Court should not exercise its writ jurisdiction in such cases. L.P.A. No. 945 of 2000 was also dismissed by the High Court by its judgment and order dated 11.1.2001. Hence this appeal. The short facts are that the tender of respondent-company having its registered office at Jalgaon, Maharashtra for supply of PVC pipes and fittings at Patna and Hazipur was accepted and an agreement was executed on 22.2.1994. Estimated value for supplies was Rs. 5, 81, 92, 584.84 p. and Rs. 7, 37, 27, 421.96 p. at Patna and Hazipur respectively. As per the say of the appellants, respondent-company delayed the supplies. By letter dated 2.4.1994, supply of PVC pipes and fittings are suspended in respect of certain fittings. However, for immediate use, some pipes were ordered to be supplied. On record, it appears that parties exchanged correspondence for a long period. It was contended by the respondent-company that the authorities have wrongfully refused to return requisite road permits and other relevant papers and, therefore, it could not supply the PVC fittings within stipulated time. Finally, appellants terminated the contract on 10.12.1996 and purchased the fittings at a higher price. Therefore, while paying the final bill to the respondent, the difference of amount which was required to be incurred by the appellants was deducted.Respondent preferred the writ petition before the High Court. The learned single Judge arrived at the conclusion that the respondent-company was unable to supply the PVC fittings on account of failure or the refusal on the part of the appellants to supply the road permits and that the company cannot be faulted for non-supply of PVC fittings. Hence, the appellants cannot realise or deduct the extra money which they had to spend over purchase of the same. With regard to the adjudication of tangled question of facts in writ jurisdiction, the learned single Judge observed : "This Court has not in the present case, felt any difficulty in deciding the question of facts on the basis of affidavit evidence, and I have not felt the necessity of evidence of a civil suit in deciding the question of facts which is needed for disposal of the present writ petition." * Finally, the learned Judge directed the appellants to make the due amount of respondent-company with interest at the rate of 6%, within six months. The aforesaid order was confirmed in LPA. In our view, it is apparent that the order passed by the High Court on the face of it is illegal and erroneous. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in an properly instituted civil suit rather than by a Court exercising prerogative of issuing writs.
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1
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In our view, it is apparent that the order passed by the High Court on the face of it is illegal and erroneous. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in an properly instituted civil suit rather than by a Court exercising prerogative of issuing writs.
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M/S. Nandram Hunatram, Calcutta Vs. Union Of India & Anr | colliery would have been flooded in a matter of hours and probably rendered unworkable till dewatered. With this background in mind we have to consider the objections of the firm to the order of the Central Government in the first instance and of the State Government in the final analysis. 4. Clause (3) of Part VII of the lease is one of the covenants by the lessee and under it the lessee under-took to continue work, without voluntary intermission, in a skilful and workman-like-manner. Under Cls. (i) to (x) of Rule 41 of the Mineral Concession Rules, 1949 and under Rule 27 (5) of the Mineral Concession Rules, 1960 power is conferred on the State Government to require the lessee by notice to remove a breach within. 60 days of the receipt of notice and in default to determine the lease and forfeit the whole or part of the security in deposit. Under Rule 27 (1) (f) the lessee is also required to conduct operations in a proper, skilful and workman-like-manner. It is obvious that there was a breach by the lessee of the covenants and the Mineral Concession Rules when the firm stopped working the colliery. Even if the firm did not order the stoppage of the work at the colliery it is clear from the complaints of Goel and Kishan Lal Aggarwal that no payment was being made to the labourers and they stopped work. On record there are many telegrams and letters sent by the Workers" Association to Government complaining of the failure of the firm to pay their wages for weeks. It is thus clear that action was absolutely necessary to save the colliery from being ruined. It is contended, however, that the wages were paid in full on the 17th of July but that obviously cannot do away with voluntary intermission which had already taken place for a few weeks. The firm in its representation to the Central Government said that it had plans to raise as much as 240,000 tons of coal per year but their performance shows that in April, 1962 they had raised less than 2,000 tons and nothing in May, June and July. In these circumstances, there is no merit whatever in the submission of the firm that the action by the State Government was arbitrary and high-handed. It is plain that the firm did not fulfil its obligations under the lease and, whatever the reason, it was guilty of voluntary intermission in the working of the colliery and of endangering it by neglect. This entitled the State Government to step in and determine the lease under the terms of the lease and the provisions of the Mineral Concession Rules. 5. It is, however, argued before us that the Central Government did not give a hearing to the firm and also did not give any reasons in its order dismissing the application for revision. Reliance is placed upon two recent decisions of this Court which, following the earlier decision reported in Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala, 1962-2 SCR 339 : (AIR 1961 SC 1669 ), have laid down that Government should give reasons when it performs quasi-judicial functions such as hearing appeals and revisions. The two cases are Madhya Pradesh Industries Ltd. v. Union of India, Civil Appeal No. 465 of 1965, D/- 16-8-1965: (AIR 1966 SC 671 ), and Aluminium Corporation of India Ltd. v. Union of India, Civil Appeal No. 635 of 1964, D/- 22-9-1965 (SC). In Harinagar Sugar Mills, 1962-2 SCR 339 : (AIR 1961 SC 1669 ), the order was reversed on the ground that reasons for the decision should have appeared. In the Aluminium case, Civil Appeal No. 635 of 1964, D/- 22-9-1965 (SC), there was dispute as to how much scrap was remelted and Government gave its decision on a report received behind the back of the aggrieved party again without stating why a part of the assessees case was rejected. In the Madhya Pradesh Industries case, Civil Appeal No. 465 of 1965 D/- 16-8-1965: (AIR 1966 SC 671 ), it was pointed out that an order affirming an earlier decision need not fail because it does not repeat the same reasons over again. 6. The Mineral Concession Rules make it incumbent on the Central Government to obtain the comments of the State Government upon the application for revision and cast a duty on the Central Government to afford an opportunity to the applicant to make representations in respect of the comments of the State Government. This procedure was correctly followed and the Central Government thus had a detailed discussion of the pros and cons of the case before it. The facts in the case were quite clear and spoke for themselves. The belated attempt to pay the back wages of the workmen did not undo the voluntary intermission for a significantly long period and did not wipe off the dereliction of the part of the firm by which the existence of the colliery was gravely endangered. The documents on the record quite clearly establish that the colliery was being flooded as the essential services had stopped functioning and but for the timely intervention of the State Government the colliery would have been lost. In these circumstances, it is quite clear that the action of the State Government was not only right but proper and this is hardly a case in which any action other than rejecting the application for revision was called for and a detailed order was really not required because after all the Central Government was merely approving of the action taken in the case by the State Government, which stood completely vindicated. The order of the Central Government is clearly sustainable on the material and it is not said that anything has been withheld from us. The action of the State Government far from being arbitrary or capricious was perhaps the only one to take and all that the Central Government has done is to approve of it. | 0[ds]4. Clause (3) of Part VII of the lease is one of the covenants by the lessee and under it the lessee under-took to continue work, without voluntary intermission, in a skilful and workman-like-manner. Under Cls. (i) to (x) of Rule 41 of the Mineral Concession Rules, 1949 and under Rule 27 (5) of the Mineral Concession Rules, 1960 power is conferred on the State Government to require the lessee by notice to remove a breach within. 60 days of the receipt of notice and in default to determine the lease and forfeit the whole or part of the security in deposit. Under Rule 27 (1) (f) the lessee is also required to conduct operations in a proper, skilful and workman-like-manner. It is obvious that there was a breach by the lessee of the covenants and the Mineral Concession Rules when the firm stopped working the colliery. Even if the firm did not order the stoppage of the work at the colliery it is clear from the complaints of Goel and Kishan Lal Aggarwal that no payment was being made to the labourers and they stopped work. On record there are many telegrams and letters sent by the Workers" Association to Government complaining of the failure of the firm to pay their wages for weeks. It is thus clear that action was absolutely necessary to save the colliery from being ruined. It is contended, however, that the wages were paid in full on the 17th of July but that obviously cannot do away with voluntary intermission which had already taken place for a few weeks. The firm in its representation to the Central Government said that it had plans to raise as much as 240,000 tons of coal per year but their performance shows that in April, 1962 they had raised less than 2,000 tons and nothing in May, June and July. In these circumstances, there is no merit whatever in the submission of the firm that the action by the State Government was arbitrary and high-handed. It is plain that the firm did not fulfil its obligations under the lease and, whatever the reason, it was guilty of voluntary intermission in the working of the colliery and of endangering it by neglect. This entitled the State Government to step in and determine the lease under the terms of the lease and the provisions of the Mineral Concession Rules6. The Mineral Concession Rules make it incumbent on the Central Government to obtain the comments of the State Government upon the application for revision and cast a duty on the Central Government to afford an opportunity to the applicant to make representations in respect of the comments of the State Government. This procedure was correctly followed and the Central Government thus had a detailed discussion of the pros and cons of the case before it. The facts in the case were quite clear and spoke for themselves. The belated attempt to pay the back wages of the workmen did not undo the voluntary intermission for a significantly long period and did not wipe off the dereliction of the part of the firm by which the existence of the colliery was gravely endangered. The documents on the record quite clearly establish that the colliery was being flooded as the essential services had stopped functioning and but for the timely intervention of the State Government the colliery would have been lost. In these circumstances, it is quite clear that the action of the State Government was not only right but proper and this is hardly a case in which any action other than rejecting the application for revision was called for and a detailed order was really not required because after all the Central Government was merely approving of the action taken in the case by the State Government, which stood completely vindicated. The order of the Central Government is clearly sustainable on the material and it is not said that anything has been withheld from us. The action of the State Government far from being arbitrary or capricious was perhaps the only one to take and all that the Central Government has done is to approve of it. | 0 | 1,747 | 751 | ### 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:
colliery would have been flooded in a matter of hours and probably rendered unworkable till dewatered. With this background in mind we have to consider the objections of the firm to the order of the Central Government in the first instance and of the State Government in the final analysis. 4. Clause (3) of Part VII of the lease is one of the covenants by the lessee and under it the lessee under-took to continue work, without voluntary intermission, in a skilful and workman-like-manner. Under Cls. (i) to (x) of Rule 41 of the Mineral Concession Rules, 1949 and under Rule 27 (5) of the Mineral Concession Rules, 1960 power is conferred on the State Government to require the lessee by notice to remove a breach within. 60 days of the receipt of notice and in default to determine the lease and forfeit the whole or part of the security in deposit. Under Rule 27 (1) (f) the lessee is also required to conduct operations in a proper, skilful and workman-like-manner. It is obvious that there was a breach by the lessee of the covenants and the Mineral Concession Rules when the firm stopped working the colliery. Even if the firm did not order the stoppage of the work at the colliery it is clear from the complaints of Goel and Kishan Lal Aggarwal that no payment was being made to the labourers and they stopped work. On record there are many telegrams and letters sent by the Workers" Association to Government complaining of the failure of the firm to pay their wages for weeks. It is thus clear that action was absolutely necessary to save the colliery from being ruined. It is contended, however, that the wages were paid in full on the 17th of July but that obviously cannot do away with voluntary intermission which had already taken place for a few weeks. The firm in its representation to the Central Government said that it had plans to raise as much as 240,000 tons of coal per year but their performance shows that in April, 1962 they had raised less than 2,000 tons and nothing in May, June and July. In these circumstances, there is no merit whatever in the submission of the firm that the action by the State Government was arbitrary and high-handed. It is plain that the firm did not fulfil its obligations under the lease and, whatever the reason, it was guilty of voluntary intermission in the working of the colliery and of endangering it by neglect. This entitled the State Government to step in and determine the lease under the terms of the lease and the provisions of the Mineral Concession Rules. 5. It is, however, argued before us that the Central Government did not give a hearing to the firm and also did not give any reasons in its order dismissing the application for revision. Reliance is placed upon two recent decisions of this Court which, following the earlier decision reported in Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala, 1962-2 SCR 339 : (AIR 1961 SC 1669 ), have laid down that Government should give reasons when it performs quasi-judicial functions such as hearing appeals and revisions. The two cases are Madhya Pradesh Industries Ltd. v. Union of India, Civil Appeal No. 465 of 1965, D/- 16-8-1965: (AIR 1966 SC 671 ), and Aluminium Corporation of India Ltd. v. Union of India, Civil Appeal No. 635 of 1964, D/- 22-9-1965 (SC). In Harinagar Sugar Mills, 1962-2 SCR 339 : (AIR 1961 SC 1669 ), the order was reversed on the ground that reasons for the decision should have appeared. In the Aluminium case, Civil Appeal No. 635 of 1964, D/- 22-9-1965 (SC), there was dispute as to how much scrap was remelted and Government gave its decision on a report received behind the back of the aggrieved party again without stating why a part of the assessees case was rejected. In the Madhya Pradesh Industries case, Civil Appeal No. 465 of 1965 D/- 16-8-1965: (AIR 1966 SC 671 ), it was pointed out that an order affirming an earlier decision need not fail because it does not repeat the same reasons over again. 6. The Mineral Concession Rules make it incumbent on the Central Government to obtain the comments of the State Government upon the application for revision and cast a duty on the Central Government to afford an opportunity to the applicant to make representations in respect of the comments of the State Government. This procedure was correctly followed and the Central Government thus had a detailed discussion of the pros and cons of the case before it. The facts in the case were quite clear and spoke for themselves. The belated attempt to pay the back wages of the workmen did not undo the voluntary intermission for a significantly long period and did not wipe off the dereliction of the part of the firm by which the existence of the colliery was gravely endangered. The documents on the record quite clearly establish that the colliery was being flooded as the essential services had stopped functioning and but for the timely intervention of the State Government the colliery would have been lost. In these circumstances, it is quite clear that the action of the State Government was not only right but proper and this is hardly a case in which any action other than rejecting the application for revision was called for and a detailed order was really not required because after all the Central Government was merely approving of the action taken in the case by the State Government, which stood completely vindicated. The order of the Central Government is clearly sustainable on the material and it is not said that anything has been withheld from us. The action of the State Government far from being arbitrary or capricious was perhaps the only one to take and all that the Central Government has done is to approve of it.
### Response:
0
### Explanation:
4. Clause (3) of Part VII of the lease is one of the covenants by the lessee and under it the lessee under-took to continue work, without voluntary intermission, in a skilful and workman-like-manner. Under Cls. (i) to (x) of Rule 41 of the Mineral Concession Rules, 1949 and under Rule 27 (5) of the Mineral Concession Rules, 1960 power is conferred on the State Government to require the lessee by notice to remove a breach within. 60 days of the receipt of notice and in default to determine the lease and forfeit the whole or part of the security in deposit. Under Rule 27 (1) (f) the lessee is also required to conduct operations in a proper, skilful and workman-like-manner. It is obvious that there was a breach by the lessee of the covenants and the Mineral Concession Rules when the firm stopped working the colliery. Even if the firm did not order the stoppage of the work at the colliery it is clear from the complaints of Goel and Kishan Lal Aggarwal that no payment was being made to the labourers and they stopped work. On record there are many telegrams and letters sent by the Workers" Association to Government complaining of the failure of the firm to pay their wages for weeks. It is thus clear that action was absolutely necessary to save the colliery from being ruined. It is contended, however, that the wages were paid in full on the 17th of July but that obviously cannot do away with voluntary intermission which had already taken place for a few weeks. The firm in its representation to the Central Government said that it had plans to raise as much as 240,000 tons of coal per year but their performance shows that in April, 1962 they had raised less than 2,000 tons and nothing in May, June and July. In these circumstances, there is no merit whatever in the submission of the firm that the action by the State Government was arbitrary and high-handed. It is plain that the firm did not fulfil its obligations under the lease and, whatever the reason, it was guilty of voluntary intermission in the working of the colliery and of endangering it by neglect. This entitled the State Government to step in and determine the lease under the terms of the lease and the provisions of the Mineral Concession Rules6. The Mineral Concession Rules make it incumbent on the Central Government to obtain the comments of the State Government upon the application for revision and cast a duty on the Central Government to afford an opportunity to the applicant to make representations in respect of the comments of the State Government. This procedure was correctly followed and the Central Government thus had a detailed discussion of the pros and cons of the case before it. The facts in the case were quite clear and spoke for themselves. The belated attempt to pay the back wages of the workmen did not undo the voluntary intermission for a significantly long period and did not wipe off the dereliction of the part of the firm by which the existence of the colliery was gravely endangered. The documents on the record quite clearly establish that the colliery was being flooded as the essential services had stopped functioning and but for the timely intervention of the State Government the colliery would have been lost. In these circumstances, it is quite clear that the action of the State Government was not only right but proper and this is hardly a case in which any action other than rejecting the application for revision was called for and a detailed order was really not required because after all the Central Government was merely approving of the action taken in the case by the State Government, which stood completely vindicated. The order of the Central Government is clearly sustainable on the material and it is not said that anything has been withheld from us. The action of the State Government far from being arbitrary or capricious was perhaps the only one to take and all that the Central Government has done is to approve of it.
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Asa Ram Vs. Union of India | Pathak, J.1. This is a plaintiffs appeal by special leave against a judgment and decree of the High Court of Punjab & Haryana affirming in second appeal the dismissal of his suit for possession.2. The appellant filed a suit for possession alleging that the land in suit had been mortgaged by the original owners with his predecessors-in-interest in the year 1949 Bk., and that as the mortgage had not been redeemed within time, he had become absolute owner of the land. The suit was contested by the Union of India on the ground that the successors-in-interest of the mortgagors had become evacuees and as the mortgage was subsisting on October 30, 1951, when the Evacuee Interest (Separation) Act came into force, the mortgagees rights had been extinguished by virtue of Section 9(2) of that Act.3. The trial court and the first appellate court concurred in dismissing the suit and the High Court, in second appeal, has maintained the decree of dismissal.4. In this appeal the appellant contends that the period of 60 years from the date of the mortgage had expired before the Evacuee Interest (Separation) Act came into force and therefore Section 9(2) could have no effect on rights which had already accrued to the appellant. In our judgment, the contention is without substance. It is the case of the appellant that the original mortgagees entered into possession in the beginning of Rabi 1949 Bk. That corresponds to 1892 A.D. Clearly, the period of 60 years expired sometime in the year 1952. Meanwhile, the Evacuee Interest (Separation) Act had already come into force on October 30, 1951. The mortgage was subsisting on that date and was therefore effected by the enactment.5. Our attention was drawn to Ex. P-3, an extract from the register of mutation, which reads "Mortgage with possession dated December 2, 1891 for Rs. 575". It is apparent that reference is to the document and not to the date on which possession was taken. As the case of the appellant is that the mortgagees entered into possession in 1949 Bk., that is to say 1892 A.D., this entry cannot be construed in favour of the appellant. | 0[ds]In our judgment, the contention is without substance. It is the case of the appellant that the original mortgagees entered into possession in the beginning of Rabi 1949 Bk. That corresponds to 1892 A.D. Clearly, the period of 60 years expired sometime in the year 1952. Meanwhile, the Evacuee Interest (Separation) Act had already come into force on October 30, 1951. The mortgage was subsisting on that date and was therefore effected by the enactment.5. Our attention was drawn to Ex.an extract from the register of mutation, which reads "Mortgage with possession dated December 2, 1891 for Rs. 575". It is apparent that reference is to the document and not to the date on which possession was taken. As the case of the appellant is that the mortgagees entered into possession in 1949 Bk., that is to say 1892 A.D., this entry cannot be construed in favour of the appellant. | 0 | 407 | 176 | ### 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:
Pathak, J.1. This is a plaintiffs appeal by special leave against a judgment and decree of the High Court of Punjab & Haryana affirming in second appeal the dismissal of his suit for possession.2. The appellant filed a suit for possession alleging that the land in suit had been mortgaged by the original owners with his predecessors-in-interest in the year 1949 Bk., and that as the mortgage had not been redeemed within time, he had become absolute owner of the land. The suit was contested by the Union of India on the ground that the successors-in-interest of the mortgagors had become evacuees and as the mortgage was subsisting on October 30, 1951, when the Evacuee Interest (Separation) Act came into force, the mortgagees rights had been extinguished by virtue of Section 9(2) of that Act.3. The trial court and the first appellate court concurred in dismissing the suit and the High Court, in second appeal, has maintained the decree of dismissal.4. In this appeal the appellant contends that the period of 60 years from the date of the mortgage had expired before the Evacuee Interest (Separation) Act came into force and therefore Section 9(2) could have no effect on rights which had already accrued to the appellant. In our judgment, the contention is without substance. It is the case of the appellant that the original mortgagees entered into possession in the beginning of Rabi 1949 Bk. That corresponds to 1892 A.D. Clearly, the period of 60 years expired sometime in the year 1952. Meanwhile, the Evacuee Interest (Separation) Act had already come into force on October 30, 1951. The mortgage was subsisting on that date and was therefore effected by the enactment.5. Our attention was drawn to Ex. P-3, an extract from the register of mutation, which reads "Mortgage with possession dated December 2, 1891 for Rs. 575". It is apparent that reference is to the document and not to the date on which possession was taken. As the case of the appellant is that the mortgagees entered into possession in 1949 Bk., that is to say 1892 A.D., this entry cannot be construed in favour of the appellant.
### Response:
0
### Explanation:
In our judgment, the contention is without substance. It is the case of the appellant that the original mortgagees entered into possession in the beginning of Rabi 1949 Bk. That corresponds to 1892 A.D. Clearly, the period of 60 years expired sometime in the year 1952. Meanwhile, the Evacuee Interest (Separation) Act had already come into force on October 30, 1951. The mortgage was subsisting on that date and was therefore effected by the enactment.5. Our attention was drawn to Ex.an extract from the register of mutation, which reads "Mortgage with possession dated December 2, 1891 for Rs. 575". It is apparent that reference is to the document and not to the date on which possession was taken. As the case of the appellant is that the mortgagees entered into possession in 1949 Bk., that is to say 1892 A.D., this entry cannot be construed in favour of the appellant.
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PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL) - 2 Vs. M/S. MAHAGUN REALTORS (P) LTD | return of income was not revised even though the assessment proceedings were pending. The last date for filing the revised returns was 31.03.2008, after the amalgamation order. 4. A search and seizure proceeding was conducted in respect of the Mahagun group, including the MRPL and other companies: (i) When search and seizure of the Mahagun group took place, no indication was given about the amalgamation. (ii) A statement made on 20.03.2007 by Mr. Amit Jain, MRPLs managing director, during statutory survey proceedings under Section 133A, unearthed discrepancies in the books of account, in relation to amounts of money in MRPLs account. The specific amount admitted was Rs.5.072 crores, in the course of the statement recorded. (iii) The warrant was in the name of MRPL. The directors of MRPL and MIPL made a combined statement under Section 132 of the Act, on 27.08.2008. (iv) A total of Rs. 30 crores cash, which was seized- was surrendered in relation to MRPL and other transferor companies, as well as MIPL, on 27.08.2008 in the course of the admission, when a statement was recorded under Section 132 (4) of the Act, by Mr. Amit Jain. 5. Upon being issued with a notice to file returns, a return was filed in the name of MRPL on 28.05.2010. Before that, on two dates, i.e., 22/27.07.2010, letters were written on behalf of MRPL, intimating about the amalgamation, but this was for AY 2007-08 (for which separate proceedings had been initiated under Section 153A) and not for AY 2006-07. 6. The return specifically suppressed – and did not disclose the amalgamation (with MIPL) – as the response to Query 27(b) was N.A. 7. The return – apart from specifically being furnished in the name of MRPL, also contained its PAN number. 8. During the assessment proceedings, there was full participation – on behalf of all transferor companies, and MIPL. A special audit was directed (which is possible only after issuing notice under Section 142). Objections to the special audit were filed in respect of portions relatable to MRPL. 9. After fully participating in the proceedings which were specifically in respect of the business of the erstwhile MRPL for the year ending 31.03.2006, in the cross-objection before the ITAT, for the first time (in the appeal preferred by the Revenue), an additional ground was urged that the assessment order was a nullity because MRPL was not in existence. 10. Assessment order was issued – undoubtedly in relation to MRPL (shown as the assessee, but represented by the transferee company MIPL). 11. Appeals were filed to the CIT (and a cross-objection, to ITAT) – by MRPL represented by MIPL. 12. At no point in time – the earliest being at the time of search, and subsequently, on receipt of notice, was it plainly stated that MRPL was not in existence, and its business assets and liabilities, taken over by MIPL. 13. The counter affidavit filed before this court – (dated 07.11.2020) has been affirmed by Shri Amit Jain S/o Shri P.K. Jain, who- is described in the affidavit as Director of M/S Mahagun Realtors(P) Ltd., R/o…. 41. In the light of the facts, what is overwhelmingly evident- is that the amalgamation was known to the assessee, even at the stage when the search and seizure operations took place, as well as statements were recorded by the revenue of the directors and managing director of the group. A return was filed, pursuant to notice, which suppressed the fact of amalgamation; on the contrary, the return was of MRPL. Though that entity ceased to be in existence, in law, yet, appeals were filed on its behalf before the CIT, and a cross appeal was filed before ITAT. Even the affidavit before this court is on behalf of the director of MRPL. Furthermore, the assessment order painstakingly attributes specific amounts surrendered by MRPL, and after considering the special auditors report, brings specific amounts to tax, in the search assessment order. That order is no doubt expressed to be of MRPL (as the assessee) - but represented by the transferee, MIPL. All these clearly indicate that the order adopted a particular method of expressing the tax liability. The AO, on the other hand, had the option of making a common order, with MIPL as the assessee, but containing separate parts, relating to the different transferor companies (Mahagun Developers Ltd., Mahagun Realtors Pvt. Ltd., Universal Advertising Pvt. Ltd., ADR Home Décor Pvt. Ltd.). The mere choice of the AO in issuing a separate order in respect of MRPL, in these circumstances, cannot nullify it. Right from the time it was issued, and at all stages of various proceedings, the parties concerned (i.e., MIPL) treated it to be in respect of the transferee company (MIPL) by virtue of the amalgamation order – and Section 394 (2). Furthermore, it would be anybodys guess, if any refund were due, as to whether MIPL would then say that it is not entitled to it, because the refund order would be issued in favour of a non-existing company (MRPL). Having regard to all these reasons, this court is of the opinion that in the facts of this case, the conduct of the assessee, commencing from the date the search took place, and before all forums, reflects that it consistently held itself out as the assessee. The approach and order of the AO is, in this courts opinion in consonance with the decision in Marshall & Sons (supra), which had held that: an assessment can always be made and is supposed to be made on the Transferee Company taking into account the income of both the Transferor and Transferee Company. 42. Before concluding, this Court notes and holds that whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case. | 1[ds]20. In Saraswati Syndicate (supra), the facts were that after amalgamation, the transferee company claimed exemption from tax, of a sum which had been allowed as a trading liability- on accrual basis, in the hands of the transferee company which had ceased to exist. The revenue disallowed that claim; that view was upheld. This court stated that:In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or amalgamation has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the share holders of each blending company become substantially the share-holders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly amalgamation does not cover the mere acquisition by a company of the share capital of other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See: Halsburys Laws of England, 4th Edition Vol. 7 Para 1539. Two companies may join to form a new company, but there may be absorption or blend- ing of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamating company loses its entity.In M/s General Radio and Appliances Co Ltd v M.A.. Khader (dead) by Lrs., [1986] 2 S.C.C. 656, the effect of amalgamation of two companies was considered. M/s. General Radio and Appliances Co. Ltd. was tenant of a premises under an agreement providing that the tenant shall not sub-let the premises or any portion thereof to anyone without the consent of the landlord. M/s. General Radio and Appliances Co. Ltd. was amalgamated with M/s. National Ekco Radio and Engineering Co. Ltd. under a scheme of amalgamation and order of the High Court under Sections 391 and 394 of Companies Act, 1956. Under the amalgamation scheme, the transferee company, namely, M/s. National Ekco Radio and Engineering Company had acquired all the interest, rights including leasehold and tenancy rights of the transferor company and the same vested in the transferee company. Pursuant to the amalgamation scheme the transferee company continued to occupy the premises which had been let out to the transferor company. The landlord initiated proceedings for the eviction on the ground of unauthorised sub-letting of the premises by the transferor company. The transferee company set up a defence that by amalgamation of the two companies under the order of the Bombay High Court all interest, rights including lease- hold and tenancy rights held by the transferor company blended with the transferee company, therefore the transferee company was legal tenant and there was no question of any sub-letting. The Rent Controller and the High Court both decreed the landlords suit. This Court in appeal held that under the order of amalgamation made on the basis of the High Courts order, the transferor company ceased to be in existence in the eye of law and it effaced itself for all practical purposes. This decision lays down that after the amalgamation of the two companies the transferor company ceased to have any entity and the amalgamated company ac- quired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. In the instant case the Tribunal rightly held that the appellant company was a separate entity and a different assessee, therefore, the allowance made to Indian Sugar Company, which was a different assessee, could not be held to be the income of the amalgamated company for purposes of Section 41 (1) of the Act. The High Court was in error in holding that even after amalgamation of two companies, the transferor company did not become non-existent instead it continued its entity in a blended form with the appellant company. The High Courts view that on amalgamation there is no complete destruction of corpo- rate personality of the transferor company instead there is a blending of the corporate personality of one with another corporate body and it continues as such with the other is not sustainable in law. The true effect and character of the amalgamation largely depends on the terms of the scheme of merger. But there cannot be any doubt that when two companies amalgamate and merge into one the transferor company loses its entity as it ceases to have its business. However, their respective rights of liabilities are determined under scheme of amalgamation but the corporate entity of the transferor company ceases to exist with effect from the date the amalgamation is made effective.21. Saraswati Syndicate (supra) noticeably was decided in relation to assessment issues when amalgamation was not separately defined under the Income Tax Act. By an amendment of 1967, this term was for the first time defined in the form of Section 2(1A). That provision reads as follows:(1A) amalgamation, in relation to companies, means the merger of one or more companies with another company or the merger of two or more companies to form one company (the company or companies which so merge being referred to as the amalgamating company or companies and the company with which they merge or which is formed as a result of the merger, as the amalgamated company) in such a manner that—(i) all the property of the amalgamating company or companies immediately before the amalgamation becomes the property of the amalgamated company by virtue of the amalgamation;(ii) all the liabilities of the amalgamating company of companies immediately before the amalgamation, become the liabilities of the amalgamated company by virtue of the amalgamation;(iii) shareholders holding not less than nine-tenths in value of the shares in the amalgamating company or companies (other than shares already held therein immediately before the amalgamation by, or by a nominee for, the amalgamated company or its subsidiary) become shareholders of the amalgamated company by virtue of the amalgamation, otherwise than as a result of the acquisition of the property of one company by another company pursuant to the purchase of such property by the other company or as a result of the distribution of such property to the other company after the winding up of the first mentioned company;22. The effect of amalgamation in the context of income tax, was again considered in another earlier decision, i.e., Marshall Sons and Co. (India) Ltd. v. Income Tax Officer 1996 Supp (9) SCR 216. There, the court held that:14. Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. The scheme concerned herein does so provide viz., January 1, 1982. It is true that while sanctioning the scheme, it is open to the Court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in the facts and circumstances of the case. If the Court so specifies a date, there is little doubt that such date would be date of amalgamation/date of transfer. But where the Court does not prescribed any specific date but merely sanctions the scheme presented to it - as has happened in this case - it should follow that the rate of amalgamation/date of transfer is the date specified in the scheme as the transfer date. It cannot be otherwise. It must be remembered that before applying to the Court under Section 391(1), a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the court may take some time; indeed, they are bound to take some time because several steps provided by Sections 391 to 394 and the relevant Rules have to be followed and complied with. During the period the proceedings are pending before the Court, both the amalgamation units, i.e., the Transferor Company and the Transferee Company may carry on business, as has happened in this case but normally provision is made for this aspect also in the scheme of amalgamation. In the present scheme, Clause 6(b) does expressly provide that with effect from the transfer date, the Transferor Company (Subsidiary Company) shall be deemed to have carried on the business for and on behalf of the Transferee Company (Holding Company) with all attendant consequences. It is equally relevant to notice that the Courts have not only sanctioned the scheme in this case but have also not specified any other date as the date of transfer/amalgamation. In such a situation, it would not be reasonable to say that the scheme of amalgamation takes effect on and from the date of the order sanctioning the scheme. We are, therefore, of the opinion that the notices issued by the Income Tax Officer (impugned in the writ petition) were not warranted in law. The business carried on by the Transferor Company (Subsidiary Company) should be deemed to have been carried on for and on behalf of the Transferee Company. This is the necessary and the logical consequence of the court sanctioning the scheme of amalgamation as presented to it. The order of the Court sanctioning the scheme, the filing of the certified copies of the orders of the court before the Registrar of Companies, the allotment of shares etc. may have all taken place subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January 1, 1982. This is also the ratio of the decision of the Privy Council in Raghubar Dayal v. The Bank of Upper India Ltd. A.I.R. 1919 P.C. 9, relied on.15. Counsel for the Revenue contended that if the aforesaid view is adopted then several complications will ensue in case the Court refuses to sanction the scheme of amalgamation. We do not see any basis for this apprehension. Firstly, an assessment can always be made and is supposed to be made on the Transferee Company taking into account the income of both the Transferor and Transferee Company. Secondly, and probably the more advisable course from the point of view of the Revenue would be to make one assessment on the Transferee Company taking into account the income of both, of Transferor or Transferee Companies and also to make separate protective assessments on both the Transferor and Transferee Companies separately. There may be a certain practical difficulty in adopting this course inasmuch as separate balance-sheets may not be available for the Transferor and Transferee Companies. But that may not be an insuperable problem inasmuch as assessment can always be made, on the available material, even without a balance-sheet. In certain cases, best-judgment assessment may also be resorted to. Be that as it may, we need not pursue this line of enquiry because it does not arise for consideration in these cases directly.23. Many High Courts in recent years, had mostly relied upon Saraswati Syndicate which was a case where the transferor entity had claimed a certain relief on the basis of the agreed method of accounting. The corresponding obligation to recognise the demands was sought to be disallowed in the subsequent year, in the case of the then transferee company. The decision of the Delhi High Court, in Spice (supra), after discussing the decision in Saraswati Syndicate, went on to explain why assessing an amalgamating company, without framing the order in the name of the transferee company is fatal:10. Section 481 of the Companies Act provides for dissolution of the company. The Company Judge in the High Court can order dissolution of a company on the grounds stated therein. The effect of the dissolution is that the company no more survives. The dissolution puts an end to the existence of the company. It is held in M.H. Smith (Plant Hire) Ltd. v. D.L. Mainwaring (T/A Inshore), 1986 BCLC 342 (CA) that once a company is dissolved it becomes a non-existent party and therefore no action can be brought in its name. Thus an insurance company which was subrogated to the rights of another insured company was held not to be entitled to maintain an action in the name of the company after the latter had been dissolved.11. After the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said dead person. When notice under Section 143(2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was non existing entity on that day. In such proceedings and assessment order passed in the name of M/s Spice would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law.12. Once it is found that assessment is framed in the name of non- existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of the Act.24. A series of decisions had followed the Delhi High Courts decision in Spice. All these were the subject of special leave petitions, which were disposed of by the following order in Commissioner of Income Tax v. Spice Enfotainment Ltd (2020) 18 SCC 353.Delay condoned. Heard the learned Senior Counsel appearing for the parties. We do not find any reason to interfere with the impugned judgment(s) [Spice Entertainment Ltd. v. Commr. of Service Tax, (2011 SCC OnLine Del); CIT v. Dimension Apparels (P) Ltd., (2015) 370 ITR 288 ; CIT v. Chanakaya Exports (P) Ltd., 2014 SCC OnLine Del 7678; CIT v. Chanakaya Exports (P) Ltd., [ITA No. 721 of 2014, order dated 24-11-2014 (Del)]; CIT v. Radha Appearals (P) Ltd., 2015 SCC OnLine Del 14568; CIT v. Intel Technology (India) (P) Ltd., 2015 SCC OnLine Kar 9493; CIT v. Chanakaya Exports (P) Ltd., 2015 SCC OnLine Del 14567; CIT v. Mayank Traders (P) Ltd., 2015 SCC OnLine Del 14633; CIT v. P.D. Associates (P) Ltd., 2015 SCC OnLine Del 14632; CIT v. Foryu Overseas (P) Ltd., 2015 SCC OnLine Del 14566; CIT v. Sapient Consulting Ltd., 2016 SCC OnLine Del 6615; passed by the High Court. In view of this, we find no merit in the appeals and special leave petitions. Accordingly, the appeals and special leave petitions are dismissed.25. This court, without elaborate discussion, approved the reasoning in various judgments which held that upon the cessation of the transferor company, assessment of the transferor (or amalgamated company) was impermissible.27. In another recent decision, McDowell and Company Ltd. v. Commissioner of Income Tax, Karnataka Central (2017) 13 SCC 799 this court had occasion to consider the effect of amalgamation of two companies, and the rights and liabilities in relation to claim for depreciation, under the Act. The assessee had taken over a sick company-HPL – by amalgamation; HPL ceased to have any identity after amalgamation. The relative rights, however, were determined in terms of the scheme of amalgamation. The benefit of interest accrued after the company ceased to exist was availed of by the assessee (the successor) company. The assessee was allowed to set off the amalgamated losses of the company amalgamated with it, i.e., HPL. This benefit accrued to the assessee under Section 72A of the Act. The court held that when the assessee was allowed the benefit of the accumulated loss, while computing those losses, the income which accrued to it had to be adjusted and only thereafter net loss could have been allowed to be set off by the assessee company. The AO had made those calculations. The assessee was given the benefit of the accumulated loss of the amalgamated company. Its effect was that though those losses were suffered by the amalgamated company they were deemed to be treated as losses of the assessee by virtue of Section 72A. This court negatived the plea that even while taking advantage of the accumulated loss, in calculating them at the hands of amalgamated company, i.e., HPL, the income accrued under Section 41(1) of the Act at the hands of HPL could not be accounted for. It was held that it had to be adjusted to see what was the actual accumulated losses, the benefit of which had to be extended to the assessee. This court considered Section 41(1) along with Section 72A of the Act.31. In Maruti Suzuki (supra), the scheme of amalgamation was approved on 29.01.2013 w.e.f. 01.04.2012, the same was intimated to the AO on 02.04.2013, and the notice under Section 143(2) for AY 2012-13 was issued to amalgamating company on 26.09.2013. This court in facts and circumstances observed the following:35. In this case, the notice under Section 143(2) under which jurisdiction was assumed by the assessing officer was issued to a non- existent company. The assessment order was issued against the amalgamating company. This is a substantive illegality and not a procedural violation of the nature adverted to in Section 292B.39. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Entertainment on 2 November 2017. The decision in Spice Entertainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Entertainment.40. We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable.32. The court, undoubtedly noticed Saraswati Syndicate. Further, the judgment in Spice (supra) and other line of decisions, culminating in this courts order, approving those judgments, was also noticed. Yet, the legislative change, by way of introduction of Section 2 (1A), defining amalgamation was not taken into account. Further, the tax treatment in the various provisions of the Act were not brought to the notice of this court, in the previous decisions.33. There is no doubt that MRPL amalgamated with MIPL and ceased to exist thereafter; this is an established fact and not in contention. The respondent has relied upon Spice and Maruti Suzuki (supra) to contend that the notice issued in the name of the amalgamating company is void and illegal. The facts of present case, however, can be distinguished from the facts in Spice and Maruti Suzuki on the following bases.34. Firstly, in both the relied upon cases, the assessee had duly informed the authorities about the merger of companies and yet the assessment order was passed in the name of amalgamating/non-existent company. However, in the present case, for AY 2006-07, there was no intimation by the assessee regarding amalgamation of the company. The ROI for the AY 2006-07 first filed by the respondent on 30.06.2006 was in the name of MRPL. MRPL amalgamated with MIPL on 11.05.2007, w.e.f. 01.04.2006. In the present case, the proceedings against MRPL started in 27.08.2008- when search and seizure was first conducted on the Mahagun group of companies. Notices under Section 153A and Section 143(2) were issued in the name MRPL and the representative from MRPL corresponded with the department in the name of MRPL. On 28.05.2010, the assessee filed its ROI in the name of MRPL, and in the Business Reorganization column of the form mentioned not applicable in amalgamation section. Though the respondent contends that they had intimated the authorities by letter dated 22.07.2010, it was for AY 2007-2008 and not for AY 2006-07. For the AY 2007- 08 to 2008-2009, separate proceedings under Section 153A were initiated against MIPL and the proceedings against MRPL for these two assessment years were quashed by the Additional CIT by order dated 30.11.2010 as the amalgamation was disclosed. In addition, in the present case the assessment order dated 11.08.2011 mentions the name of both the amalgamating (MRPL) and amalgamated (MIPL) companies.35. Secondly, in the cases relied upon, the amalgamated companies had participated in the proceedings before the department and the courts held that the participation by the amalgamated company will not be regarded as estoppel. However, in the present case, the participation in proceedings was by MRPL- which held out itself as MRPL.36. The judgments of this court- in Saraswati Syndicate and Marshall (supra) have indicated that the rights and liabilities of the transferor and transferee companies are determined by the terms of the merger. In Saraswati Syndicate, the point further made is that the corporate existence of the transferor ceases, upon amalgamation.37. In the present case, the terms of the amalgamation have been set out in the order sanctioning it, by the Delhi High Court, by its order dated 10.09.2007. The court, by its order directed the amalgamation of Mahagun Developers Ltd., Mahagun Realtors Pvt. Ltd., Universal Advertising Pvt. Ltd., ADR Home Décor Pvt. Ltd. under Section 394 of the Companies Act, 1956 with Mahagun (India) Pvt. Ltd. (MIPL) the transferee Company.40. The facts of the present case are distinctive, as evident from the following sequence:1. The original return of MRPL was filed under Section 139(1) on 30.06.2006.2. The order of amalgamation is dated 11.05.2007 – but made effective from 01.04.2006. It contains a condition – Clause 2 (2. That all the liabilities and duties of the Transferor Companies be transferred without further act or deed to the Transferee Company and accordingly the same shall pursuant to Section 394 (2) of the Companies Act, 1956 be transferred to and become the liabilities and duties of the Transferee Company) - whereby MRPLs liabilities devolved on MIPL.3. The original return of income was not revised even though the assessment proceedings were pending. The last date for filing the revised returns was 31.03.2008, after the amalgamation order.4. A search and seizure proceeding was conducted in respect of the Mahagun group, including the MRPL and other companies:(i) When search and seizure of the Mahagun group took place, no indication was given about the amalgamation.(ii) A statement made on 20.03.2007 by Mr. Amit Jain, MRPLs managing director, during statutory survey proceedings under Section 133A, unearthed discrepancies in the books of account, in relation to amounts of money in MRPLs account. The specific amount admitted was Rs.5.072 crores, in the course of the statement recorded.(iii) The warrant was in the name of MRPL. The directors of MRPL and MIPL made a combined statement under Section 132 of the Act, on 27.08.2008.(iv) A total of Rs. 30 crores cash, which was seized- was surrendered in relation to MRPL and other transferor companies, as well as MIPL, on 27.08.2008 in the course of the admission, when a statement was recorded under Section 132 (4) of the Act, by Mr. Amit Jain.5. Upon being issued with a notice to file returns, a return was filed in the name of MRPL on 28.05.2010. Before that, on two dates, i.e., 22/27.07.2010, letters were written on behalf of MRPL, intimating about the amalgamation, but this was for AY 2007-08 (for which separate proceedings had been initiated under Section 153A) and not for AY 2006-07.6. The return specifically suppressed – and did not disclose the amalgamation (with MIPL) – as the response to Query 27(b) was N.A.7. The return – apart from specifically being furnished in the name of MRPL, also contained its PAN number.8. During the assessment proceedings, there was full participation – on behalf of all transferor companies, and MIPL. A special audit was directed (which is possible only after issuing notice under Section 142). Objections to the special audit were filed in respect of portions relatable to MRPL.9. After fully participating in the proceedings which were specifically in respect of the business of the erstwhile MRPL for the year ending 31.03.2006, in the cross-objection before the ITAT, for the first time (in the appeal preferred by the Revenue), an additional ground was urged that the assessment order was a nullity because MRPL was not in existence.10. Assessment order was issued – undoubtedly in relation to MRPL (shown as the assessee, but represented by the transferee company MIPL).11. Appeals were filed to the CIT (and a cross-objection, to ITAT) – by MRPL represented by MIPL.12. At no point in time – the earliest being at the time of search, and subsequently, on receipt of notice, was it plainly stated that MRPL was not in existence, and its business assets and liabilities, taken over by MIPL.13. The counter affidavit filed before this court – (dated 07.11.2020) has been affirmed by Shri Amit Jain S/o Shri P.K. Jain, who- is described in the affidavit as Director of M/S Mahagun Realtors(P) Ltd., R/o….41. In the light of the facts, what is overwhelmingly evident- is that the amalgamation was known to the assessee, even at the stage when the search and seizure operations took place, as well as statements were recorded by the revenue of the directors and managing director of the group. A return was filed, pursuant to notice, which suppressed the fact of amalgamation; on the contrary, the return was of MRPL. Though that entity ceased to be in existence, in law, yet, appeals were filed on its behalf before the CIT, and a cross appeal was filed before ITAT. Even the affidavit before this court is on behalf of the director of MRPL. Furthermore, the assessment order painstakingly attributes specific amounts surrendered by MRPL, and after considering the special auditors report, brings specific amounts to tax, in the search assessment order. That order is no doubt expressed to be of MRPL (as the assessee) - but represented by the transferee, MIPL. All these clearly indicate that the order adopted a particular method of expressing the tax liability. The AO, on the other hand, had the option of making a common order, with MIPL as the assessee, but containing separate parts, relating to the different transferor companies (Mahagun Developers Ltd., Mahagun Realtors Pvt. Ltd., Universal Advertising Pvt. Ltd., ADR Home Décor Pvt. Ltd.). The mere choice of the AO in issuing a separate order in respect of MRPL, in these circumstances, cannot nullify it. Right from the time it was issued, and at all stages of various proceedings, the parties concerned (i.e., MIPL) treated it to be in respect of the transferee company (MIPL) by virtue of the amalgamation order – and Section 394 (2). Furthermore, it would be anybodys guess, if any refund were due, as to whether MIPL would then say that it is not entitled to it, because the refund order would be issued in favour of a non-existing company (MRPL). Having regard to all these reasons, this court is of the opinion that in the facts of this case, the conduct of the assessee, commencing from the date the search took place, and before all forums, reflects that it consistently held itself out as the assessee. The approach and order of the AO is, in this courts opinion in consonance with the decision in Marshall & Sons (supra), which had held that:an assessment can always be made and is supposed to be made on the Transferee Company taking into account the income of both the Transferor and Transferee Company.42. Before concluding, this Court notes and holds that whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case. | 1 | 12,148 | 5,482 | ### 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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return of income was not revised even though the assessment proceedings were pending. The last date for filing the revised returns was 31.03.2008, after the amalgamation order. 4. A search and seizure proceeding was conducted in respect of the Mahagun group, including the MRPL and other companies: (i) When search and seizure of the Mahagun group took place, no indication was given about the amalgamation. (ii) A statement made on 20.03.2007 by Mr. Amit Jain, MRPLs managing director, during statutory survey proceedings under Section 133A, unearthed discrepancies in the books of account, in relation to amounts of money in MRPLs account. The specific amount admitted was Rs.5.072 crores, in the course of the statement recorded. (iii) The warrant was in the name of MRPL. The directors of MRPL and MIPL made a combined statement under Section 132 of the Act, on 27.08.2008. (iv) A total of Rs. 30 crores cash, which was seized- was surrendered in relation to MRPL and other transferor companies, as well as MIPL, on 27.08.2008 in the course of the admission, when a statement was recorded under Section 132 (4) of the Act, by Mr. Amit Jain. 5. Upon being issued with a notice to file returns, a return was filed in the name of MRPL on 28.05.2010. Before that, on two dates, i.e., 22/27.07.2010, letters were written on behalf of MRPL, intimating about the amalgamation, but this was for AY 2007-08 (for which separate proceedings had been initiated under Section 153A) and not for AY 2006-07. 6. The return specifically suppressed – and did not disclose the amalgamation (with MIPL) – as the response to Query 27(b) was N.A. 7. The return – apart from specifically being furnished in the name of MRPL, also contained its PAN number. 8. During the assessment proceedings, there was full participation – on behalf of all transferor companies, and MIPL. A special audit was directed (which is possible only after issuing notice under Section 142). Objections to the special audit were filed in respect of portions relatable to MRPL. 9. After fully participating in the proceedings which were specifically in respect of the business of the erstwhile MRPL for the year ending 31.03.2006, in the cross-objection before the ITAT, for the first time (in the appeal preferred by the Revenue), an additional ground was urged that the assessment order was a nullity because MRPL was not in existence. 10. Assessment order was issued – undoubtedly in relation to MRPL (shown as the assessee, but represented by the transferee company MIPL). 11. Appeals were filed to the CIT (and a cross-objection, to ITAT) – by MRPL represented by MIPL. 12. At no point in time – the earliest being at the time of search, and subsequently, on receipt of notice, was it plainly stated that MRPL was not in existence, and its business assets and liabilities, taken over by MIPL. 13. The counter affidavit filed before this court – (dated 07.11.2020) has been affirmed by Shri Amit Jain S/o Shri P.K. Jain, who- is described in the affidavit as Director of M/S Mahagun Realtors(P) Ltd., R/o…. 41. In the light of the facts, what is overwhelmingly evident- is that the amalgamation was known to the assessee, even at the stage when the search and seizure operations took place, as well as statements were recorded by the revenue of the directors and managing director of the group. A return was filed, pursuant to notice, which suppressed the fact of amalgamation; on the contrary, the return was of MRPL. Though that entity ceased to be in existence, in law, yet, appeals were filed on its behalf before the CIT, and a cross appeal was filed before ITAT. Even the affidavit before this court is on behalf of the director of MRPL. Furthermore, the assessment order painstakingly attributes specific amounts surrendered by MRPL, and after considering the special auditors report, brings specific amounts to tax, in the search assessment order. That order is no doubt expressed to be of MRPL (as the assessee) - but represented by the transferee, MIPL. All these clearly indicate that the order adopted a particular method of expressing the tax liability. The AO, on the other hand, had the option of making a common order, with MIPL as the assessee, but containing separate parts, relating to the different transferor companies (Mahagun Developers Ltd., Mahagun Realtors Pvt. Ltd., Universal Advertising Pvt. Ltd., ADR Home Décor Pvt. Ltd.). The mere choice of the AO in issuing a separate order in respect of MRPL, in these circumstances, cannot nullify it. Right from the time it was issued, and at all stages of various proceedings, the parties concerned (i.e., MIPL) treated it to be in respect of the transferee company (MIPL) by virtue of the amalgamation order – and Section 394 (2). Furthermore, it would be anybodys guess, if any refund were due, as to whether MIPL would then say that it is not entitled to it, because the refund order would be issued in favour of a non-existing company (MRPL). Having regard to all these reasons, this court is of the opinion that in the facts of this case, the conduct of the assessee, commencing from the date the search took place, and before all forums, reflects that it consistently held itself out as the assessee. The approach and order of the AO is, in this courts opinion in consonance with the decision in Marshall & Sons (supra), which had held that: an assessment can always be made and is supposed to be made on the Transferee Company taking into account the income of both the Transferor and Transferee Company. 42. Before concluding, this Court notes and holds that whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case.
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the liabilities and duties of the Transferee Company) - whereby MRPLs liabilities devolved on MIPL.3. The original return of income was not revised even though the assessment proceedings were pending. The last date for filing the revised returns was 31.03.2008, after the amalgamation order.4. A search and seizure proceeding was conducted in respect of the Mahagun group, including the MRPL and other companies:(i) When search and seizure of the Mahagun group took place, no indication was given about the amalgamation.(ii) A statement made on 20.03.2007 by Mr. Amit Jain, MRPLs managing director, during statutory survey proceedings under Section 133A, unearthed discrepancies in the books of account, in relation to amounts of money in MRPLs account. The specific amount admitted was Rs.5.072 crores, in the course of the statement recorded.(iii) The warrant was in the name of MRPL. The directors of MRPL and MIPL made a combined statement under Section 132 of the Act, on 27.08.2008.(iv) A total of Rs. 30 crores cash, which was seized- was surrendered in relation to MRPL and other transferor companies, as well as MIPL, on 27.08.2008 in the course of the admission, when a statement was recorded under Section 132 (4) of the Act, by Mr. Amit Jain.5. Upon being issued with a notice to file returns, a return was filed in the name of MRPL on 28.05.2010. Before that, on two dates, i.e., 22/27.07.2010, letters were written on behalf of MRPL, intimating about the amalgamation, but this was for AY 2007-08 (for which separate proceedings had been initiated under Section 153A) and not for AY 2006-07.6. The return specifically suppressed – and did not disclose the amalgamation (with MIPL) – as the response to Query 27(b) was N.A.7. The return – apart from specifically being furnished in the name of MRPL, also contained its PAN number.8. During the assessment proceedings, there was full participation – on behalf of all transferor companies, and MIPL. A special audit was directed (which is possible only after issuing notice under Section 142). Objections to the special audit were filed in respect of portions relatable to MRPL.9. After fully participating in the proceedings which were specifically in respect of the business of the erstwhile MRPL for the year ending 31.03.2006, in the cross-objection before the ITAT, for the first time (in the appeal preferred by the Revenue), an additional ground was urged that the assessment order was a nullity because MRPL was not in existence.10. Assessment order was issued – undoubtedly in relation to MRPL (shown as the assessee, but represented by the transferee company MIPL).11. Appeals were filed to the CIT (and a cross-objection, to ITAT) – by MRPL represented by MIPL.12. At no point in time – the earliest being at the time of search, and subsequently, on receipt of notice, was it plainly stated that MRPL was not in existence, and its business assets and liabilities, taken over by MIPL.13. The counter affidavit filed before this court – (dated 07.11.2020) has been affirmed by Shri Amit Jain S/o Shri P.K. Jain, who- is described in the affidavit as Director of M/S Mahagun Realtors(P) Ltd., R/o….41. In the light of the facts, what is overwhelmingly evident- is that the amalgamation was known to the assessee, even at the stage when the search and seizure operations took place, as well as statements were recorded by the revenue of the directors and managing director of the group. A return was filed, pursuant to notice, which suppressed the fact of amalgamation; on the contrary, the return was of MRPL. Though that entity ceased to be in existence, in law, yet, appeals were filed on its behalf before the CIT, and a cross appeal was filed before ITAT. Even the affidavit before this court is on behalf of the director of MRPL. Furthermore, the assessment order painstakingly attributes specific amounts surrendered by MRPL, and after considering the special auditors report, brings specific amounts to tax, in the search assessment order. That order is no doubt expressed to be of MRPL (as the assessee) - but represented by the transferee, MIPL. All these clearly indicate that the order adopted a particular method of expressing the tax liability. The AO, on the other hand, had the option of making a common order, with MIPL as the assessee, but containing separate parts, relating to the different transferor companies (Mahagun Developers Ltd., Mahagun Realtors Pvt. Ltd., Universal Advertising Pvt. Ltd., ADR Home Décor Pvt. Ltd.). The mere choice of the AO in issuing a separate order in respect of MRPL, in these circumstances, cannot nullify it. Right from the time it was issued, and at all stages of various proceedings, the parties concerned (i.e., MIPL) treated it to be in respect of the transferee company (MIPL) by virtue of the amalgamation order – and Section 394 (2). Furthermore, it would be anybodys guess, if any refund were due, as to whether MIPL would then say that it is not entitled to it, because the refund order would be issued in favour of a non-existing company (MRPL). Having regard to all these reasons, this court is of the opinion that in the facts of this case, the conduct of the assessee, commencing from the date the search took place, and before all forums, reflects that it consistently held itself out as the assessee. The approach and order of the AO is, in this courts opinion in consonance with the decision in Marshall & Sons (supra), which had held that:an assessment can always be made and is supposed to be made on the Transferee Company taking into account the income of both the Transferor and Transferee Company.42. Before concluding, this Court notes and holds that whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case.
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M.V. Javali Vs. Mahajan Borewell and Company and Others | dealing with social and economic offences committed by Corporations (including companies, firms and association of individuals) if observed that though a company has no physical body and traditional punishments might thus prove ineffective, the real penalty could be inflicted upon its respectability, that is, by way of a stigma. Therefore, it was appropriate that the company itself be punished so that in the public mind the offence would be linked with the name of the Corporation and not merely with the name of the director or manager who might be a non-entity. Punishment of fine in substitution of imprisonment could solve the problem in this behalf. The Commission recommended, apart from introduction of a provision in Section 62 of the Indian Penal Code, appropriate amendments in the Central Excise Act, 1944, Wealth Tax Act, 1957 and Income tax Act, 1961 on the lines of Section 93 of the Gold Control Act, 1968. The provisions contained in Section 278B of the Act appear to be based on the recommendations of the Law Commission. Para 8.1 of the Law Commission Report reads as under: "8.1. An important type of while- collar crime is that committed by Corporations, Since a Corporation has no physical body on which the pain of punishment could be inflicted, not a mind which can be guilty of a criminal intent, traditional punishments prove ineffective, and new and different punishments have to be devised. The real penalty of a corporation is the diminution of respectability, that is, the stigma. It is now usual to insert provisions to the effect that the Director or Manager who has acted for the corporation should be punished. But it is appropriate that the corporation itself, should be punished. In the public mind, the offence should be linked with the name of the corporation, and not merely with the name of the Director or Manger, who may be a non-entity. Punishment of fine in substitution of imprisonment in the case of a corporation could solve the problem in one aspect; but, at the same, it is necessary that there should be some procedure, like a judgment of condemnation, available in the case of an anti- social or economic offence committed by a Corporation. This will be analogous to the punishment of public censure proposed for individuals." * 7. And Para 8.3, to the extent it is relevant for our purposes, reads as under: "8.3. In many of the Acts relating to economic offences, imprisonment is mandatory. Where the convicted person is a corporation, this provision becomes unworkable, and it is desirable to provide that in such cases, it shall be competent to the court to impose a fine. This difficulty can arise under the Penal Code also, but it is likely to arise more frequently in the case of economic laws." * 8. Coming now to the principles of interpretation of statutes this Court observed in Siraj-ui-Hag Khan vs. The Sunni Central Board of Wakf U.P. as under: "It is well settled that in construing the provisions of a statute, courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; and attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In such a case, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative." * 9. Again in Union of India Vs. Filip Tiago De Gama this Court observed: "The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained form the text of enactment in question. That does not mean the text to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. Words are certainly not crystals, transparent and unchanged as Mr. Justice Holmes has wisely and properly warned (Towne v. Eisjher, 1918 (245) US 418, 425. Learned Hand, J. was equally emphatic when he said Statutes should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them. (Lenigh Valley Coal Co. vs. Yensavage: 218 FR 547 at 553)" * 10. It further observed as under: "If there is obvious anomaly in the application of law the Court could shape the law to remove the anomaly. If the strict grammtical interpretation gives rise to absurdity or inconsistency, the Court could discard such interpretation and adopt an interpretation which will give effect to the purpose of the legislature. That could be done, if necessary even by modification of the language used. (See Mahadeolal Kanodia v. The Administrator General of West Bengal. The legislators do not always deal with specific controversies which the Courts decide. They incorporate general purpose behind the statutory words and it is for the court to decide specific cases. If a given case is well within the general purpose of the legislature but not within the literal meaning of the statute, then the Court must strike the balance." * 11. Keeping in view the recommendations of the Law Commission and the above principles of interpretation of Statutes we are of the opinion that the only harmonious construction that can be given to Section 276B is that the mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, namely on persons coming under categories (ii) and (iii) above, but where it cannot be imposed, namely on a company, fine will be the only punishment. We hasten to add, two other alternative interpretations could also be given: (i) that a company cannot be prosecuted (as held in the impugned judgment); or (ii) that a company may be prosecuted and convicted but not punished, but these interpretations will be dehors Section 278B or wholly inconsistent with its plain language. 12. | 0[ds]From a plain reading of the above Section it is manifest that if an offence under the Act is committed by a company the persons who a reliable to be proceeded against and punished are: (i) The company, (which includes a firm); (ii) every person, who at the time the offence was committed, was incharge of, and was responsible to the company for the conduct of the business; and (iii) any director (who in relation to a firm means a partner), 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. The words as well as the company appearing in the Section also make it unmistakably clear that the company alone can be prosecuted and punished even if the persons mentioned in categories (ii) and (iii), who are for all intents and purpose vicariously liable for the offence, are not arraigned, for it is the company which is primarily guilty of thein view the recommendations of the Law Commission and the above principles of interpretation of Statutes we are of the opinion that the only harmonious construction that can be given to Section 276B is that the mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, namely on persons coming under categories (ii) and (iii) above, but where it cannot be imposed, namely on a company, fine will be the only punishment. We hasten to add, two other alternative interpretations could also be given: (i) that a company cannot be prosecuted (as held in the impugned judgment); or (ii) that a company may be prosecuted and convicted but not punished, but these interpretations will be dehors Section 278B or wholly inconsistent with its plain language. | 0 | 2,282 | 349 | ### 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:
dealing with social and economic offences committed by Corporations (including companies, firms and association of individuals) if observed that though a company has no physical body and traditional punishments might thus prove ineffective, the real penalty could be inflicted upon its respectability, that is, by way of a stigma. Therefore, it was appropriate that the company itself be punished so that in the public mind the offence would be linked with the name of the Corporation and not merely with the name of the director or manager who might be a non-entity. Punishment of fine in substitution of imprisonment could solve the problem in this behalf. The Commission recommended, apart from introduction of a provision in Section 62 of the Indian Penal Code, appropriate amendments in the Central Excise Act, 1944, Wealth Tax Act, 1957 and Income tax Act, 1961 on the lines of Section 93 of the Gold Control Act, 1968. The provisions contained in Section 278B of the Act appear to be based on the recommendations of the Law Commission. Para 8.1 of the Law Commission Report reads as under: "8.1. An important type of while- collar crime is that committed by Corporations, Since a Corporation has no physical body on which the pain of punishment could be inflicted, not a mind which can be guilty of a criminal intent, traditional punishments prove ineffective, and new and different punishments have to be devised. The real penalty of a corporation is the diminution of respectability, that is, the stigma. It is now usual to insert provisions to the effect that the Director or Manager who has acted for the corporation should be punished. But it is appropriate that the corporation itself, should be punished. In the public mind, the offence should be linked with the name of the corporation, and not merely with the name of the Director or Manger, who may be a non-entity. Punishment of fine in substitution of imprisonment in the case of a corporation could solve the problem in one aspect; but, at the same, it is necessary that there should be some procedure, like a judgment of condemnation, available in the case of an anti- social or economic offence committed by a Corporation. This will be analogous to the punishment of public censure proposed for individuals." * 7. And Para 8.3, to the extent it is relevant for our purposes, reads as under: "8.3. In many of the Acts relating to economic offences, imprisonment is mandatory. Where the convicted person is a corporation, this provision becomes unworkable, and it is desirable to provide that in such cases, it shall be competent to the court to impose a fine. This difficulty can arise under the Penal Code also, but it is likely to arise more frequently in the case of economic laws." * 8. Coming now to the principles of interpretation of statutes this Court observed in Siraj-ui-Hag Khan vs. The Sunni Central Board of Wakf U.P. as under: "It is well settled that in construing the provisions of a statute, courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; and attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In such a case, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative." * 9. Again in Union of India Vs. Filip Tiago De Gama this Court observed: "The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained form the text of enactment in question. That does not mean the text to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. Words are certainly not crystals, transparent and unchanged as Mr. Justice Holmes has wisely and properly warned (Towne v. Eisjher, 1918 (245) US 418, 425. Learned Hand, J. was equally emphatic when he said Statutes should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them. (Lenigh Valley Coal Co. vs. Yensavage: 218 FR 547 at 553)" * 10. It further observed as under: "If there is obvious anomaly in the application of law the Court could shape the law to remove the anomaly. If the strict grammtical interpretation gives rise to absurdity or inconsistency, the Court could discard such interpretation and adopt an interpretation which will give effect to the purpose of the legislature. That could be done, if necessary even by modification of the language used. (See Mahadeolal Kanodia v. The Administrator General of West Bengal. The legislators do not always deal with specific controversies which the Courts decide. They incorporate general purpose behind the statutory words and it is for the court to decide specific cases. If a given case is well within the general purpose of the legislature but not within the literal meaning of the statute, then the Court must strike the balance." * 11. Keeping in view the recommendations of the Law Commission and the above principles of interpretation of Statutes we are of the opinion that the only harmonious construction that can be given to Section 276B is that the mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, namely on persons coming under categories (ii) and (iii) above, but where it cannot be imposed, namely on a company, fine will be the only punishment. We hasten to add, two other alternative interpretations could also be given: (i) that a company cannot be prosecuted (as held in the impugned judgment); or (ii) that a company may be prosecuted and convicted but not punished, but these interpretations will be dehors Section 278B or wholly inconsistent with its plain language. 12.
### Response:
0
### Explanation:
From a plain reading of the above Section it is manifest that if an offence under the Act is committed by a company the persons who a reliable to be proceeded against and punished are: (i) The company, (which includes a firm); (ii) every person, who at the time the offence was committed, was incharge of, and was responsible to the company for the conduct of the business; and (iii) any director (who in relation to a firm means a partner), 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. The words as well as the company appearing in the Section also make it unmistakably clear that the company alone can be prosecuted and punished even if the persons mentioned in categories (ii) and (iii), who are for all intents and purpose vicariously liable for the offence, are not arraigned, for it is the company which is primarily guilty of thein view the recommendations of the Law Commission and the above principles of interpretation of Statutes we are of the opinion that the only harmonious construction that can be given to Section 276B is that the mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, namely on persons coming under categories (ii) and (iii) above, but where it cannot be imposed, namely on a company, fine will be the only punishment. We hasten to add, two other alternative interpretations could also be given: (i) that a company cannot be prosecuted (as held in the impugned judgment); or (ii) that a company may be prosecuted and convicted but not punished, but these interpretations will be dehors Section 278B or wholly inconsistent with its plain language.
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State of U.P Vs. Mukunde Singh | other accused persons set up counter version and pleaded that on the day of occurrence at about 9 a.m. when these accused persons were sitting on the Gonda of Shiv Vir Singh, accused in Village Badera, the deceased persons and others came there armed with lathis, ballams and country-made pistols and attacked them and that Mahesh Singh, deceased fired from his country- made pistol and they continued to advance. Shiv Vir Singh, accused fired in self-defence and that they also went to the police station to lodge a complaint. It may be mentioned at this stage that DW 1 Dr Mittal examined the accused Hanumant Singh, Brij Mohan, Ramesh Singh, Vidya Ram and Yadhunath Singh and found some abrasions, contusions and lacerated wounds on them. 4. The High Court observed that the eyewitnesses have not furnished any explanation regarding the injuries found on the accused persons and that they also received the injuries during the same incident in which the deceased persons also received fatal injuries and that the finding of the trial court that the accused might have received injuries elsewhere or the same might have been self-inflicted, is wholly untenable. Then the High Court proceeded to state that as the injuries on the accused have not been explained by the eyewitnesses the version given by them cannot implicitly be believed and that the accused acted only in exercise of self-defence and were entitled to the benefit of the section, cannot be ruled out. 5. We have gone through the evidence of PWs 1, 2, 3 and 5 particularly that of PWs 1 and 2, the injured witnesses whose presence at the scene of occurrence cannot be doubted. Merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the High Court ought not to have rejected their evidence outright. At any rate the High Court having observed that the accused might have acted in exercise of right of self-defence, ought to have proceeded to consider whether they have exceeded the same. In a case of this nature where a large number of persons are injured and three persons are killed, the court should always consider the individual acts in examining whether they have exceeded the right of self defence. The injuries on the accused persons are not very serious and many of them are simple injuries and all of them could have been caused only by blunt objects. No doubt, the trial court was not quite right in simply ignoring the injuries on the accused persons by holding that they might have been self-inflicted. All the injuries on the accused are such which could not have been self-inflicted. But at the same time they are all simple injuries which were not caused by deadly weapons. That being the case, even giving benefit to the accused that they had the right of self-defence, we have to necessarily examine whether they have exceeded the same. 6. According to the eyewitnesses Shiv Vir Singh and Mukunde Singh, accused had firearms and they indiscriminately shot at the prosecution party as a result of which three persons died and PW 1 also received gunshot injuries. Then Hanumant Singh, Badan Singh and Ashok Kumar Singh, accused, who were armed with kantas and spear also inflicted injuries with these deadly weapons on the three deceased persons though they were also shot down by Shiv Vir Singh and Mukunde Singh, accused. The medical evidence clearly shows that the gunshot injuries and the punctured wounds inflicted by the assailants resulted in death. Some of the punctured wounds also were on the vital parts. Under these circumstances, we are clearly of the view that these five accused who attacked the three deceased persons and killed them certainly exceeded the right of self-defence. So far as other accused are concerned, allegation against them is omnibus namely that all of them were armed with lathis and participated in the occurrence. But we do not find any lathi injuries on the three deceased persons as well as on PW 1. Only some simple injuries which could have been caused by blunt weapons were found on PW 2. Therefore there is not sufficient material to come to the conclusion that those 17 accused also participated in the occurrence. Therefore their acquittal has to be confirmed. 7. Learned counsel appearing for Mukunde Singh, accused relied on the evidence of one Shri B.K. Turru, Company Commander of Chief Security Officers Reserve Company, Kharagpur, who deposed for the first time in the High Court that accused Mukunde Singh was working as a Rakshak in Railway Protection Force and that he was sick and he was granted leave on August 3, 1975 and was permitted to go for treatment. Some entries said to have been made in the register concerned were sought to be relied upon, in other words, to prove the alibi set up by Mukunde Singh, accused. It may be mentioned here that for the first time in the High Court during the pendency of the appeal, Mukunde Singh, accused sought to adduce this evidence at a highly belated stage. At any rate to satisfy ourselves we have examined the statement of Shri B.K. Turru. Some of the entries in the register which are sought to be relied upon were put to him. He could not even say whose handwriting it was. The evidence is very unsatisfactory and on the basis of such alibi evidence, the evidence given by the eyewitnesses including the two injured witnesses cannot be brushed aside regarding the participation of Mukunde Singh, accused. As a matter of fact ever since from the stage of FIR his name has been consistently mentioned. 8. For the above-stated reasons, the acquittal of Hanumant Singh, Badan Singh, Ashok Kumar Singh, Shiv Vir Singh and Mukunde Singh, accused is set aside and they are convicted under Section 304 Part 1 IPC and each of them is sentenced to undergo seven years RI. The acquittal of the remaining accused is confirmed. | 1[ds]5. We have gone through the evidence of PWs 1, 2, 3 and 5 particularly that of PWs 1 and 2, the injured witnesses whose presence at the scene of occurrence cannot be doubted. Merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the High Court ought not to have rejected their evidence outright. At any rate the High Court having observed that the accused might have acted in exercise of right ofought to have proceeded to consider whether they have exceeded the same. In a case of this nature where a large number of persons are injured and three persons are killed, the court should always consider the individual acts in examining whether they have exceeded the right of self defence. The injuries on the accused persons are not very serious and many of them are simple injuries and all of them could have been caused only by blunt objects. No doubt, the trial court was not quite right in simply ignoring the injuries on the accused persons by holding that they might have beenAll the injuries on the accused are such which could not have beenBut at the same time they are all simple injuries which were not caused by deadly weapons. That being the case, even giving benefit to the accused that they had the right ofwe have to necessarily examine whether they have exceeded the same.Learned counsel appearing for Mukunde Singh, accused relied on the evidence of one Shri B.K. Turru, Company Commander of Chief Security Officers Reserve Company, Kharagpur, who deposed for the first time in the High Court that accused Mukunde Singh was working as a Rakshak in Railway Protection Force and that he was sick and he was granted leave on August 3, 1975 and was permitted to go for treatment. Some entries said to have been made in the register concerned were sought to be relied upon, in other words, to prove the alibi set up by Mukunde Singh, accused. It may be mentioned here that for the first time in the High Court during the pendency of the appeal, Mukunde Singh, accused sought to adduce this evidence at a highly belated stage. At any rate to satisfy ourselves we have examined the statement of Shri B.K. Turru. Some of the entries in the register which are sought to be relied upon were put to him. He could not even say whose handwriting it was. The evidence is very unsatisfactory and on the basis of such alibi evidence, the evidence given by the eyewitnesses including the two injured witnesses cannot be brushed aside regarding the participation of Mukunde Singh, accused. As a matter of fact ever since from the stage of FIR his name has been consistently mentioned.ted reasons, the acquittal of Hanumant Singh, Badan Singh, Ashok Kumar Singh, Shiv Vir Singh and Mukunde Singh, accused is set aside and they are convicted under Section 304 Part 1 IPC and each of them is sentenced to undergo seven years RI. The acquittal of the remaining accused is confirmed. | 1 | 2,152 | 561 | ### 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:
other accused persons set up counter version and pleaded that on the day of occurrence at about 9 a.m. when these accused persons were sitting on the Gonda of Shiv Vir Singh, accused in Village Badera, the deceased persons and others came there armed with lathis, ballams and country-made pistols and attacked them and that Mahesh Singh, deceased fired from his country- made pistol and they continued to advance. Shiv Vir Singh, accused fired in self-defence and that they also went to the police station to lodge a complaint. It may be mentioned at this stage that DW 1 Dr Mittal examined the accused Hanumant Singh, Brij Mohan, Ramesh Singh, Vidya Ram and Yadhunath Singh and found some abrasions, contusions and lacerated wounds on them. 4. The High Court observed that the eyewitnesses have not furnished any explanation regarding the injuries found on the accused persons and that they also received the injuries during the same incident in which the deceased persons also received fatal injuries and that the finding of the trial court that the accused might have received injuries elsewhere or the same might have been self-inflicted, is wholly untenable. Then the High Court proceeded to state that as the injuries on the accused have not been explained by the eyewitnesses the version given by them cannot implicitly be believed and that the accused acted only in exercise of self-defence and were entitled to the benefit of the section, cannot be ruled out. 5. We have gone through the evidence of PWs 1, 2, 3 and 5 particularly that of PWs 1 and 2, the injured witnesses whose presence at the scene of occurrence cannot be doubted. Merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the High Court ought not to have rejected their evidence outright. At any rate the High Court having observed that the accused might have acted in exercise of right of self-defence, ought to have proceeded to consider whether they have exceeded the same. In a case of this nature where a large number of persons are injured and three persons are killed, the court should always consider the individual acts in examining whether they have exceeded the right of self defence. The injuries on the accused persons are not very serious and many of them are simple injuries and all of them could have been caused only by blunt objects. No doubt, the trial court was not quite right in simply ignoring the injuries on the accused persons by holding that they might have been self-inflicted. All the injuries on the accused are such which could not have been self-inflicted. But at the same time they are all simple injuries which were not caused by deadly weapons. That being the case, even giving benefit to the accused that they had the right of self-defence, we have to necessarily examine whether they have exceeded the same. 6. According to the eyewitnesses Shiv Vir Singh and Mukunde Singh, accused had firearms and they indiscriminately shot at the prosecution party as a result of which three persons died and PW 1 also received gunshot injuries. Then Hanumant Singh, Badan Singh and Ashok Kumar Singh, accused, who were armed with kantas and spear also inflicted injuries with these deadly weapons on the three deceased persons though they were also shot down by Shiv Vir Singh and Mukunde Singh, accused. The medical evidence clearly shows that the gunshot injuries and the punctured wounds inflicted by the assailants resulted in death. Some of the punctured wounds also were on the vital parts. Under these circumstances, we are clearly of the view that these five accused who attacked the three deceased persons and killed them certainly exceeded the right of self-defence. So far as other accused are concerned, allegation against them is omnibus namely that all of them were armed with lathis and participated in the occurrence. But we do not find any lathi injuries on the three deceased persons as well as on PW 1. Only some simple injuries which could have been caused by blunt weapons were found on PW 2. Therefore there is not sufficient material to come to the conclusion that those 17 accused also participated in the occurrence. Therefore their acquittal has to be confirmed. 7. Learned counsel appearing for Mukunde Singh, accused relied on the evidence of one Shri B.K. Turru, Company Commander of Chief Security Officers Reserve Company, Kharagpur, who deposed for the first time in the High Court that accused Mukunde Singh was working as a Rakshak in Railway Protection Force and that he was sick and he was granted leave on August 3, 1975 and was permitted to go for treatment. Some entries said to have been made in the register concerned were sought to be relied upon, in other words, to prove the alibi set up by Mukunde Singh, accused. It may be mentioned here that for the first time in the High Court during the pendency of the appeal, Mukunde Singh, accused sought to adduce this evidence at a highly belated stage. At any rate to satisfy ourselves we have examined the statement of Shri B.K. Turru. Some of the entries in the register which are sought to be relied upon were put to him. He could not even say whose handwriting it was. The evidence is very unsatisfactory and on the basis of such alibi evidence, the evidence given by the eyewitnesses including the two injured witnesses cannot be brushed aside regarding the participation of Mukunde Singh, accused. As a matter of fact ever since from the stage of FIR his name has been consistently mentioned. 8. For the above-stated reasons, the acquittal of Hanumant Singh, Badan Singh, Ashok Kumar Singh, Shiv Vir Singh and Mukunde Singh, accused is set aside and they are convicted under Section 304 Part 1 IPC and each of them is sentenced to undergo seven years RI. The acquittal of the remaining accused is confirmed.
### Response:
1
### Explanation:
5. We have gone through the evidence of PWs 1, 2, 3 and 5 particularly that of PWs 1 and 2, the injured witnesses whose presence at the scene of occurrence cannot be doubted. Merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the High Court ought not to have rejected their evidence outright. At any rate the High Court having observed that the accused might have acted in exercise of right ofought to have proceeded to consider whether they have exceeded the same. In a case of this nature where a large number of persons are injured and three persons are killed, the court should always consider the individual acts in examining whether they have exceeded the right of self defence. The injuries on the accused persons are not very serious and many of them are simple injuries and all of them could have been caused only by blunt objects. No doubt, the trial court was not quite right in simply ignoring the injuries on the accused persons by holding that they might have beenAll the injuries on the accused are such which could not have beenBut at the same time they are all simple injuries which were not caused by deadly weapons. That being the case, even giving benefit to the accused that they had the right ofwe have to necessarily examine whether they have exceeded the same.Learned counsel appearing for Mukunde Singh, accused relied on the evidence of one Shri B.K. Turru, Company Commander of Chief Security Officers Reserve Company, Kharagpur, who deposed for the first time in the High Court that accused Mukunde Singh was working as a Rakshak in Railway Protection Force and that he was sick and he was granted leave on August 3, 1975 and was permitted to go for treatment. Some entries said to have been made in the register concerned were sought to be relied upon, in other words, to prove the alibi set up by Mukunde Singh, accused. It may be mentioned here that for the first time in the High Court during the pendency of the appeal, Mukunde Singh, accused sought to adduce this evidence at a highly belated stage. At any rate to satisfy ourselves we have examined the statement of Shri B.K. Turru. Some of the entries in the register which are sought to be relied upon were put to him. He could not even say whose handwriting it was. The evidence is very unsatisfactory and on the basis of such alibi evidence, the evidence given by the eyewitnesses including the two injured witnesses cannot be brushed aside regarding the participation of Mukunde Singh, accused. As a matter of fact ever since from the stage of FIR his name has been consistently mentioned.ted reasons, the acquittal of Hanumant Singh, Badan Singh, Ashok Kumar Singh, Shiv Vir Singh and Mukunde Singh, accused is set aside and they are convicted under Section 304 Part 1 IPC and each of them is sentenced to undergo seven years RI. The acquittal of the remaining accused is confirmed.
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The Commissioner of Income Tax Vs. M/S. Petals Engineers Private Limited | Oral Judgment:(B.R. Gavai, J.)This Appeal takes exception to the Judgment and Order passed by the learned Income Tax Appellate Tribunal, Panaji, dated 05.09.2006.2. The Appeal has been admitted by the Division Bench of this Court on 16.04.2007 on the following substantial questions of law :A) Whether on the facts and in the circumstances of the case, the ITAT was justified in deleting the penalty u/s 271(1)(c), though the claim of the assessee u/s 80IA was disallowed, by the ITAT by same order dated 05.09.2006B) Whether on the facts and in the circumstances of the case, the ITAT, was justified in deleting the penalty merely on the ground that the claim of the assessee was debatable, as the Assessee has admitted that they have shifted its plant and machinery to the new premises previously used for the same purpose 3. Heard Smt. Asha Dessai, learned Senior Standing Counsel along with Shri Rao, learned Junior Standing Counsel appearing for the Appellant.4. The facts in brief giving rise to the present Appeal are as under:The Respondent-Assessee had filed his return for the assessment year 1994-95. In the said returns, it had claimed deductions under Section 80IA on the ground that it had set up a new plant and machinery at Kundaim. The claim of the Respondent-Assessee under Section 80IA came to be rejected by the Assessment Officer. By an Order dated 22.03.1999 while rejecting the said claim, the Assessment Officer also levied a penalty @ 300% amounting to Rs.7,01,355/- under Section 271(1)(c) of the Income Tax Act. Being aggrieved thereby, an Appeal was preferred by the Respondent-Assessee before the Commissioner of Income Tax (Appeal). The Appeal in so far as claim of deduction under Section 80-IA is concerned, came to be dismissed. However, the Appeal was allowed to the extent of imposition of penalty. Being aggrieved thereby, further three appeals were filed by the Revenue as well as assessee before the learned Tribunal. The learned Tribunal dismissed the Appeal of the assessee in so far as deductions under Section 80-IA. However, the appeals filed by Revenue in so far as imposing of penalty is concerned, were dismissed. Being aggrieved thereby, the Revenue has come before this Court.5. Ms. Asha Dessai, learned Senior Standing Counsel appearing for the Appellants, submitted that though the Assessee only shifted his unit from Fatorda to Kundaim, it had claimed the benefit as if the entire new unit was being established at Kundaim and, therefore, the penalty was rightly imposed by the Assessing Officer and upheld by the Commissioner of Income Tax. The learned Senior Standing Counsel therefore submitted that a substantial question of law as to when the the Income Tax Appellate Tribunal disallowed the claims of deduction under Section 80-IA, whether it is permissible for it to reverse the Order in so far as penalty is concerned6. It would be relevant to refer to the note appended by the Respondent-Assessee along with its returns for the assessement year 1994-95, which reads thus :"The company is eligible for deduction u/s 80-IA in respect of its entire gross total income as the only activity of the Company is the new industrial undertaking set up at Kundaim Industrial Estate. Kundaim, Ponda, Goa which commenced operation from 3-7-1993. The original cost of Plant and Machinery transferred from our plant at Fatorda to the new Plant at Kundaim is Rs.3,75,780 (WDV as at 1st April 1993 Rs. 2,02,234). The total cost of new Plant & Machinery capitalized at Kundaim factory is Rs.22,40,,809. Therefore, the cost of plant and machinery transferred from Fatorda to Kundaim factory is less than 20% (Rs.4,48,162) of the cost of new plant and machinery installed at our new industrial undertaking.Deduction u/s 80-G has not been claimed in respect of donation of Rs.90,000 in view of the claim u/s 80-IA.7. It could be clearly seen that the Respondent-Assessee has specifically stated that it was transferring the same plant and machinery from factory at Fatorda to Kundaim. The value of the said plant and machinery was shown to be Rs.3,75,780/- as on 01.04.1993 and its depreciated value was shown to be Rs.2,02,234/- and it is specifically specified that the total cost of new Plant and Machinery capitalised at Kundaim factory is Rs.22,40,809/-. The Assessee had also obtained an expert advice with M/s. Prafull Jain & Associates, which had given an advice that the Assessee was entitled for benefit under Section 80-IA(2) (iv)(b) with regard to Kundaim unit. One Shri Prafull Jain, who was an expert filed an affidavit stating therein that according to my interpretation, the company did not shift the claim for deduction u/s 80-I to 80-IA. The unit at Kundaim Industrial Estate is a new industrial undertaking, manufacturing a much wider range of products. It can be thus clearly seen that the Assessee under the bonafide impression, that since more than 80% of the cost at new factory was by installing new plant and machinery and only less than 20% of the cost was towards transferring the plant and machinery, it was entitled to benefit under Section 80-IA. It is not in dispute that the Assessee has not concealed any fact from the authorities. A specific reference has been made to this. The Tribunal has observed that for attracting penalty, a mens rea is necessary. It has found that neither there is suppression of fact or misrepresentation of fact by the Assessee and, as such, the Order of penalty was not sustainable in law.8. The interference against Judgment and Order of Tribunal would be warranted only if the Order passed by it is perverse or unsustainable in law. Merely because, this Court finds that two views are possible and other view is more attractive to it, it cannot be a ground to interfere with a well reasoned Order. | 0[ds]It can be thus clearly seen that the Assessee under the bonafide impression, that since more than 80% of the cost at new factory was by installing new plant and machinery and only less than 20% of the cost was towards transferring the plant and machinery, it was entitled to benefit under SectionIt is not in dispute that the Assessee has not concealed any fact from the authorities. A specific reference has been made to this. The Tribunal has observed that for attracting penalty, a mens rea is necessary. It has found that neither there is suppression of fact or misrepresentation of fact by the Assessee and, as such, the Order of penalty was not sustainable in law.8. The interference against Judgment and Order of Tribunal would be warranted only if the Order passed by it is perverse or unsustainable in law. Merely because, this Court finds that two views are possible and other view is more attractive to it, it cannot be a ground to interfere with a well reasoned Order. | 0 | 1,084 | 192 | ### 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:
Oral Judgment:(B.R. Gavai, J.)This Appeal takes exception to the Judgment and Order passed by the learned Income Tax Appellate Tribunal, Panaji, dated 05.09.2006.2. The Appeal has been admitted by the Division Bench of this Court on 16.04.2007 on the following substantial questions of law :A) Whether on the facts and in the circumstances of the case, the ITAT was justified in deleting the penalty u/s 271(1)(c), though the claim of the assessee u/s 80IA was disallowed, by the ITAT by same order dated 05.09.2006B) Whether on the facts and in the circumstances of the case, the ITAT, was justified in deleting the penalty merely on the ground that the claim of the assessee was debatable, as the Assessee has admitted that they have shifted its plant and machinery to the new premises previously used for the same purpose 3. Heard Smt. Asha Dessai, learned Senior Standing Counsel along with Shri Rao, learned Junior Standing Counsel appearing for the Appellant.4. The facts in brief giving rise to the present Appeal are as under:The Respondent-Assessee had filed his return for the assessment year 1994-95. In the said returns, it had claimed deductions under Section 80IA on the ground that it had set up a new plant and machinery at Kundaim. The claim of the Respondent-Assessee under Section 80IA came to be rejected by the Assessment Officer. By an Order dated 22.03.1999 while rejecting the said claim, the Assessment Officer also levied a penalty @ 300% amounting to Rs.7,01,355/- under Section 271(1)(c) of the Income Tax Act. Being aggrieved thereby, an Appeal was preferred by the Respondent-Assessee before the Commissioner of Income Tax (Appeal). The Appeal in so far as claim of deduction under Section 80-IA is concerned, came to be dismissed. However, the Appeal was allowed to the extent of imposition of penalty. Being aggrieved thereby, further three appeals were filed by the Revenue as well as assessee before the learned Tribunal. The learned Tribunal dismissed the Appeal of the assessee in so far as deductions under Section 80-IA. However, the appeals filed by Revenue in so far as imposing of penalty is concerned, were dismissed. Being aggrieved thereby, the Revenue has come before this Court.5. Ms. Asha Dessai, learned Senior Standing Counsel appearing for the Appellants, submitted that though the Assessee only shifted his unit from Fatorda to Kundaim, it had claimed the benefit as if the entire new unit was being established at Kundaim and, therefore, the penalty was rightly imposed by the Assessing Officer and upheld by the Commissioner of Income Tax. The learned Senior Standing Counsel therefore submitted that a substantial question of law as to when the the Income Tax Appellate Tribunal disallowed the claims of deduction under Section 80-IA, whether it is permissible for it to reverse the Order in so far as penalty is concerned6. It would be relevant to refer to the note appended by the Respondent-Assessee along with its returns for the assessement year 1994-95, which reads thus :"The company is eligible for deduction u/s 80-IA in respect of its entire gross total income as the only activity of the Company is the new industrial undertaking set up at Kundaim Industrial Estate. Kundaim, Ponda, Goa which commenced operation from 3-7-1993. The original cost of Plant and Machinery transferred from our plant at Fatorda to the new Plant at Kundaim is Rs.3,75,780 (WDV as at 1st April 1993 Rs. 2,02,234). The total cost of new Plant & Machinery capitalized at Kundaim factory is Rs.22,40,,809. Therefore, the cost of plant and machinery transferred from Fatorda to Kundaim factory is less than 20% (Rs.4,48,162) of the cost of new plant and machinery installed at our new industrial undertaking.Deduction u/s 80-G has not been claimed in respect of donation of Rs.90,000 in view of the claim u/s 80-IA.7. It could be clearly seen that the Respondent-Assessee has specifically stated that it was transferring the same plant and machinery from factory at Fatorda to Kundaim. The value of the said plant and machinery was shown to be Rs.3,75,780/- as on 01.04.1993 and its depreciated value was shown to be Rs.2,02,234/- and it is specifically specified that the total cost of new Plant and Machinery capitalised at Kundaim factory is Rs.22,40,809/-. The Assessee had also obtained an expert advice with M/s. Prafull Jain & Associates, which had given an advice that the Assessee was entitled for benefit under Section 80-IA(2) (iv)(b) with regard to Kundaim unit. One Shri Prafull Jain, who was an expert filed an affidavit stating therein that according to my interpretation, the company did not shift the claim for deduction u/s 80-I to 80-IA. The unit at Kundaim Industrial Estate is a new industrial undertaking, manufacturing a much wider range of products. It can be thus clearly seen that the Assessee under the bonafide impression, that since more than 80% of the cost at new factory was by installing new plant and machinery and only less than 20% of the cost was towards transferring the plant and machinery, it was entitled to benefit under Section 80-IA. It is not in dispute that the Assessee has not concealed any fact from the authorities. A specific reference has been made to this. The Tribunal has observed that for attracting penalty, a mens rea is necessary. It has found that neither there is suppression of fact or misrepresentation of fact by the Assessee and, as such, the Order of penalty was not sustainable in law.8. The interference against Judgment and Order of Tribunal would be warranted only if the Order passed by it is perverse or unsustainable in law. Merely because, this Court finds that two views are possible and other view is more attractive to it, it cannot be a ground to interfere with a well reasoned Order.
### Response:
0
### Explanation:
It can be thus clearly seen that the Assessee under the bonafide impression, that since more than 80% of the cost at new factory was by installing new plant and machinery and only less than 20% of the cost was towards transferring the plant and machinery, it was entitled to benefit under SectionIt is not in dispute that the Assessee has not concealed any fact from the authorities. A specific reference has been made to this. The Tribunal has observed that for attracting penalty, a mens rea is necessary. It has found that neither there is suppression of fact or misrepresentation of fact by the Assessee and, as such, the Order of penalty was not sustainable in law.8. The interference against Judgment and Order of Tribunal would be warranted only if the Order passed by it is perverse or unsustainable in law. Merely because, this Court finds that two views are possible and other view is more attractive to it, it cannot be a ground to interfere with a well reasoned Order.
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State of U.P Vs. Satveer & Others | Court in Joseph v. State of Kerala (2003) 1 SCC 465 )that where there is a sole witness his evidence has to be accepted with an amount of caution and after testing it on the touchstone of other material on record. Further, in State of Haryana v. Inder Singh (2002) 9 SCC 537 )it was laid down that the testimony of a sole witness must be confidence inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. Noticing these two Judgments this Court in Ramnaresh v. State of Chhattisgarh (2012) 4 SCC 257 )summed up the principles as under: “The principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eyewitness cannot be relied upon or conviction of an accused cannot be based upon the statement of the sole eye-witness to the crime. All that is needed is that the statement of the sole eye-witness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime.” The evidence of the sole witness thus needs to be considered with caution and after testing it against other material and further, such evidence must inspire confidence and ought to be beyond suspicion. 12. We now proceed to examine the testimony of the sole witness in the context of the material on record. According to PW2 Mewa Ram he was sitting on a bench in front of the clinic of a doctor with Vijaypal when he saw Akash being led inside the baithak by the respondents. Apart from his own testimony nothing has been placed on record by the prosecution which could lend corroboration to his own presence and the content of his version. First, no reason has been given why Mewa Ram and Vijaypal were sitting on the bench outside the clinic of the doctor. Neither the doctor nor Vijaypal were examined. Beyond the testimony of the witness himself there is nothing to indicate whether PW2 Mewa Ram was actually there at the relevant time or not. Secondly, the place from where he allegedly witnessed the occurrence is not a natural place where either the witness resides or carries on any vocation. The reason for his being there is not placed on record. Again the reason for his continuing to be there for 20-25 minutes is also not spelt out. Thirdly, none from the house of Akash was examined nor did PW1 Roop Basant throw any light as to when Akash left the house and in whose company was he playing. Neither has the prosecution given the names of those children nor has anybody else been examined to say that he had seen the children playing at the place in question. There is nothing on record which could corroborate that Akash was actually present with other children. Fourthly, there is nothing to indicate how far was the house of Akash and whether that was the normal place where Akash would always be playing. Lastly, if the incident created chaos in the village so much so that the villagers went and thrashed the respondents, there is no reason why none of them was examined. 13. As regards his version about the incident, the manner in which it statedly occurred, the involvement of the respondents--whether all or some of them, we have nothing on record which could possibly allow us to test the veracity of the version of the sole witness. To us, it is doubtful whether PW2 Mewa Ram could be called a natural and truthful witness and could be completely relied upon. The movements of Akash are also not established to show that he was actually there as suggested by the witness. Since PW2 Mewa Ram is the sole witness and the entire case depends on his testimony, we have looked for even minutest detail which could possibly lend corroboration. We have however not been able to locate any such material. In order to evoke confidence and place intrinsic reliance on the testimony of this sole witness, we tried to find some corroboration on material particulars, which unfortunately is lacking. The assessment of the entire material has left many doubts and questions unanswered. Two facts, that the baithak was of ownership of the respondents and that the body of Akash was found there, though very crucial, cannot by themselves be sufficient to fix the liability. The baithak was not part of the house, was across the road and apparently accessible to others. And importantly, presence of respondents--whether some or all of them, has not been fully established.14. Now the other features on record need consideration. The respondents were apprehended the same day when one of them i.e. respondent Sanjay was allegedly found to be in possession of blood stained dharati or sickle. According to the prosecution the weapon was blood stained and was kept in the folds of dhoti by said Sanjay. However, no such blood stained dhoti of respondent Sanjay was recovered. For that matter no blood stained clothes were recovered from any of the respondents though they were supposed to be authors of the crime which left body of Akash in a pool of blood. Even the blood stains found on the cemented portion from Chamunda Math, though of human origin, were quite disintegrated as per FSL examination.15. In the circumstances and particularly when we are considering an appeal against acquittal, the interference in the present case would be justified and called for, only if we were to find the testimony of the sole witness of such character that it could be fully relied upon. In the present matter where the accused are being tried for an offence punishable with capital punishment, the scrutiny needs to be stricter. In our view the material on record definitely falls short and the respondents are entitled to benefit of doubt. | 0[ds]9. In the instant case two facts were accepted to have been proved on record by the trial court as well as the High Court, namely, (a) the dead body of Akash was found inside the baithak and (b) said baithak belonged to the respondents. The prosecution has examined only one witness i.e. PW2 Mewa Ram who can throw some light. The spot panchnama Ext. Ka-15 shows that on one side of the road is the house of the respondents next to which is Chamunda Math and on the other side of the road is the baithak in question. Thus, according to the sole witness he saw respondent Subhadra coming from her house on one side of the road and then proceeding across the road towards the baithak holding the arm of Akash. According to him the respondents were inside the baithak for some 20-25 minutes, and when they went towards Chamunda Math i.e. to the other side of the road, he and Vijaypal could immediately enter the baithak and see the dead body lying in a pool of blood, which meant that the baithak was not locked at all.As regards his version about the incident, the manner in which it statedly occurred, the involvement of the respondents--whether all or some of them, we have nothing on record which could possibly allow us to test the veracity of the version of the sole witness. To us, it is doubtful whether PW2 Mewa Ram could be called a natural and truthful witness and could be completely relied upon. The movements of Akash are also not established to show that he was actually there as suggested by the witness. Since PW2 Mewa Ram is the sole witness and the entire case depends on his testimony, we have looked for even minutest detail which could possibly lend corroboration. We have however not been able to locate any such material. In order to evoke confidence and place intrinsic reliance on the testimony of this sole witness, we tried to find some corroboration on material particulars, which unfortunately is lacking. The assessment of the entire material has left many doubts and questions unanswered. Two facts, that the baithak was of ownership of the respondents and that the body of Akash was found there, though very crucial, cannot by themselves be sufficient to fix the liability. The baithak was not part of the house, was across the road and apparently accessible to others. And importantly, presence of respondents--whether some or all of them, has not been fully established.14. Now the other features on record need consideration. The respondents were apprehended the same day when one of them i.e. respondent Sanjay was allegedly found to be in possession of blood stained dharati or sickle. According to the prosecution the weapon was blood stained and was kept in the folds of dhoti by said Sanjay. However, no such blood stained dhoti of respondent Sanjay was recovered. For that matter no blood stained clothes were recovered from any of the respondents though they were supposed to be authors of the crime which left body of Akash in a pool of blood. Even the blood stains found on the cemented portion from Chamunda Math, though of human origin, were quite disintegrated as per FSL examination.15. In the circumstances and particularly when we are considering an appeal against acquittal, the interference in the present case would be justified and called for, only if we were to find the testimony of the sole witness of such character that it could be fully relied upon. In the present matter where the accused are being tried for an offence punishable with capital punishment, the scrutiny needs to be stricter. | 0 | 3,320 | 680 | ### 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:
Court in Joseph v. State of Kerala (2003) 1 SCC 465 )that where there is a sole witness his evidence has to be accepted with an amount of caution and after testing it on the touchstone of other material on record. Further, in State of Haryana v. Inder Singh (2002) 9 SCC 537 )it was laid down that the testimony of a sole witness must be confidence inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. Noticing these two Judgments this Court in Ramnaresh v. State of Chhattisgarh (2012) 4 SCC 257 )summed up the principles as under: “The principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eyewitness cannot be relied upon or conviction of an accused cannot be based upon the statement of the sole eye-witness to the crime. All that is needed is that the statement of the sole eye-witness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime.” The evidence of the sole witness thus needs to be considered with caution and after testing it against other material and further, such evidence must inspire confidence and ought to be beyond suspicion. 12. We now proceed to examine the testimony of the sole witness in the context of the material on record. According to PW2 Mewa Ram he was sitting on a bench in front of the clinic of a doctor with Vijaypal when he saw Akash being led inside the baithak by the respondents. Apart from his own testimony nothing has been placed on record by the prosecution which could lend corroboration to his own presence and the content of his version. First, no reason has been given why Mewa Ram and Vijaypal were sitting on the bench outside the clinic of the doctor. Neither the doctor nor Vijaypal were examined. Beyond the testimony of the witness himself there is nothing to indicate whether PW2 Mewa Ram was actually there at the relevant time or not. Secondly, the place from where he allegedly witnessed the occurrence is not a natural place where either the witness resides or carries on any vocation. The reason for his being there is not placed on record. Again the reason for his continuing to be there for 20-25 minutes is also not spelt out. Thirdly, none from the house of Akash was examined nor did PW1 Roop Basant throw any light as to when Akash left the house and in whose company was he playing. Neither has the prosecution given the names of those children nor has anybody else been examined to say that he had seen the children playing at the place in question. There is nothing on record which could corroborate that Akash was actually present with other children. Fourthly, there is nothing to indicate how far was the house of Akash and whether that was the normal place where Akash would always be playing. Lastly, if the incident created chaos in the village so much so that the villagers went and thrashed the respondents, there is no reason why none of them was examined. 13. As regards his version about the incident, the manner in which it statedly occurred, the involvement of the respondents--whether all or some of them, we have nothing on record which could possibly allow us to test the veracity of the version of the sole witness. To us, it is doubtful whether PW2 Mewa Ram could be called a natural and truthful witness and could be completely relied upon. The movements of Akash are also not established to show that he was actually there as suggested by the witness. Since PW2 Mewa Ram is the sole witness and the entire case depends on his testimony, we have looked for even minutest detail which could possibly lend corroboration. We have however not been able to locate any such material. In order to evoke confidence and place intrinsic reliance on the testimony of this sole witness, we tried to find some corroboration on material particulars, which unfortunately is lacking. The assessment of the entire material has left many doubts and questions unanswered. Two facts, that the baithak was of ownership of the respondents and that the body of Akash was found there, though very crucial, cannot by themselves be sufficient to fix the liability. The baithak was not part of the house, was across the road and apparently accessible to others. And importantly, presence of respondents--whether some or all of them, has not been fully established.14. Now the other features on record need consideration. The respondents were apprehended the same day when one of them i.e. respondent Sanjay was allegedly found to be in possession of blood stained dharati or sickle. According to the prosecution the weapon was blood stained and was kept in the folds of dhoti by said Sanjay. However, no such blood stained dhoti of respondent Sanjay was recovered. For that matter no blood stained clothes were recovered from any of the respondents though they were supposed to be authors of the crime which left body of Akash in a pool of blood. Even the blood stains found on the cemented portion from Chamunda Math, though of human origin, were quite disintegrated as per FSL examination.15. In the circumstances and particularly when we are considering an appeal against acquittal, the interference in the present case would be justified and called for, only if we were to find the testimony of the sole witness of such character that it could be fully relied upon. In the present matter where the accused are being tried for an offence punishable with capital punishment, the scrutiny needs to be stricter. In our view the material on record definitely falls short and the respondents are entitled to benefit of doubt.
### Response:
0
### Explanation:
9. In the instant case two facts were accepted to have been proved on record by the trial court as well as the High Court, namely, (a) the dead body of Akash was found inside the baithak and (b) said baithak belonged to the respondents. The prosecution has examined only one witness i.e. PW2 Mewa Ram who can throw some light. The spot panchnama Ext. Ka-15 shows that on one side of the road is the house of the respondents next to which is Chamunda Math and on the other side of the road is the baithak in question. Thus, according to the sole witness he saw respondent Subhadra coming from her house on one side of the road and then proceeding across the road towards the baithak holding the arm of Akash. According to him the respondents were inside the baithak for some 20-25 minutes, and when they went towards Chamunda Math i.e. to the other side of the road, he and Vijaypal could immediately enter the baithak and see the dead body lying in a pool of blood, which meant that the baithak was not locked at all.As regards his version about the incident, the manner in which it statedly occurred, the involvement of the respondents--whether all or some of them, we have nothing on record which could possibly allow us to test the veracity of the version of the sole witness. To us, it is doubtful whether PW2 Mewa Ram could be called a natural and truthful witness and could be completely relied upon. The movements of Akash are also not established to show that he was actually there as suggested by the witness. Since PW2 Mewa Ram is the sole witness and the entire case depends on his testimony, we have looked for even minutest detail which could possibly lend corroboration. We have however not been able to locate any such material. In order to evoke confidence and place intrinsic reliance on the testimony of this sole witness, we tried to find some corroboration on material particulars, which unfortunately is lacking. The assessment of the entire material has left many doubts and questions unanswered. Two facts, that the baithak was of ownership of the respondents and that the body of Akash was found there, though very crucial, cannot by themselves be sufficient to fix the liability. The baithak was not part of the house, was across the road and apparently accessible to others. And importantly, presence of respondents--whether some or all of them, has not been fully established.14. Now the other features on record need consideration. The respondents were apprehended the same day when one of them i.e. respondent Sanjay was allegedly found to be in possession of blood stained dharati or sickle. According to the prosecution the weapon was blood stained and was kept in the folds of dhoti by said Sanjay. However, no such blood stained dhoti of respondent Sanjay was recovered. For that matter no blood stained clothes were recovered from any of the respondents though they were supposed to be authors of the crime which left body of Akash in a pool of blood. Even the blood stains found on the cemented portion from Chamunda Math, though of human origin, were quite disintegrated as per FSL examination.15. In the circumstances and particularly when we are considering an appeal against acquittal, the interference in the present case would be justified and called for, only if we were to find the testimony of the sole witness of such character that it could be fully relied upon. In the present matter where the accused are being tried for an offence punishable with capital punishment, the scrutiny needs to be stricter.
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O.P. Kathpalia Vs. Lakhmir Singh (Dead) & Others | 1956 was found to be interpolated how can anyone say with confidence when the record was tampered with by the learned trial Judge. The appeal was preferred on January 2, 1958. In the application under S. 5 of the Limitation Act praying for condoning the delay in preferring the appeal it was specifically stated that the orders under appeal were made in the absence of the appellant and at his back and without communicating the same to him. Further the suit of the respondent landlord was dismissed for default on December 12, 1956 and it was restored to file on December 30, 1957 and within three days thereafter the appeal was preferred. Now ordinarily the view of the Court dealing with facts in an application under S. 5 of the Limitation Act would not be interfered unless the failure to exercise jurisdiction would lead to miscarriage of justice. Viewed from this angle the appellant had made out a very convincing and just cause for condoning the delay in preferring the appeal. The order under appeal was the very interpolated order. When was it interpolated? There is no. definite answer. Within a month and half of the interpolated order, the suit of the landlord was dismissed. Once the suit was dismissed the appellant tenant could not prefer an appeal against an interim order. The suit of the landlord was restored to file on December 30, 1957. Promptly within three days on January 2, 1958 the appeal was preferred with an application for condoning the delay. A just and convincing cause wholly sufficient to condone the delay was thus made out. More so because failure of the learned District Judge and the learned Single Judge of the High Court to condone delay resulted in the gross miscarriage of justice inasmuch as the tenant lost protection of the Act for his failure to comply with a non est injudicious order, which was a nullity in the eye of law. In this background, we find it difficult to uphold the view of the learned District Judge and the High Court. 28. Justice demands that the order dated October 6, 1956 must be set aside as it is an interpolated and therefore legally non-existent order. It must accordingly be held that the application for fixing interim rent still remains undecided and the trial Court will have to decide it as expeditiously as possible. If the application for interim rent is not disposed of by an appropriate order there was no. question of non-compliance with the same and therefore no. occasion would arise for striking off the defence of the tenant. Accordingly the order dated October 6, 1956 and the order striking off the defence dated March 4, 1958 are set aside. The order of the learned District Judge declining to condone the delay in preferring the appeal against the order dated October 6, 1956 is set aside and the order of the High Court disposing of the two revision petitions is also set aside. 29. Accordingly both these appeals will have to be allowed and the matter will have to be remitted to the trial Court for first deciding the application for fixing the interim rent and calling upon the tenant to deposit the interim rent in arrears at the rate of interim rent so fixed. Learned District Judge should take up the appeal against the order determining the standard rent as early as possible and call upon the tenant to make good the deposit in accordance with the standard rent so determined. The order striking off the defence is set aside and the tenant will be entitled to defend the suit on merits. 30. Before we conclude the judgment, one aspect to which our attention was drawn may be noticed. Original landlord Lakhmir Singh died on April 9, 1978 during the pendency of these appeals in this Court. Civil Misc. Petitions Nos. 17962-69 of 1984 were moved on March 21, 1983(1984) for substitution of his heirs and legal representatives and for condoning delay, if any, in moving the petitions. The ground on which condonation of delay is sought has been set out in the petition and affidavit in support. Appellant has stated in the petition that learned counsel for respondents Nos. 2 and 3 handed over a letter to the Registry on March 2, 1984 intimating about the death of first respondent, the original landlord. Thereafter the petition for substitution was moved on March 21, 1984 that is within three weeks from the date of the knowledge conveyed by the letter of the learned counsel for respondents Nos. 2 and 3. The date of death of respondent No. 1 is not disputed but it is said that appellant came to know about it for the first time from the aforementioned letter. This is countered by the respondents. In our opinion there is good and sufficient reason for condoning delay and granting substitution in the facts of this case. First respondent who is dead was the original landlord and he conveyed and transferred the whole property including the suit premises to respondents Nos. 2 and 3 way back on December 21, 1959 and since then respondents Nos. 2 and 3 are the real contesting respondents. Respondent No. 1 has lost all interest in the property and the litigation concerning the property sold and conveyed by him a quarter of a century back. Coupled with this is the fact that under R. 10-A of O. 22 a duty is cast on the pleader appearing for the deceased party to give intimation of the same to the opposite party. This duty in this case was discharged on March 2, 1984 that is six years after the death and promptly within three weeks the petition for substitution is filed. Having regard to the cumulative effect of all these facts we are satisfied that the appellant has made out a sufficient case for condoning the delay in seeking substitution. We accordingly set aside abatement of appeal and grant substitution. | 1[ds]14. We have dealt with the view taken by the learned District Judge a little more in detail because the learned Single Judge of the High Court has practically adopted the construction which commended to the learned District Judge. We are therefore unable to accept the construction put by the Learned Judge of the High Court on Cl. 11(b). In our opinion on a proper construction, the petition for determination of standard rent filed by the appellant was within time and the learned District Judge was in error in rejecting the petition on the short ground that it was barred by limitation15. It may be mentioned that the learned trial Judge had determined the standard rent but as neither appellate Court nor the High Court dealt with the point we are constrained to remand the matter to the learned District Judge to decide the second point as to what is the standard rent of the suit premises30. Before we conclude the judgment, one aspect to which our attention was drawn may be noticed. Original landlord Lakhmir Singh died on April 9, 1978 during the pendency of these appeals in this Court. Civil Misc. Petitions Nos.9 of 1984 were moved on March 21, 1983(1984) for substitution of his heirs and legal representatives and for condoning delay, if any, in moving the petitions. The ground on which condonation of delay is sought has been set out in the petition and affidavit in support. Appellant has stated in the petition that learned counsel for respondents Nos. 2 and 3 handed over a letter to the Registry on March 2, 1984 intimating about the death of first respondent, the original landlord. Thereafter the petition for substitution was moved on March 21, 1984 that is within three weeks from the date of the knowledge conveyed by the letter of the learned counsel for respondents Nos. 2 and 3. The date of death of respondent No. 1 is not disputed but it is said that appellant came to know about it for the first time from the aforementioned letter. This is countered by the respondents. In our opinion there is good and sufficient reason for condoning delay and granting substitution in the facts of this case. First respondent who is dead was the original landlord and he conveyed and transferred the whole property including the suit premises to respondents Nos. 2 and 3 way back on December 21, 1959 and since then respondents Nos. 2 and 3 are the real contesting respondents. Respondent No. 1 has lost all interest in the property and the litigation concerning the property sold and conveyed by him a quarter of a century back. Coupled with this is the fact that under R.A of O. 22 a duty is cast on the pleader appearing for the deceased party to give intimation of the same to the opposite party. This duty in this case was discharged on March 2, 1984 that is six years after the death and promptly within three weeks the petition for substitution is filed. Having regard to the cumulative effect of all these facts we are satisfied that the appellant has made out a sufficient case for condoning the delay in seeking substitution. We accordingly set aside abatement of appeal and grant substitution. | 1 | 7,388 | 595 | ### 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:
1956 was found to be interpolated how can anyone say with confidence when the record was tampered with by the learned trial Judge. The appeal was preferred on January 2, 1958. In the application under S. 5 of the Limitation Act praying for condoning the delay in preferring the appeal it was specifically stated that the orders under appeal were made in the absence of the appellant and at his back and without communicating the same to him. Further the suit of the respondent landlord was dismissed for default on December 12, 1956 and it was restored to file on December 30, 1957 and within three days thereafter the appeal was preferred. Now ordinarily the view of the Court dealing with facts in an application under S. 5 of the Limitation Act would not be interfered unless the failure to exercise jurisdiction would lead to miscarriage of justice. Viewed from this angle the appellant had made out a very convincing and just cause for condoning the delay in preferring the appeal. The order under appeal was the very interpolated order. When was it interpolated? There is no. definite answer. Within a month and half of the interpolated order, the suit of the landlord was dismissed. Once the suit was dismissed the appellant tenant could not prefer an appeal against an interim order. The suit of the landlord was restored to file on December 30, 1957. Promptly within three days on January 2, 1958 the appeal was preferred with an application for condoning the delay. A just and convincing cause wholly sufficient to condone the delay was thus made out. More so because failure of the learned District Judge and the learned Single Judge of the High Court to condone delay resulted in the gross miscarriage of justice inasmuch as the tenant lost protection of the Act for his failure to comply with a non est injudicious order, which was a nullity in the eye of law. In this background, we find it difficult to uphold the view of the learned District Judge and the High Court. 28. Justice demands that the order dated October 6, 1956 must be set aside as it is an interpolated and therefore legally non-existent order. It must accordingly be held that the application for fixing interim rent still remains undecided and the trial Court will have to decide it as expeditiously as possible. If the application for interim rent is not disposed of by an appropriate order there was no. question of non-compliance with the same and therefore no. occasion would arise for striking off the defence of the tenant. Accordingly the order dated October 6, 1956 and the order striking off the defence dated March 4, 1958 are set aside. The order of the learned District Judge declining to condone the delay in preferring the appeal against the order dated October 6, 1956 is set aside and the order of the High Court disposing of the two revision petitions is also set aside. 29. Accordingly both these appeals will have to be allowed and the matter will have to be remitted to the trial Court for first deciding the application for fixing the interim rent and calling upon the tenant to deposit the interim rent in arrears at the rate of interim rent so fixed. Learned District Judge should take up the appeal against the order determining the standard rent as early as possible and call upon the tenant to make good the deposit in accordance with the standard rent so determined. The order striking off the defence is set aside and the tenant will be entitled to defend the suit on merits. 30. Before we conclude the judgment, one aspect to which our attention was drawn may be noticed. Original landlord Lakhmir Singh died on April 9, 1978 during the pendency of these appeals in this Court. Civil Misc. Petitions Nos. 17962-69 of 1984 were moved on March 21, 1983(1984) for substitution of his heirs and legal representatives and for condoning delay, if any, in moving the petitions. The ground on which condonation of delay is sought has been set out in the petition and affidavit in support. Appellant has stated in the petition that learned counsel for respondents Nos. 2 and 3 handed over a letter to the Registry on March 2, 1984 intimating about the death of first respondent, the original landlord. Thereafter the petition for substitution was moved on March 21, 1984 that is within three weeks from the date of the knowledge conveyed by the letter of the learned counsel for respondents Nos. 2 and 3. The date of death of respondent No. 1 is not disputed but it is said that appellant came to know about it for the first time from the aforementioned letter. This is countered by the respondents. In our opinion there is good and sufficient reason for condoning delay and granting substitution in the facts of this case. First respondent who is dead was the original landlord and he conveyed and transferred the whole property including the suit premises to respondents Nos. 2 and 3 way back on December 21, 1959 and since then respondents Nos. 2 and 3 are the real contesting respondents. Respondent No. 1 has lost all interest in the property and the litigation concerning the property sold and conveyed by him a quarter of a century back. Coupled with this is the fact that under R. 10-A of O. 22 a duty is cast on the pleader appearing for the deceased party to give intimation of the same to the opposite party. This duty in this case was discharged on March 2, 1984 that is six years after the death and promptly within three weeks the petition for substitution is filed. Having regard to the cumulative effect of all these facts we are satisfied that the appellant has made out a sufficient case for condoning the delay in seeking substitution. We accordingly set aside abatement of appeal and grant substitution.
### Response:
1
### Explanation:
14. We have dealt with the view taken by the learned District Judge a little more in detail because the learned Single Judge of the High Court has practically adopted the construction which commended to the learned District Judge. We are therefore unable to accept the construction put by the Learned Judge of the High Court on Cl. 11(b). In our opinion on a proper construction, the petition for determination of standard rent filed by the appellant was within time and the learned District Judge was in error in rejecting the petition on the short ground that it was barred by limitation15. It may be mentioned that the learned trial Judge had determined the standard rent but as neither appellate Court nor the High Court dealt with the point we are constrained to remand the matter to the learned District Judge to decide the second point as to what is the standard rent of the suit premises30. Before we conclude the judgment, one aspect to which our attention was drawn may be noticed. Original landlord Lakhmir Singh died on April 9, 1978 during the pendency of these appeals in this Court. Civil Misc. Petitions Nos.9 of 1984 were moved on March 21, 1983(1984) for substitution of his heirs and legal representatives and for condoning delay, if any, in moving the petitions. The ground on which condonation of delay is sought has been set out in the petition and affidavit in support. Appellant has stated in the petition that learned counsel for respondents Nos. 2 and 3 handed over a letter to the Registry on March 2, 1984 intimating about the death of first respondent, the original landlord. Thereafter the petition for substitution was moved on March 21, 1984 that is within three weeks from the date of the knowledge conveyed by the letter of the learned counsel for respondents Nos. 2 and 3. The date of death of respondent No. 1 is not disputed but it is said that appellant came to know about it for the first time from the aforementioned letter. This is countered by the respondents. In our opinion there is good and sufficient reason for condoning delay and granting substitution in the facts of this case. First respondent who is dead was the original landlord and he conveyed and transferred the whole property including the suit premises to respondents Nos. 2 and 3 way back on December 21, 1959 and since then respondents Nos. 2 and 3 are the real contesting respondents. Respondent No. 1 has lost all interest in the property and the litigation concerning the property sold and conveyed by him a quarter of a century back. Coupled with this is the fact that under R.A of O. 22 a duty is cast on the pleader appearing for the deceased party to give intimation of the same to the opposite party. This duty in this case was discharged on March 2, 1984 that is six years after the death and promptly within three weeks the petition for substitution is filed. Having regard to the cumulative effect of all these facts we are satisfied that the appellant has made out a sufficient case for condoning the delay in seeking substitution. We accordingly set aside abatement of appeal and grant substitution.
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Ajit Singh and Others Etc Vs. State of Punjab and Another | executive officer and his function is to be discharged by the newly appointed officer. It is therefore, difficult to accept the submission that the continued retention in service of the petitioner after the dissolution of the Trusts was imposing an unnecessary burden on the State Exchequer.12. This submission does not commend to us for the additional reason that the State Exchequer was not responsible for the salary and perquisites of the Trust Executive officers, in view of the provision contained in sub sec (4) of sec 17 of the Act which provides that salary, allowances, gratuity, annuity, pension and other payments required to be made to the members of the Trust Service in accordance with the conditions of their service shall be charged from the funds of the Trust in the prescribed manner.13. The fourth and fifth grounds for dispensing with the services of the petitioners were that the petitioners being probationers had no right to the posts, and their performance in the opinion of the appointing authority was not satisfactory are wholly untenable because the period of probation had expired and they were continued in service after allowing each one of them to earn an increment. It is a permissible inference that till allowing each petitioner to earn his increment, his service and work were deemed to be satisfactory and nothing is pointed out to us as to what occurred in respect of 11 petitioners simultaneously within hardly a period of less than six weeks since the release of increment to stigmatise each one of them that his work and conduct was not satisfactory. Therefore, the conclusion is inescapable that none of the reasons assigned for dispensing with the services of the 11 petitioners is tenable.Now it the reasons for dispensing with the services of petitioners are untenable, the question is whether the action of dispensing with services of the petitioners is arbitrary. Mr. Hardy, learned counsel for the respondents contended that even if the Court is satisfied that the reasons set out in the return for dispensing with the services of the petitioners are untenable and irrelevant, nonetheless the Trusts having been dissolved the conclusion cannot be escaped that services of the petitioners as Trust Executive officer were no more necessary and therefore, this Court cannot interfere with the order dispensing with the services of the petitioners. We remain until convinced. Though there was formal dissolution of Trusts, in effect and substance the Board of Trustees was dissolved. Corporate personality of Trusts remained unaffected. Staff remained. Functions were being carried out. By the time the writ petitions came up for hearing Mr. Ramamurthi pointed out that the Trusts have been re. A constituted and that was not seriously disputed by Mr. Hardy. Further, it is crystal clear that what was dissolved was the Board of Trustees and not the Trusts because functions of the Trusts were being discharged by other officers. The entire staff of the Trusts except the 11 petitioners was retained. Schemes formulated by the Trusts were being implemented. In other words, the corporate personality remained almost inviolate. Even if we decline to examine the charge of mala fides, there are certain aspects herein discussed which cannot be overlooked and which compulsively and unerringly point in the direction that the action was arbitrary. To recapitulate these circumstances, it is crystal clear that the Board of Trustees was dissolved, the Trusts without the name of Trust continued, their functions continued, the staff excluding the 11 Trust Executive officers was retained, and in place of the officers whose services were dispensed with, some other officers were asked to take over their functions and duties, and within a short time, the Trusts were formally constituted. The only effect sought to be achieved by the bizarre exercise of first acquiring power to dissolve the trusts and then ordering their dissolution was to dispense with service of only 11 Trusts Executive officers of 1979 recruitment. And having achieved the desired result the Trusts have been reconstituted albeit without showing the fairness of recalling the discharged 11 Trust Executive officers. Therefore, without imputing any motive, the conclusion is inescapable that the action was thoroughly arbitrary and violative of the guarantee of equality of opportunity enshrined in Art. 16 read with Art. 14 of the Constitution and such thoroughly arbitrary action cannot be sustained, and deserves to be quashed.The last contention of Mr. Hardy was that in any event even if the Court comes to the conclusion that the petitioners had completed the period of probation, yet they would be temporary government servants and their services were dispensed with after giving them salary for one month in lieu of notice and as the Trusts no more exists, they at least cannot be reinstated. We find no substance in this contention. We would have beer. required to examine this contention in some depth, but we are spared the exercise in view of the decision of this Court in The Manager, Government Branch Press and Anr. v. D.B. Belliappa, wherein it was observed as under:"Conversely, if the services of a temporary government servant are terminated arbitrarily. and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, not withstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action14. We have reached the conclusion that the action was thoroughly arbitrary and if it is arbitrary, it smacks of discrimination and a discriminatory treatment in the matter of public employment cannot be overlooked.15. Accordingly, the | 1[ds]We have reached the conclusion that the action was thoroughly arbitrary and if it is arbitrary, it smacks of discrimination and a discriminatory treatment in the matter of public employment cannot bethese petitions must succeed. The order dated September 25, 1980 dispensing with the service of each of the petitioner is quashed and set aside and it is declared that all the petitioners continue to be in service and they should be forthwith reinstated. By an interim order made by this Court, respondents were directed to pay half the salary to the petitioners from the date of dispensing with their services till further orders. Now that it is declared that the petitioners continue to be in service, each of the petitioners shall be paid his full salary with effect from the date of his judgment, but, for the period between the date of dispensing with the service and till today, each of the petitioners should be paid only half the salary. | 1 | 7,149 | 177 | ### 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:
executive officer and his function is to be discharged by the newly appointed officer. It is therefore, difficult to accept the submission that the continued retention in service of the petitioner after the dissolution of the Trusts was imposing an unnecessary burden on the State Exchequer.12. This submission does not commend to us for the additional reason that the State Exchequer was not responsible for the salary and perquisites of the Trust Executive officers, in view of the provision contained in sub sec (4) of sec 17 of the Act which provides that salary, allowances, gratuity, annuity, pension and other payments required to be made to the members of the Trust Service in accordance with the conditions of their service shall be charged from the funds of the Trust in the prescribed manner.13. The fourth and fifth grounds for dispensing with the services of the petitioners were that the petitioners being probationers had no right to the posts, and their performance in the opinion of the appointing authority was not satisfactory are wholly untenable because the period of probation had expired and they were continued in service after allowing each one of them to earn an increment. It is a permissible inference that till allowing each petitioner to earn his increment, his service and work were deemed to be satisfactory and nothing is pointed out to us as to what occurred in respect of 11 petitioners simultaneously within hardly a period of less than six weeks since the release of increment to stigmatise each one of them that his work and conduct was not satisfactory. Therefore, the conclusion is inescapable that none of the reasons assigned for dispensing with the services of the 11 petitioners is tenable.Now it the reasons for dispensing with the services of petitioners are untenable, the question is whether the action of dispensing with services of the petitioners is arbitrary. Mr. Hardy, learned counsel for the respondents contended that even if the Court is satisfied that the reasons set out in the return for dispensing with the services of the petitioners are untenable and irrelevant, nonetheless the Trusts having been dissolved the conclusion cannot be escaped that services of the petitioners as Trust Executive officer were no more necessary and therefore, this Court cannot interfere with the order dispensing with the services of the petitioners. We remain until convinced. Though there was formal dissolution of Trusts, in effect and substance the Board of Trustees was dissolved. Corporate personality of Trusts remained unaffected. Staff remained. Functions were being carried out. By the time the writ petitions came up for hearing Mr. Ramamurthi pointed out that the Trusts have been re. A constituted and that was not seriously disputed by Mr. Hardy. Further, it is crystal clear that what was dissolved was the Board of Trustees and not the Trusts because functions of the Trusts were being discharged by other officers. The entire staff of the Trusts except the 11 petitioners was retained. Schemes formulated by the Trusts were being implemented. In other words, the corporate personality remained almost inviolate. Even if we decline to examine the charge of mala fides, there are certain aspects herein discussed which cannot be overlooked and which compulsively and unerringly point in the direction that the action was arbitrary. To recapitulate these circumstances, it is crystal clear that the Board of Trustees was dissolved, the Trusts without the name of Trust continued, their functions continued, the staff excluding the 11 Trust Executive officers was retained, and in place of the officers whose services were dispensed with, some other officers were asked to take over their functions and duties, and within a short time, the Trusts were formally constituted. The only effect sought to be achieved by the bizarre exercise of first acquiring power to dissolve the trusts and then ordering their dissolution was to dispense with service of only 11 Trusts Executive officers of 1979 recruitment. And having achieved the desired result the Trusts have been reconstituted albeit without showing the fairness of recalling the discharged 11 Trust Executive officers. Therefore, without imputing any motive, the conclusion is inescapable that the action was thoroughly arbitrary and violative of the guarantee of equality of opportunity enshrined in Art. 16 read with Art. 14 of the Constitution and such thoroughly arbitrary action cannot be sustained, and deserves to be quashed.The last contention of Mr. Hardy was that in any event even if the Court comes to the conclusion that the petitioners had completed the period of probation, yet they would be temporary government servants and their services were dispensed with after giving them salary for one month in lieu of notice and as the Trusts no more exists, they at least cannot be reinstated. We find no substance in this contention. We would have beer. required to examine this contention in some depth, but we are spared the exercise in view of the decision of this Court in The Manager, Government Branch Press and Anr. v. D.B. Belliappa, wherein it was observed as under:"Conversely, if the services of a temporary government servant are terminated arbitrarily. and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, not withstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action14. We have reached the conclusion that the action was thoroughly arbitrary and if it is arbitrary, it smacks of discrimination and a discriminatory treatment in the matter of public employment cannot be overlooked.15. Accordingly, the
### Response:
1
### Explanation:
We have reached the conclusion that the action was thoroughly arbitrary and if it is arbitrary, it smacks of discrimination and a discriminatory treatment in the matter of public employment cannot bethese petitions must succeed. The order dated September 25, 1980 dispensing with the service of each of the petitioner is quashed and set aside and it is declared that all the petitioners continue to be in service and they should be forthwith reinstated. By an interim order made by this Court, respondents were directed to pay half the salary to the petitioners from the date of dispensing with their services till further orders. Now that it is declared that the petitioners continue to be in service, each of the petitioners shall be paid his full salary with effect from the date of his judgment, but, for the period between the date of dispensing with the service and till today, each of the petitioners should be paid only half the salary.
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CHANDRIKA (DEAD) BY LRS Vs. SUDAMA (DEAD) THR. LRS | Abhay Manohar Sapre, J.1. This appeal is directed against the final judgment and order dated 24.01.2005 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No.10553 of 1983 whereby the High Court dismissed the said writ petition filed by the original appellant herein and affirmed the orders dated 29.07.1977, 12.06.1978 and 04.05.1983 passed by the Consolidation Officer, Settlement Officer Consolidation and the Deputy Director of Consolidation respectively.2. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.3. By impugned order, the High Court (Single Judge) dismissed the writ petition filed by the original appellant herein and affirmed the three orders of the Revenue Authorities, namely, the Consolidation Officer dated 29.07.1977, the Settlement Officer Consolidation dated 12.06.1978 and the Deputy Director Consolidation dated 04.05.1983 passed under the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).4. So, the short question, which arises for consideration in this appeal filed by the unsuccessful writ petitioner, is whether the High Court was justified in dismissing the appellants writ petition and thereby was justified in affirming the three orders passed by the Revenue Authorities under the Act.5. The dispute is between the members of two branches of a family of one Sheo Sahai, namely, one branch, which is represented by Bechu, i.e., respondents and the other branch represented by Rajbali, i.e., the appellant?s predecessor-in-title. The dispute relates to the land (plot Nos.248, 521, 289, 290, 294, 563, 564, 854) situated in village Hetimpur Pargana, Shahjahanpur, Tehsil Deoria, details of which are specified in Annexure P-1 to Annexure P-7 to the SLP.6. The dispute was raised by the respondents under Section 9-A (2) of the Act before the Consolidation Officer contending therein that the original appellants father Late Rajbali surreptitiously and without any right, title and interest in the land in question got entered his name in the Revenue Records. It is this issue, which was probed by the Revenue Authorities. It was, however, decided by all the Revenue Authorities including the writ court against the original appellant?s predecessor-in-title and in favour of the respondents.7. The Revenue Authorities held that the name of Rajbali, i.e., predecessor-in-title of the original appellant herein, could not have been entered in the Revenue Records for want of any right, title and interest in the land. It was accordingly directed to be deleted from the Revenue Records.8. This order was unsuccessfully challenged by the original appellant?s predecessor-in-title and then by the original appellant herein before the first appellate authority, second appellate authority and lastly, in the High Court giving rise to filing of this appeal by way of special leave in this Court by the writ petitioner.9. During the pendency of this appeal, the appellant died and his legal representatives were brought on record to contest the Lis.10. Heard Mr. T.N. Singh, learned counsel for the appellants and Mr. P. Narasimhan, learned counsel for the respondents.11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.12. In our considered opinion, the finding impugned in this appeal being concurrent finding of fact and was rightly held by the High Court as binding on the High Court in its writ jurisdiction, it is also binding on this Court, calling for no interference therein. Even otherwise, we find no case for any interference in the impugned finding on merits for the following reasons.13. On perusal of the impugned order, we find that the land in question was consistently recorded in the name of Bechu in the revenue records through whom the respondents herein had claimed their right, title and interest in the land.14. So far as claim of the original appellants predecessor-in-title-Rajbali was concerned, he claimed to represent the other branch of the family through one Lalji (brother of Bechu), as is clear from the pedigree chart. It was, therefore, rightly held that Rajbali had no right, title and interest in the share of Bechu because Bechu?s share devolved on his legal representatives, i.e., the respondents herein.15. In our view, the aforementioned finding is based on factual inquiry; Second, it is based on proper appreciation of evidence, i.e., revenue entries; Third, it is not found to be against any provision of law or against the record of the case; and lastly, it is supported with reasons. We, therefore, find no ground to interfere in these findings.16. Learned counsel for the appellants (writ petitioner), however, argued the issues on facts but in the light of what we have held above, there is no merit in his submissions. | 0[ds]11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.12. In our considered opinion, the finding impugned in this appeal being concurrent finding of fact and was rightly held by the High Court as binding on the High Court in its writ jurisdiction, it is also binding on this Court, calling for no interference therein. Even otherwise, we find no case for any interference in the impugned finding on merits for the following reasons.13. On perusal of the impugned order, we find that the land in question was consistently recorded in the name of Bechu in the revenue records through whom the respondents herein had claimed their right, title and interest in the land.14. So far as claim of the original appellants predecessor-in-title-Rajbali was concerned, he claimed to represent the other branch of the family through one Lalji (brother of Bechu), as is clear from the pedigree chart. It was, therefore, rightly held that Rajbali had no right, title and interest in the share of Bechu because Bechu?s share devolved on his legal representatives, i.e., the respondents herein.15. In our view, the aforementioned finding is based on factual inquiry; Second, it is based on proper appreciation of evidence, i.e., revenue entries; Third, it is not found to be against any provision of law or against the record of the case; and lastly, it is supported with reasons. We, therefore, find no ground to interfere in these findings. | 0 | 889 | 294 | ### 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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Abhay Manohar Sapre, J.1. This appeal is directed against the final judgment and order dated 24.01.2005 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No.10553 of 1983 whereby the High Court dismissed the said writ petition filed by the original appellant herein and affirmed the orders dated 29.07.1977, 12.06.1978 and 04.05.1983 passed by the Consolidation Officer, Settlement Officer Consolidation and the Deputy Director of Consolidation respectively.2. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.3. By impugned order, the High Court (Single Judge) dismissed the writ petition filed by the original appellant herein and affirmed the three orders of the Revenue Authorities, namely, the Consolidation Officer dated 29.07.1977, the Settlement Officer Consolidation dated 12.06.1978 and the Deputy Director Consolidation dated 04.05.1983 passed under the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).4. So, the short question, which arises for consideration in this appeal filed by the unsuccessful writ petitioner, is whether the High Court was justified in dismissing the appellants writ petition and thereby was justified in affirming the three orders passed by the Revenue Authorities under the Act.5. The dispute is between the members of two branches of a family of one Sheo Sahai, namely, one branch, which is represented by Bechu, i.e., respondents and the other branch represented by Rajbali, i.e., the appellant?s predecessor-in-title. The dispute relates to the land (plot Nos.248, 521, 289, 290, 294, 563, 564, 854) situated in village Hetimpur Pargana, Shahjahanpur, Tehsil Deoria, details of which are specified in Annexure P-1 to Annexure P-7 to the SLP.6. The dispute was raised by the respondents under Section 9-A (2) of the Act before the Consolidation Officer contending therein that the original appellants father Late Rajbali surreptitiously and without any right, title and interest in the land in question got entered his name in the Revenue Records. It is this issue, which was probed by the Revenue Authorities. It was, however, decided by all the Revenue Authorities including the writ court against the original appellant?s predecessor-in-title and in favour of the respondents.7. The Revenue Authorities held that the name of Rajbali, i.e., predecessor-in-title of the original appellant herein, could not have been entered in the Revenue Records for want of any right, title and interest in the land. It was accordingly directed to be deleted from the Revenue Records.8. This order was unsuccessfully challenged by the original appellant?s predecessor-in-title and then by the original appellant herein before the first appellate authority, second appellate authority and lastly, in the High Court giving rise to filing of this appeal by way of special leave in this Court by the writ petitioner.9. During the pendency of this appeal, the appellant died and his legal representatives were brought on record to contest the Lis.10. Heard Mr. T.N. Singh, learned counsel for the appellants and Mr. P. Narasimhan, learned counsel for the respondents.11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.12. In our considered opinion, the finding impugned in this appeal being concurrent finding of fact and was rightly held by the High Court as binding on the High Court in its writ jurisdiction, it is also binding on this Court, calling for no interference therein. Even otherwise, we find no case for any interference in the impugned finding on merits for the following reasons.13. On perusal of the impugned order, we find that the land in question was consistently recorded in the name of Bechu in the revenue records through whom the respondents herein had claimed their right, title and interest in the land.14. So far as claim of the original appellants predecessor-in-title-Rajbali was concerned, he claimed to represent the other branch of the family through one Lalji (brother of Bechu), as is clear from the pedigree chart. It was, therefore, rightly held that Rajbali had no right, title and interest in the share of Bechu because Bechu?s share devolved on his legal representatives, i.e., the respondents herein.15. In our view, the aforementioned finding is based on factual inquiry; Second, it is based on proper appreciation of evidence, i.e., revenue entries; Third, it is not found to be against any provision of law or against the record of the case; and lastly, it is supported with reasons. We, therefore, find no ground to interfere in these findings.16. Learned counsel for the appellants (writ petitioner), however, argued the issues on facts but in the light of what we have held above, there is no merit in his submissions.
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0
### Explanation:
11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.12. In our considered opinion, the finding impugned in this appeal being concurrent finding of fact and was rightly held by the High Court as binding on the High Court in its writ jurisdiction, it is also binding on this Court, calling for no interference therein. Even otherwise, we find no case for any interference in the impugned finding on merits for the following reasons.13. On perusal of the impugned order, we find that the land in question was consistently recorded in the name of Bechu in the revenue records through whom the respondents herein had claimed their right, title and interest in the land.14. So far as claim of the original appellants predecessor-in-title-Rajbali was concerned, he claimed to represent the other branch of the family through one Lalji (brother of Bechu), as is clear from the pedigree chart. It was, therefore, rightly held that Rajbali had no right, title and interest in the share of Bechu because Bechu?s share devolved on his legal representatives, i.e., the respondents herein.15. In our view, the aforementioned finding is based on factual inquiry; Second, it is based on proper appreciation of evidence, i.e., revenue entries; Third, it is not found to be against any provision of law or against the record of the case; and lastly, it is supported with reasons. We, therefore, find no ground to interfere in these findings.
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Bharat Fire And General Insurance Co. Ltd. New Delhi Vs. The Commissioner Of Income Tax, New Delhi | of declaring dividend.6. In Drowns case, 1937 Ch. 402 a company proposed to pay a dividend on its preference shares and utilise in part premiums received by the company on the issue of shares, which had in fact been invested in the assets of the company. The plaintiff asked for an injunction to restrain the company from paying the dividend. Clauson, J., held that part of a reserve fund consisting of moneys paid by way of premiums on shares, unless set aside in some particular fund which has been wholly spent, is available for dividend purposes. We are not concerned with other points that arose in the case and we have only set out the facts and findings relevant to the question before us. We may here set out Article 129 of the Gaumont-British Picture Corporation Ltd. Article 129 reads thus:"The Directors may, with the sanction of a general meeting, from time to time declare dividends or bonuses, but no such dividend shall (except as by the statutes expressly authorised) be payable otherwise than out of the profits of the company........."Mr. Kapur, learned counsel for the appellant had contended that the English Law was different inasmuch as what was prohibited in English Law was payment of dividends out of capital and that it did not enjoin directors to pay dividends out of profits. This case refutes Mr. Kapurs contention. In re: Duffs Settlements, National Provincial Bank Ltd. v. Gregson, 1951 Ch. 923 which is strongly relied on behalf of the appellant, and which we will advert to in detail later, Jenkins, L. J., says at p. 926:"The share premiums would have been profits available for distribution (see 1937 Ch. 402).It was thus well established before the Act of 1956 and the corresponding English Act that premiums received on the issue of shares were profits available for distribution. We are of the opinion that the same connotation should be attached to the words profits in Regulation 97 of Table A. In this view of the matter, it is not necessary to pronounce on the question whether even if these premiums were not profits within Regulation 97, would this necessarily exclude them from coming with the words accumulated profits within S. 2(6A) (a).7. This takes us to the next point raised before us: Are the premiums received on the issue of shares capital gains within the explanation to S. 2(6A)? This point was not urged before the High Court or the Appellate Tribunal and we did not allow it to be developed.8. The last point may now be dealt with. In this connection it is necessary to appreciate the scheme of S. 78 of the Companies Act, 1956. Sub-section (1) enjoins a company, when it issues shares at a premium, to transfer the premiums to an account called the Share Premium Account and it then applies the provisions of the Act relating to the reduction of the share capital of a company as if the share premium account were paid-up capital of the company. Sub-section (2) then provides how the share premium account may be applied. It is said that it impliedly provides that it cannot be used for the purpose of paying dividends. Sub-section (3) then deals with the issue of shares at a premium before the commencement of this Act. It deems them to have been issued after the commencement of the Act and applies the provisions of S. 78. The effect of this would be that a company which had issued shares at a premium before the commencement of this Act would by virtue of S. 78 have to open a share premium account and transfer to it the premium so received. What is to happen if before the commencement of the Act the company has already dealt with the premium in such a way that they had ceased to remain as an identifiable part of the companys reserves? The sub-section says that in that event the premium so dealt with shall be disregarded in determining the sum to be included in the share premium account. If such premiums are to be disregarded for the creation of the share premium account, it means that they fall outside the purview of S. 78. It has no application to them. If this is so, it is difficult to appreciate how the appellant can utilise this section for the purpose of showing that the premiums which have already been distributed become invested with the character of capital in the hands of the distributing company. We do not say that for the purpose of income-tax any future application of the share-premium account in one of the ways mentioned in sub-section (2) will be treated as distribution of capital. No such question arises for our determination in this case. But we do hold that S. 78 of the Companies Act does not in any way change the taxability of dividends declared out of premiums on shares received by a Company before the Act of 1956 came into force. If it was taxable, apart from S. 78, it remains so taxable.9. The case of Duffs Settlements, 1951 Ch. 923 referred to above, on which the learned counsel strongly relied, might or might not help him if the declaration of dividend had taken place after the Act of 1956. We are of the opinion that what was decided in this case has no relevance to the facts of this appeal.10. Before concluding, we may refer to the decision of the House of Lords in Inland Revenue Commrs. V. Reids Trustees, (1949) 1 AII ER 354, relied on by the learned counsel for the respondents. This case would be relevant if we were considering generally whether the receipt of Rs. 50,787/- was income or capital in the hands of the assessee. The question, however, referred to the High Court is limited, and that is whether the receipt of Rs. 50,787/- was a receipt of dividend and taxable. It is, therefore, unnecessary to say more about this case.11 | 0[ds]8. The last point may now be dealt with. In this connection it is necessary to appreciate the scheme of S. 78 of the Companies Act, 1956. Sub-section (1) enjoins a company, when it issues shares at a premium, to transfer the premiums to an account called the Share Premium Account and it then applies the provisions of the Act relating to the reduction of the share capital of a company as if the share premium account were paid-up capital of the company. Sub-section (2) then provides how the share premium account may be applied. It is said that it impliedly provides that it cannot be used for the purpose of paying dividends. Sub-section (3) then deals with the issue of shares at a premium before the commencement of this Act. It deems them to have been issued after the commencement of the Act and applies the provisions of S. 78. The effect of this would be that a company which had issued shares at a premium before the commencement of this Act would by virtue of S. 78 have to open a share premium account and transfer to it the premium so received. What is to happen if before the commencement of the Act the company has already dealt with the premium in such a way that they had ceased to remain as an identifiable part of the companys reserves? The sub-section says that in that event the premium so dealt with shall be disregarded in determining the sum to be included in the share premium account. If such premiums are to be disregarded for the creation of the share premium account, it means that they fall outside the purview of S. 78. It has no application to them. If this is so, it is difficult to appreciate how the appellant can utilise this section for the purpose of showing that the premiums which have already been distributed become invested with the character of capital in the hands of the distributing company. We do not say that for the purpose of income-tax any future application of the share-premium account in one of the ways mentioned in sub-section (2) will be treated as distribution of capital. No such question arises for our determination in this case. But we do hold that S. 78 of the Companies Act does not in any way change the taxability of dividends declared out of premiums on shares received by a Company before the Act of 1956 came into force. If it was taxable, apart from S. 78, it remains so taxable.9. The case of Duffs Settlements, 1951 Ch. 923 referred to above, on which the learned counsel strongly relied, might or might not help him if the declaration of dividend had taken place after the Act of 1956. We are of the opinion that what was decided in this case has no relevance to the facts of this appeal.10. Before concluding, we may refer to the decision of the House of Lords in Inland Revenue Commrs. V. Reids Trustees, (1949) 1 AII ER 354, relied on by the learned counsel for the respondents. This case would be relevant if we were considering generally whether the receipt of Rs. 50,787/- was income or capital in the hands of the assessee. The question, however, referred to the High Court is limited, and that is whether the receipt of Rs. 50,787/- was a receipt of dividend and taxable. It is, therefore, unnecessary to say more about thisare unable to accede to this contention. Previous to the enactment of S. 78 of the Companies Act of 1956, and the corresponding section in the English Companies Act, it was recognised that a company could distribute premiums received on the issue of shares as dividends (vide Palmers Company Law, Twentieth Edition), At page 637, it isis evident from the preceding observations that it is legally permissible for the company to distribute dividend out of assets which do not represent profits made as the result of its trading or business. The connotation of divisible profits, or profits in the legal sense, is much wider than that of profits in the business sense: the former term includes e.g., reserves accumulated from past profits, from realised capital profits indeed, before the requirement of a share premium account by thelegislation, from premiums obtained on issue of new shares, whereas none of these items isby the businessman or accountant as tradingRomer, L. J., thought that there was nothing objectionable in utilising premiums received on the issue of shares for the purpose of declaringwas thus well established before the Act of 1956 and the corresponding English Act that premiums received on the issue of shares were profits available for distribution. We are of the opinion that the same connotation should be attached to the words profits in Regulation 97 of Table A. In this view of the matter, it is not necessary to pronounce on the question whether even if these premiums were not profits within Regulation 97, would this necessarily exclude them from coming with the words accumulated profits within S. 2(6A) (a).This takes us to the next point raised before us: Are the premiums received on the issue of shares capital gains within the explanation to S.2(6A)? This point was not urged before the High Court or the Appellate Tribunal and we did not allow it to be developed. | 0 | 2,699 | 990 | ### Instruction:
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of declaring dividend.6. In Drowns case, 1937 Ch. 402 a company proposed to pay a dividend on its preference shares and utilise in part premiums received by the company on the issue of shares, which had in fact been invested in the assets of the company. The plaintiff asked for an injunction to restrain the company from paying the dividend. Clauson, J., held that part of a reserve fund consisting of moneys paid by way of premiums on shares, unless set aside in some particular fund which has been wholly spent, is available for dividend purposes. We are not concerned with other points that arose in the case and we have only set out the facts and findings relevant to the question before us. We may here set out Article 129 of the Gaumont-British Picture Corporation Ltd. Article 129 reads thus:"The Directors may, with the sanction of a general meeting, from time to time declare dividends or bonuses, but no such dividend shall (except as by the statutes expressly authorised) be payable otherwise than out of the profits of the company........."Mr. Kapur, learned counsel for the appellant had contended that the English Law was different inasmuch as what was prohibited in English Law was payment of dividends out of capital and that it did not enjoin directors to pay dividends out of profits. This case refutes Mr. Kapurs contention. In re: Duffs Settlements, National Provincial Bank Ltd. v. Gregson, 1951 Ch. 923 which is strongly relied on behalf of the appellant, and which we will advert to in detail later, Jenkins, L. J., says at p. 926:"The share premiums would have been profits available for distribution (see 1937 Ch. 402).It was thus well established before the Act of 1956 and the corresponding English Act that premiums received on the issue of shares were profits available for distribution. We are of the opinion that the same connotation should be attached to the words profits in Regulation 97 of Table A. In this view of the matter, it is not necessary to pronounce on the question whether even if these premiums were not profits within Regulation 97, would this necessarily exclude them from coming with the words accumulated profits within S. 2(6A) (a).7. This takes us to the next point raised before us: Are the premiums received on the issue of shares capital gains within the explanation to S. 2(6A)? This point was not urged before the High Court or the Appellate Tribunal and we did not allow it to be developed.8. The last point may now be dealt with. In this connection it is necessary to appreciate the scheme of S. 78 of the Companies Act, 1956. Sub-section (1) enjoins a company, when it issues shares at a premium, to transfer the premiums to an account called the Share Premium Account and it then applies the provisions of the Act relating to the reduction of the share capital of a company as if the share premium account were paid-up capital of the company. Sub-section (2) then provides how the share premium account may be applied. It is said that it impliedly provides that it cannot be used for the purpose of paying dividends. Sub-section (3) then deals with the issue of shares at a premium before the commencement of this Act. It deems them to have been issued after the commencement of the Act and applies the provisions of S. 78. The effect of this would be that a company which had issued shares at a premium before the commencement of this Act would by virtue of S. 78 have to open a share premium account and transfer to it the premium so received. What is to happen if before the commencement of the Act the company has already dealt with the premium in such a way that they had ceased to remain as an identifiable part of the companys reserves? The sub-section says that in that event the premium so dealt with shall be disregarded in determining the sum to be included in the share premium account. If such premiums are to be disregarded for the creation of the share premium account, it means that they fall outside the purview of S. 78. It has no application to them. If this is so, it is difficult to appreciate how the appellant can utilise this section for the purpose of showing that the premiums which have already been distributed become invested with the character of capital in the hands of the distributing company. We do not say that for the purpose of income-tax any future application of the share-premium account in one of the ways mentioned in sub-section (2) will be treated as distribution of capital. No such question arises for our determination in this case. But we do hold that S. 78 of the Companies Act does not in any way change the taxability of dividends declared out of premiums on shares received by a Company before the Act of 1956 came into force. If it was taxable, apart from S. 78, it remains so taxable.9. The case of Duffs Settlements, 1951 Ch. 923 referred to above, on which the learned counsel strongly relied, might or might not help him if the declaration of dividend had taken place after the Act of 1956. We are of the opinion that what was decided in this case has no relevance to the facts of this appeal.10. Before concluding, we may refer to the decision of the House of Lords in Inland Revenue Commrs. V. Reids Trustees, (1949) 1 AII ER 354, relied on by the learned counsel for the respondents. This case would be relevant if we were considering generally whether the receipt of Rs. 50,787/- was income or capital in the hands of the assessee. The question, however, referred to the High Court is limited, and that is whether the receipt of Rs. 50,787/- was a receipt of dividend and taxable. It is, therefore, unnecessary to say more about this case.11
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0
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8. The last point may now be dealt with. In this connection it is necessary to appreciate the scheme of S. 78 of the Companies Act, 1956. Sub-section (1) enjoins a company, when it issues shares at a premium, to transfer the premiums to an account called the Share Premium Account and it then applies the provisions of the Act relating to the reduction of the share capital of a company as if the share premium account were paid-up capital of the company. Sub-section (2) then provides how the share premium account may be applied. It is said that it impliedly provides that it cannot be used for the purpose of paying dividends. Sub-section (3) then deals with the issue of shares at a premium before the commencement of this Act. It deems them to have been issued after the commencement of the Act and applies the provisions of S. 78. The effect of this would be that a company which had issued shares at a premium before the commencement of this Act would by virtue of S. 78 have to open a share premium account and transfer to it the premium so received. What is to happen if before the commencement of the Act the company has already dealt with the premium in such a way that they had ceased to remain as an identifiable part of the companys reserves? The sub-section says that in that event the premium so dealt with shall be disregarded in determining the sum to be included in the share premium account. If such premiums are to be disregarded for the creation of the share premium account, it means that they fall outside the purview of S. 78. It has no application to them. If this is so, it is difficult to appreciate how the appellant can utilise this section for the purpose of showing that the premiums which have already been distributed become invested with the character of capital in the hands of the distributing company. We do not say that for the purpose of income-tax any future application of the share-premium account in one of the ways mentioned in sub-section (2) will be treated as distribution of capital. No such question arises for our determination in this case. But we do hold that S. 78 of the Companies Act does not in any way change the taxability of dividends declared out of premiums on shares received by a Company before the Act of 1956 came into force. If it was taxable, apart from S. 78, it remains so taxable.9. The case of Duffs Settlements, 1951 Ch. 923 referred to above, on which the learned counsel strongly relied, might or might not help him if the declaration of dividend had taken place after the Act of 1956. We are of the opinion that what was decided in this case has no relevance to the facts of this appeal.10. Before concluding, we may refer to the decision of the House of Lords in Inland Revenue Commrs. V. Reids Trustees, (1949) 1 AII ER 354, relied on by the learned counsel for the respondents. This case would be relevant if we were considering generally whether the receipt of Rs. 50,787/- was income or capital in the hands of the assessee. The question, however, referred to the High Court is limited, and that is whether the receipt of Rs. 50,787/- was a receipt of dividend and taxable. It is, therefore, unnecessary to say more about thisare unable to accede to this contention. Previous to the enactment of S. 78 of the Companies Act of 1956, and the corresponding section in the English Companies Act, it was recognised that a company could distribute premiums received on the issue of shares as dividends (vide Palmers Company Law, Twentieth Edition), At page 637, it isis evident from the preceding observations that it is legally permissible for the company to distribute dividend out of assets which do not represent profits made as the result of its trading or business. The connotation of divisible profits, or profits in the legal sense, is much wider than that of profits in the business sense: the former term includes e.g., reserves accumulated from past profits, from realised capital profits indeed, before the requirement of a share premium account by thelegislation, from premiums obtained on issue of new shares, whereas none of these items isby the businessman or accountant as tradingRomer, L. J., thought that there was nothing objectionable in utilising premiums received on the issue of shares for the purpose of declaringwas thus well established before the Act of 1956 and the corresponding English Act that premiums received on the issue of shares were profits available for distribution. We are of the opinion that the same connotation should be attached to the words profits in Regulation 97 of Table A. In this view of the matter, it is not necessary to pronounce on the question whether even if these premiums were not profits within Regulation 97, would this necessarily exclude them from coming with the words accumulated profits within S. 2(6A) (a).This takes us to the next point raised before us: Are the premiums received on the issue of shares capital gains within the explanation to S.2(6A)? This point was not urged before the High Court or the Appellate Tribunal and we did not allow it to be developed.
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The National Steel Works Ltd Vs. Commissioner Of Income-Tax, Bombay | but had no quota of steel and coal. The agreement of partnership entered into between Irani and the assessee on September 29, 1948, provided that the partnership would continue so long as the quota system regarding steel continued in the Dominion of India or till the expiry of the then lease of the factory premises, and that the capital of the firm would be subscribed by the partners in equal shares. Paragraphs 12 and 13 of this agreement are of importance and are quoted below:"12. In consideration of the Company taking the said Mr. Irani as partner in the partnership, it is agreed that a sum of Rs. 50 per ton on all steel received by the partnership from the Company through the Steel Re-rolling Mills Association of India, Calcutta or Iron and Steel Controller, Calcutta shall be paid to the company by this partnership calculated every month, and after deducting all the other expensed incidental to the business of the partnership the net profit of the partnership after providing for out-goings and interest on the current loans, if any, shall be paid over to the partners in equal shares.13. All the quota of steel and coal that the company may receive from the Iron and Steel Controller, the Government of India and from the Provincial Iron and Steel Controller, Bombay or from the Steel Re-Rolling Mills Association of India, Calcutta or any such other body under the quota system that may be in force from time to time for steel re-rolling mills of the company at Bombay shall be utilised solely for the purposes of the business of the partnership who shall pay for the same."3. Thereafter, in 1954, the assessee and Irani entered into an agreement whereby the terms of the agreement of September 29, 1948, were modified. The amendments to Cl. 12 are important and they are quoted below:"IT IS HEREBYAGREED THAT in Cl. 12 of the Partnership Agreement dated 29-9-1948, the Royalty which is fixed at Rs. 50 per ton shall be reduced in the manner following from 1st October, 1953.(a) Royalty of Rs. 25 per ton shall be charged from 1-10-1953 on all rollable materials received up to 30-6-1954 except semis and perfect billets on which royalty will be charged at Rs. 10 per ton on all the said materials received up to 30-6-1954.(b) That cess charges payable to Steel Re-Rolling Mills Association of India, Calcutta, will be paid by the Partnership till the Partnership exists.(c) Mr. K. R. Irani hereby agrees to pay a lump sum of Rs. 60,000 as goodwill in consideration of waiving the Royalty from the Partnership Account on the quota of re-rollable scrap materials received after 30-6-1954.(d) Mr. K. R. Irani hereby agreed that the said amount of Rs. 60,000 be debited to his capital account in the books of Partnership, bearing interest at 6 per cent per annum from 1st July, 1954.(e) No Royalty will be charged on any kind of rollable materials received after 30th June, 1954, by the Company from the Partnership.(f) The Partnership shall pay to the Company Rs. 500 per month as office allowance from 1-10-1953 till the Partnership exists."4. In assessing the income-tax on the assessee, the Income-tax Officer brought the amount of Rs. 60,000 mentioned in sub-clause (d) of amended paragraph 12 of the agreement to tax. The assessees appeal to the Appellate Assistant Commissioner failed and so did its appeal to the Income-tax Appellate Tribunal. On an application by the assessee, the Income-tax Appellate Tribunal stated a case to the High Court for the decision of the question whether the sum of Rs. 60,000 received by the assessee company from Irani is a revenue receipt and liable to income-tax. The High Court decided that it was a revenue receipt and liable to tax. It is against this order that this appeal has been filed after obtaining the certificate of fitness from the High Court.5. The contention for the appellant is that the sum of Rs. 60,000 was paid by Irani to the assessee company in view of the partnership getting the rights under the quota which the assessee company possessed and that therefore the sum represented a capital receipt and not a revenue receipt. We do not agree.6. It is clear from facts stated in the statement of the case that this amount represents capitalised profits of the assessee company on account of its transferring or selling the steel which the assessee company purchased under the authority given by the quota allowed to it. It is the assessee company which purchases the goods in its own name and delivers them to the partnership at cost price. Under the original agreement of 1948, the partnership was to pay to the assessee company Rs. 50 per ton on all steel it received from the assessee company. Clearly, therefore, the sum of Rs. 50 per ton represented the profit which the assessee company was getting per ton from the partnership. Under the terms of the amended agreement, no such profit was to be paid to the assessee company for the steel received from it after June 30, 1954, and it was to receive Rs. 60,000 in a lump sum. This amount, therefore, represents the capitalised value of the profits, the assessee company was to have on supplying all the steel it receives under its quota at net price. No right to the quota itself has been transferred to Irani or the partnership under the agreement and therefore there could be no basis for considering that this amount of Rs. 60,000 was paid in lieu of the transfer of rights in the quota of steel to Irani or the partnership. The description of the amount as goodwill in consideration of waiving royalty from the partnership account on the quota of re-rollable scrap materials received after June 30, 1954, does not convey the real nature of this amount and is really an expression which conveys no meaning. There is no question of goodwill in waiving a royalty. | 1[ds]6. It is clear from facts stated in the statement of the case that this amount represents capitalised profits of the assessee company on account of its transferring or selling the steel which the assessee company purchased under the authority given by the quota allowed to it. It is the assessee company which purchases the goods in its own name and delivers them to the partnership at cost price. Under the original agreement of 1948, the partnership was to pay to the assessee company Rs. 50 per ton on all steel it received from the assessee company. Clearly, therefore, the sum of Rs. 50 per ton represented the profit which the assessee company was getting per ton from the partnership. Under the terms of the amended agreement, no such profit was to be paid to the assessee company for the steel received from it after June 30, 1954, and it was to receive Rs. 60,000 in a lump sum. This amount, therefore, represents the capitalised value of the profits, the assessee company was to have on supplying all the steel it receives under its quota at net price. No right to the quota itself has been transferred to Irani or the partnership under the agreement and therefore there could be no basis for considering that this amount of Rs. 60,000 was paid in lieu of the transfer of rights in the quota of steel to Irani or the partnership. The description of the amount as goodwill in consideration of waiving royalty from the partnership account on the quota of re-rollable scrap materials received after June 30, 1954, does not convey the real nature of this amount and is really an expression which conveys no meaning. There is no question of goodwill in waiving a royalty. | 1 | 1,309 | 324 | ### Instruction:
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but had no quota of steel and coal. The agreement of partnership entered into between Irani and the assessee on September 29, 1948, provided that the partnership would continue so long as the quota system regarding steel continued in the Dominion of India or till the expiry of the then lease of the factory premises, and that the capital of the firm would be subscribed by the partners in equal shares. Paragraphs 12 and 13 of this agreement are of importance and are quoted below:"12. In consideration of the Company taking the said Mr. Irani as partner in the partnership, it is agreed that a sum of Rs. 50 per ton on all steel received by the partnership from the Company through the Steel Re-rolling Mills Association of India, Calcutta or Iron and Steel Controller, Calcutta shall be paid to the company by this partnership calculated every month, and after deducting all the other expensed incidental to the business of the partnership the net profit of the partnership after providing for out-goings and interest on the current loans, if any, shall be paid over to the partners in equal shares.13. All the quota of steel and coal that the company may receive from the Iron and Steel Controller, the Government of India and from the Provincial Iron and Steel Controller, Bombay or from the Steel Re-Rolling Mills Association of India, Calcutta or any such other body under the quota system that may be in force from time to time for steel re-rolling mills of the company at Bombay shall be utilised solely for the purposes of the business of the partnership who shall pay for the same."3. Thereafter, in 1954, the assessee and Irani entered into an agreement whereby the terms of the agreement of September 29, 1948, were modified. The amendments to Cl. 12 are important and they are quoted below:"IT IS HEREBYAGREED THAT in Cl. 12 of the Partnership Agreement dated 29-9-1948, the Royalty which is fixed at Rs. 50 per ton shall be reduced in the manner following from 1st October, 1953.(a) Royalty of Rs. 25 per ton shall be charged from 1-10-1953 on all rollable materials received up to 30-6-1954 except semis and perfect billets on which royalty will be charged at Rs. 10 per ton on all the said materials received up to 30-6-1954.(b) That cess charges payable to Steel Re-Rolling Mills Association of India, Calcutta, will be paid by the Partnership till the Partnership exists.(c) Mr. K. R. Irani hereby agrees to pay a lump sum of Rs. 60,000 as goodwill in consideration of waiving the Royalty from the Partnership Account on the quota of re-rollable scrap materials received after 30-6-1954.(d) Mr. K. R. Irani hereby agreed that the said amount of Rs. 60,000 be debited to his capital account in the books of Partnership, bearing interest at 6 per cent per annum from 1st July, 1954.(e) No Royalty will be charged on any kind of rollable materials received after 30th June, 1954, by the Company from the Partnership.(f) The Partnership shall pay to the Company Rs. 500 per month as office allowance from 1-10-1953 till the Partnership exists."4. In assessing the income-tax on the assessee, the Income-tax Officer brought the amount of Rs. 60,000 mentioned in sub-clause (d) of amended paragraph 12 of the agreement to tax. The assessees appeal to the Appellate Assistant Commissioner failed and so did its appeal to the Income-tax Appellate Tribunal. On an application by the assessee, the Income-tax Appellate Tribunal stated a case to the High Court for the decision of the question whether the sum of Rs. 60,000 received by the assessee company from Irani is a revenue receipt and liable to income-tax. The High Court decided that it was a revenue receipt and liable to tax. It is against this order that this appeal has been filed after obtaining the certificate of fitness from the High Court.5. The contention for the appellant is that the sum of Rs. 60,000 was paid by Irani to the assessee company in view of the partnership getting the rights under the quota which the assessee company possessed and that therefore the sum represented a capital receipt and not a revenue receipt. We do not agree.6. It is clear from facts stated in the statement of the case that this amount represents capitalised profits of the assessee company on account of its transferring or selling the steel which the assessee company purchased under the authority given by the quota allowed to it. It is the assessee company which purchases the goods in its own name and delivers them to the partnership at cost price. Under the original agreement of 1948, the partnership was to pay to the assessee company Rs. 50 per ton on all steel it received from the assessee company. Clearly, therefore, the sum of Rs. 50 per ton represented the profit which the assessee company was getting per ton from the partnership. Under the terms of the amended agreement, no such profit was to be paid to the assessee company for the steel received from it after June 30, 1954, and it was to receive Rs. 60,000 in a lump sum. This amount, therefore, represents the capitalised value of the profits, the assessee company was to have on supplying all the steel it receives under its quota at net price. No right to the quota itself has been transferred to Irani or the partnership under the agreement and therefore there could be no basis for considering that this amount of Rs. 60,000 was paid in lieu of the transfer of rights in the quota of steel to Irani or the partnership. The description of the amount as goodwill in consideration of waiving royalty from the partnership account on the quota of re-rollable scrap materials received after June 30, 1954, does not convey the real nature of this amount and is really an expression which conveys no meaning. There is no question of goodwill in waiving a royalty.
### Response:
1
### Explanation:
6. It is clear from facts stated in the statement of the case that this amount represents capitalised profits of the assessee company on account of its transferring or selling the steel which the assessee company purchased under the authority given by the quota allowed to it. It is the assessee company which purchases the goods in its own name and delivers them to the partnership at cost price. Under the original agreement of 1948, the partnership was to pay to the assessee company Rs. 50 per ton on all steel it received from the assessee company. Clearly, therefore, the sum of Rs. 50 per ton represented the profit which the assessee company was getting per ton from the partnership. Under the terms of the amended agreement, no such profit was to be paid to the assessee company for the steel received from it after June 30, 1954, and it was to receive Rs. 60,000 in a lump sum. This amount, therefore, represents the capitalised value of the profits, the assessee company was to have on supplying all the steel it receives under its quota at net price. No right to the quota itself has been transferred to Irani or the partnership under the agreement and therefore there could be no basis for considering that this amount of Rs. 60,000 was paid in lieu of the transfer of rights in the quota of steel to Irani or the partnership. The description of the amount as goodwill in consideration of waiving royalty from the partnership account on the quota of re-rollable scrap materials received after June 30, 1954, does not convey the real nature of this amount and is really an expression which conveys no meaning. There is no question of goodwill in waiving a royalty.
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Board Of Trustee Of The Port Of Bombay Vs. Indian Goods Supplying Co | the chatterer has failed to complete the loading of the ship within the lay days, and the ship during the demurrage days becomes, without the default of the shipowner, unable to carry as much cargo as she would have carried if loaded within the lay days, but receives from the charterer a full cargo for her diminished capacity, the loss falls upon the charterer in addition to the demurrage, expressed his opinion that the decision should be for the shipowner. It was held that:"The result of the authorities appears to be that in a contract fixing a number of lay days and providing for days at demurrage thereafter, the charterer enters into a binding obligation to load a complete cargo within the lay days subject to any default by the shipowner or to the operation of any exceptions, matters which do not arise in this case ....If however, for reasons other than the shipowners default, the chatterer become s unable to do that which he contracted to do-namely, put a full and complete cargo on board during the fixed laydays, the breach is never repaired, the damages are not completely mitigated, and the shipowner may re cover the loss that he has incurred in addition to his liquidated demurrage or his unliquidated damages for detention."8. Thus it appears clear that claim of demurrage cannot be resisted unless where the detention was due to the shipowners default. In the present case the Port Trusts claim for demurrage cannot be denied unless it is proved that the delay was due to the Port Trust itself.In Budgett &Co. v. Binnington &Co., ([1891] 1 Q.B.p. 35.) a clause in the charterparty fixed the number of lay-days for unloading and allowed other days for demurrage. During the lay-days a strike took place both among the labourers employed on behalf of the ship and those employed by the consignees, with the result that the unloading ceased, and could not be resumed till some days after the expiration of the lay-days. The Court of Appeal held that as the number of lay-days was fixed the consignees were liable to pay demurrage, notwithstanding the inability of the shipowners, owing to the strike, to do their part in the unloading. The test that was laid down by Lord Esher Master of the Rolls, was. H as the shipowner failed in his duty through any default of his own or of persons for whom he is responsible ? As the non-delivery was occasioned by something which the shipowner could not foresee or by the act of per sons over whom he had any control it was held that he was not liable.9. In Compania Crystal De Vapores of Panama v. Herman &Mohatta (India) Ltd., ([2953] 2 ALl. E.R. 508.) Justice Devlin quoted with approval the law laid down by Lord Esher in Budgert Co. v. Binnington &Co. (supra) which is in the following terms:--"If the shipowner by any act of his has prevented the discharge, then, `though the freighters contract is broken, he is excused, he was referring to a case in which the shipowners act preventing the discharge was in breach of his obligation to give the charterer all facilities for the discharge. But here the act of the shipowner which delayed the discharge was not a breach of any obligation of his."10. The position therefore is that even though the delay in clearing the goods was not due to the negligence of the importer for which he could be held responsible yet he cannot avoid the payment of demurrage as the rate s imposed are under the authority of law the validity of which cannot be questioned. The claim cannot be resisted as there is no evidence that the delay was due to any act of the Port Trust or persons for whom the Port Trust is responsible.One other contention which was raised before the High Court but was not dealt with by it may be referred to. It was submitted on behalf of the respondents that the definition of the words "free days" would not include the period of holidays or part of a holiday or Sunday in computing the number of free days during which the Customs Duty ma y not be assessed or received and therefore the period of detention of the goods during the operation of Import Trade Control formalities must be considered as free days. In the scale of rates charged at the docks framed by the Bombay Port Trust under sections 43. 43A and 43B of the Bombay Port Trust Act, 1879, in Section III reference is made to free days. Under the heading "Free Days" it is provided that all goods will be allowed storage in Docks free of rent for 5 days. It-is further provided that in computing the number of free days Sundays and holidays referred to in by-law 118 as well as any other days on which Customs Duty may not be assessed or received, will be omitted in the case of all goods liable to duty under section 20 of the Sea Customs Act. The submission was that not only Sunday and holidays should be omitted but also other days on which Customs Duty may not be assessed or received will have to be omitted and this should be understood as days during which the Import Trade Control formalities could not be completed. This contention cannot be accepted as these Rules are intended only to omit Sundays, other holidays and days on which the assessment of Customs Duty cannot be taken up and would not include the entire period during which the Import Trade Control formalities have not been completed.11. The High Court was therefore in error in holding that the importer of the goods cannot be held responsible for any delay not attributable to his own default and that demurrage under section 43A could never be imposed as long as the goods were detained for the purpose of the operation of the Import Trade Control Regulations. | 1[ds]This contention is based on a D.O. letter dated 7th September, 1952 addressed by the Government of India to the Port Trust which is typed at page 350 of the Supplement Paper Book No. 2. In the D.O. letter the Government expressed its view that it seems unreasonable to charge an importer any demurrage once it is accepted that clearance was delayed on account of the reasons beyond his control. The letter concluded by expressing an earnest hope that the Bombay Port Trust will reconsider their decision and fall in line with the practice of the Calcutta and Madras Ports. It concluded by stating "We shall be grateful if you will kindly place the matter before t he Trustees for their favourable consideration and intimate to us the result." The Board considered this letter and after taking into consideration the several circumstances, suggested that demurrage may be levied on a graded scale. The Government of India was informed of the Resolution of the Board and no further action was taken by the Government. The D.O. letter addressed by the Government of India cannot be considered as a di rection by the Central Government calling upon the Board to modify any portion of the scale framed by the Port Trust. The language of the D.O. would indicate that the Government wanted the Port Trust to consider the Governments proposal and nothing further. The Port Trust considered the proposal and made its report. We are unable to accept the plea of the learned counsel for the respondents that the D.O. letter should be construed as a direction calling upon the Board to modify the portion of the scale framed by the Board. Section 43B(1A) has there- fore no application to this case. Chapter VII of the Port Trust Act enumerates the powers and functions of the Board. It is the duty of the Board to recover the rates to have a lien on the goods and seize and detain the goods until such rates are fully paid. The Board is empowered to sell the goods if rates are not paid or lien for freight is not discharged. It can also dispose of goods not removed from the premises of the Board within the time limited. Section 65 also provides the mode of application of proceeds of the sale. Under section 66 the Board is entitled to distrain for non-payment rates. The Port clearance shall not be granted till the rates are paid. It is thus a statutory duty of the Board to collect the rates prescribed.Thecontention put forward on behalf of the respondents is that they are in no way responsible for the delay in clearing the goods as the goods had been detained under the Imp ort Trade Control Regulations.It is no doubt true that before clearance is given by the Import Trade Control authorities and the Customs Department the goods cannot be cleared by the respondents. Neither can the Port Trust deliver the goods without the consent of the Import Trade Control authorities. Taking into account the hardship caused to the importer because of the delay certain concessions in demurrage rates are per mitted. The Port Trust has prescribed the reduced demurrage levy which is 1/6th of the normal rate from the date of expiry of the free days upto the 60th day, 1/3rd of the normal rate after the expiry of the 60th day , upto the 90th day, half the normal rate after the expiry of the 90th day upto the 120th day, 2/3rd of the normal rate after the expiry of the 120th day upto the 150th day and at the full rate after the expiry of the 150th day. As the scale of rates are framed by virtue of the statutory powers conferred on the Board under section 43 and as the rates have been approved by the Central Government under section 43B the rates have the force of law and cannot be questioned. Taking into account the hardship to the import- ers certain concession has been given but the legality of the rates which are being levied according to law cannot be questioned. This view was taken by this Court in a recent decision reported in Trustees the Port of Madras v. M/s. Aminchand Pyarelal &Ors. ([1976] 1 S.C.R. 721.]) Where it had t6 consider the validity of the scale of rates fixed by the Madras Port T rust. In a suit by the Port Trust against the importer and the Union of India and the Customs authorities to recover the balance of demurrage amounting to about rupees three lakhs the question arose whether the scale of charges in the Port Trust Regulations under the heading "Demurrage" was void and ultra vires for the reason that it was unreasonable and not within the authority of the Port Trust. The relevant provisions of the Bom bay Port Trust Act with which we are concerned are in pari materia with the provisions of the Madras Act which fell for consideration by the Supreme Court. The Supreme Court held that the scale of rates an d statement of conditions flamed by the Madras Port Trust under sections 42, 43 and 43A are not by-laws and the sections confer authority on the Board to frame a scale of rates at which and a statement or conditions under which any of the services specified therein shall be performed. It observed"The Boards power to frame a scale of rates and statement of conditions is not a regulatory power to order that something must be done or something may not be done. The rates and conditions govern the basis on which the Board performs the services mentioned in sections 42, 43 and 43-A. Those w ho desire to avail of the services of the Board are liable to pay for those services at prescribed rates and to perform the conditions framed in that behalf by the Board."The Court rejected the view of the High Court that demurrage being a charge for willful failure to remove the goods within the free period can be levied only if the failure to remove the-goods is due to the fault or negligence of the importer or his agent. It also d id not agree with the view taken by the High Court that the authority given to the Board to frame the scale of rates can be exercised only for the purpose of levying charges where the importer was not prevented by any lawful authority from clearing the goods from the transit area and he had defaulted or was negligent in clearing the goods. Justice Chandrachud, who spoke for the Court, observed in his judgment at page 7 36 supra that the statute had not placed any limitation on the power of the Board to fix rates and as the Board had the power to frame a scale of rates at which and the statement of conditions under which any of the services specified in the section shall be performed and as the Board has fixed the scale of rates it was difficult to see in what manner or respect the Board has exceeded its power under section 42. The Court proceeded to observe in rejecting the view of the High Court that the Board cannot fix rates of demurrage when the failure to remove was not due to some fault or negligence of the importer, that there is no such fetter on the Boards powers to fix the rates. This decision of the Supreme Court is on all fours with the facts of the present case and concludes the question.Mr. Nariman, counsel for the appellants cited three decisions of the English Courts in support of his contention that even on the basis of a contract the right of the Port Trust to recover demurrage cannot be denied unless the person claiming the demurrage is responsible for theposition therefore is that even though the delay in clearing the goods was not due to the negligence of the importer for which he could be held responsible yet he cannot avoid the payment of demurrage as the rate s imposed are under the authority of law the validity of which cannot be questioned. The claim cannot be resisted as there is no evidence that the delay was due to any act of the Port Trust or persons for whom the Port Trust is responsible.One other contention which was raised before the High Court but was not dealt with by it may be referred to. It was submitted on behalf of the respondents that the definition of the words "free days" would not include the period of holidays or part of a holiday or Sunday in computing the number of free days during which the Customs Duty ma y not be assessed or received and therefore the period of detention of the goods during the operation of Import Trade Control formalities must be considered as free days. In the scale of rates charged at the docks framed by the Bombay Port Trust under sections 43. 43A and 43B of the Bombay Port Trust Act, 1879, in Section III reference is made to free days. Under the heading "Free Days" it is provided that all goods will be allowed storage in Docks free of rent for 5 days. It-is further provided that in computing the number of free days Sundays and holidays referred to in by-law 118 as well as any other days on which Customs Duty may not be assessed or received, will be omitted in the case of all goods liable to duty under section 20 of the Sea Customs Act. The submission was that not only Sunday and holidays should be omitted but also other days on which Customs Duty may not be assessed or received will have to be omitted and this should be understood as days during which the Import Trade Control formalities could not be completed. This contention cannot be accepted as these Rules are intended only to omit Sundays, other holidays and days on which the assessment of Customs Duty cannot be taken up and would not include the entire period during which the Import Trade Control formalities have not beenHigh Court was therefore in error in holding that the importer of the goods cannot be held responsible for any delay not attributable to his own default and that demurrage under section 43A could never be imposed as long as the goods were detained for the purpose of the operation of the Import Trade Control Regulations. | 1 | 3,550 | 1,860 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the chatterer has failed to complete the loading of the ship within the lay days, and the ship during the demurrage days becomes, without the default of the shipowner, unable to carry as much cargo as she would have carried if loaded within the lay days, but receives from the charterer a full cargo for her diminished capacity, the loss falls upon the charterer in addition to the demurrage, expressed his opinion that the decision should be for the shipowner. It was held that:"The result of the authorities appears to be that in a contract fixing a number of lay days and providing for days at demurrage thereafter, the charterer enters into a binding obligation to load a complete cargo within the lay days subject to any default by the shipowner or to the operation of any exceptions, matters which do not arise in this case ....If however, for reasons other than the shipowners default, the chatterer become s unable to do that which he contracted to do-namely, put a full and complete cargo on board during the fixed laydays, the breach is never repaired, the damages are not completely mitigated, and the shipowner may re cover the loss that he has incurred in addition to his liquidated demurrage or his unliquidated damages for detention."8. Thus it appears clear that claim of demurrage cannot be resisted unless where the detention was due to the shipowners default. In the present case the Port Trusts claim for demurrage cannot be denied unless it is proved that the delay was due to the Port Trust itself.In Budgett &Co. v. Binnington &Co., ([1891] 1 Q.B.p. 35.) a clause in the charterparty fixed the number of lay-days for unloading and allowed other days for demurrage. During the lay-days a strike took place both among the labourers employed on behalf of the ship and those employed by the consignees, with the result that the unloading ceased, and could not be resumed till some days after the expiration of the lay-days. The Court of Appeal held that as the number of lay-days was fixed the consignees were liable to pay demurrage, notwithstanding the inability of the shipowners, owing to the strike, to do their part in the unloading. The test that was laid down by Lord Esher Master of the Rolls, was. H as the shipowner failed in his duty through any default of his own or of persons for whom he is responsible ? As the non-delivery was occasioned by something which the shipowner could not foresee or by the act of per sons over whom he had any control it was held that he was not liable.9. In Compania Crystal De Vapores of Panama v. Herman &Mohatta (India) Ltd., ([2953] 2 ALl. E.R. 508.) Justice Devlin quoted with approval the law laid down by Lord Esher in Budgert Co. v. Binnington &Co. (supra) which is in the following terms:--"If the shipowner by any act of his has prevented the discharge, then, `though the freighters contract is broken, he is excused, he was referring to a case in which the shipowners act preventing the discharge was in breach of his obligation to give the charterer all facilities for the discharge. But here the act of the shipowner which delayed the discharge was not a breach of any obligation of his."10. The position therefore is that even though the delay in clearing the goods was not due to the negligence of the importer for which he could be held responsible yet he cannot avoid the payment of demurrage as the rate s imposed are under the authority of law the validity of which cannot be questioned. The claim cannot be resisted as there is no evidence that the delay was due to any act of the Port Trust or persons for whom the Port Trust is responsible.One other contention which was raised before the High Court but was not dealt with by it may be referred to. It was submitted on behalf of the respondents that the definition of the words "free days" would not include the period of holidays or part of a holiday or Sunday in computing the number of free days during which the Customs Duty ma y not be assessed or received and therefore the period of detention of the goods during the operation of Import Trade Control formalities must be considered as free days. In the scale of rates charged at the docks framed by the Bombay Port Trust under sections 43. 43A and 43B of the Bombay Port Trust Act, 1879, in Section III reference is made to free days. Under the heading "Free Days" it is provided that all goods will be allowed storage in Docks free of rent for 5 days. It-is further provided that in computing the number of free days Sundays and holidays referred to in by-law 118 as well as any other days on which Customs Duty may not be assessed or received, will be omitted in the case of all goods liable to duty under section 20 of the Sea Customs Act. The submission was that not only Sunday and holidays should be omitted but also other days on which Customs Duty may not be assessed or received will have to be omitted and this should be understood as days during which the Import Trade Control formalities could not be completed. This contention cannot be accepted as these Rules are intended only to omit Sundays, other holidays and days on which the assessment of Customs Duty cannot be taken up and would not include the entire period during which the Import Trade Control formalities have not been completed.11. The High Court was therefore in error in holding that the importer of the goods cannot be held responsible for any delay not attributable to his own default and that demurrage under section 43A could never be imposed as long as the goods were detained for the purpose of the operation of the Import Trade Control Regulations.
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to recover the balance of demurrage amounting to about rupees three lakhs the question arose whether the scale of charges in the Port Trust Regulations under the heading "Demurrage" was void and ultra vires for the reason that it was unreasonable and not within the authority of the Port Trust. The relevant provisions of the Bom bay Port Trust Act with which we are concerned are in pari materia with the provisions of the Madras Act which fell for consideration by the Supreme Court. The Supreme Court held that the scale of rates an d statement of conditions flamed by the Madras Port Trust under sections 42, 43 and 43A are not by-laws and the sections confer authority on the Board to frame a scale of rates at which and a statement or conditions under which any of the services specified therein shall be performed. It observed"The Boards power to frame a scale of rates and statement of conditions is not a regulatory power to order that something must be done or something may not be done. The rates and conditions govern the basis on which the Board performs the services mentioned in sections 42, 43 and 43-A. Those w ho desire to avail of the services of the Board are liable to pay for those services at prescribed rates and to perform the conditions framed in that behalf by the Board."The Court rejected the view of the High Court that demurrage being a charge for willful failure to remove the goods within the free period can be levied only if the failure to remove the-goods is due to the fault or negligence of the importer or his agent. It also d id not agree with the view taken by the High Court that the authority given to the Board to frame the scale of rates can be exercised only for the purpose of levying charges where the importer was not prevented by any lawful authority from clearing the goods from the transit area and he had defaulted or was negligent in clearing the goods. Justice Chandrachud, who spoke for the Court, observed in his judgment at page 7 36 supra that the statute had not placed any limitation on the power of the Board to fix rates and as the Board had the power to frame a scale of rates at which and the statement of conditions under which any of the services specified in the section shall be performed and as the Board has fixed the scale of rates it was difficult to see in what manner or respect the Board has exceeded its power under section 42. The Court proceeded to observe in rejecting the view of the High Court that the Board cannot fix rates of demurrage when the failure to remove was not due to some fault or negligence of the importer, that there is no such fetter on the Boards powers to fix the rates. This decision of the Supreme Court is on all fours with the facts of the present case and concludes the question.Mr. Nariman, counsel for the appellants cited three decisions of the English Courts in support of his contention that even on the basis of a contract the right of the Port Trust to recover demurrage cannot be denied unless the person claiming the demurrage is responsible for theposition therefore is that even though the delay in clearing the goods was not due to the negligence of the importer for which he could be held responsible yet he cannot avoid the payment of demurrage as the rate s imposed are under the authority of law the validity of which cannot be questioned. The claim cannot be resisted as there is no evidence that the delay was due to any act of the Port Trust or persons for whom the Port Trust is responsible.One other contention which was raised before the High Court but was not dealt with by it may be referred to. It was submitted on behalf of the respondents that the definition of the words "free days" would not include the period of holidays or part of a holiday or Sunday in computing the number of free days during which the Customs Duty ma y not be assessed or received and therefore the period of detention of the goods during the operation of Import Trade Control formalities must be considered as free days. In the scale of rates charged at the docks framed by the Bombay Port Trust under sections 43. 43A and 43B of the Bombay Port Trust Act, 1879, in Section III reference is made to free days. Under the heading "Free Days" it is provided that all goods will be allowed storage in Docks free of rent for 5 days. It-is further provided that in computing the number of free days Sundays and holidays referred to in by-law 118 as well as any other days on which Customs Duty may not be assessed or received, will be omitted in the case of all goods liable to duty under section 20 of the Sea Customs Act. The submission was that not only Sunday and holidays should be omitted but also other days on which Customs Duty may not be assessed or received will have to be omitted and this should be understood as days during which the Import Trade Control formalities could not be completed. This contention cannot be accepted as these Rules are intended only to omit Sundays, other holidays and days on which the assessment of Customs Duty cannot be taken up and would not include the entire period during which the Import Trade Control formalities have not beenHigh Court was therefore in error in holding that the importer of the goods cannot be held responsible for any delay not attributable to his own default and that demurrage under section 43A could never be imposed as long as the goods were detained for the purpose of the operation of the Import Trade Control Regulations.
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State Of Madras Vs. Madurai Mills Co., Ltd | of the Deputy Commissioner of Commercial Taxes dated the 21st August, 1954 and not the order of the Deputy Commercial Tax Officer and therefore the power of revision by the Board of Revenue was not exercised beyond the period of limitation provided by S. 12 (4) (b) of the Act. We are unable to accept this argument as correct. The only subject-matter of the revision proceedings before the Board of Revenue was the revised assessment order of the Deputy Commercial Tax Officer, Madurai dated the 28th November, 1952. The objection taken by the Board of Revenue was with regard to the question of exemption allowed on the value of the cotton purchased from outside the State of Madras. The exemption was allowed by the Deputy Commercial Tax Officer in his order of assessment. The question was not raised before the Deputy Commissioner of Commercial Taxes and the only point raised before him was with regard to the inclusion of the amount of tax to the extent of Rs. 6,57,971-4-9 in the taxable turnover.It is manifest that the subject-matter of the revision proceedings before the Board of Revenue was the revised assessment order of the Deputy Commercial Tax Officer, Madurai dated the 28th November, 1952. It follows that the order of the Board of Revenue was made beyond the limit of four years prescribed by S. 12 (4) (b) of the Act and it is, therefore, invalid. 6. On behalf of the appellant, the argument was put forward that if a statutory appeal is provided against an order passed by a Tribunal, the decision of the appellate authority is the operative decision in law. It was said that if the appellate authority modifies or reverses the order of the Tribunal, there was a merger of the latter order with the appellate order and it was the appellate order alone that is effective and can be enforced. But if the appellate order affirms the order of the Tribunal, there is a merger of the original order in the appellate order and it is the appellate order alone which is operative and capable of enforcement. In support of this argument reliance was placed upon the observation of Gajendragadkar, J., as he then was in Commissioner of Income-tax, Bombay v. Amritlal Bhogilal and Co. (1958) 34 ITR 130 at p. 136: (AIR 1958 SC 868 at p. 871). 7. But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. For example in Amritlal Bhogilal and Cos case, 1958-34 ITR 130 : (AIR 1958 SC 868 ) (supra) it was observed by this Court that the order of registration made by the Income-tax Officer did not merge in the appellate order of the Appellate Commissioner, because the order of registration was not the subject-matter of appeal before the appellate authority. It should be noticed that the order of assessment made by the Income-tax Officer in that case was a composite order viz., an order granting registration of the firm and making an assessment on the basis of the registration. The appeal was taken by the assessee to the Appellate Commissioner against the composite order of the Income-tax Officer. It was held by the High Court that the order of the Income-tax Officer granting registration to the respondent must be deemed to be merged in the appellate order and that the revisional power of the Commissioner of Income-tax cannot, therefore, be exercised in respect of it. The view taken by the High Court was overruled by this Court for the reasons that the order of the Income-tax Officer granting registration cannot be deemed to have merged in the order of the Appellate Commissioner in an appeal taken against the composite order of assessment. Similarly, in State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 : (AIR 1958 SC 86 ) it was held by this Court that the principle of merger cannot apply in the case of an order of dismissal of a public servant which was made by the departmental Tribunal on the 20th April, 1948 and against which the appeal was dismissed by the Appellate Authority on the 7th May, 1949, and the revisional application was rejected on the 22nd April, 1950. In the circumstances of the present case it cannot be said that there was a merger of the order of assessment made by the Deputy Commercial Tax Officer dated the 28th November, 1952 with the order of the Deputy Commissioner of Commercial Taxes dated the 26th August, 1954 because the question of exemption on the value of yarn purchased from outside the State of Madras was not the subject-matter of revisions before the Deputy Commissioner of Commercial Taxes. The only point that was urged before the Deputy commissioner was that the sum of Rs. 6,57,971-4-9 collected by the respondent by way of tax should not be included in the taxable turnover. This was the only point raised before the Deputy Commissioner and was rejected by him in the revision proceedings. On the contrary, the question before the Board of Revenue was whether the Deputy Commercial Tax Officer, Madurai was right in excluding from the net taxable turnover of the respondent the sum of Rs. 7,74,62,706-1-6 which was the value of cotton purchased by the respondent from outside the State of Madras. We are, therefore, of opinion that the doctrine of merger cannot be invoked in the circumstances of the present case. 8. | 0[ds]In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. For example in Amritlal Bhogilal and Cos case, 1958-34 ITR 130 : (AIR 1958 SC 868 ) (supra) it was observed by this Court that the order of registration made by the Income-tax Officer did not merge in the appellate order of the Appellate Commissioner, because the order of registration was not the subject-matter of appeal before the appellate authority. It should be noticed that the order of assessment made by the Income-tax Officer in that case was a composite order viz., an order granting registration of the firm and making an assessment on the basis of the registration. The appeal was taken by the assessee to the Appellate Commissioner against the composite order of the Income-tax Officer. It was held by the High Court that the order of the Income-tax Officer granting registration to the respondent must be deemed to be merged in the appellate order and that the revisional power of the Commissioner of Income-tax cannot, therefore, be exercised in respect of it. The view taken by the High Court was overruled by this Court for the reasons that the order of the Income-tax Officer granting registration cannot be deemed to have merged in the order of the Appellate Commissioner in an appeal taken against the composite order of assessment. Similarly, in State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 : (AIR 1958 SC 86 ) it was held by this Court that the principle of merger cannot apply in the case of an order of dismissal of a public servant which was made by the departmental Tribunal on the 20th April, 1948 and against which the appeal was dismissed by the Appellate Authority on the 7th May, 1949, and the revisional application was rejected on the 22nd April, 1950.In the circumstances of the present case it cannot be said that there was a merger of the order of assessment made by the Deputy Commercial Tax Officer dated the 28th November, 1952 with the order of the Deputy Commissioner of Commercial Taxes dated the 26th August, 1954 because the question of exemption on the value of yarn purchased from outside the State of Madras was not the subject-matter of revisions before the Deputy Commissioner of Commercial Taxes. The only point that was urged before the Deputy commissioner was that the sum of Rs. 6,57,971-4-9 collected by the respondent by way of tax should not be included in the taxable turnover. This was the only point raised before the Deputy Commissioner and was rejected by him in the revision proceedings. On the contrary, the question before the Board of Revenue was whether the Deputy Commercial Tax Officer, Madurai was right in excluding from the net taxable turnover of the respondent the sum of Rs. 7,74,62,706-1-6 which was the value of cotton purchased by the respondent from outside the State of Madras. We are, therefore, of opinion that the doctrine of merger cannot be invoked in the circumstances of the present caseWe are unable to accept this argument as correct. The onlyr of the revision proceedings before the Board of Revenue was the revised assessment order of the Deputy Commercial Tax Officer, Madurai dated the 28th November, 1952. The objection taken by the Board of Revenue was with regard to the question of exemption allowed on the value of the cotton purchased from outside the State of Madras. The exemption was allowed by the Deputy Commercial Tax Officer in his order of assessment. The question was not raised before the Deputy Commissioner of Commercial Taxes and the only point raised before him was with regard to the inclusion of the amount of tax to the extent of Rs.9 in the taxable turnover.It is manifest that ther of the revision proceedings before the Board of Revenue was the revised assessment order of the Deputy Commercial Tax Officer, Madurai dated the 28th November, 1952. It follows that the order of the Board of Revenue was made beyond the limit of four years prescribed by S. 12 (4) (b) of the Act and it is, therefore, invalidthe doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of ther of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. | 0 | 2,333 | 845 | ### 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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of the Deputy Commissioner of Commercial Taxes dated the 21st August, 1954 and not the order of the Deputy Commercial Tax Officer and therefore the power of revision by the Board of Revenue was not exercised beyond the period of limitation provided by S. 12 (4) (b) of the Act. We are unable to accept this argument as correct. The only subject-matter of the revision proceedings before the Board of Revenue was the revised assessment order of the Deputy Commercial Tax Officer, Madurai dated the 28th November, 1952. The objection taken by the Board of Revenue was with regard to the question of exemption allowed on the value of the cotton purchased from outside the State of Madras. The exemption was allowed by the Deputy Commercial Tax Officer in his order of assessment. The question was not raised before the Deputy Commissioner of Commercial Taxes and the only point raised before him was with regard to the inclusion of the amount of tax to the extent of Rs. 6,57,971-4-9 in the taxable turnover.It is manifest that the subject-matter of the revision proceedings before the Board of Revenue was the revised assessment order of the Deputy Commercial Tax Officer, Madurai dated the 28th November, 1952. It follows that the order of the Board of Revenue was made beyond the limit of four years prescribed by S. 12 (4) (b) of the Act and it is, therefore, invalid. 6. On behalf of the appellant, the argument was put forward that if a statutory appeal is provided against an order passed by a Tribunal, the decision of the appellate authority is the operative decision in law. It was said that if the appellate authority modifies or reverses the order of the Tribunal, there was a merger of the latter order with the appellate order and it was the appellate order alone that is effective and can be enforced. But if the appellate order affirms the order of the Tribunal, there is a merger of the original order in the appellate order and it is the appellate order alone which is operative and capable of enforcement. In support of this argument reliance was placed upon the observation of Gajendragadkar, J., as he then was in Commissioner of Income-tax, Bombay v. Amritlal Bhogilal and Co. (1958) 34 ITR 130 at p. 136: (AIR 1958 SC 868 at p. 871). 7. But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. For example in Amritlal Bhogilal and Cos case, 1958-34 ITR 130 : (AIR 1958 SC 868 ) (supra) it was observed by this Court that the order of registration made by the Income-tax Officer did not merge in the appellate order of the Appellate Commissioner, because the order of registration was not the subject-matter of appeal before the appellate authority. It should be noticed that the order of assessment made by the Income-tax Officer in that case was a composite order viz., an order granting registration of the firm and making an assessment on the basis of the registration. The appeal was taken by the assessee to the Appellate Commissioner against the composite order of the Income-tax Officer. It was held by the High Court that the order of the Income-tax Officer granting registration to the respondent must be deemed to be merged in the appellate order and that the revisional power of the Commissioner of Income-tax cannot, therefore, be exercised in respect of it. The view taken by the High Court was overruled by this Court for the reasons that the order of the Income-tax Officer granting registration cannot be deemed to have merged in the order of the Appellate Commissioner in an appeal taken against the composite order of assessment. Similarly, in State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 : (AIR 1958 SC 86 ) it was held by this Court that the principle of merger cannot apply in the case of an order of dismissal of a public servant which was made by the departmental Tribunal on the 20th April, 1948 and against which the appeal was dismissed by the Appellate Authority on the 7th May, 1949, and the revisional application was rejected on the 22nd April, 1950. In the circumstances of the present case it cannot be said that there was a merger of the order of assessment made by the Deputy Commercial Tax Officer dated the 28th November, 1952 with the order of the Deputy Commissioner of Commercial Taxes dated the 26th August, 1954 because the question of exemption on the value of yarn purchased from outside the State of Madras was not the subject-matter of revisions before the Deputy Commissioner of Commercial Taxes. The only point that was urged before the Deputy commissioner was that the sum of Rs. 6,57,971-4-9 collected by the respondent by way of tax should not be included in the taxable turnover. This was the only point raised before the Deputy Commissioner and was rejected by him in the revision proceedings. On the contrary, the question before the Board of Revenue was whether the Deputy Commercial Tax Officer, Madurai was right in excluding from the net taxable turnover of the respondent the sum of Rs. 7,74,62,706-1-6 which was the value of cotton purchased by the respondent from outside the State of Madras. We are, therefore, of opinion that the doctrine of merger cannot be invoked in the circumstances of the present case. 8.
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In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. For example in Amritlal Bhogilal and Cos case, 1958-34 ITR 130 : (AIR 1958 SC 868 ) (supra) it was observed by this Court that the order of registration made by the Income-tax Officer did not merge in the appellate order of the Appellate Commissioner, because the order of registration was not the subject-matter of appeal before the appellate authority. It should be noticed that the order of assessment made by the Income-tax Officer in that case was a composite order viz., an order granting registration of the firm and making an assessment on the basis of the registration. The appeal was taken by the assessee to the Appellate Commissioner against the composite order of the Income-tax Officer. It was held by the High Court that the order of the Income-tax Officer granting registration to the respondent must be deemed to be merged in the appellate order and that the revisional power of the Commissioner of Income-tax cannot, therefore, be exercised in respect of it. The view taken by the High Court was overruled by this Court for the reasons that the order of the Income-tax Officer granting registration cannot be deemed to have merged in the order of the Appellate Commissioner in an appeal taken against the composite order of assessment. Similarly, in State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 : (AIR 1958 SC 86 ) it was held by this Court that the principle of merger cannot apply in the case of an order of dismissal of a public servant which was made by the departmental Tribunal on the 20th April, 1948 and against which the appeal was dismissed by the Appellate Authority on the 7th May, 1949, and the revisional application was rejected on the 22nd April, 1950.In the circumstances of the present case it cannot be said that there was a merger of the order of assessment made by the Deputy Commercial Tax Officer dated the 28th November, 1952 with the order of the Deputy Commissioner of Commercial Taxes dated the 26th August, 1954 because the question of exemption on the value of yarn purchased from outside the State of Madras was not the subject-matter of revisions before the Deputy Commissioner of Commercial Taxes. The only point that was urged before the Deputy commissioner was that the sum of Rs. 6,57,971-4-9 collected by the respondent by way of tax should not be included in the taxable turnover. This was the only point raised before the Deputy Commissioner and was rejected by him in the revision proceedings. On the contrary, the question before the Board of Revenue was whether the Deputy Commercial Tax Officer, Madurai was right in excluding from the net taxable turnover of the respondent the sum of Rs. 7,74,62,706-1-6 which was the value of cotton purchased by the respondent from outside the State of Madras. We are, therefore, of opinion that the doctrine of merger cannot be invoked in the circumstances of the present caseWe are unable to accept this argument as correct. The onlyr of the revision proceedings before the Board of Revenue was the revised assessment order of the Deputy Commercial Tax Officer, Madurai dated the 28th November, 1952. The objection taken by the Board of Revenue was with regard to the question of exemption allowed on the value of the cotton purchased from outside the State of Madras. The exemption was allowed by the Deputy Commercial Tax Officer in his order of assessment. The question was not raised before the Deputy Commissioner of Commercial Taxes and the only point raised before him was with regard to the inclusion of the amount of tax to the extent of Rs.9 in the taxable turnover.It is manifest that ther of the revision proceedings before the Board of Revenue was the revised assessment order of the Deputy Commercial Tax Officer, Madurai dated the 28th November, 1952. It follows that the order of the Board of Revenue was made beyond the limit of four years prescribed by S. 12 (4) (b) of the Act and it is, therefore, invalidthe doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of ther of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute.
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IAN PETER MORRIS Vs. ASSTT. COMMNR. OF INCOME TAX | 1. Leave granted. 2. The appellant Assessee along with three others had promoted a Company, namely, Log in Systems Innovations Private Limited (the Acquiree Company) in the year 1990. The said Company was acquired by one Synergy Credit Corporation Limited (the Acquirer Company). The appellant was offered the position of Executive Director in the Acquirer Company for a gross compensation of Rs.1,77,200/- per annum. This was by appointment order dated 8th October, 1993. On 15th October, 1993, an Acquisition Agreement was executed between the Acquirer Company and the Acquiree Company on a going concern basis for a total consideration of Rs.6,00,000/-. On the same date i.e. 15th October, 1993, a Non-Compete Agreement was signed between the appellant Assessee and the Acquirer Company imposing a restriction on the appellant from carrying on any business of Computer Software development and marketing for a period of five years for which the appellant Assessee was paid a sum of Rs.21,00,000/-. The question that arose in the proceedings commencing with the Assessment Order is whether the aforesaid amount of Rs.21 lakhs is on account of salary or the same is a capital receipt. The High Court in the order under appeal took the view that the said amount is salary amount on which interest would be chargeable/leviable under Section 234B and 234C of the Income Tax Act, 1961 (for short the Act). Aggrieved, the present appeal has been filed. 3. A limited notice was issued in the present case confining the scrutiny of the Court to correctness of levy of interest as ordered/affirmed by the High Court. The aforesaid limited notice, therefore, has to be understood to have concluded the issue with regard to the nature of the receipt, namely, that the same was salary. 4. A perusal of the relevant provisions of Chapter VII of the Act [Part A, B, C and F of Chapter VII] would go to show that against salary a deduction, at the requisite rate at which income tax is to be paid by the person entitled to receive the salary, is required to be made by the employer failing which the employer is liable to pay simple interest thereon. The provisions relating to payment of advance tax is contained in Part C and interest thereon in Part F of Chapter VII of the Act. In cases where receipt is by way of salary, deductions under Section 192 of the Act is required to be made. No question of payment of advance tax under Part C of Chapter VII of the Act can arise in cases of receipt by way of salary. If that is so, Part F of Chapter VII dealing with interest chargeable in certain cases (Section 234B Interest for defaults in payment of advance tax and Section 234C Interest for deferment of advance tax) would have no application to the present situation in view of the finality that has to be attached to the decision that what was received by the appellant assessee under the Non-Compete Agreement was by way of salary. | 1[ds]4. A perusal of the relevant provisions of Chapter VII of the Act [Part A, B, C and F of Chapter VII] would go to show that against salary a deduction, at the requisite rate at which income tax is to be paid by the person entitled to receive the salary, is required to be made by the employer failing which the employer is liable to pay simple interest thereon. The provisions relating to payment of advance tax is contained in Part C and interest thereon in Part F of Chapter VII of the Act. In cases where receipt is by way of salary, deductions under Section 192 of the Act is required to be made. No question of payment of advance tax under Part C of Chapter VII of the Act can arise in cases of receipt by way of salary. If that is so, Part F of Chapter VII dealing with interest chargeable in certain cases (Section 234B Interest for defaults in payment of advance tax and Section 234C Interest for deferment of advance tax) would have no application to the present situation in view of the finality that has to be attached to the decision that what was received by the appellant assessee under the Non-Compete Agreement was by way of salary. | 1 | 556 | 235 | ### 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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1. Leave granted. 2. The appellant Assessee along with three others had promoted a Company, namely, Log in Systems Innovations Private Limited (the Acquiree Company) in the year 1990. The said Company was acquired by one Synergy Credit Corporation Limited (the Acquirer Company). The appellant was offered the position of Executive Director in the Acquirer Company for a gross compensation of Rs.1,77,200/- per annum. This was by appointment order dated 8th October, 1993. On 15th October, 1993, an Acquisition Agreement was executed between the Acquirer Company and the Acquiree Company on a going concern basis for a total consideration of Rs.6,00,000/-. On the same date i.e. 15th October, 1993, a Non-Compete Agreement was signed between the appellant Assessee and the Acquirer Company imposing a restriction on the appellant from carrying on any business of Computer Software development and marketing for a period of five years for which the appellant Assessee was paid a sum of Rs.21,00,000/-. The question that arose in the proceedings commencing with the Assessment Order is whether the aforesaid amount of Rs.21 lakhs is on account of salary or the same is a capital receipt. The High Court in the order under appeal took the view that the said amount is salary amount on which interest would be chargeable/leviable under Section 234B and 234C of the Income Tax Act, 1961 (for short the Act). Aggrieved, the present appeal has been filed. 3. A limited notice was issued in the present case confining the scrutiny of the Court to correctness of levy of interest as ordered/affirmed by the High Court. The aforesaid limited notice, therefore, has to be understood to have concluded the issue with regard to the nature of the receipt, namely, that the same was salary. 4. A perusal of the relevant provisions of Chapter VII of the Act [Part A, B, C and F of Chapter VII] would go to show that against salary a deduction, at the requisite rate at which income tax is to be paid by the person entitled to receive the salary, is required to be made by the employer failing which the employer is liable to pay simple interest thereon. The provisions relating to payment of advance tax is contained in Part C and interest thereon in Part F of Chapter VII of the Act. In cases where receipt is by way of salary, deductions under Section 192 of the Act is required to be made. No question of payment of advance tax under Part C of Chapter VII of the Act can arise in cases of receipt by way of salary. If that is so, Part F of Chapter VII dealing with interest chargeable in certain cases (Section 234B Interest for defaults in payment of advance tax and Section 234C Interest for deferment of advance tax) would have no application to the present situation in view of the finality that has to be attached to the decision that what was received by the appellant assessee under the Non-Compete Agreement was by way of salary.
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4. A perusal of the relevant provisions of Chapter VII of the Act [Part A, B, C and F of Chapter VII] would go to show that against salary a deduction, at the requisite rate at which income tax is to be paid by the person entitled to receive the salary, is required to be made by the employer failing which the employer is liable to pay simple interest thereon. The provisions relating to payment of advance tax is contained in Part C and interest thereon in Part F of Chapter VII of the Act. In cases where receipt is by way of salary, deductions under Section 192 of the Act is required to be made. No question of payment of advance tax under Part C of Chapter VII of the Act can arise in cases of receipt by way of salary. If that is so, Part F of Chapter VII dealing with interest chargeable in certain cases (Section 234B Interest for defaults in payment of advance tax and Section 234C Interest for deferment of advance tax) would have no application to the present situation in view of the finality that has to be attached to the decision that what was received by the appellant assessee under the Non-Compete Agreement was by way of salary.
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Glaxo Smithkline Pharmaceuticals Limited Vs. Abhay Raj Jain & Another | Appellate Authority. 26. In Patel Roadways case (supra), it was a decision in relation to suit for damages and not relating to labour matter based on the provisions of the Civil Procedure Code. 27. Much reliance was sought to be placed by the learned senior counsel for the respondents on the decision of this Court in Mohan Mhatres case (supra), repeatedly reminding us that the said decision was delivered by one of us (Sri R.M.S. Khandeparkar, J.) holding that the place of issuance of the order of transfer also forms part of the cause of action for initiating action under the MRTU & PULP Act. That was a case wherein after taking into consideration the various earlier decisions of the Apex Court it was held that: "It is the place where the dispute substantially arises or where both the parties reside that is the test to be applied to decide the issue of the jurisdiction of the Court to entertain the proceedings relating to such dispute." Referring to the facts of that case, it was held that the materials on record nowhere disclosed that the dispute had substantially arisen in any part of Mumbai so as to give jurisdiction to the Industrial Court at Mumbai to entertain the complaint filed by the employee. The appointment of the petitioner at Mumbai was with the hope to commence establishment by the respondent No.1 in the State of Maharashtra. Being so, in the said case, though the employee was at Mumbai, there was no part of the establishment of the company in Mumbai, nor there was any activity on the part of the company in Mumbai. On the contrary, the activities of the respondent-company were yet to commence and, in fact, in order to ascertain the possibility of commencement of such activity of the establishment of the company in Mumbai, that the employee was deputed at Mumbai. In those circumstances, it was held that: "The undisputed facts in the matter, are that the petitioner was employed by the respondent No.1 at Mumbai with the hope that the respondent No.1 would be able to organize its operation in a big way in the State of Maharashtra, but the same has not materialized till this date and as the respondent No.1 has lost the hope to have its operations in the State of Maharashtra, that therefore, the order of transfer of the petitioner was issued and the petitioner has been directed to report to his duties at Delhi. Apart from the petitioners appointment at Mumbai, the respondent No.1 has no establishment as such in Mumbai." In those circumstances, it was also observed that: "Had the respondent No.1 been successful in commencing its operations in the State of Maharashtra, perhaps the position would have been different." Being so, any observation made in the decision in Mohan Mhatres case have to be understood in the facts of that case and having so understood, the decision nowhere helps the respondents in the case in hand. 28. It is thus clear that it is the situs of the employment which would be the relevant factor to decide the place of cause of action for initiating any legal proceedings. Once it is not in dispute that the respondent, at the relevant time, was employed at Udaipur and he was sought to be transferred from Udaipur to Imphal (Manipur), it is obvious that the situs of employment of the respondent was sought to be changed from Udaipur to Imphal, both the places beyond the territory of the State of Maharashtra. 29. In the case of unfair labour practice, which is sought to be employed by the employer on account transfer of the employee from one place to another, the actual adoption of the unfair labour practice would be at the place from where the employee is either sought to be transferred or at the place where the employee is sought to be transferred. It cannot, by any stretch of imagination, be said to have resulted at the place from where mere order of transfer of the employee is issued. It is not the issuance of the order but it is the consequence of the order issued that would result in unfair labour practice to the employee. Being so, in case of alleged harassment consequent to the transfer resulting into unfair labour practice to the employee can result either at the place where the employee had been working prior to the issuance of the order of transfer or at the place where is actually transferred under such order. Being so, the cause of action on account of alleged unfair labour practice would arise only at one of these two places and not at any third place. Undoubtedly, in a case where an employee is merely sent to ascertain the possibility of having an establishment of the employer, till and until such establishment commences at any such place, it could not be said that the unfair labour practice would result at any place other than from where the employment of the employee is controlled. Considering the same, therefore, in Mohan Mhatres case it was held that the place where the dispute substantially arises or where both the parties reside, that is the test to be applied to decide the issue of jurisdiction of the Court to entertain the proceedings relating to such dispute. 30. In the case in hand, undisputedly, the unfair labour practice is alleged to have been employed on account of transfer of the respondent from Udaipur to Imphal and, therefore, it cannot be said that any part of the cause of action in relation to the alleged unfair labour practice had arisen within the territory of the State of Maharashtra. The appellant, therefore, is justified in contending that this aspect of the matter was totally ignored by the Industrial Court as well as by the learned single Judge and hence the impugned orders in that regard cannot be sustained and are liable to be set aside while allowing the appeal. | 1[ds]At the same time it is apparent that the finding by the learned single Judge, which is, in fact, reiteration of the finding of the Industrial Court on the point in issue, is very clear to the effect that the situs of employment is at Udaipur. Indeed, it is not in dispute that the respondent No.1 had been employed at Udaipur and his area of employment lies beyond the territory of the State of Maharashtra. Being so, there is no dispute on the aspect of situs of employment to be at Udaipur.10. In H.M.T. Limiteds case (supra) it was an admitted position that the workmen was never employed by the company in any of its establishments at Chandigarh and the workmen was last employed at Mumbai. She was transferred from Srinagar to Mumbai. Considering the same, it was held by the PunjabHaryana High Court that substantially the cause of action had arisen at Mumbai. Merely because the order of dismissal was served at Chandigarh, that would not be sufficient to hold that the industrial dispute had substantially arisen within the Union Territory of Chandigarh.In L.B. Repals case (supra) the Division Bench of this Court held that the test of jurisdiction of a Court or Tribunal requires ascertaining where substantially the dispute arose, and not where the employee is employed or dismissed, and such a test can never be inflexible and must necessarily depend on the facts of each case. The underlying approach has to be the test of enforceability of the order. It is the place where the order can be effectively enforced that would satisfy the requirement of jurisdiction to the Court to entertain the complaint. 12. In G.S. Batras case (supra) the learned single Judge of the Delhi High Court held that since the termination of service of the employee was in Delhi while he was being employed at Delhi, the Delhi Court had jurisdiction and the Delhi Government was the appropriate Government within the meaning of the provisions of law comprised under the Industrial Disputes Act, 1947 for the purpose of reference.In Emerald Valley Estates case (supra) the learned single Judge of the Kerala High Court held that in determining which of the States has jurisdiction to make a reference under Section 10 of the Industrial Disputes Act, 1947, what is necessary is that there should clearly be some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning which the dispute arises. It might also be noted that to confer jurisdiction for reference on the State Government concerned, it is not absolutely necessary that the cause of action should wholly or exclusively arise in that State. There may be cases where part of the cause of action may arise in two or more States. In such cases, two or more States may have concurrent jurisdiction. When the question regarding territorial jurisdiction crops up, what is to be asked and answered is whether the cause of action substantially arose in the State, the Government of which referred the dispute for adjudication. In that case, the workmen concerned were all along working in the State of Kerala and they were also residing in the said State. The transfer of the workman was from a place in Kerala to a place in Karnataka State. The dispute on the point of jurisdiction was as to whether it was the Government of Kerala or the Government of Karnataka, which would be the appropriate Government to make the reference. It was clearly held that it would be wrong to construe that because the workman concerned, in pursuance of the notice, went over to the place in Karnataka to join duty, the cause of action had also arisen exclusively or wholly in that place. 15. In S.N.D. Sampaths case (supra) the Division Bench of the Madras High Court held that the Tamil Nadu Shops and Establishments Act is expected to apply to the establishments in the State of Tamil Nadu alone and to the employees employed to work in such establishments. The first respondent was employed in the Goa establishment of the company, an establishment governed by the Goa Shops and Establishments Act and when there were no employer employee relationships subsisting with regard to an establishment situated in the State of Tamil Nadu, the mere fact that the resignation letter was accepted at Chennai would not be sufficient to clothe the Appellate Authority under Section 41(2) of the Tamil Nadu Shops and Establishments Act to entertain the appeal filed by the workman. The order of the learned single Judge in that regard was, therefore, set aside while holding that the relationship of employer and employee with reference to a commercial establishment in Tamil Nadu is afor preferring an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act and that when a person is employed to work in the Goa establishment of the company, it must be held that he is employed wholly in connection with the business of Goa establishment and merely because, the Corporate Office of the company is at Chennai or because is resignation letter has been accepted at Chennai, it cannot be held that the Appellate Authority under Section 41(2) of the Act has jurisdiction to entertain the appeal filed by the employee. 16. In Bhandari Builders case (supra) the question was whether a person recruited by an establishment in Delhi and working abroad in Iraq can invoke the provisions of the Delhi Shops and Establishment Act, 1954. It was held that the provisions of the said Act leave no room for doubt that they apply to the establishments located in Delhi and not to any establishment, outside India. It cannot be argued that each office where the business of the company is being run is not a separate establishment for the purpose of legislation like the Delhi Shops Act. Each premises where commercial activity of the nature given in the definition is carried on is to be treated as a separate establishment. The employee was not employed in any establishment in Delhi and, therefore, he was not covered by the said Act. 17. In Kalyan Banerjees case (supra) the Apex Court held that the since the entire cause of action arose within the State of Jharkhand, only because the head office of the company was situated in the State of West Bengal, that by itself would not confer the jurisdiction upon the Calcutta High Court to entertain the petition. That was a case wherein the employee, who was employed at Mugma area in the District of Dhanbad, State of Jharkhan, his services came to be terminated at Mugma but he filed the writ petition in the Calcutta High Court only on the ground that the Corporate Office of the company in which he was working was at Calcutta. 18. In Sri Ranga Vilas Motors case (supra) the workman working at the Bangalore branch office of the company having head office in Krishnagiri, Madras State, was transferred by the order issued from the head office. The order of reference made by the State of Mysore inter alia related to the dispute as to whether the transfer was unjustified and if so, the workman was entitled to reinstatement at Bangalore with benefits ofIt was held that in those facts the dispute arose at Bangalore, where the concerned employee was working at the time of his transfer. It was ruled that there should clearly be some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning which the dispute arose. Theof the dispute having substantially arisen within the jurisdiction of the State of Mysore, the Mysore Government was the appropriate Government to take steps in accordance with the labour laws. 19. In Aeronautics Hindustan Aeronautics case (supra), while dealing with the issue relating to appropriate Government for reference under Section 10 of the Industrial Disputes Act, 1947, it was held that if there is any disturbance to industrial peace, the Government of the State where the disturbance takes place will be the appropriate Government. 20. In Ramlals case (supra) the PunjabHaryana High Court was dealing with a matter wherein there was a challenge to the order of termination, which was passed at Chadigarh and served at Bhatinda. It was held that the order became effective and operative at Bhatinda where the workman was at the material time working and earning his wages. The relationship of Master and servant snapped at Bhatinda. The industrial dispute definitely arose at Bhatinda and consequently the order of reference made by the State Government of Chandigarh was appropriate and it was competent to make a reference. Existence of the head office of the Bank at Chandigarh and the management of the business therefrom does not mean that the Government of Chandigarh is the appropriate Government. 21. In Pritam Singhs case (supra) the PunjabHaryana High Court held that the situs of the employment where the worker was employed and the order of his dismissal from service, suspension or retrenchment is received would determine the appropriate Government competent to make reference and not the head office of the company from where the order is issued. 22. In New Delhi General Mazdoor Unions case (supra) the Delhi High Court held that only on the averment that the registered office of the Management Development Institute is situated in Delhi, would not be sufficient to contend that the Delhi Government was the appropriate Government for the reference of industrial disupte when the materials placed on record disclosed that the entire establishment of the Institute was situated within the State of Haryana. 23. In Paritosh Kumar Pals case (supra) the Full Bench of the Patna High Court held that the provisions of the Civil Procedure Code are not specifically made applicable to the proceedings under the Industrial Disputes Act, 1947 and the situs of employment of the workmen would determine the Tribunals jurisdiction. It laid down, therefore, three tests to determine the jurisdiction of the Tribunal, namely (i) Where does the order of the termination of service operate (ii) Is there some nexus between the industrial dispute arising from termination of the services of the workman and the territory of the State and (iii) That thetest of jurisdiction of a Civil Court including the residence of the parties and theof the dispute substantially arising therein would be applicable.24. In R.K. Jhas case (supra) the Patna High Court was dealing with a case wherein two medical representatives of the company were visited with the penalty of termination of their services, when they allgedly failed to join their new places of posting on transfer and consequently they filed complaints under Section 26 of the Bihar Shops and Establishments Act, 1953 before the Labour Court, Patna, which was dismissed on the ground of lack of territorial jurisdiction to entertain the complaint. Allowing the writ petition, it was held that in view of the admitted position that the employees were working within the jurisdiction of the Patna Depot of the company from where their services were terminated, the cause of action wholly arose within the jurisdiction of the Labour Court, Patna but even assuming that the petitioners were actually working at Laheriasarai, at least part of the cause of action arose at Patna in view of the fact that Laheriasarai was within the jurisdiction of the Patna Depot. 25. In Kusum IngotsAlloyss case (supra) the Apex Court was dealing with the issue as to whether the seat of Parliament or the legislature of a State would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under Article 226 of the Constitution of India. It was held that when an order is passed by a Court or Tribunal or an executive authority whether under the provisions of a statute or otherwise, a part of cause of action arises at that place. The order of the Appellate Authority constitutes a part of cause of action and, therefore, writ petition would be maintainable in the High Court within whose jurisdiction it is situated having regard to the fact that the order of the Appellate Authority is also required to be set aside and as the order of the original authority merges with that of the Appellate Authority. 26. In Patel Roadways case (supra), it was a decision in relation to suit for damages and not relating to labour matter based on the provisions of the Civil Procedure Code.28. It is thus clear that it is the situs of the employment which would be the relevant factor to decide the place of cause of action for initiating any legal proceedings. Once it is not in dispute that the respondent, at the relevant time, was employed at Udaipur and he was sought to be transferred from Udaipur to Imphal (Manipur), it is obvious that the situs of employment of the respondent was sought to be changed from Udaipur to Imphal, both the places beyond the territory of the State of Maharashtra. 29. In the case of unfair labour practice, which is sought to be employed by the employer on account transfer of the employee from one place to another, the actual adoption of the unfair labour practice would be at the place from where the employee is either sought to be transferred or at the place where the employee is sought to be transferred. It cannot, by any stretch of imagination, be said to have resulted at the place from where mere order of transfer of the employee is issued. It is not the issuance of the order but it is the consequence of the order issued that would result in unfair labour practice to the employee. Being so, in case of alleged harassment consequent to the transfer resulting into unfair labour practice to the employee can result either at the place where the employee had been working prior to the issuance of the order of transfer or at the place where is actually transferred under such order. Being so, the cause of action on account of alleged unfair labour practice would arise only at one of these two places and not at any third place. Undoubtedly, in a case where an employee is merely sent to ascertain the possibility of having an establishment of the employer, till and until such establishment commences at any such place, it could not be said that the unfair labour practice would result at any place other than from where the employment of the employee is controlled. Considering the same, therefore, in Mohan Mhatres case it was held that the place where the dispute substantially arises or where both the parties reside, that is the test to be applied to decide the issue of jurisdiction of the Court to entertain the proceedings relating to such dispute. 30. In the case in hand, undisputedly, the unfair labour practice is alleged to have been employed on account of transfer of the respondent from Udaipur to Imphal and, therefore, it cannot be said that any part of the cause of action in relation to the alleged unfair labour practice had arisen within the territory of the State of Maharashtra. The appellant, therefore, is justified in contending that this aspect of the matter was totally ignored by the Industrial Court as well as by the learned single Judge and hence the impugned orders in that regard cannot be sustained and are liable to be set aside while allowing the appeal. | 1 | 6,279 | 2,823 | ### 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:
Appellate Authority. 26. In Patel Roadways case (supra), it was a decision in relation to suit for damages and not relating to labour matter based on the provisions of the Civil Procedure Code. 27. Much reliance was sought to be placed by the learned senior counsel for the respondents on the decision of this Court in Mohan Mhatres case (supra), repeatedly reminding us that the said decision was delivered by one of us (Sri R.M.S. Khandeparkar, J.) holding that the place of issuance of the order of transfer also forms part of the cause of action for initiating action under the MRTU & PULP Act. That was a case wherein after taking into consideration the various earlier decisions of the Apex Court it was held that: "It is the place where the dispute substantially arises or where both the parties reside that is the test to be applied to decide the issue of the jurisdiction of the Court to entertain the proceedings relating to such dispute." Referring to the facts of that case, it was held that the materials on record nowhere disclosed that the dispute had substantially arisen in any part of Mumbai so as to give jurisdiction to the Industrial Court at Mumbai to entertain the complaint filed by the employee. The appointment of the petitioner at Mumbai was with the hope to commence establishment by the respondent No.1 in the State of Maharashtra. Being so, in the said case, though the employee was at Mumbai, there was no part of the establishment of the company in Mumbai, nor there was any activity on the part of the company in Mumbai. On the contrary, the activities of the respondent-company were yet to commence and, in fact, in order to ascertain the possibility of commencement of such activity of the establishment of the company in Mumbai, that the employee was deputed at Mumbai. In those circumstances, it was held that: "The undisputed facts in the matter, are that the petitioner was employed by the respondent No.1 at Mumbai with the hope that the respondent No.1 would be able to organize its operation in a big way in the State of Maharashtra, but the same has not materialized till this date and as the respondent No.1 has lost the hope to have its operations in the State of Maharashtra, that therefore, the order of transfer of the petitioner was issued and the petitioner has been directed to report to his duties at Delhi. Apart from the petitioners appointment at Mumbai, the respondent No.1 has no establishment as such in Mumbai." In those circumstances, it was also observed that: "Had the respondent No.1 been successful in commencing its operations in the State of Maharashtra, perhaps the position would have been different." Being so, any observation made in the decision in Mohan Mhatres case have to be understood in the facts of that case and having so understood, the decision nowhere helps the respondents in the case in hand. 28. It is thus clear that it is the situs of the employment which would be the relevant factor to decide the place of cause of action for initiating any legal proceedings. Once it is not in dispute that the respondent, at the relevant time, was employed at Udaipur and he was sought to be transferred from Udaipur to Imphal (Manipur), it is obvious that the situs of employment of the respondent was sought to be changed from Udaipur to Imphal, both the places beyond the territory of the State of Maharashtra. 29. In the case of unfair labour practice, which is sought to be employed by the employer on account transfer of the employee from one place to another, the actual adoption of the unfair labour practice would be at the place from where the employee is either sought to be transferred or at the place where the employee is sought to be transferred. It cannot, by any stretch of imagination, be said to have resulted at the place from where mere order of transfer of the employee is issued. It is not the issuance of the order but it is the consequence of the order issued that would result in unfair labour practice to the employee. Being so, in case of alleged harassment consequent to the transfer resulting into unfair labour practice to the employee can result either at the place where the employee had been working prior to the issuance of the order of transfer or at the place where is actually transferred under such order. Being so, the cause of action on account of alleged unfair labour practice would arise only at one of these two places and not at any third place. Undoubtedly, in a case where an employee is merely sent to ascertain the possibility of having an establishment of the employer, till and until such establishment commences at any such place, it could not be said that the unfair labour practice would result at any place other than from where the employment of the employee is controlled. Considering the same, therefore, in Mohan Mhatres case it was held that the place where the dispute substantially arises or where both the parties reside, that is the test to be applied to decide the issue of jurisdiction of the Court to entertain the proceedings relating to such dispute. 30. In the case in hand, undisputedly, the unfair labour practice is alleged to have been employed on account of transfer of the respondent from Udaipur to Imphal and, therefore, it cannot be said that any part of the cause of action in relation to the alleged unfair labour practice had arisen within the territory of the State of Maharashtra. The appellant, therefore, is justified in contending that this aspect of the matter was totally ignored by the Industrial Court as well as by the learned single Judge and hence the impugned orders in that regard cannot be sustained and are liable to be set aside while allowing the appeal.
### Response:
1
### Explanation:
the materials placed on record disclosed that the entire establishment of the Institute was situated within the State of Haryana. 23. In Paritosh Kumar Pals case (supra) the Full Bench of the Patna High Court held that the provisions of the Civil Procedure Code are not specifically made applicable to the proceedings under the Industrial Disputes Act, 1947 and the situs of employment of the workmen would determine the Tribunals jurisdiction. It laid down, therefore, three tests to determine the jurisdiction of the Tribunal, namely (i) Where does the order of the termination of service operate (ii) Is there some nexus between the industrial dispute arising from termination of the services of the workman and the territory of the State and (iii) That thetest of jurisdiction of a Civil Court including the residence of the parties and theof the dispute substantially arising therein would be applicable.24. In R.K. Jhas case (supra) the Patna High Court was dealing with a case wherein two medical representatives of the company were visited with the penalty of termination of their services, when they allgedly failed to join their new places of posting on transfer and consequently they filed complaints under Section 26 of the Bihar Shops and Establishments Act, 1953 before the Labour Court, Patna, which was dismissed on the ground of lack of territorial jurisdiction to entertain the complaint. Allowing the writ petition, it was held that in view of the admitted position that the employees were working within the jurisdiction of the Patna Depot of the company from where their services were terminated, the cause of action wholly arose within the jurisdiction of the Labour Court, Patna but even assuming that the petitioners were actually working at Laheriasarai, at least part of the cause of action arose at Patna in view of the fact that Laheriasarai was within the jurisdiction of the Patna Depot. 25. In Kusum IngotsAlloyss case (supra) the Apex Court was dealing with the issue as to whether the seat of Parliament or the legislature of a State would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under Article 226 of the Constitution of India. It was held that when an order is passed by a Court or Tribunal or an executive authority whether under the provisions of a statute or otherwise, a part of cause of action arises at that place. The order of the Appellate Authority constitutes a part of cause of action and, therefore, writ petition would be maintainable in the High Court within whose jurisdiction it is situated having regard to the fact that the order of the Appellate Authority is also required to be set aside and as the order of the original authority merges with that of the Appellate Authority. 26. In Patel Roadways case (supra), it was a decision in relation to suit for damages and not relating to labour matter based on the provisions of the Civil Procedure Code.28. It is thus clear that it is the situs of the employment which would be the relevant factor to decide the place of cause of action for initiating any legal proceedings. Once it is not in dispute that the respondent, at the relevant time, was employed at Udaipur and he was sought to be transferred from Udaipur to Imphal (Manipur), it is obvious that the situs of employment of the respondent was sought to be changed from Udaipur to Imphal, both the places beyond the territory of the State of Maharashtra. 29. In the case of unfair labour practice, which is sought to be employed by the employer on account transfer of the employee from one place to another, the actual adoption of the unfair labour practice would be at the place from where the employee is either sought to be transferred or at the place where the employee is sought to be transferred. It cannot, by any stretch of imagination, be said to have resulted at the place from where mere order of transfer of the employee is issued. It is not the issuance of the order but it is the consequence of the order issued that would result in unfair labour practice to the employee. Being so, in case of alleged harassment consequent to the transfer resulting into unfair labour practice to the employee can result either at the place where the employee had been working prior to the issuance of the order of transfer or at the place where is actually transferred under such order. Being so, the cause of action on account of alleged unfair labour practice would arise only at one of these two places and not at any third place. Undoubtedly, in a case where an employee is merely sent to ascertain the possibility of having an establishment of the employer, till and until such establishment commences at any such place, it could not be said that the unfair labour practice would result at any place other than from where the employment of the employee is controlled. Considering the same, therefore, in Mohan Mhatres case it was held that the place where the dispute substantially arises or where both the parties reside, that is the test to be applied to decide the issue of jurisdiction of the Court to entertain the proceedings relating to such dispute. 30. In the case in hand, undisputedly, the unfair labour practice is alleged to have been employed on account of transfer of the respondent from Udaipur to Imphal and, therefore, it cannot be said that any part of the cause of action in relation to the alleged unfair labour practice had arisen within the territory of the State of Maharashtra. The appellant, therefore, is justified in contending that this aspect of the matter was totally ignored by the Industrial Court as well as by the learned single Judge and hence the impugned orders in that regard cannot be sustained and are liable to be set aside while allowing the appeal.
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M/S ANJANEYA JEWELLERY REP BY ITS PROPRIETOR MR. VENKATA RAO VADLAMUDI Vs. THE NEW INDIA ASSURANCE CO. LTD | Abhay Manohar Sapre, J.1. This appeal is filed against the final judgment and order dated 22.05.2018 passed by the National Consumer Disputes Redressal Commission, New Delhi(hereinafter referred to as ?the Commission?) in Consumer Case No.1094 of 2018 whereby the Presiding Member of the Commission dismissed the complaint filed by the appellant herein.2. A few facts need mention hereinbelow for disposal of this appeal, which involves a short point.3. By impugned order, the Presiding Member of the Commission dismissed the appellants complaint in limine. It is against this order, the complainant has filed this appeal under Section 23 of the Consumer Protection Act, 1986(hereinafter referred to as ?the Act?).4. So, the short question, which arises for consideration in this appeal, is whether the Commission was justified in dismissing the appellants complaint in limine.5. We have perused the appellant?s complaint so also the impugned order which resulted in its dismissal. Having gone through the same, we are of the considered opinion that notice of the complaint should have been issued to the respondent for being tried on merits.6. In other words, we are of the view that the complaint filed by the appellant did not deserve its dismissal in "limine? but the complaint deserved admission for its disposal on merits after giving notice to the respondents (opposite party).7. Learned counsel for the respondents, however, argued that since the impugned order contains reasons for the dismissal of the complaint and hence the impugned order does not call for any interference.8. We do not agree with this submission. In our view, having regard to the nature of the dispute raised by the appellant in their complaint, the same prima facie needed a reply from the respondents and then its disposal on merits.9. Learned counsel for the respondents then argued that Section 13 of the Act has undergone amendment w.e.f. 15.03.2003. Learned counsel pointed out that earlier Section 13 had the words "procedure on receipt of complaint". However, after 15.03.2003, in place of these words, the words "on admission of a complaint" were substituted.10. It was, therefore, his submission that the Commission has now the jurisdiction to dismiss the compliant in limine and decline its admission without notice to the respondents (opposite party).11. There is no dispute with the legal proposition urged by the learned counsel for the respondents in the light of amendment made in Section 13 of the Act.12. In other words, the Commission does have the jurisdiction to dismiss the complaint in limine and decline its admission without notice to the opposite party. However, such jurisdiction to dismiss the complaint in limine has to be exercised by the Commission having regard to facts of each case, i.e., in appropriate case.13. As held above, the facts of the case at hand do not appear to be of the nature, which deserved the dismissal of the appellants complaint in limine. | 1[ds]5. We have perused the appellant?s complaint so also the impugned order which resulted in its dismissal. Having gone through the same, we are of the considered opinion that notice of the complaint should have been issued to the respondent for being tried on merits.6. In other words, we are of the view that the complaint filed by the appellant did not deserve its dismissal in "limine? but the complaint deserved admission for its disposal on merits after giving notice to the respondents (opposite party).We do not agree with this submission. In our view, having regard to the nature of the dispute raised by the appellant in their complaint, the same prima facie needed a reply from the respondents and then its disposal on merits.There is no dispute with the legal proposition urged by the learned counsel for the respondents in the light of amendment made in Section 13 of the Act.12. In other words, the Commission does have the jurisdiction to dismiss the complaint in limine and decline its admission without notice to the opposite party. However, such jurisdiction to dismiss the complaint in limine has to be exercised by the Commission having regard to facts of each case, i.e., in appropriate case.13. As held above, the facts of the case at hand do not appear to be of the nature, which deserved the dismissal of the appellants complaint in limine. | 1 | 548 | 261 | ### 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:
Abhay Manohar Sapre, J.1. This appeal is filed against the final judgment and order dated 22.05.2018 passed by the National Consumer Disputes Redressal Commission, New Delhi(hereinafter referred to as ?the Commission?) in Consumer Case No.1094 of 2018 whereby the Presiding Member of the Commission dismissed the complaint filed by the appellant herein.2. A few facts need mention hereinbelow for disposal of this appeal, which involves a short point.3. By impugned order, the Presiding Member of the Commission dismissed the appellants complaint in limine. It is against this order, the complainant has filed this appeal under Section 23 of the Consumer Protection Act, 1986(hereinafter referred to as ?the Act?).4. So, the short question, which arises for consideration in this appeal, is whether the Commission was justified in dismissing the appellants complaint in limine.5. We have perused the appellant?s complaint so also the impugned order which resulted in its dismissal. Having gone through the same, we are of the considered opinion that notice of the complaint should have been issued to the respondent for being tried on merits.6. In other words, we are of the view that the complaint filed by the appellant did not deserve its dismissal in "limine? but the complaint deserved admission for its disposal on merits after giving notice to the respondents (opposite party).7. Learned counsel for the respondents, however, argued that since the impugned order contains reasons for the dismissal of the complaint and hence the impugned order does not call for any interference.8. We do not agree with this submission. In our view, having regard to the nature of the dispute raised by the appellant in their complaint, the same prima facie needed a reply from the respondents and then its disposal on merits.9. Learned counsel for the respondents then argued that Section 13 of the Act has undergone amendment w.e.f. 15.03.2003. Learned counsel pointed out that earlier Section 13 had the words "procedure on receipt of complaint". However, after 15.03.2003, in place of these words, the words "on admission of a complaint" were substituted.10. It was, therefore, his submission that the Commission has now the jurisdiction to dismiss the compliant in limine and decline its admission without notice to the respondents (opposite party).11. There is no dispute with the legal proposition urged by the learned counsel for the respondents in the light of amendment made in Section 13 of the Act.12. In other words, the Commission does have the jurisdiction to dismiss the complaint in limine and decline its admission without notice to the opposite party. However, such jurisdiction to dismiss the complaint in limine has to be exercised by the Commission having regard to facts of each case, i.e., in appropriate case.13. As held above, the facts of the case at hand do not appear to be of the nature, which deserved the dismissal of the appellants complaint in limine.
### Response:
1
### Explanation:
5. We have perused the appellant?s complaint so also the impugned order which resulted in its dismissal. Having gone through the same, we are of the considered opinion that notice of the complaint should have been issued to the respondent for being tried on merits.6. In other words, we are of the view that the complaint filed by the appellant did not deserve its dismissal in "limine? but the complaint deserved admission for its disposal on merits after giving notice to the respondents (opposite party).We do not agree with this submission. In our view, having regard to the nature of the dispute raised by the appellant in their complaint, the same prima facie needed a reply from the respondents and then its disposal on merits.There is no dispute with the legal proposition urged by the learned counsel for the respondents in the light of amendment made in Section 13 of the Act.12. In other words, the Commission does have the jurisdiction to dismiss the complaint in limine and decline its admission without notice to the opposite party. However, such jurisdiction to dismiss the complaint in limine has to be exercised by the Commission having regard to facts of each case, i.e., in appropriate case.13. As held above, the facts of the case at hand do not appear to be of the nature, which deserved the dismissal of the appellants complaint in limine.
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Mrs. Sunita Sanjay Bhor & Another Vs. Mrs. Kalyani Abhijit Bobade & Others | S.J. Vazifdar, J.The petitioners are partners. Respondent Nos.2, 3 and 4 are the Hindustan Petroleum Corporation Limited (HPCL) and its Director of Marketing and Senior Regional Manager respectively. The petitioners have sought an order to set aside the decision of HPCL to scrap a merit list dated 20th January, 2010, and to hold a fresh interview. The petitioners have also sought an order to set aside the statement of award of marks dated 7th December, 2010, by the selection committee of HPCL.2. HPCL, by an advertisement dated 17th August, 2009, invited applications for the allotment of retail outlet dealership in the Satara District. Six applicants, including the petitioners and respondent No.1, filed applications for the same. The petitioners were invited for an interview.3. The selection committee declared a provisional mark list on 20th January, 2010. As per the said mark list, the petitioners were selected as they received the maximum marks of 251.40 out of 300. Respondent No.1 raised various grievances regarding the allocation of marks. The grievances were raised as per the grievance redressal system. The same were, however, rejected. Being aggrieved by the same, respondent No.1 filed Writ Petition No.5415 of 2010 to challenge the award of marks. The Writ Petition was opposed by HPCL. The Writ Petition was disposed of by the Division Bench by an order 5th October, 2010, which reads as under :-"1. This petition was heard at length and the learned Counsel for the petitioner pointed out some material errors in the totaling/submission of the marks allotted to the respondent No.1. The officers of the oil company clarified and agreed that the merit list suffer from arithmetical mistakes. It was under these circumstances that Shri D.S. Karkera, one of the officers of the Oil Company who is present before us has filed an affidavit stating that the Oil Company has decided to scrap the merit list which is the subject matter of challenge in this petition and hold a fresh interview of all the eligible candidates. It has been further clarified that after the de novo interviews fresh merit list will be published.""2. In the light of this affidavit filed by Shri D.S. Karkera, Mr. Mankapure, the learned Counsel for the petitioner seeks leave to withdraw the petition. Leave granted and the petition is disposed as withdrawn.""3. We hope that after the de novo interviews, the entire process upto issuance of the L.O.I. will be completed before 31st December, 2010."4. Mr. Dhakephalkar, the learned senior counsel appearing on behalf of the petitioners contended that there were no arithmetical mistakes in the first list and, therefore, the entire process which was undertaken de novo is liable to be quashed and set aside.5. The first respondent had obtained under the RTI Act, the relevant documents in respect of the first exercise which was challenged by her in the said Writ Petition No.5415 of 2010. She filed an affidavit in reply to the present Writ Petition in which she annexed, inter-alia, the TEC report which contained the evaluation by the site selection committee. Marks were allocated in respect of about 14 criteria. The aggregate marks were computed by the selection committee at 88 out of 100 in respect of the petitioners. This is an obvious arithmetical mistake for the aggregate mark obtained by the petitioners was 86 out of 100. As a result thereof, there was a further arithmetical error in the weighted marks. One of the components involved in computing the weighted mark was the marks awarded by the site selection committee. As a result of the arithmetical error in that component viz. 88 marks instead of 86, the calculation of the weighted marks also suffered from an arithmetical mistake.6. Faced with this, Mr. Dhakephalkar submitted that the TEC report containing the evaluation by the site selection committee was not reliable as it admittedly contains erasures and over-writing.7. We are afraid it is not possible for us in this Writ Petition, to determine whether the said report is fabricated or even unreliable. This is a question of fact in respect of which it is impossible to express any conclusive finding. The difficulty is enhanced by the fact that a photo copy of this report was annexed to the affidavit in reply by respondent No.1. The petitioners did not file an affidavit in rejoinder. They never alleged that the same was fabricated.The original file was perused by us. The photo copy is obviously taken from the original for the original contains the same erasures and over-writing. The photo copy is, therefore, of the original which was produced in Court.8. Mr. Dhakephalkar then submitted that the members of the selection committee themselves had not filed any affidavit confirming that it is they who had made the erasures. He submitted, therefore, that the possibility of the report having been tampered with by other officers subsequently, to favour the first respondent, cannot be ruled out.9. The petitioners not having challenged the report despite the fact that the same was annexed to the first respondents affidavit in reply, cannot be permitted to raise these allegations. In view thereof, it was not necessary for HPCL to have filed an affidavit of the members of the selection committee. In any event, the same would constitute a seriously disputed question of fact.10. In these circumstances, it is not possible to entertain the Writ Petition on the above allegations. The petitioners must be relegated to a regular suit for damages. | 0[ds]7. We are afraid it is not possible for us in this Writ Petition, to determine whether the said report is fabricated or even unreliable. This is a question of fact in respect of which it is impossible to express any conclusive finding. The difficulty is enhanced by the fact that a photo copy of this report was annexed to the affidavit in reply by respondent No.1. The petitioners did not file an affidavit in rejoinder. They never alleged that the same was fabricated.The original file was perused by us. The photo copy is obviously taken from the original for the original contains the same erasures andThe photo copy is, therefore, of the original which was produced in Court.The petitioners not having challenged the report despite the fact that the same was annexed to the first respondents affidavit in reply, cannot be permitted to raise these allegations. In view thereof, it was not necessary for HPCL to have filed an affidavit of the members of the selection committee. In any event, the same would constitute a seriously disputed question of fact.10. In these circumstances, it is not possible to entertain the Writ Petition on the above allegations. The petitioners must be relegated to a regular suit for damages. | 0 | 1,014 | 231 | ### 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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S.J. Vazifdar, J.The petitioners are partners. Respondent Nos.2, 3 and 4 are the Hindustan Petroleum Corporation Limited (HPCL) and its Director of Marketing and Senior Regional Manager respectively. The petitioners have sought an order to set aside the decision of HPCL to scrap a merit list dated 20th January, 2010, and to hold a fresh interview. The petitioners have also sought an order to set aside the statement of award of marks dated 7th December, 2010, by the selection committee of HPCL.2. HPCL, by an advertisement dated 17th August, 2009, invited applications for the allotment of retail outlet dealership in the Satara District. Six applicants, including the petitioners and respondent No.1, filed applications for the same. The petitioners were invited for an interview.3. The selection committee declared a provisional mark list on 20th January, 2010. As per the said mark list, the petitioners were selected as they received the maximum marks of 251.40 out of 300. Respondent No.1 raised various grievances regarding the allocation of marks. The grievances were raised as per the grievance redressal system. The same were, however, rejected. Being aggrieved by the same, respondent No.1 filed Writ Petition No.5415 of 2010 to challenge the award of marks. The Writ Petition was opposed by HPCL. The Writ Petition was disposed of by the Division Bench by an order 5th October, 2010, which reads as under :-"1. This petition was heard at length and the learned Counsel for the petitioner pointed out some material errors in the totaling/submission of the marks allotted to the respondent No.1. The officers of the oil company clarified and agreed that the merit list suffer from arithmetical mistakes. It was under these circumstances that Shri D.S. Karkera, one of the officers of the Oil Company who is present before us has filed an affidavit stating that the Oil Company has decided to scrap the merit list which is the subject matter of challenge in this petition and hold a fresh interview of all the eligible candidates. It has been further clarified that after the de novo interviews fresh merit list will be published.""2. In the light of this affidavit filed by Shri D.S. Karkera, Mr. Mankapure, the learned Counsel for the petitioner seeks leave to withdraw the petition. Leave granted and the petition is disposed as withdrawn.""3. We hope that after the de novo interviews, the entire process upto issuance of the L.O.I. will be completed before 31st December, 2010."4. Mr. Dhakephalkar, the learned senior counsel appearing on behalf of the petitioners contended that there were no arithmetical mistakes in the first list and, therefore, the entire process which was undertaken de novo is liable to be quashed and set aside.5. The first respondent had obtained under the RTI Act, the relevant documents in respect of the first exercise which was challenged by her in the said Writ Petition No.5415 of 2010. She filed an affidavit in reply to the present Writ Petition in which she annexed, inter-alia, the TEC report which contained the evaluation by the site selection committee. Marks were allocated in respect of about 14 criteria. The aggregate marks were computed by the selection committee at 88 out of 100 in respect of the petitioners. This is an obvious arithmetical mistake for the aggregate mark obtained by the petitioners was 86 out of 100. As a result thereof, there was a further arithmetical error in the weighted marks. One of the components involved in computing the weighted mark was the marks awarded by the site selection committee. As a result of the arithmetical error in that component viz. 88 marks instead of 86, the calculation of the weighted marks also suffered from an arithmetical mistake.6. Faced with this, Mr. Dhakephalkar submitted that the TEC report containing the evaluation by the site selection committee was not reliable as it admittedly contains erasures and over-writing.7. We are afraid it is not possible for us in this Writ Petition, to determine whether the said report is fabricated or even unreliable. This is a question of fact in respect of which it is impossible to express any conclusive finding. The difficulty is enhanced by the fact that a photo copy of this report was annexed to the affidavit in reply by respondent No.1. The petitioners did not file an affidavit in rejoinder. They never alleged that the same was fabricated.The original file was perused by us. The photo copy is obviously taken from the original for the original contains the same erasures and over-writing. The photo copy is, therefore, of the original which was produced in Court.8. Mr. Dhakephalkar then submitted that the members of the selection committee themselves had not filed any affidavit confirming that it is they who had made the erasures. He submitted, therefore, that the possibility of the report having been tampered with by other officers subsequently, to favour the first respondent, cannot be ruled out.9. The petitioners not having challenged the report despite the fact that the same was annexed to the first respondents affidavit in reply, cannot be permitted to raise these allegations. In view thereof, it was not necessary for HPCL to have filed an affidavit of the members of the selection committee. In any event, the same would constitute a seriously disputed question of fact.10. In these circumstances, it is not possible to entertain the Writ Petition on the above allegations. The petitioners must be relegated to a regular suit for damages.
### Response:
0
### Explanation:
7. We are afraid it is not possible for us in this Writ Petition, to determine whether the said report is fabricated or even unreliable. This is a question of fact in respect of which it is impossible to express any conclusive finding. The difficulty is enhanced by the fact that a photo copy of this report was annexed to the affidavit in reply by respondent No.1. The petitioners did not file an affidavit in rejoinder. They never alleged that the same was fabricated.The original file was perused by us. The photo copy is obviously taken from the original for the original contains the same erasures andThe photo copy is, therefore, of the original which was produced in Court.The petitioners not having challenged the report despite the fact that the same was annexed to the first respondents affidavit in reply, cannot be permitted to raise these allegations. In view thereof, it was not necessary for HPCL to have filed an affidavit of the members of the selection committee. In any event, the same would constitute a seriously disputed question of fact.10. In these circumstances, it is not possible to entertain the Writ Petition on the above allegations. The petitioners must be relegated to a regular suit for damages.
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Commissioner of Sales Tax Vs. Kumaon Tractors and Motors | IA No. 2 - application for substitution is granted. Delay condoned. Heard the learned counsel for the parties. The Commissioner of Sales Tax, U.P., Lucknow has challenged the order dated 15-7-1998 passed by the High Court of Judicature at Allahabad in Sales Tax Revisions Nos. 438, 439, 440 and 441 of 1990. By the impugned judgment and order the High Court set aside the order dated 21-12-1989 passed by the Sales Tax Tribunal, Bareilly Bench, Bareilly and held that the assessee was not a dealer, but was only entitled to receive commission on all sales in the State. At the time of hearing of these appeals, learned counsel for the appellant submitted that the High Court exceeded its jurisdiction under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Trade Tax Act") by interfering with the concurrent finding of facts arrived at by the authorities below. Learned counsel pointed out that the authorities passed the order by relying upon the admission made by the assessee that the assessee was a dealer and purchaser of the tractors and that it supplied tractors to the purchasers at Nainital. Learned counsel for the appellant for this purpose pointed out the final order passed by the Sales Tax Authorities, U.P. wherein it has been pointed out that : 1. Madras Company instead of making the said supply directly to the customers has made it to the dealer and Form C has been given by the dealer. 2. The said purchase has been shown in the account books of the dealer as purchase and on that basis the bills were received from Madras Company, therefore, the Sales Tax Officer held that the said disputed supply made by Madras Company as having been made directly to the dealer. 3. In its statement before the authorities the dealer has admitted that the bills have been issued by Madras Company in their name and Central sales tax has been realised by Madras Company at the rate of 3 per cent. 4. The dealer also declared its inability to prove that disputed supply has been in fact made by the Company directly to the customer and not to it. 5. In its statement before the authorities the dealer told that goods which were sent by Madras Company directly to the customer of Uttar Pradesh yet on those goods their firm issued bills of sale but stated that it was done under mistake. 6. It is the submission of the learned counsel for the appellant that on the basis of these facts proved before the authorities if the authorities have arrived at the conclusion that the assessee was liable to pay sales tax as a dealer, it cannot be said that there was any question of law involved which was required to be determined by the High Court. 7. As against this, learned counsel for the respondent assessee submitted that from the facts stated above, there was a mixed question of law and facts involved and, therefore, the High Court rightly interfered with and relied upon the certificate issued by the purchaser of tractors. 8. From the facts discussed by the assessing authorities, it is apparent that the authorities arrived at a finding of fact that the assessee was a dealer by considering its books of accounts, bills issued by it and also Form C submitted by the assessee. The aforesaid documentary evidence produced by the assessee itself would reveal that the assessee was a dealer in tractors. The explanation given by the assessee that it was unaware of the law could hardly be accepted as there was no question of law involved in issuing bills, in preparing account books and submitting Form C. In any set of circumstances, it cannot be said that the order passed by the Sales Tax Tribunal affirming the orders passed by the authorities below was in any way illegal or erroneous. The High Court materially erred in relying upon the certificates dated 17-10-1981 and 16-4-1983 issued by the Uttar Pradesh Seeds and Tarai Development Corporation Limited for holding that the assessee was not a dealer, but was only entitled to have commission on such sales. It appears that the High Court ignored the provisions of Section 11 of the Trade Tax Act which confers limited jurisdiction to interfere with the order of the Tribunal only on the question of law, that too the said question of law is required to be precisely stated and formulated. Instead of deciding the question of law, the High Court simpliciter reappreciated the evidence and ignored the material documents maintained and produced by the assessee, that is, books of accounts, bills and Form C submitted by it. In this view of the matter, the impugned order cannot be sustained. | 1[ds]8. From the facts discussed by the assessing authorities, it is apparent that the authorities arrived at a finding of fact that the assessee was a dealer by considering its books of accounts, bills issued by it and also Form C submitted by the assessee. The aforesaid documentary evidence produced by the assessee itself would reveal that the assessee was a dealer in tractors. The explanation given by the assessee that it was unaware of the law could hardly be accepted as there was no question of law involved in issuing bills, in preparing account books and submitting Form C. In any set of circumstances, it cannot be said that the order passed by the Sales Tax Tribunal affirming the orders passed by the authorities below was in any way illegal or erroneous. The High Court materially erred in relying upon the certificates dated1 and3 issued by the Uttar Pradesh Seeds and Tarai Development Corporation Limited for holding that the assessee was not a dealer, but was only entitled to have commission on such sales. It appears that the High Court ignored the provisions of Section 11 of the Trade Tax Act which confers limited jurisdiction to interfere with the order of the Tribunal only on the question of law, that too the said question of law is required to be precisely stated and formulated. Instead of deciding the question of law, the High Court simpliciter reappreciated the evidence and ignored the material documents maintained and produced by the assessee, that is, books of accounts, bills and Form C submitted by it. In this view of the matter, the impugned order cannot be sustained. | 1 | 863 | 299 | ### 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:
IA No. 2 - application for substitution is granted. Delay condoned. Heard the learned counsel for the parties. The Commissioner of Sales Tax, U.P., Lucknow has challenged the order dated 15-7-1998 passed by the High Court of Judicature at Allahabad in Sales Tax Revisions Nos. 438, 439, 440 and 441 of 1990. By the impugned judgment and order the High Court set aside the order dated 21-12-1989 passed by the Sales Tax Tribunal, Bareilly Bench, Bareilly and held that the assessee was not a dealer, but was only entitled to receive commission on all sales in the State. At the time of hearing of these appeals, learned counsel for the appellant submitted that the High Court exceeded its jurisdiction under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Trade Tax Act") by interfering with the concurrent finding of facts arrived at by the authorities below. Learned counsel pointed out that the authorities passed the order by relying upon the admission made by the assessee that the assessee was a dealer and purchaser of the tractors and that it supplied tractors to the purchasers at Nainital. Learned counsel for the appellant for this purpose pointed out the final order passed by the Sales Tax Authorities, U.P. wherein it has been pointed out that : 1. Madras Company instead of making the said supply directly to the customers has made it to the dealer and Form C has been given by the dealer. 2. The said purchase has been shown in the account books of the dealer as purchase and on that basis the bills were received from Madras Company, therefore, the Sales Tax Officer held that the said disputed supply made by Madras Company as having been made directly to the dealer. 3. In its statement before the authorities the dealer has admitted that the bills have been issued by Madras Company in their name and Central sales tax has been realised by Madras Company at the rate of 3 per cent. 4. The dealer also declared its inability to prove that disputed supply has been in fact made by the Company directly to the customer and not to it. 5. In its statement before the authorities the dealer told that goods which were sent by Madras Company directly to the customer of Uttar Pradesh yet on those goods their firm issued bills of sale but stated that it was done under mistake. 6. It is the submission of the learned counsel for the appellant that on the basis of these facts proved before the authorities if the authorities have arrived at the conclusion that the assessee was liable to pay sales tax as a dealer, it cannot be said that there was any question of law involved which was required to be determined by the High Court. 7. As against this, learned counsel for the respondent assessee submitted that from the facts stated above, there was a mixed question of law and facts involved and, therefore, the High Court rightly interfered with and relied upon the certificate issued by the purchaser of tractors. 8. From the facts discussed by the assessing authorities, it is apparent that the authorities arrived at a finding of fact that the assessee was a dealer by considering its books of accounts, bills issued by it and also Form C submitted by the assessee. The aforesaid documentary evidence produced by the assessee itself would reveal that the assessee was a dealer in tractors. The explanation given by the assessee that it was unaware of the law could hardly be accepted as there was no question of law involved in issuing bills, in preparing account books and submitting Form C. In any set of circumstances, it cannot be said that the order passed by the Sales Tax Tribunal affirming the orders passed by the authorities below was in any way illegal or erroneous. The High Court materially erred in relying upon the certificates dated 17-10-1981 and 16-4-1983 issued by the Uttar Pradesh Seeds and Tarai Development Corporation Limited for holding that the assessee was not a dealer, but was only entitled to have commission on such sales. It appears that the High Court ignored the provisions of Section 11 of the Trade Tax Act which confers limited jurisdiction to interfere with the order of the Tribunal only on the question of law, that too the said question of law is required to be precisely stated and formulated. Instead of deciding the question of law, the High Court simpliciter reappreciated the evidence and ignored the material documents maintained and produced by the assessee, that is, books of accounts, bills and Form C submitted by it. In this view of the matter, the impugned order cannot be sustained.
### Response:
1
### Explanation:
8. From the facts discussed by the assessing authorities, it is apparent that the authorities arrived at a finding of fact that the assessee was a dealer by considering its books of accounts, bills issued by it and also Form C submitted by the assessee. The aforesaid documentary evidence produced by the assessee itself would reveal that the assessee was a dealer in tractors. The explanation given by the assessee that it was unaware of the law could hardly be accepted as there was no question of law involved in issuing bills, in preparing account books and submitting Form C. In any set of circumstances, it cannot be said that the order passed by the Sales Tax Tribunal affirming the orders passed by the authorities below was in any way illegal or erroneous. The High Court materially erred in relying upon the certificates dated1 and3 issued by the Uttar Pradesh Seeds and Tarai Development Corporation Limited for holding that the assessee was not a dealer, but was only entitled to have commission on such sales. It appears that the High Court ignored the provisions of Section 11 of the Trade Tax Act which confers limited jurisdiction to interfere with the order of the Tribunal only on the question of law, that too the said question of law is required to be precisely stated and formulated. Instead of deciding the question of law, the High Court simpliciter reappreciated the evidence and ignored the material documents maintained and produced by the assessee, that is, books of accounts, bills and Form C submitted by it. In this view of the matter, the impugned order cannot be sustained.
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Vidya Prakash Vs. Union Of India & Ors | is disqualified for serving on a general or district Court martial if he— (a) is an officer who convened the court; or (b) is the prosecutor or a witness for the prosecution; or (d) investigated the charges before trial, or took down the summary of evidence, or was a member of a Court of inquiry respecting the matters on which the charges against the accused are founded, or was the Squadron, battery, company, or other commander, who made preliminary inquiry into the case, or was a member of a previous court-martial which tried the accused in respect of the same offence; or (e) is the commanding officer of the accused, or of the corps to which the accused belongs; or (f) has a personal interest in the case.? 12. Rule 19(2) provides that an officer who is the Commanding Officer of the accused or of the corps to which the accused belongs or who is an officer who convened the Court or who is the prosecutor or a witness for the prosecution and who has a personal interest in the case, is not eligible for serving on a general or district Court Martial. There are four kinds of Court martials specified in Section 108 of the Army Act, 1950. These are: (a) General Courts-Martial; (b) District Courts-Martial; (c) Summary General Courts-Martial; (d) Summary Courts-Martial; 13. Section 116 of the said Act says that a summary Court martial may be held by the commanding officer of any corps or department or detachment of the regular Army, and he shall alone constitute the court. It further provides that the proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed. In the instant case a summary Court martial was held by the Commanding Officer, Major P.S. Mahant in accordance with the provisions of Section 116 of the Army Act. The Commanding Officer of the Corps, Department or Detachment of the Regular Army to which the appellant belongs, is quite competent in ac-cordance with the provisions of Section 116 of the said Act and as such the constitution of the summary Court martial by the Commanding Officer of the Corps cannot be questioned as illegal or incompetent, it is neither a general Court martial nor a district Court martial where the appellant?s case was tried and decided. In case of general Court martial or district Court martial Rule 39(2) of the Army Rules, 1954 is applicable and the Comman-ding Officer is not competent to convene general or district Court martial. The summary Court martial was held by the Commanding Officer of the corps, Major P.S. Mahant and there are two other officers including Capt. K.J. Singh and another officer to attend the proceedings. In such circum-stances, the summary Court martial having been converted by the Comman-ding Officer of the corps according to the provisions of the Army Act, 1950, the first submission made on behalf of the appellant fails. 14. Chapter 6 of the Army Act specifies the offences and also the punishments for such offences. Section 39(a) specifies that to be absent without leave constitutes an offence and Section 71(e) of the said Act provides dismissal from service as one of the punishments for such an offence. The appellant undoubtedly absented himself from duty without taking any leave from the lines as required under the Army Act, The appellant was charge-sheeted for the said offence and he was tried by a summary Court martial convened by the Commanding Officer and after giving him due opportunity it was held that the appellant was previously punished also for the offence of absence from duty on four occasions and there was a red ink entry. Considering all this in the summary Court martial proceedings he was con-victed and sentenced to the punishment of dismissal from service. The submission that the punishment is disproportionate to charge is wholly unsustainable. The summary Court martial constituted by Major P.S. Mahant after considering the evidences has found the appellant guilty of the alleged charge and awarded the said punishment in accordance with the provisions of the Army Act. As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality. 15. It has been urged on behalf of the appellant that he raised an objection to Major P.S. Mahant to preside over the summary Court martial. It has also been urged that at the time of taking evidence of the witnesses, the appellant was asked to keep his mouth shut and as such the appellant could not cross-examine the witnesses examined on behalf of the prosecu-tion, thereby the principles of natural justice have been violated. It appears that the appellant has not filed any objection before the summary Court martial objecting to the presiding of the Court martial proceedings by Major P.S Mahant nor any such objection had been taken in the writ petition moved before the High Court. It is for the first time in the appeal which the appellant filed before the Chief of the Army Staff (Competent Authority), Army Headquarters, New Delhi that he raised an objection to the presiding of Major P.S Mahant as Judge of the Court martial proceedings. It has been rightly held by the High Court that this is an after-thought and as such this submission cannot be permitted to be made by the appellant after the Court martial proceedings were completed and the order of dismissal from service was made. As regards the other objection that he was directed by Capt. K.J. Singh to keep his mouth shut, it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross-examined the prosecution witnesses. It is also evident from the judgment of the Delhi High Court that the applicant admitted his guilt of absenting from duty without taking any leave. | 0[ds]It is for the first time in the appeal which the appellant filed before the Chief of the Army Staff (Competent Authority), Army Headquarters, New Delhi that he raised an objection to the presiding of Major P.S Mahant as Judge of the Court martial proceedings. It has been rightly held by the High Court that this is an after-thought and as such this submission cannot be permitted to be made by the appellant after the Court martial proceedings were completed and the order of dismissal from service was made. As regards the other objection that he was directed by Capt. K.J. Singh to keep his mouth shut, it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross-examined the prosecution witnesses. It is also evident from the judgment of the Delhi High Court that the applicant admitted his guilt of absenting from duty without taking any leave. | 0 | 2,862 | 177 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
is disqualified for serving on a general or district Court martial if he— (a) is an officer who convened the court; or (b) is the prosecutor or a witness for the prosecution; or (d) investigated the charges before trial, or took down the summary of evidence, or was a member of a Court of inquiry respecting the matters on which the charges against the accused are founded, or was the Squadron, battery, company, or other commander, who made preliminary inquiry into the case, or was a member of a previous court-martial which tried the accused in respect of the same offence; or (e) is the commanding officer of the accused, or of the corps to which the accused belongs; or (f) has a personal interest in the case.? 12. Rule 19(2) provides that an officer who is the Commanding Officer of the accused or of the corps to which the accused belongs or who is an officer who convened the Court or who is the prosecutor or a witness for the prosecution and who has a personal interest in the case, is not eligible for serving on a general or district Court Martial. There are four kinds of Court martials specified in Section 108 of the Army Act, 1950. These are: (a) General Courts-Martial; (b) District Courts-Martial; (c) Summary General Courts-Martial; (d) Summary Courts-Martial; 13. Section 116 of the said Act says that a summary Court martial may be held by the commanding officer of any corps or department or detachment of the regular Army, and he shall alone constitute the court. It further provides that the proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed. In the instant case a summary Court martial was held by the Commanding Officer, Major P.S. Mahant in accordance with the provisions of Section 116 of the Army Act. The Commanding Officer of the Corps, Department or Detachment of the Regular Army to which the appellant belongs, is quite competent in ac-cordance with the provisions of Section 116 of the said Act and as such the constitution of the summary Court martial by the Commanding Officer of the Corps cannot be questioned as illegal or incompetent, it is neither a general Court martial nor a district Court martial where the appellant?s case was tried and decided. In case of general Court martial or district Court martial Rule 39(2) of the Army Rules, 1954 is applicable and the Comman-ding Officer is not competent to convene general or district Court martial. The summary Court martial was held by the Commanding Officer of the corps, Major P.S. Mahant and there are two other officers including Capt. K.J. Singh and another officer to attend the proceedings. In such circum-stances, the summary Court martial having been converted by the Comman-ding Officer of the corps according to the provisions of the Army Act, 1950, the first submission made on behalf of the appellant fails. 14. Chapter 6 of the Army Act specifies the offences and also the punishments for such offences. Section 39(a) specifies that to be absent without leave constitutes an offence and Section 71(e) of the said Act provides dismissal from service as one of the punishments for such an offence. The appellant undoubtedly absented himself from duty without taking any leave from the lines as required under the Army Act, The appellant was charge-sheeted for the said offence and he was tried by a summary Court martial convened by the Commanding Officer and after giving him due opportunity it was held that the appellant was previously punished also for the offence of absence from duty on four occasions and there was a red ink entry. Considering all this in the summary Court martial proceedings he was con-victed and sentenced to the punishment of dismissal from service. The submission that the punishment is disproportionate to charge is wholly unsustainable. The summary Court martial constituted by Major P.S. Mahant after considering the evidences has found the appellant guilty of the alleged charge and awarded the said punishment in accordance with the provisions of the Army Act. As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality. 15. It has been urged on behalf of the appellant that he raised an objection to Major P.S. Mahant to preside over the summary Court martial. It has also been urged that at the time of taking evidence of the witnesses, the appellant was asked to keep his mouth shut and as such the appellant could not cross-examine the witnesses examined on behalf of the prosecu-tion, thereby the principles of natural justice have been violated. It appears that the appellant has not filed any objection before the summary Court martial objecting to the presiding of the Court martial proceedings by Major P.S Mahant nor any such objection had been taken in the writ petition moved before the High Court. It is for the first time in the appeal which the appellant filed before the Chief of the Army Staff (Competent Authority), Army Headquarters, New Delhi that he raised an objection to the presiding of Major P.S Mahant as Judge of the Court martial proceedings. It has been rightly held by the High Court that this is an after-thought and as such this submission cannot be permitted to be made by the appellant after the Court martial proceedings were completed and the order of dismissal from service was made. As regards the other objection that he was directed by Capt. K.J. Singh to keep his mouth shut, it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross-examined the prosecution witnesses. It is also evident from the judgment of the Delhi High Court that the applicant admitted his guilt of absenting from duty without taking any leave.
### Response:
0
### Explanation:
It is for the first time in the appeal which the appellant filed before the Chief of the Army Staff (Competent Authority), Army Headquarters, New Delhi that he raised an objection to the presiding of Major P.S Mahant as Judge of the Court martial proceedings. It has been rightly held by the High Court that this is an after-thought and as such this submission cannot be permitted to be made by the appellant after the Court martial proceedings were completed and the order of dismissal from service was made. As regards the other objection that he was directed by Capt. K.J. Singh to keep his mouth shut, it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross-examined the prosecution witnesses. It is also evident from the judgment of the Delhi High Court that the applicant admitted his guilt of absenting from duty without taking any leave.
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Uday Shantikumar Dixit Vs. Larsen & Toubro Limited & Others | a letter to one Mr.V.K. Arora, his superior, essentially complaining that he works hard and his work was acknowledged yet he had not been promoted. He complained that the failure to promote him is de-motivating even after 28 years of service. He specified various work undertaken by him in commissioning department and support activities such as identifying materials, major site co-ordination for dispatch of materials to various premises and setting up guest house for bigger sites at Jamnagar, Hyderabad and Chittorgarh. He had introduced new courier services at Jamnagar reducing courier expenses. Thus, he submitted that despite numerous such activities undertaken by him he did not receive promotion. Furthermore, in his complaint in paragraph 16-G the petitioner has contended that despite being designated as a supervisor the work assigned is in nature of that performed by workman. I am unable to find any substance in this contention in the complaint, since the nature of work clearly indicates the work of supervisory cadre was indeed supervisory in nature and in my view there is no substance in the contention that he continued as workman but with designation of a supervisor.24. In Sonepat Cooperative Sugar Mills Ltd. (supra), the Supreme Court held that a person performing any manual, unskilled, skilled, technical, operational, clerical or supervisory work in any industry would be covered by Section 2(s). Persons employed in a supervisory capacity, draws wages exceeding Rs.1600/- or doing a managerial or administrative work were excluded. It was further observed that the job of a clerk implies stereo typed work without power of control or initiative or creativeness. To ascertain whether a person has been performing a clerical work or not, is required to be determined based on the dominant nature of work. It was not enough and it would not be correct to say that merely because an employee has not been performing managerial or supervisory work, it would make him a workman. Various other examples are also alluded to in case of Sundarambal vs. Govt. of Goa, Daman and Diu (1988) 4 SCC 42. Applying the test in Sonepat Cooperative Sugar Mills Ltd. (supra) it is evident that in the present case the petitioner could not have been described as a workman in the capacity in which he was working at the time of his transfer. It must be borne in mind that the petitioner has worked in said capacity for several years and was office bearer of LTOSA and had complained that the transfer would deprive him of the protection of the said association. The findings that the petitioner was not doing clerical work in the impugned order cannot be faulted in the facts of the present case.25. In Mukesh Tripathi (supra) the Supreme Court had yet another occasion to hold that the workman must not only establish that he is employed in establishment for the purpose of doing any work contemplated in the definition and that in case where a person raises a contention that his status has changed, he must plead and prove the fact. The Court already held that the definition of workman under Section 2(s) of the Industrial Disputes Act was exhaustive. In the present case none of the pleadings of the petitioner is to the effect that the transfer was malafide. The challenge is not on the basis of change of nature of employment and that he was been deprived of the benefits available to workmen.26. In Vandana Joshi (supra) the Division Bench while following the decision in Mukesh Tripathi (supra) reiterated the decision of the Supreme Court in Ganga Kisan Sahkari Chini Mills Ltd. Vs. Jaivir Singh 2007(III) CLR 840 to the effect that the burden of proof to establish nature of appointment was not on the employer. The ratio that flows from the decision in Mukesh Tripathi (supra) and Ganga Kisan Sahakari Chini Mills Ltd. (supra) was that the appellant had to prove that he or she was a workman with reference to dominant nature of duties. In the present case, I have no hesitation in holding that the petitioner has failed to discharge this burden.27. There is no doubt that petitioner held a transferable job and did initially agreed to report to Mysore. Mr. Cama in the course of submission invited my attention to schedule of amendment proposed by the petitioner in the complaint. In paragraph 5.3(w), the petitioner complained that he had been denied protection and backup of fellow members of LTOSA and he had been deliberately transferred out of purview of LTOSA and therefore would not have protection at Mysore. This he submitted was one more indication of the fact that the petitioner was never keen to join at Mysore. Although Mr. Singhvi pointed out that the amendment had not been permitted that by itself would not make the proposed amendments irrelevant. To my mind, the contents of the proposed amendment are useful in order to evaluate the argument on behalf of the petitioner that he was at all times workman and continue to do the job of workman although he had been granted designation of a supervisor.28. Furthermore, Mr. Singhvi has contended that the petitioner has never claimed to be doing work of clerical nature but of a workman. He further submitted that the respondent did not deny that the petitioner is not doing clerical work and that all documents relied upon by the petitioner only indicate that he was executing certain jobs on instructions of superior including that of setting up guest house etc. In conclusion, I am satisfied that the transfer was not malafide. There is also no substance in the contention that the petitioner was victimised. The petitioner simply refused to report for work based on his own judgment of the reason for the transfer. Nothing shown to me justifies the petitioner allegations in his complaint. The impugned order is in my view well reasoned and fair I am of the view that the petitioner has failed to make out a case for interference by this Court. | 0[ds]14. Having heard learned counsel for the parties, their submissions and having perused the impugned order, I find the order of the transfer set out the terms and conditions wherein clause (4) deals with the Provident Fund which require him to be enrolled to LarsenOn 19th November, 2012 the petitioner replied, reiterating that he has been suffering from Asthma and hypertension and relied upon medical certificate. He expressed unwillingness to travel to Andheri for medical check up. He stated that he was unable to report to Mysore and sought reconsideration of the decision. The complaint is seen to be filed on the same date i.e. 19th November, 2012. Thus, it is not a case that the petitioner was so unwell that he could not have attended medical check up at Andheri. The petitioner thereafter moved an application Exhibitseeking reliefs against the transfer. The application for injunction came to be rejected on 15th January, 2013 and on 28th January, 2013 the petitioner wrote to the H.R. department wanting to continue good relations with the company, protesting promotion from draughtsman to Supervisory cadre and once again requesting that he be permitted continue to work in Mumbai. On 11th March, 2013 the company called upon the petitioner to report at the Mysore establishment. Meanwhile the petitioner challenged the order of the Industrial Court dismissing the application for grant ofrelief in the complaint. This Court rejected the petition directing the Industrial Court to expedite decision on the complaint. Aggrieved by that, the petitioner challenged the order of the High Court in SLP No.29306 of 2013. The SLP was dismissed on 30th September, 2013 and the trial proceeded.17. It appears that the Union was formed in 2006 and therefore the petitioner cannot contend that he was victimised. The allegation of malafides if at all proceeds on the basis of victimisation and not on the basis that he was indulging in union activities. It is further observed that into promotion advice dated 26th November, 2001, the petitioner was paid Special Compensatory Allowance and all other allowances such as dearness allowance, Additional Conveyance allowance, HRA, etc. which were effectively changed to that applicable to the supervisory cadre. Thus different service conditions applied to him from the date of change in cadre.18. Vide letter dated 2nd March, 2013 addressed by to the HR department. LTOSA complained of financial loss to unionised workers, who were promoted to supervisory cadre. The petitioner is signatory to the said communication in his capacity as Vice President of the Union. If indeed he was aggrieved by the promotion to the supervisory cadre he would have raised the issue in his own case through the LTOSA which he actively represented as Vice President. Furthermore, it is obvious that most employees have been in supervisory cadre would not have complete and absolute control over the affairs of department they were employed in.19. Reliance placed by Mr. Singhvi on the fact that the petitioner was acting under advice of the superior will not help the petitioner to establish that he was in fact a workman and at all times continue to do task assign to a workman. It is clear that most supervisory jobs will have a reporting hierarchy and save and except for the Managing Director or such other highly placed officials most of others would have to act in accordance with a reporting hierarchy.20. In Bombay Dyeing (supra) the Division Bench of this Court dealt with the role of a supervisor finding that it contemplated a certain number of persons working under a supervisor. If a person is doing any work which does not require him to look after or inspect or examine the work of persons who are subordinate to him or working under him, such person cannot be said to be a supervisor. Supervision necessarily requires reference to persons working under a supervisor as against machines. Supervising a machine does not make him a supervisor. Mr. Singhvi, therefore, submitted that in the facts of the case, it is more than evident that the petitioner was not a supervisor in real sense of the word. In National Engineering Industries Ltd. (supra) the Supreme Court had made a reference to its previous judgment in Burmah Shell Storage and Distribution of India Vs. Burmah Shell Management Staff Association AIR 1971 SC 922 and D.P. Maheshwari Vs. Delhi Administration AIR 1984 SC 153 observing that one should consider the main work that the person is required to do even though there may be other types of work carried out incidentally. That an Accountant is supposed to sign the salary bills of the staff even while performing the duties of a clerk and that did not make him an employee in a managerial or administrative capacity and person concerned was held to be clerk. In D.P. Maheshwari (supra) it was found that the main work should be such that a supervisor could bind the company to take some kind of decision on behalf of the company. Merely referring to the affairs of the company do not make him a supervisor.21. Aloysius Nunes (supra) quotes Mcleod and Co. Vs. Sixth Industrial Tribunal AIR 1958 Calcutta 273 wherein a Single Judge of the Calcutta High Court considered the expressions managerial. administrative and supervisor holding that the word supervisory was advisedly a loose expression with no rigid frontiers and would discourage too much sublety in trying to precisely define where supervision ends, and management begins. The Apex Court had upheld this view of the Calcutta High Court in National Engineering (supra) holding that the test is whether while discharging managerial or administrative duties any supervisory work was performed. Similarly, Aloysius Nunes (supra) also relied upon the decision of the Supreme Court in D.P. Maheshwari (supra) and Bombay Dyeing (supra).22. In Pushpakaran (supra) the Kerala High Court observed that the right to transfer an employee is a powerful weapon in the hands of the employer and sometimes more dangerous than other punishment. That the Court must tear the veil of deceptive innocuousness and see what exactly motivated the transfer. If the Court is satisfied that the real object of transfer is not what is apparent, the Court must examine what exactly was behind the transfer.23. I do not see any of these cited judgments coming to the assistance of Mr. Singhvi. In the facts of the case, I find that the petitioner was certainly not carrying out functions of a workman at the material time. The petitioner admits to have carrying out responsible activities on behalf of the employer some of which bind the employer qua third parties. Obligations were being incurred by the company as a result of tasks carried out by the petitioner. Various other documents were referred on behalf of the respondents to contend that the petitioner had undertaken more than clerical job inasmuch as he approved travel expenses of other employees and even executives. On 20th July, 2007 on behalf of the company entered into an agreement of lease in respect of premises at Jamnagar. This is an admitted fact and according to the respondents a clear indication of the fact that he was not merely a workman. I am unable to accept the contention of the petitioner that these are clerical duties. It is pertinent to note that the petitioner had on 18th July, 2008 written a letter to one Mr.V.K. Arora, his superior, essentially complaining that he works hard and his work was acknowledged yet he had not been promoted. He complained that the failure to promote him iseven after 28 years of service. He specified various work undertaken by him in commissioning department and support activities such as identifying materials, major sitefor dispatch of materials to various premises and setting up guest house for bigger sites at Jamnagar, Hyderabad and Chittorgarh. He had introduced new courier services at Jamnagar reducing courier expenses. Thus, he submitted that despite numerous such activities undertaken by him he did not receive promotion. Furthermore, in his complaint in paragraphthe petitioner has contended that despite being designated as a supervisor the work assigned is in nature of that performed by workman. I am unable to find any substance in this contention in the complaint, since the nature of work clearly indicates the work of supervisory cadre was indeed supervisory in nature and in my view there is no substance in the contention that he continued as workman but with designation of a supervisor.24. In Sonepat Cooperative Sugar Mills Ltd. (supra), the Supreme Court held that a person performing any manual, unskilled, skilled, technical, operational, clerical or supervisory work in any industry would be covered by Section 2(s). Persons employed in a supervisory capacity, draws wages exceeding Rs.1600/or doing a managerial or administrative work were excluded. It was further observed that the job of a clerk implies stereo typed work without power of control or initiative or creativeness. To ascertain whether a person has been performing a clerical work or not, is required to be determined based on the dominant nature of work. It was not enough and it would not be correct to say that merely because an employee has not been performing managerial or supervisory work, it would make him a workman. Various other examples are also alluded to in case of Sundarambal vs. Govt. of Goa, Daman and Diu (1988) 4 SCC 42. Applying the test in Sonepat Cooperative Sugar Mills Ltd. (supra) it is evident that in the present case the petitioner could not have been described as a workman in the capacity in which he was working at the time of his transfer. It must be borne in mind that the petitioner has worked in said capacity for several years and was office bearer of LTOSA and had complained that the transfer would deprive him of the protection of the said association. The findings that the petitioner was not doing clerical work in the impugned order cannot be faulted in the facts of the present case.25. In Mukesh Tripathi (supra) the Supreme Court had yet another occasion to hold that the workman must not only establish that he is employed in establishment for the purpose of doing any work contemplated in the definition and that in case where a person raises a contention that his status has changed, he must plead and prove the fact. The Court already held that the definition of workman under Section 2(s) of the Industrial Disputes Act was exhaustive. In the present case none of the pleadings of the petitioner is to the effect that the transfer was malafide. The challenge is not on the basis of change of nature of employment and that he was been deprived of the benefits available to workmen.26. In Vandana Joshi (supra) the Division Bench while following the decision in Mukesh Tripathi (supra) reiterated the decision of the Supreme Court in Ganga Kisan Sahkari Chini Mills Ltd. Vs. Jaivir Singh 2007(III) CLR 840 to the effect that the burden of proof to establish nature of appointment was not on the employer. The ratio that flows from the decision in Mukesh Tripathi (supra) and Ganga Kisan Sahakari Chini Mills Ltd. (supra) was that the appellant had to prove that he or she was a workman with reference to dominant nature of duties. In the present case, I have no hesitation in holding that the petitioner has failed to discharge this burden.27. There is no doubt that petitioner held a transferable job and did initially agreed to report to Mysore. Mr. Cama in the course of submission invited my attention to schedule of amendment proposed by the petitioner in the complaint. In paragraph 5.3(w), the petitioner complained that he had been denied protection and backup of fellow members of LTOSA and he had been deliberately transferred out of purview of LTOSA and therefore would not have protection at Mysore. This he submitted was one more indication of the fact that the petitioner was never keen to join at Mysore. Although Mr. Singhvi pointed out that the amendment had not been permitted that by itself would not make the proposed amendments irrelevant. To my mind, the contents of the proposed amendment are useful in order to evaluate the argument on behalf of the petitioner that he was at all times workman and continue to do the job of workman although he had been granted designation of a supervisor.28. Furthermore, Mr. Singhvi has contended that the petitioner has never claimed to be doing work of clerical nature but of a workman. He further submitted that the respondent did not deny that the petitioner is not doing clerical work and that all documents relied upon by the petitioner only indicate that he was executing certain jobs on instructions of superior including that of setting up guest house etc. In conclusion, I am satisfied that the transfer was not malafide. There is also no substance in the contention that the petitioner was victimised. The petitioner simply refused to report for work based on his own judgment of the reason for the transfer. Nothing shown to me justifies the petitioner allegations in his complaint. The impugned order is in my view well reasoned and fair I am of the view that the petitioner has failed to make out a case for interference by this Court. | 0 | 5,197 | 2,416 | ### Instruction:
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a letter to one Mr.V.K. Arora, his superior, essentially complaining that he works hard and his work was acknowledged yet he had not been promoted. He complained that the failure to promote him is de-motivating even after 28 years of service. He specified various work undertaken by him in commissioning department and support activities such as identifying materials, major site co-ordination for dispatch of materials to various premises and setting up guest house for bigger sites at Jamnagar, Hyderabad and Chittorgarh. He had introduced new courier services at Jamnagar reducing courier expenses. Thus, he submitted that despite numerous such activities undertaken by him he did not receive promotion. Furthermore, in his complaint in paragraph 16-G the petitioner has contended that despite being designated as a supervisor the work assigned is in nature of that performed by workman. I am unable to find any substance in this contention in the complaint, since the nature of work clearly indicates the work of supervisory cadre was indeed supervisory in nature and in my view there is no substance in the contention that he continued as workman but with designation of a supervisor.24. In Sonepat Cooperative Sugar Mills Ltd. (supra), the Supreme Court held that a person performing any manual, unskilled, skilled, technical, operational, clerical or supervisory work in any industry would be covered by Section 2(s). Persons employed in a supervisory capacity, draws wages exceeding Rs.1600/- or doing a managerial or administrative work were excluded. It was further observed that the job of a clerk implies stereo typed work without power of control or initiative or creativeness. To ascertain whether a person has been performing a clerical work or not, is required to be determined based on the dominant nature of work. It was not enough and it would not be correct to say that merely because an employee has not been performing managerial or supervisory work, it would make him a workman. Various other examples are also alluded to in case of Sundarambal vs. Govt. of Goa, Daman and Diu (1988) 4 SCC 42. Applying the test in Sonepat Cooperative Sugar Mills Ltd. (supra) it is evident that in the present case the petitioner could not have been described as a workman in the capacity in which he was working at the time of his transfer. It must be borne in mind that the petitioner has worked in said capacity for several years and was office bearer of LTOSA and had complained that the transfer would deprive him of the protection of the said association. The findings that the petitioner was not doing clerical work in the impugned order cannot be faulted in the facts of the present case.25. In Mukesh Tripathi (supra) the Supreme Court had yet another occasion to hold that the workman must not only establish that he is employed in establishment for the purpose of doing any work contemplated in the definition and that in case where a person raises a contention that his status has changed, he must plead and prove the fact. The Court already held that the definition of workman under Section 2(s) of the Industrial Disputes Act was exhaustive. In the present case none of the pleadings of the petitioner is to the effect that the transfer was malafide. The challenge is not on the basis of change of nature of employment and that he was been deprived of the benefits available to workmen.26. In Vandana Joshi (supra) the Division Bench while following the decision in Mukesh Tripathi (supra) reiterated the decision of the Supreme Court in Ganga Kisan Sahkari Chini Mills Ltd. Vs. Jaivir Singh 2007(III) CLR 840 to the effect that the burden of proof to establish nature of appointment was not on the employer. The ratio that flows from the decision in Mukesh Tripathi (supra) and Ganga Kisan Sahakari Chini Mills Ltd. (supra) was that the appellant had to prove that he or she was a workman with reference to dominant nature of duties. In the present case, I have no hesitation in holding that the petitioner has failed to discharge this burden.27. There is no doubt that petitioner held a transferable job and did initially agreed to report to Mysore. Mr. Cama in the course of submission invited my attention to schedule of amendment proposed by the petitioner in the complaint. In paragraph 5.3(w), the petitioner complained that he had been denied protection and backup of fellow members of LTOSA and he had been deliberately transferred out of purview of LTOSA and therefore would not have protection at Mysore. This he submitted was one more indication of the fact that the petitioner was never keen to join at Mysore. Although Mr. Singhvi pointed out that the amendment had not been permitted that by itself would not make the proposed amendments irrelevant. To my mind, the contents of the proposed amendment are useful in order to evaluate the argument on behalf of the petitioner that he was at all times workman and continue to do the job of workman although he had been granted designation of a supervisor.28. Furthermore, Mr. Singhvi has contended that the petitioner has never claimed to be doing work of clerical nature but of a workman. He further submitted that the respondent did not deny that the petitioner is not doing clerical work and that all documents relied upon by the petitioner only indicate that he was executing certain jobs on instructions of superior including that of setting up guest house etc. In conclusion, I am satisfied that the transfer was not malafide. There is also no substance in the contention that the petitioner was victimised. The petitioner simply refused to report for work based on his own judgment of the reason for the transfer. Nothing shown to me justifies the petitioner allegations in his complaint. The impugned order is in my view well reasoned and fair I am of the view that the petitioner has failed to make out a case for interference by this Court.
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on 18th July, 2008 written a letter to one Mr.V.K. Arora, his superior, essentially complaining that he works hard and his work was acknowledged yet he had not been promoted. He complained that the failure to promote him iseven after 28 years of service. He specified various work undertaken by him in commissioning department and support activities such as identifying materials, major sitefor dispatch of materials to various premises and setting up guest house for bigger sites at Jamnagar, Hyderabad and Chittorgarh. He had introduced new courier services at Jamnagar reducing courier expenses. Thus, he submitted that despite numerous such activities undertaken by him he did not receive promotion. Furthermore, in his complaint in paragraphthe petitioner has contended that despite being designated as a supervisor the work assigned is in nature of that performed by workman. I am unable to find any substance in this contention in the complaint, since the nature of work clearly indicates the work of supervisory cadre was indeed supervisory in nature and in my view there is no substance in the contention that he continued as workman but with designation of a supervisor.24. In Sonepat Cooperative Sugar Mills Ltd. (supra), the Supreme Court held that a person performing any manual, unskilled, skilled, technical, operational, clerical or supervisory work in any industry would be covered by Section 2(s). Persons employed in a supervisory capacity, draws wages exceeding Rs.1600/or doing a managerial or administrative work were excluded. It was further observed that the job of a clerk implies stereo typed work without power of control or initiative or creativeness. To ascertain whether a person has been performing a clerical work or not, is required to be determined based on the dominant nature of work. It was not enough and it would not be correct to say that merely because an employee has not been performing managerial or supervisory work, it would make him a workman. Various other examples are also alluded to in case of Sundarambal vs. Govt. of Goa, Daman and Diu (1988) 4 SCC 42. Applying the test in Sonepat Cooperative Sugar Mills Ltd. (supra) it is evident that in the present case the petitioner could not have been described as a workman in the capacity in which he was working at the time of his transfer. It must be borne in mind that the petitioner has worked in said capacity for several years and was office bearer of LTOSA and had complained that the transfer would deprive him of the protection of the said association. The findings that the petitioner was not doing clerical work in the impugned order cannot be faulted in the facts of the present case.25. In Mukesh Tripathi (supra) the Supreme Court had yet another occasion to hold that the workman must not only establish that he is employed in establishment for the purpose of doing any work contemplated in the definition and that in case where a person raises a contention that his status has changed, he must plead and prove the fact. The Court already held that the definition of workman under Section 2(s) of the Industrial Disputes Act was exhaustive. In the present case none of the pleadings of the petitioner is to the effect that the transfer was malafide. The challenge is not on the basis of change of nature of employment and that he was been deprived of the benefits available to workmen.26. In Vandana Joshi (supra) the Division Bench while following the decision in Mukesh Tripathi (supra) reiterated the decision of the Supreme Court in Ganga Kisan Sahkari Chini Mills Ltd. Vs. Jaivir Singh 2007(III) CLR 840 to the effect that the burden of proof to establish nature of appointment was not on the employer. The ratio that flows from the decision in Mukesh Tripathi (supra) and Ganga Kisan Sahakari Chini Mills Ltd. (supra) was that the appellant had to prove that he or she was a workman with reference to dominant nature of duties. In the present case, I have no hesitation in holding that the petitioner has failed to discharge this burden.27. There is no doubt that petitioner held a transferable job and did initially agreed to report to Mysore. Mr. Cama in the course of submission invited my attention to schedule of amendment proposed by the petitioner in the complaint. In paragraph 5.3(w), the petitioner complained that he had been denied protection and backup of fellow members of LTOSA and he had been deliberately transferred out of purview of LTOSA and therefore would not have protection at Mysore. This he submitted was one more indication of the fact that the petitioner was never keen to join at Mysore. Although Mr. Singhvi pointed out that the amendment had not been permitted that by itself would not make the proposed amendments irrelevant. To my mind, the contents of the proposed amendment are useful in order to evaluate the argument on behalf of the petitioner that he was at all times workman and continue to do the job of workman although he had been granted designation of a supervisor.28. Furthermore, Mr. Singhvi has contended that the petitioner has never claimed to be doing work of clerical nature but of a workman. He further submitted that the respondent did not deny that the petitioner is not doing clerical work and that all documents relied upon by the petitioner only indicate that he was executing certain jobs on instructions of superior including that of setting up guest house etc. In conclusion, I am satisfied that the transfer was not malafide. There is also no substance in the contention that the petitioner was victimised. The petitioner simply refused to report for work based on his own judgment of the reason for the transfer. Nothing shown to me justifies the petitioner allegations in his complaint. The impugned order is in my view well reasoned and fair I am of the view that the petitioner has failed to make out a case for interference by this Court.
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B. H. Aswathanarayan Singh And Others Vs. State Of Mysore And Others | merely because there was some defect in the particulars supplied in the draft scheme. We may in this connection refer to the case of Dosa Satyanarayanamurthy (1961) 1 SCR 642 : (AIR 1961 SC 82 ) where also there was a defect in the draft scheme inasmuch as in certain cases the number of vehicles to be operated on each route was not specified and one number was mentioned against many routes which were bracketed. An objection was taken with regard to this matter and the scheme was modified accordingly. This Court upheld the modified Scheme and the same principle in our opinion applies to the present case where only the maximum was mentioned in the draft scheme and not the minimum. We do not think that there was any violation of principles of natural justice because objection was taken to the impropriety of only indicating a maximum in the scheme and that objection has been met by the State Government by modifying the scheme and including a minimum also. The contention therefore on this head must fail.16. We shall now consider the other points raised on behalf of the appellants. It is urged that cls. (e) and (f) of R. 3 of the 1960Rules are bad as they provide only for a maximum number of vehicles and trips. It is further urged that R. 12 of the 1960-Rules is bad inasmuch as it allows an Undertaking to vary the frequency of services operated on any of the notified routes or which the notified area without exceeding the maximum number of vehicles or services having regard to the traffic needs during any period. We are of opinion that it is unnecessary to consider the validity of these rules in view of the fact that they no longer exist. We should however guard ourselves by saying that we should not be understood as accepting the view of the High Court which has upheld the validity of these rules.17. Then it is urged that cls. (e) and (f) of R. 3 of the 1963-Rules as well as R. 12 thereof are bad. Clauses (e) and (f) of R. 3 provide for the specification of maximum and minimum number of vehicles and trips in the scheme. We have already considered this question and have held that it is permissible to specify the maximum and minimum number of vehicles and trips under S. 68-C. Rule 3(e) and (f) is in accordance with what we have held above and is therefore valid. Rule12 lays down that where the services are run and operated to the complete exclusion of other persons by the Undertaking, it may, in the interest of the public, having regard to the traffic needs during any period vary the frequency of services operated on any of the notified routes or within any notified area without exceeding the maximum number of vehicles of services as enumerated in the approved scheme. This rule is ancillary to R. 3(e) and (f) and comes into operation only where services are run to the total exclusion of other persons. In such a case this rule gives power to the Undertaking to vary the frequency of services up to the maximum limit. We are of opinion that this rule should be read as giving power to the Undertaking to vary the frequency of services within the minimum and maximum prescribed in the scheme. Read as such, we see no invalidity in this rule.18. Then it is urged that the scheme cannot be deemed to have been approved as it relates to inter-State routes and the approval of the Central Government has not been taken as required under the proviso to S. 68-D(3). We are of opinion that there is no substance on this contention. An inter-State route is one in which one of the termini is in one State and the other in another State. In the present case both the termini are in one State. So it does not deal with inter-State routes at all. It is urged that part of the scheme were roads which continue beyond the State and connect various points in the State of Mysore with other States. Even if that is so that does not make the scheme one connected with inter-State routes, for a road is different from a route. For example, the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States. But any portion of it within a State or even with a District or a sub-division can be a route for purposes of stage carriages or goods vehicles. That would not make such a route a part of an inter-State route even though it lies on a road which runs through many States. The criterion is to see whether the two termini of the route are in the same State or not. If they are in the same State, the route is not an inter-State route and the proviso to S.68-D(3) would not be applicable. The termini in the present case being within the State of Mysore, the scheme does not deal with inter-State routes at all, and the contention on this head must be rejected.19. Lastly it is urged that the Chief Minister was not competent to hear the objections under S: 68-D and that this should have been done by the Minister in-charge of transport. The authority under S.68-D to hear objections is the, State Government. As the State Government is not a living person, some living person must hear the Objections. Rule 8 provides that the Chief Minister shall be the authority to hear and decide the objections. We fail to see why, if according to the appellants the Minister in-charge of transport can hear the objections, the Chief Minister cannot do so when the rule framed by the Government under the Act nominates the Chief Minister as the authority to hear the objections on behalf of the State Government. There is no force in this objection and it is hereby rejected.20. | 0[ds]. There is no difficulty as to the meaning of the words "area or route proposed to be covered" and the draft scheme did provide for the area or routes to beare however of opinion that there is no substantial difference between the class of services which has been referred earlier in the section and the nature of services proposed to be rendered which is referred in the later part of the section, Road transport service as defined in S. 68-A can be of three kinds, namely - (i) passenger service (ii) goods services, and (iii) mixed goods and passenger service. Further passenger and goods services themselves could be of different types, as for examples, stage carriages [see S. 2(29)][ goods vehicles [see S.2(8)], contract carriages [see S.2(3)], invalid carriages [see S.2(10)], and motor cabs [see S. 2(15)]. Therefore, when Section 68-C speaks of nature of services to be rendered it refers to these classes of motor vehicles for carrying passengers or goods and the scheme has to indicate which class of service is to be taken over. It may be added that one of the meanings of the word "nature" given in the Concise Oxford Dictionary is "kind, sort, class", and it is this meaning which is intended by the use of this word in this part of thesee no difficulty in holding that the details of the nature of services proposed to be rendered may not only be in the form of a precise number of vehicles and trips but also in the form of minimum and maximum number of vehicles and trips on each route. Furnishing of minimum and maximum number of vehicles and trips for each route would also in our opinion satisfy the requirement that particulars should be furnished of the services proposed to be rendered. Further the indication of minimum and maximum number of vehicles and trips for each route would give the necessary information to enable the objectors to oppose the scheme even with reference to the adequacy of the services proposed to be rendered. We do not think that the appellants are right in submitting that when the word "particulars" is used in this part of the section, it can only be satisfied if the exact number of vehicles and trips for each route is specified and that there is no other way of satisfying the requirement implicit in the use of the word "particulars". As we have already said the word "particulars" has been used in its ordinary sense and means details and the indication of the minimum and maximum number of trips and vehicles would also in our opinion be sufficient to give the objectors the necessary information to enable them to object with reference to the conditions precedent provided in the section for framing a scheme. It is obvious that the section itself has provided the absolute minimum information which must be given in the scheme to enable to objectors to object and that minimum consists of details with respect to the class of service proposed to be rendered and the area or route proposed to be covered. Other particulars are left to be prescribed by the rules as they are of the same importance as the details with respect to class of service to be rendered and the area or route to be covered. We are therefore of opinion that if the scheme indicates both minimum and maximum number of vehicles and trips on each route it will be in accordance with the requirements of S.order to find out what particulars of the nature of the services proposed to be rendered have to be given under S.68-C it would be permissible and legitimate to refer to these provisions in Ss. 46 and 48. They indicate that a provision in the scheme of minimum and maximum number of trips per day would be sufficient in order that necessary information may be available to objectors to make their objections with respect to the adequacy etc. of the services proposed to be rendered. But quite apart from this consideration we see no reason to hold that the word "particulars as used in S. 68-C necessarily refers only to the precise number of vehicles and trips for each route and cannot take in the minimum and maximum number of vehicles and trips for eachcannot accept the argument that provision of a minimum and maximum number in the scheme would be hit by Section 68-E of the Act which provides for cancellation or modification of an approved scheme, for Section 68-E comes into play after the scheme has been approved under S. 68-D. Nor can the provision of flexibility by indicating the minimum and maximum number of vehicles and trips be said to be a device to get round S. 68-E, which deals with a situation after the scheme has been approved. But where a scheme itself provides for minimum and maximum number of trips and vehicles and has been approved, it cannot be said that such approval is meant to override S.68-E, for even such an approved scheme may require radical alteration after some years when transport needs may have radically changed and in such cases action under S. 68-E would be necessary. But this provision of flexibility providing minimum and maximum number in a scheme cannot per se be said to be an attempt to get round S. 68-E.We are therefore of opinion that specifying of both minimum and maximum number of vehicles and trips in the scheme under challenge is also in accordance with the provisions of S. 68-C and is not hit by S. 68-E. The contention of the appellants under this head is thereforedo not think that there was any violation of principles of natural justice because objection was taken to the impropriety of only indicating a maximum in the scheme and that objection has been met by the State Government by modifying the scheme and including a minimum also. The contention therefore on this head must fail.We have already considered this question and have held that it is permissible to specify the maximum and minimum number of vehicles and trips under S. 68-C. Rule 3(e) and (f) is in accordance with what we have held above and is therefore valid. Rule12 lays down that where the services are run and operated to the complete exclusion of other persons by the Undertaking, it may, in the interest of the public, having regard to the traffic needs during any period vary the frequency of services operated on any of the notified routes or within any notified area without exceeding the maximum number of vehicles of services as enumerated in the approved scheme. This rule is ancillary to R. 3(e) and (f) and comes into operation only where services are run to the total exclusion of other persons. In such a case this rule gives power to the Undertaking to vary the frequency of services up to the maximum limit. We are of opinion that this rule should be read as giving power to the Undertaking to vary the frequency of services within the minimum and maximum prescribed in the scheme. Read as such, we see no invalidity in thisthe present case both the termini are in one State. So it does not deal with inter-State routes at all. It is urged that part of the scheme were roads which continue beyond the State and connect various points in the State of Mysore with other States. Even if that is so that does not make the scheme one connected with inter-State routes, for a road is different from a route. For example, the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States. But any portion of it within a State or even with a District or a sub-division can be a route for purposes of stage carriages or goods vehicles. That would not make such a route a part of an inter-State route even though it lies on a road which runs through many States. The criterion is to see whether the two termini of the route are in the same State or not. If they are in the same State, the route is not an inter-State route and the proviso to S.68-D(3) would not be applicable. The termini in the present case being within the State of Mysore, the scheme does not deal with inter-State routes at all, and the contention on this head must befail to see why, if according to the appellants the Minister in-charge of transport can hear the objections, the Chief Minister cannot do so when the rule framed by the Government under the Act nominates the Chief Minister as the authority to hear the objections on behalf of the State Government. There is no force in this objection and it is hereby rejected. | 0 | 6,303 | 1,602 | ### Instruction:
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merely because there was some defect in the particulars supplied in the draft scheme. We may in this connection refer to the case of Dosa Satyanarayanamurthy (1961) 1 SCR 642 : (AIR 1961 SC 82 ) where also there was a defect in the draft scheme inasmuch as in certain cases the number of vehicles to be operated on each route was not specified and one number was mentioned against many routes which were bracketed. An objection was taken with regard to this matter and the scheme was modified accordingly. This Court upheld the modified Scheme and the same principle in our opinion applies to the present case where only the maximum was mentioned in the draft scheme and not the minimum. We do not think that there was any violation of principles of natural justice because objection was taken to the impropriety of only indicating a maximum in the scheme and that objection has been met by the State Government by modifying the scheme and including a minimum also. The contention therefore on this head must fail.16. We shall now consider the other points raised on behalf of the appellants. It is urged that cls. (e) and (f) of R. 3 of the 1960Rules are bad as they provide only for a maximum number of vehicles and trips. It is further urged that R. 12 of the 1960-Rules is bad inasmuch as it allows an Undertaking to vary the frequency of services operated on any of the notified routes or which the notified area without exceeding the maximum number of vehicles or services having regard to the traffic needs during any period. We are of opinion that it is unnecessary to consider the validity of these rules in view of the fact that they no longer exist. We should however guard ourselves by saying that we should not be understood as accepting the view of the High Court which has upheld the validity of these rules.17. Then it is urged that cls. (e) and (f) of R. 3 of the 1963-Rules as well as R. 12 thereof are bad. Clauses (e) and (f) of R. 3 provide for the specification of maximum and minimum number of vehicles and trips in the scheme. We have already considered this question and have held that it is permissible to specify the maximum and minimum number of vehicles and trips under S. 68-C. Rule 3(e) and (f) is in accordance with what we have held above and is therefore valid. Rule12 lays down that where the services are run and operated to the complete exclusion of other persons by the Undertaking, it may, in the interest of the public, having regard to the traffic needs during any period vary the frequency of services operated on any of the notified routes or within any notified area without exceeding the maximum number of vehicles of services as enumerated in the approved scheme. This rule is ancillary to R. 3(e) and (f) and comes into operation only where services are run to the total exclusion of other persons. In such a case this rule gives power to the Undertaking to vary the frequency of services up to the maximum limit. We are of opinion that this rule should be read as giving power to the Undertaking to vary the frequency of services within the minimum and maximum prescribed in the scheme. Read as such, we see no invalidity in this rule.18. Then it is urged that the scheme cannot be deemed to have been approved as it relates to inter-State routes and the approval of the Central Government has not been taken as required under the proviso to S. 68-D(3). We are of opinion that there is no substance on this contention. An inter-State route is one in which one of the termini is in one State and the other in another State. In the present case both the termini are in one State. So it does not deal with inter-State routes at all. It is urged that part of the scheme were roads which continue beyond the State and connect various points in the State of Mysore with other States. Even if that is so that does not make the scheme one connected with inter-State routes, for a road is different from a route. For example, the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States. But any portion of it within a State or even with a District or a sub-division can be a route for purposes of stage carriages or goods vehicles. That would not make such a route a part of an inter-State route even though it lies on a road which runs through many States. The criterion is to see whether the two termini of the route are in the same State or not. If they are in the same State, the route is not an inter-State route and the proviso to S.68-D(3) would not be applicable. The termini in the present case being within the State of Mysore, the scheme does not deal with inter-State routes at all, and the contention on this head must be rejected.19. Lastly it is urged that the Chief Minister was not competent to hear the objections under S: 68-D and that this should have been done by the Minister in-charge of transport. The authority under S.68-D to hear objections is the, State Government. As the State Government is not a living person, some living person must hear the Objections. Rule 8 provides that the Chief Minister shall be the authority to hear and decide the objections. We fail to see why, if according to the appellants the Minister in-charge of transport can hear the objections, the Chief Minister cannot do so when the rule framed by the Government under the Act nominates the Chief Minister as the authority to hear the objections on behalf of the State Government. There is no force in this objection and it is hereby rejected.20.
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itself has provided the absolute minimum information which must be given in the scheme to enable to objectors to object and that minimum consists of details with respect to the class of service proposed to be rendered and the area or route proposed to be covered. Other particulars are left to be prescribed by the rules as they are of the same importance as the details with respect to class of service to be rendered and the area or route to be covered. We are therefore of opinion that if the scheme indicates both minimum and maximum number of vehicles and trips on each route it will be in accordance with the requirements of S.order to find out what particulars of the nature of the services proposed to be rendered have to be given under S.68-C it would be permissible and legitimate to refer to these provisions in Ss. 46 and 48. They indicate that a provision in the scheme of minimum and maximum number of trips per day would be sufficient in order that necessary information may be available to objectors to make their objections with respect to the adequacy etc. of the services proposed to be rendered. But quite apart from this consideration we see no reason to hold that the word "particulars as used in S. 68-C necessarily refers only to the precise number of vehicles and trips for each route and cannot take in the minimum and maximum number of vehicles and trips for eachcannot accept the argument that provision of a minimum and maximum number in the scheme would be hit by Section 68-E of the Act which provides for cancellation or modification of an approved scheme, for Section 68-E comes into play after the scheme has been approved under S. 68-D. Nor can the provision of flexibility by indicating the minimum and maximum number of vehicles and trips be said to be a device to get round S. 68-E, which deals with a situation after the scheme has been approved. But where a scheme itself provides for minimum and maximum number of trips and vehicles and has been approved, it cannot be said that such approval is meant to override S.68-E, for even such an approved scheme may require radical alteration after some years when transport needs may have radically changed and in such cases action under S. 68-E would be necessary. But this provision of flexibility providing minimum and maximum number in a scheme cannot per se be said to be an attempt to get round S. 68-E.We are therefore of opinion that specifying of both minimum and maximum number of vehicles and trips in the scheme under challenge is also in accordance with the provisions of S. 68-C and is not hit by S. 68-E. The contention of the appellants under this head is thereforedo not think that there was any violation of principles of natural justice because objection was taken to the impropriety of only indicating a maximum in the scheme and that objection has been met by the State Government by modifying the scheme and including a minimum also. The contention therefore on this head must fail.We have already considered this question and have held that it is permissible to specify the maximum and minimum number of vehicles and trips under S. 68-C. Rule 3(e) and (f) is in accordance with what we have held above and is therefore valid. Rule12 lays down that where the services are run and operated to the complete exclusion of other persons by the Undertaking, it may, in the interest of the public, having regard to the traffic needs during any period vary the frequency of services operated on any of the notified routes or within any notified area without exceeding the maximum number of vehicles of services as enumerated in the approved scheme. This rule is ancillary to R. 3(e) and (f) and comes into operation only where services are run to the total exclusion of other persons. In such a case this rule gives power to the Undertaking to vary the frequency of services up to the maximum limit. We are of opinion that this rule should be read as giving power to the Undertaking to vary the frequency of services within the minimum and maximum prescribed in the scheme. Read as such, we see no invalidity in thisthe present case both the termini are in one State. So it does not deal with inter-State routes at all. It is urged that part of the scheme were roads which continue beyond the State and connect various points in the State of Mysore with other States. Even if that is so that does not make the scheme one connected with inter-State routes, for a road is different from a route. For example, the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States. But any portion of it within a State or even with a District or a sub-division can be a route for purposes of stage carriages or goods vehicles. That would not make such a route a part of an inter-State route even though it lies on a road which runs through many States. The criterion is to see whether the two termini of the route are in the same State or not. If they are in the same State, the route is not an inter-State route and the proviso to S.68-D(3) would not be applicable. The termini in the present case being within the State of Mysore, the scheme does not deal with inter-State routes at all, and the contention on this head must befail to see why, if according to the appellants the Minister in-charge of transport can hear the objections, the Chief Minister cannot do so when the rule framed by the Government under the Act nominates the Chief Minister as the authority to hear the objections on behalf of the State Government. There is no force in this objection and it is hereby rejected.
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Mohan Singh Vs. Intl. Airport Authority Of India | without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether. Effect must be given to all the provisions harmoniously to suppress public mischief and to promote public justice. 27. In the light of the above law, we have no hesitation to hold that though compliance with publication of the three steps required under Section 4(1) is mandatory while exercising the power of eminent domain under Section 4(1), when the appropriate Government exercises the power under sub-section (4) of Section 17 dispensing with the enquiry under Section 5-A and directs the Collector to take possession of the land before making the award as the lands are needed urgently either under sub-section (1) or (2) thereof, it is not mandatory to publish the notification under Section 4(1) in the newspapers and giving of notice of the substance thereof in the locality; the last of the dates of publication should not be the date for the purpose exercising the power under Section 17(4). This interpretation of ours would subserve the public purpose and suppress mischief of non-compliance and seeks to elongate the public purpose, namely, taking immediate possession of the land needed for the public purpose, envisaged in the notification. 28. It is true that in Khadim Hussain case ( 1976 (1) SCC 843 : 1976 (3) SCR 1 ) a Bench of four Judges of this Court had held that the declaration mentioned in Section 6(1) differs from the notification under Section 4(1) and requires to be signed by a Secretary or other officers duly authorised. The declaration is in the form of an order. The notification when published is proof of existence of public purpose. In that case, the question whether declaration under Section 6(1) requires to be published after making declaration, did not come up for consideration. As held by this Court in a catena of decisions, publication of the declaration under Section 6(1) is mandatory to give conclusiveness to the public purpose envisaged in sub-section (3) of Section 6. The contention of Shri Sidhu and Mrs. Pinky that there is no necessity for fresh publication of the declaration under Section 6, after possession was taken under Section 17(1) or 17(2), cannot be given acceptance. The object of Section 4(1) is to enable the Government to have the land tested whether it is needed or is likely to be needed for a public purpose and is suitable; after its consideration by the appropriate Government that the land is needed or is likely to be needed for the public purpose, publication of declaration under Section 6(1) is mandatory to give its conclusiveness to the public purpose published under Section 4(1). Therefore, it is a mandatory requirement that the declaration under Section 6(1) should be published. 29. The question, therefore, is whether after the publication of the declaration under Section 6 after it was quashed by the learned Single Judge, there is any necessity for the Government to supersede the notification already published under Section 6 ? It would appear that there was obvious incongruity. It is indisputable that the learned Single Judge had quashed Section 6 declaration published on 24-12-1986. Consequently, the question of supersession of the declaration already quashed is superfluous. It is settled legal position that appeal is a continuation of the original proceedings. Though the learned Single Judge quashed Section 6 declaration, on the finding by the Division Bench that the view taken by the learned Single Judge is not correct in law, the consequence would be that the act of the learned Single Judge quashing the declaration under Section 6 is vitiated by law. As a result, by operation of the decision of the Division Bench, the declaration quashed by the learned Single Judge dated 24-12-1986 stood restored. As a result, the declaration under Section 6(1) published on 19-5-1995 is only superfluous and of no consequence. 30. It is true that after the possession of the land is taken either under Section 17(1), 17(2) or 16, the land stands vested in the State absolutely free from all encumbrances. Subsequently, the power of withdrawal under Section 48(1) would no more be available. The ratio in Avinash Sharma case ( 1970 (2) SCC 149 ) relied on by Shri Sidhu has no application to the facts of this case. Therein, the facts were that after the possession was taken under Section 17(1) and vested in the State, exercising the power under Section 21 of the General Clauses Act, the declaration under Section 6(1) was withdrawn by the Government. The question was whether the Government had that power ? In that context, this Court had held that after the land vested in the State free from all encumbrances under Section 17(1), the power of issuing of a notification and the power to withdraw such notification envisaged under Section 21 of the General Clauses Act was not applicable since the land already stood vested and the Government was denuded of its power under the Act. 31. It would, therefore, be seen that the declaration under Section 6 published on 19-5-1995 does not have any effect on the declaration published under Section 6(1) on 24-12-1986 which has the legal effect of getting restored. The Division Bench of the High Court, therefore, was right in setting aside the judgment of the learned Single Judge and dismissing the writ petition. It is already seen that the lands stood vested in the State on 29-1-1987 and after the lands including the land belonging to the appellants to an extent of 81.9 bighas out of total extent of 713.2 bighas, were taken into possession, they stood vested in the State free from all encumbrances. The award also became final. Under these circumstances, the learned Single Judge was wholly wrong in the judgment under appeal before the Division Bench; the reasoning given and consequences reached by the Division Bench are entirely correct in law warranting no interference. | 0[ds]After giving due and deep consideration to the respective contentions raised by the learned counsel, we are of the considered view that though the compliance of these three steps required under Section 4(1) is mandatory, for the exercise of the power under Section 17(4) it is not necessary that all the three steps should be completed before making the declaration under Section 6(1) and have it published for directing the Collector to take possession under Section 17(1) or 17(2). What is needed is that there should be a gap of time of at least a day between the publication of the notification under Section 4(1) and of the declaration under Section 6(1). Herein, we dispose of the controversy and agree with Shri Shanti Bhushan a that the date of the notification and declaration published as mentioned in the Gazette is conclusive but not the actual date of printing in the Gazette. This interpretation of ours would serve the public purpose, namely, the official functions are duly discharged. When the land is urgently needed under Section 17(1), notice under Section 9(1) would be given to the owner and steps would be taken to and resume its possession after the expiry of 15 days. If it is needed urgently under Section 17(2), even without waiting for 15 days on issue of notice under Section 9(1) to the owner, the appropriate Government would direct the Collector to take possession of the land immediately. If the publication in the newspapers and in the locality is also insisted upon as preliminary to the exercise of power under Section 17(4) which are mandatory requirements and until last of them occurs, the immediate or urgent necessity to take possession of the land under Section 17(1) or 17(2) before making the award would be easily defeated by dereliction of duty by the subordinate officers or by skilful manoeuvre. The appropriate Government is required to take the decision for acquisition of the land and to consider the urgency or emergency and to make the notification under Section 4(1) and declaration under Section 6 and have them published in the Gazette that the land acquired under Section 4(1) is needed for public purpose; they become conclusive under Section 6; and to give direction to the Collector to take its possession. The publication in the newspapers and giving of notice of the substance of the notification at the convenient places in the locality are required to be done by the Collector authorised by the Government under Section 7 and his subordinate staff. If dereliction of duty is given primacy, delay deflects public justice to meet urgent situation by the acts of subordinate officers for any reason whatsoever. Until that is done and the last of the dates occurs, Government would be unable to act swiftly for the public purpose to take immediate possession envisaged under sub-section (1) or (2) of Section 17 and they would be easily defeated orShanti Bhushan has fairly contended that such publication is a relevant one. We agree with Shri Shanti Bhushan in thatThe distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word shall or may depends on conferment of power. In the present context, may does not always mean may. May is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the the power, it becomes duty to exercise. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty. In Craies on Statute Law (7th Edn.), it is stated that the court will, as a general rule, presume that the appropriate remedy by common law or mandamus for action was intended to apply. General rule of law is that where a general obligation is created by statute and statutory remedy is provided for violation, statutory remedy is mandatory. The scope and language of the it statute and consideration of policy at times may, however, create exception showing that the legislature did not intend a remedy (generality) to be exclusive. Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks to achieve. Therefore, it is necessary to ascertain the intention. The word shall is not always decisive. Regard must be had to the context, subject-matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration. As stated earlier, the question as to whether the statute is mandatory or directory depends upon the intent of the legislature and not always upon the language in which the intent is couched. The meaning and intention of the legislature would govern design and purpose the Act seeks to achieve.Thus, this Court, keeping in view the objects of the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory. The word shall, though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. In that behalf, the court is required to keep in view the impact on the profession, necessity of its compliance; whether the statute, if it is avoided, provides for any contingency for non-compliance; if the word shall is construed as having mandatory character, the mischief that would ensue by such construction; whether the public convenience would be subserved or public inconvenience or the general inconvenience that may ensue if it is held mandatory and all other relevant circumstances are required to be taken into consideration in construing whether the provision would be mandatory or directory. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether. Effect must be given to all the provisions harmoniously to suppress public mischief and to promote publicIn the light of the above law, we have no hesitation to hold that though compliance with publication of the three steps required under Section 4(1) is mandatory while exercising the power of eminent domain under Section 4(1), when the appropriate Government exercises the power under sub-section (4) of Section 17 dispensing with the enquiry under Section 5-A and directs the Collector to take possession of the land before making the award as the lands are needed urgently either under sub-section (1) or (2) thereof, it is not mandatory to publish the notification under Section 4(1) in the newspapers and giving of notice of the substance thereof in the locality; the last of the dates of publication should not be the date for the purpose exercising the power under Section 17(4). This interpretation of ours would subserve the public purpose and suppress mischief of non-compliance and seeks to elongate the public purpose, namely, taking immediate possession of the land needed for the public purpose, envisaged in thecontention of Shri Sidhu and Mrs. Pinky that there is no necessity for fresh publication of the declaration under Section 6, after possession was taken under Section 17(1) or 17(2), cannot be given acceptance. The object of Section 4(1) is to enable the Government to have the land tested whether it is needed or is likely to be needed for a public purpose and is suitable; after its consideration by the appropriate Government that the land is needed or is likely to be needed for the public purpose, publication of declaration under Section 6(1) is mandatory to give its conclusiveness to the public purpose published under Section 4(1). Therefore, it is a mandatory requirement that the declaration under Section 6(1) should bewould appear that there was obvious incongruity. It is indisputable that the learned Single Judge had quashed Section 6 declaration published on 24-12-1986. Consequently, the question of supersession of the declaration already quashed is superfluous. It is settled legal position that appeal is a continuation of the original proceedings. Though the learned Single Judge quashed Section 6 declaration, on the finding by the Division Bench that the view taken by the learned Single Judge is not correct in law, the consequence would be that the act of the learned Single Judge quashing the declaration under Section 6 is vitiated by law. As a result, by operation of the decision of the Division Bench, the declaration quashed by the learned Single Judge dated 24-12-1986 stood restored. As a result, the declaration under Section 6(1) published on 19-5-1995 is only superfluous and of noIt is true that after the possession of the land is taken either under Section 17(1), 17(2) or 16, the land stands vested in the State absolutely free from all encumbrances. Subsequently, the power of withdrawal under Section 48(1) would no more beratio in Avinash Sharma case ( 1970 (2) SCC 149 ) relied on by Shri Sidhu has no application to the facts of this case. Therein, the facts were that after the possession was taken under Section 17(1) and vested in the State, exercising the power under Section 21 of the General Clauses Act, the declaration under Section 6(1) was withdrawn by thethat context, this Court had held that after the land vested in the State free from all encumbrances under Section 17(1), the power of issuing of a notification and the power to withdraw such notification envisaged under Section 21 of the General Clauses Act was not applicable since the land already stood vested and the Government was denuded of its power under theIt would, therefore, be seen that the declaration under Section 6 published on 19-5-1995 does not have any effect on the declaration published under Section 6(1) on 24-12-1986 which has the legal effect of getting restored. The Division Bench of the High Court, therefore, was right in setting aside the judgment of the learned Single Judge and dismissing the writ petition. It is already seen that the lands stood vested in the State on 29-1-1987 and after the lands including the land belonging to the appellants to an extent of 81.9 bighas out of total extent of 713.2 bighas, were taken into possession, they stood vested in the State free from all encumbrances. The award also became final. Under these circumstances, the learned Single Judge was wholly wrong in the judgment under appeal before the Division Bench; the reasoning given and consequences reached by the Division Bench are entirely correct in law warranting no interference | 0 | 8,128 | 2,142 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether. Effect must be given to all the provisions harmoniously to suppress public mischief and to promote public justice. 27. In the light of the above law, we have no hesitation to hold that though compliance with publication of the three steps required under Section 4(1) is mandatory while exercising the power of eminent domain under Section 4(1), when the appropriate Government exercises the power under sub-section (4) of Section 17 dispensing with the enquiry under Section 5-A and directs the Collector to take possession of the land before making the award as the lands are needed urgently either under sub-section (1) or (2) thereof, it is not mandatory to publish the notification under Section 4(1) in the newspapers and giving of notice of the substance thereof in the locality; the last of the dates of publication should not be the date for the purpose exercising the power under Section 17(4). This interpretation of ours would subserve the public purpose and suppress mischief of non-compliance and seeks to elongate the public purpose, namely, taking immediate possession of the land needed for the public purpose, envisaged in the notification. 28. It is true that in Khadim Hussain case ( 1976 (1) SCC 843 : 1976 (3) SCR 1 ) a Bench of four Judges of this Court had held that the declaration mentioned in Section 6(1) differs from the notification under Section 4(1) and requires to be signed by a Secretary or other officers duly authorised. The declaration is in the form of an order. The notification when published is proof of existence of public purpose. In that case, the question whether declaration under Section 6(1) requires to be published after making declaration, did not come up for consideration. As held by this Court in a catena of decisions, publication of the declaration under Section 6(1) is mandatory to give conclusiveness to the public purpose envisaged in sub-section (3) of Section 6. The contention of Shri Sidhu and Mrs. Pinky that there is no necessity for fresh publication of the declaration under Section 6, after possession was taken under Section 17(1) or 17(2), cannot be given acceptance. The object of Section 4(1) is to enable the Government to have the land tested whether it is needed or is likely to be needed for a public purpose and is suitable; after its consideration by the appropriate Government that the land is needed or is likely to be needed for the public purpose, publication of declaration under Section 6(1) is mandatory to give its conclusiveness to the public purpose published under Section 4(1). Therefore, it is a mandatory requirement that the declaration under Section 6(1) should be published. 29. The question, therefore, is whether after the publication of the declaration under Section 6 after it was quashed by the learned Single Judge, there is any necessity for the Government to supersede the notification already published under Section 6 ? It would appear that there was obvious incongruity. It is indisputable that the learned Single Judge had quashed Section 6 declaration published on 24-12-1986. Consequently, the question of supersession of the declaration already quashed is superfluous. It is settled legal position that appeal is a continuation of the original proceedings. Though the learned Single Judge quashed Section 6 declaration, on the finding by the Division Bench that the view taken by the learned Single Judge is not correct in law, the consequence would be that the act of the learned Single Judge quashing the declaration under Section 6 is vitiated by law. As a result, by operation of the decision of the Division Bench, the declaration quashed by the learned Single Judge dated 24-12-1986 stood restored. As a result, the declaration under Section 6(1) published on 19-5-1995 is only superfluous and of no consequence. 30. It is true that after the possession of the land is taken either under Section 17(1), 17(2) or 16, the land stands vested in the State absolutely free from all encumbrances. Subsequently, the power of withdrawal under Section 48(1) would no more be available. The ratio in Avinash Sharma case ( 1970 (2) SCC 149 ) relied on by Shri Sidhu has no application to the facts of this case. Therein, the facts were that after the possession was taken under Section 17(1) and vested in the State, exercising the power under Section 21 of the General Clauses Act, the declaration under Section 6(1) was withdrawn by the Government. The question was whether the Government had that power ? In that context, this Court had held that after the land vested in the State free from all encumbrances under Section 17(1), the power of issuing of a notification and the power to withdraw such notification envisaged under Section 21 of the General Clauses Act was not applicable since the land already stood vested and the Government was denuded of its power under the Act. 31. It would, therefore, be seen that the declaration under Section 6 published on 19-5-1995 does not have any effect on the declaration published under Section 6(1) on 24-12-1986 which has the legal effect of getting restored. The Division Bench of the High Court, therefore, was right in setting aside the judgment of the learned Single Judge and dismissing the writ petition. It is already seen that the lands stood vested in the State on 29-1-1987 and after the lands including the land belonging to the appellants to an extent of 81.9 bighas out of total extent of 713.2 bighas, were taken into possession, they stood vested in the State free from all encumbrances. The award also became final. Under these circumstances, the learned Single Judge was wholly wrong in the judgment under appeal before the Division Bench; the reasoning given and consequences reached by the Division Bench are entirely correct in law warranting no interference.
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the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory. The word shall, though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. In that behalf, the court is required to keep in view the impact on the profession, necessity of its compliance; whether the statute, if it is avoided, provides for any contingency for non-compliance; if the word shall is construed as having mandatory character, the mischief that would ensue by such construction; whether the public convenience would be subserved or public inconvenience or the general inconvenience that may ensue if it is held mandatory and all other relevant circumstances are required to be taken into consideration in construing whether the provision would be mandatory or directory. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether. Effect must be given to all the provisions harmoniously to suppress public mischief and to promote publicIn the light of the above law, we have no hesitation to hold that though compliance with publication of the three steps required under Section 4(1) is mandatory while exercising the power of eminent domain under Section 4(1), when the appropriate Government exercises the power under sub-section (4) of Section 17 dispensing with the enquiry under Section 5-A and directs the Collector to take possession of the land before making the award as the lands are needed urgently either under sub-section (1) or (2) thereof, it is not mandatory to publish the notification under Section 4(1) in the newspapers and giving of notice of the substance thereof in the locality; the last of the dates of publication should not be the date for the purpose exercising the power under Section 17(4). This interpretation of ours would subserve the public purpose and suppress mischief of non-compliance and seeks to elongate the public purpose, namely, taking immediate possession of the land needed for the public purpose, envisaged in thecontention of Shri Sidhu and Mrs. Pinky that there is no necessity for fresh publication of the declaration under Section 6, after possession was taken under Section 17(1) or 17(2), cannot be given acceptance. The object of Section 4(1) is to enable the Government to have the land tested whether it is needed or is likely to be needed for a public purpose and is suitable; after its consideration by the appropriate Government that the land is needed or is likely to be needed for the public purpose, publication of declaration under Section 6(1) is mandatory to give its conclusiveness to the public purpose published under Section 4(1). Therefore, it is a mandatory requirement that the declaration under Section 6(1) should bewould appear that there was obvious incongruity. It is indisputable that the learned Single Judge had quashed Section 6 declaration published on 24-12-1986. Consequently, the question of supersession of the declaration already quashed is superfluous. It is settled legal position that appeal is a continuation of the original proceedings. Though the learned Single Judge quashed Section 6 declaration, on the finding by the Division Bench that the view taken by the learned Single Judge is not correct in law, the consequence would be that the act of the learned Single Judge quashing the declaration under Section 6 is vitiated by law. As a result, by operation of the decision of the Division Bench, the declaration quashed by the learned Single Judge dated 24-12-1986 stood restored. As a result, the declaration under Section 6(1) published on 19-5-1995 is only superfluous and of noIt is true that after the possession of the land is taken either under Section 17(1), 17(2) or 16, the land stands vested in the State absolutely free from all encumbrances. Subsequently, the power of withdrawal under Section 48(1) would no more beratio in Avinash Sharma case ( 1970 (2) SCC 149 ) relied on by Shri Sidhu has no application to the facts of this case. Therein, the facts were that after the possession was taken under Section 17(1) and vested in the State, exercising the power under Section 21 of the General Clauses Act, the declaration under Section 6(1) was withdrawn by thethat context, this Court had held that after the land vested in the State free from all encumbrances under Section 17(1), the power of issuing of a notification and the power to withdraw such notification envisaged under Section 21 of the General Clauses Act was not applicable since the land already stood vested and the Government was denuded of its power under theIt would, therefore, be seen that the declaration under Section 6 published on 19-5-1995 does not have any effect on the declaration published under Section 6(1) on 24-12-1986 which has the legal effect of getting restored. The Division Bench of the High Court, therefore, was right in setting aside the judgment of the learned Single Judge and dismissing the writ petition. It is already seen that the lands stood vested in the State on 29-1-1987 and after the lands including the land belonging to the appellants to an extent of 81.9 bighas out of total extent of 713.2 bighas, were taken into possession, they stood vested in the State free from all encumbrances. The award also became final. Under these circumstances, the learned Single Judge was wholly wrong in the judgment under appeal before the Division Bench; the reasoning given and consequences reached by the Division Bench are entirely correct in law warranting no interference
|
Hindustan Construction Co. Ltd Vs. Income Tax Officer (Companies Circle) Bombay & Another | the Central Board of Revenue dated December 31, 1958. It was indeed contended by Mr. S. P. Mehta, the learned counsel for the appellant before the High Court that the appellant was not challenging the orders of the Income-Tax Officer rejecting his application for refund, but was only challenging the orders made by them rejecting its application for grant of set off.Mr. Viswanatha Sastri, the learned counsel for the appellant first urged that as compliance with r. 5 of the Indian States Rules, 1939 was physically impossible, r. 5 did not apply, and consequently the refund due to the appellant notwithstanding r. 5. But we cannot go into the question whether r. 5 was rightly or wrongly applied by the Income- Tax authorities. The orders dated August 23, 1958 and December 31, 1958, cannot be attacked in these proceedings. Therefore, we must proceed on the basis that those orders were validly passed. We-express no opinion whether the view of the Income-Tax authorities that r. 5 was applicable in the circumstances of the case was correct or not.5. This takes us to the construction of s. 49E. Section 49E reads thus : "49E. Power to set off amount of refunds against tax remaining payable. Where under any of the provisions of this Act, a refund is found to be due to any person, the Income-tax Officer, Appellant Assistant Commissioner or Commissioner, as the case may be may, in lieu of payment of the refund, set off the amount to be refunded, or any part of that amount against the tax, interest or penalty if any, remaining payable by the person to whom the refund is due."6. The High Court held that s. 49E of the Act did not give :any assistance to the appellant because, according to it, there , must be prior adjudication in favour of the appellant. The High Court observed that "the expression found to be due" clearly means that there must, prior to the date set off is claimed, be an adjudication where under an amount is found due by way of refund to the person claiming set off."7. Mr. Sastri contends that it is not necessary that there should be a prior adjudication to enable a person to claim set off. He says that the Income-Tax Officer can decide the question whether refund is due or not when an application for refund is made to him. On the facts, he says that it is clear that the appellant is entitled to refund under r. 3 of Indian States Rules, 1939, and the Income-Tax Officer has only to calculate the relief due and then set it off. The learned counsel for the respondent, Mr. Ganapath lyer, on the other hand, contends that the orders of the Commissioner and the Central Board of Revenue having become final, there was no obligation on the Income-Tax Officer to make any payment of refund, and he says that it is a condition precedent to the applicability of s. 49E that the Income- Tax Officer must be under an obligation to make a payment. He points out that the expression "in lieu of payment of the refund clearly indicates that the Income-Tax Officer must be under an obligation to make a payment of refund. He further contends that the refund is not due under the Act but under the said Rules, and therefore, s. 49E does not apply.There is no difficulty in refuting the contention of the learned counsel for the Revenue that the refund, if due, was due under the provisions of the Act. Section 59(5) provides that the rules made under this section shall have effect as if enacted under this Act. This provision thus makes the Indian State Rules, 1939, part of the Act, and consequently if a refund is due under the Rules, it would be refund due under the Act within the meaning, of s. 49E.8. The question then arises as to whether there should be a prior adjudication existing before a set off can be allowed under 49E, and whether there is any other condition which is necessary to be fulfilled before the section becomes applicable. We are of the opinion that it is not necessary that there should be a prior adjudication before a claim can be allowed under s. 49E.There is nothing to debar the Income-Tax Officer from determining the question whether a refund is due or not when an application is made to him under S. 49E. The words "is found" do not necessarily lead to the conclusion that there must be a prior adjudication. But this is not enough to sustain the claim of the, appellant. It must , till show that a refund is due to it. The words "found to be due" in s. 49E may possibly cover a case where the claim to refund has been held barred under r. 5 of the Indian State Rules but that this is not the correct meaning is made clear by the expression "in lieu of payment". This expression, according to us, connotes that payment is outstanding, i.e. that there is subsisting obligation on the Income-Tax Officer to pay. If a claim to refund is barred by a final order, it cannot be said that there. is a subsisting obligation to make a payment. The expression "in lieu of" was construed in Stubbs v. Director of Public Prosecutions(24 Q. B. D. 577). It was held there that where a liability has to be discharged by, A in lieu of B, there must he a binding obligation on B to do it before A can be charged with it. In our opinion, there must be a subsisting obligation to make the payment of refund before a person is entitled to claim a set off under s. 49E. In this case in view of the orders of the Commissioner and the Central Board of Revenue mentioned above there was no subsisting obli- gation to pay, and therefore, the claim of the appellant must fail.9. | 0[ds].There is nodifficulty in refuting the contention of the learned counsel for the Revenue that the refund, if due, was due under the provisions of the Act. Section 59(5) provides that the rules made under this section shall have effect as if enacted under this Act. This provision thus makes the Indian State Rules, 1939, part of the Act, and consequently if a refund is due under the Rules, it would be refund due under the Act within the meaning, of s.are of the opinion that it is not necessary that there should be a prior adjudication before a claim can be allowed under s.ng to debar the Income-Tax Officer from determining the question whether a refund is due or not when an application is made to him under S. 49E. The words "is found" do not necessarily lead to the conclusion that there must be a prior adjudication. But this is not enough to sustain the claim of the, appellant. It must , till show that a refund is due to it. The words "found to be due" in s. 49E may possibly cover a case where the claim to refund has been held barred under r. 5 of the Indian State Rules but that this is not the correct meaning is made clear by the expression "in lieu of payment". This expression, according to us, connotes that payment is outstanding, i.e. that there is subsisting obligation on the Income-Tax Officer to pay. If a claim to refund is barred by a final order, it cannot be said that there. is a subsisting obligation to make a payment. The expression "in lieu of" was construed inStubbs v. Director of Public Prosecutions(24 Q. B. D.It was held there that where a liability has to be discharged by, A in lieu of B, there must he a binding obligation on B to do it before A can be charged with it. In our opinion, there must be a subsisting obligation to make the payment of refund before a person is entitled to claim a set off under s. 49E. In this case in view of the orders of the Commissioner and the Central Board of Revenue mentioned above there was no subsisting obli- gation to pay, and therefore, the claim of the appellant must fail. | 0 | 2,334 | 434 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the Central Board of Revenue dated December 31, 1958. It was indeed contended by Mr. S. P. Mehta, the learned counsel for the appellant before the High Court that the appellant was not challenging the orders of the Income-Tax Officer rejecting his application for refund, but was only challenging the orders made by them rejecting its application for grant of set off.Mr. Viswanatha Sastri, the learned counsel for the appellant first urged that as compliance with r. 5 of the Indian States Rules, 1939 was physically impossible, r. 5 did not apply, and consequently the refund due to the appellant notwithstanding r. 5. But we cannot go into the question whether r. 5 was rightly or wrongly applied by the Income- Tax authorities. The orders dated August 23, 1958 and December 31, 1958, cannot be attacked in these proceedings. Therefore, we must proceed on the basis that those orders were validly passed. We-express no opinion whether the view of the Income-Tax authorities that r. 5 was applicable in the circumstances of the case was correct or not.5. This takes us to the construction of s. 49E. Section 49E reads thus : "49E. Power to set off amount of refunds against tax remaining payable. Where under any of the provisions of this Act, a refund is found to be due to any person, the Income-tax Officer, Appellant Assistant Commissioner or Commissioner, as the case may be may, in lieu of payment of the refund, set off the amount to be refunded, or any part of that amount against the tax, interest or penalty if any, remaining payable by the person to whom the refund is due."6. The High Court held that s. 49E of the Act did not give :any assistance to the appellant because, according to it, there , must be prior adjudication in favour of the appellant. The High Court observed that "the expression found to be due" clearly means that there must, prior to the date set off is claimed, be an adjudication where under an amount is found due by way of refund to the person claiming set off."7. Mr. Sastri contends that it is not necessary that there should be a prior adjudication to enable a person to claim set off. He says that the Income-Tax Officer can decide the question whether refund is due or not when an application for refund is made to him. On the facts, he says that it is clear that the appellant is entitled to refund under r. 3 of Indian States Rules, 1939, and the Income-Tax Officer has only to calculate the relief due and then set it off. The learned counsel for the respondent, Mr. Ganapath lyer, on the other hand, contends that the orders of the Commissioner and the Central Board of Revenue having become final, there was no obligation on the Income-Tax Officer to make any payment of refund, and he says that it is a condition precedent to the applicability of s. 49E that the Income- Tax Officer must be under an obligation to make a payment. He points out that the expression "in lieu of payment of the refund clearly indicates that the Income-Tax Officer must be under an obligation to make a payment of refund. He further contends that the refund is not due under the Act but under the said Rules, and therefore, s. 49E does not apply.There is no difficulty in refuting the contention of the learned counsel for the Revenue that the refund, if due, was due under the provisions of the Act. Section 59(5) provides that the rules made under this section shall have effect as if enacted under this Act. This provision thus makes the Indian State Rules, 1939, part of the Act, and consequently if a refund is due under the Rules, it would be refund due under the Act within the meaning, of s. 49E.8. The question then arises as to whether there should be a prior adjudication existing before a set off can be allowed under 49E, and whether there is any other condition which is necessary to be fulfilled before the section becomes applicable. We are of the opinion that it is not necessary that there should be a prior adjudication before a claim can be allowed under s. 49E.There is nothing to debar the Income-Tax Officer from determining the question whether a refund is due or not when an application is made to him under S. 49E. The words "is found" do not necessarily lead to the conclusion that there must be a prior adjudication. But this is not enough to sustain the claim of the, appellant. It must , till show that a refund is due to it. The words "found to be due" in s. 49E may possibly cover a case where the claim to refund has been held barred under r. 5 of the Indian State Rules but that this is not the correct meaning is made clear by the expression "in lieu of payment". This expression, according to us, connotes that payment is outstanding, i.e. that there is subsisting obligation on the Income-Tax Officer to pay. If a claim to refund is barred by a final order, it cannot be said that there. is a subsisting obligation to make a payment. The expression "in lieu of" was construed in Stubbs v. Director of Public Prosecutions(24 Q. B. D. 577). It was held there that where a liability has to be discharged by, A in lieu of B, there must he a binding obligation on B to do it before A can be charged with it. In our opinion, there must be a subsisting obligation to make the payment of refund before a person is entitled to claim a set off under s. 49E. In this case in view of the orders of the Commissioner and the Central Board of Revenue mentioned above there was no subsisting obli- gation to pay, and therefore, the claim of the appellant must fail.9.
### Response:
0
### Explanation:
.There is nodifficulty in refuting the contention of the learned counsel for the Revenue that the refund, if due, was due under the provisions of the Act. Section 59(5) provides that the rules made under this section shall have effect as if enacted under this Act. This provision thus makes the Indian State Rules, 1939, part of the Act, and consequently if a refund is due under the Rules, it would be refund due under the Act within the meaning, of s.are of the opinion that it is not necessary that there should be a prior adjudication before a claim can be allowed under s.ng to debar the Income-Tax Officer from determining the question whether a refund is due or not when an application is made to him under S. 49E. The words "is found" do not necessarily lead to the conclusion that there must be a prior adjudication. But this is not enough to sustain the claim of the, appellant. It must , till show that a refund is due to it. The words "found to be due" in s. 49E may possibly cover a case where the claim to refund has been held barred under r. 5 of the Indian State Rules but that this is not the correct meaning is made clear by the expression "in lieu of payment". This expression, according to us, connotes that payment is outstanding, i.e. that there is subsisting obligation on the Income-Tax Officer to pay. If a claim to refund is barred by a final order, it cannot be said that there. is a subsisting obligation to make a payment. The expression "in lieu of" was construed inStubbs v. Director of Public Prosecutions(24 Q. B. D.It was held there that where a liability has to be discharged by, A in lieu of B, there must he a binding obligation on B to do it before A can be charged with it. In our opinion, there must be a subsisting obligation to make the payment of refund before a person is entitled to claim a set off under s. 49E. In this case in view of the orders of the Commissioner and the Central Board of Revenue mentioned above there was no subsisting obli- gation to pay, and therefore, the claim of the appellant must fail.
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Collector of Central Excise, Hyderabad Vs. Fenoplast Private Limited (1) | more by weight of wool; (b) if it contains 40 per cent, or more by weight of silk; or (c) if it contains 60 per cent, or more by weight of rayon or artificial silk." It may also be mentioned that the proviso and Explanation 1 came in along with the inclusion of the new goods, in particular, coated or laminated fabrics within the ambit of "cotton fabrics", by virtue of the Finance Act, 1969, which amended the Tariff Item.12. Shri Sorabjee lastly contended that the coating material employed by the respondent in his product is not one of the impregnating, coating and laminating materials referred to in Tariff Item 19. In other words, his submission is that the coating material does not represent either "preparations of cellulose derivatives" or "other artificial plastic materials". He submitted that this submission wasq raised by the respondent both before the Collector (Appeals) as well as before the CEGAT but was not pronounced upon specifically in view of the fact that they held in favour of the respondent o n other grounds. 13. We have seen the grounds of appeal preferred by the respondent before the Collector (Appeals). It does not contain any ground to the above effect. The order of the Collector (Appeal) refers to the argument of the respondents counsel that "the Assistant Collector has wrongly referred the plasticizers and fillers as materials falling under the then Tariff Item 15-A, i.e., plasticizers without any application of mind" and the further argument that " in fact plasticizers are chemicals and fillers and other goods which are not covered nor are assessed under Tariff Item 15-A not being plastic materials". On the above basis, it was argued that the predominant material in the refine cloth is not plasticizer inasmuch as the plastic content is only 24.5%. For appreciating the said argument, one has to turn to Tariff Item 15-A, which speaks of "artificial or synthetic resins and plastic materials and cellulose esters and ethers, an d articles thereof. It may be noticed that the goods referred to under Tariff Item 15-A and the coating material referred to in Tariff Item 19 are not identical. Tariff Item 19 speaks of impregnation, coating and lamination by "preparation s of cellulose derivatives or of other artificial plastic materials". So far as the Tribunal is concerned, only one Member (Shri P.C. Jain), in his dissenting opinion, deals with this aspect in para 16 of his judgment. He rejects the said argument holding that "PVC formulation being used by the respondent company is certainly governed by the expression other artificial plasticizers ". For the said proposition, the learned Member relies upon the decision in Chemicals and Fibers India Ltd. v. Union of India4, a decision of the Bombay High Court wherein it was held that "whereas synthetic resin is a polymer itself, plastic is polymer plus such additives as fillers, colorant plasticizers etc.". Pausing here for a moment, we may say that even according to the respondent the coating material is of three categories, viz., PVC resin 24.5%, plasticizers 13.0% and other fillers, calcium carbonate, secondary plasticizers, pigments, solvents, thinners a nd foaming agents 54.5%. Now, PVC resin is also a plastic as would be evident from the meaning given to it in Encyclopedia Americana, Vol. 22, p. 375 (1988 Edn.). The following statement occurs therein: " POLYVINYL CHLORIDE (PVC) is a tough, strong thermoplastic polymer with an excellent combination of physical and electrical properties. One of the leading plastics, PVC is used in a wide variety of product s, including coated fabrics for upholstery and raincoats, garden hoses, pipes, phonograph, records, floor-tiles, food-wrap films and insulation for wire and cable. PVC products basically are made from a powdery PVC resin, which in turn is made from a gas called vinyl chloride (VC). A large number of molecules of vinyl chloride (CH2-CHCI) are linked like beads on a chain to form the PVC polymer (- CH2CHCI-)." * To the same effect is the statement in McGraw-Hill Encyclopaedia of Science and Technology, Vol. 14, p. 170 (1987 Edn.): "Polyvinyl chloride (PVC) is a tough, strong thermoplastic material which has an excellent combination of physical and electrical properties. The products are usually characterised as plasticised or rigid types. Polyvinyl chloride (and copolymers) is the second most commonly used in polyvinyl resin and one of the most versatile plastics." * 14. The second category is plasticizers (13%), which is undoubtedly one of the basic materials of the plastics. (See Encyclopaedia Americana, Vol. 22 at p. 217). Even in the third category, there are plasticizers but we do not know to what extent. It thus appears ex facie that the coating material employed by the respondent is predominantly, if not wholly, "other artificial plastic materials".15. The majority opinion, of course, does not refer to this aspect at all.16. No reasons are shown and no material is placed before us to show that the said opinion of the Member of the Tribunal (Shri P.C. Jain) is not correct. The only submission has been that the matter be remitted to the Tribunal for a decision on this question. We are not inclined to do so, for if this were the case, the respondent ought to have put forward this argument at the forefront and not concern itself with the interpretation of the Tariff Item. It could have simply said, "my coating material is not one contemplated by the Tariff Item", and if it were so, no further question would have arisen. Instead, it concentrated upon the applicability of the clauses relating to predominance and percentages relying upon the decision of this Court in Multiple Fabrics1. Before the Col lector (Appeals) it relied upon Tariff Item 15-A and submitted that since its coating material is not covered by Tariff Item 15- A, Tariff Item 19 is also not attracted. For all the above reasons, we are not inclined to accede to the request for remand of the matters to the Tribunal for deciding the said question. | 1[ds]9. It is argued by Shri Sorabjee that after coating, the cotton fabric no longer retains its identity as cotton fabric and that a new distinct commodity emerges. It is submitted that if the degree and extent of lamination or coating of fabric is such that it ceases to retain its identity as cotton fabric and a new distinct commodity emerges as a result of such coating or lamination, the resultant product cannot be regarded as cotton fabric within the meaning of Tariff Item.This argument does not take into account the fact that Parliament has chosen to include the coated/laminated fabrics within the ambit and purview of "cotton fabrics" and Parliaments power to do so is not questioned and probably cannot be questioned. The fact remains that to start with it is a cotton cloth upon which certain coating material isExplanation 1, was noticed, its purport was not given effect to while holding that "in view of the higher percentage of PVC compound in commodity, it becomes difficult to treat the ultimate goods asfabrics for holding that it is covered by Item 22". Indeed, the above reason is the second of the two reasons given for holding in favour of theThe first reason is that since the manufacture o f fabric and application of PVC compound is simultaneous, there is no preexisting base fabric for the purposes of and within the meaning of Tariff Item 22. Be that as it may, since the proviso was not brought to the notice of this Court and f or that reason the significance of Explanation 1 escaped the Courts notice, it is difficult to hold that the said decision lays down the correct interpretation of Tariff Item 22 or that it helps the respondent before us in interpreting Tariff Item 19.The second category is plasticizers (13%), which is undoubtedly one of the basic materials of the plastics. (See Encyclopaedia Americana, Vol. 22 at p. 217). Even in the third category, there are plasticizers but we do not know to what extent. It thus appears ex facie that the coating material employed by the respondent is predominantly, if not wholly, "other artificial plastic materials".15. The majority opinion, of course, does not refer to this aspect at all.16. No reasons are shown and no material is placed before us to show that the said opinion of the Member of the Tribunal (Shri P.C. Jain) is not correct. The only submission has been that the matter be remitted to the Tribunal for a decision on this question. We are not inclined to do so, for if this were the case, the respondent ought to have put forward this argument at the forefront and not concern itself with the interpretation of the Tariff Item. It could have simply said, "my coating material is not one contemplated by the Tariff Item", and if it were so, no further question would have arisen. Instead, it concentrated upon the applicability of the clauses relating to predominance and percentages relying upon the decision of this Court in Multiple Fabrics1. Before the Col lector (Appeals) it relied upon Tariff Itemand submitted that since its coating material is not covered by Tariff Item 15A, Tariff Item 19 is also not attracted. For all the above reasons, we are not inclined to accede to the request for remand of the matters to the Tribunal for deciding the said question. | 1 | 5,028 | 632 | ### 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:
more by weight of wool; (b) if it contains 40 per cent, or more by weight of silk; or (c) if it contains 60 per cent, or more by weight of rayon or artificial silk." It may also be mentioned that the proviso and Explanation 1 came in along with the inclusion of the new goods, in particular, coated or laminated fabrics within the ambit of "cotton fabrics", by virtue of the Finance Act, 1969, which amended the Tariff Item.12. Shri Sorabjee lastly contended that the coating material employed by the respondent in his product is not one of the impregnating, coating and laminating materials referred to in Tariff Item 19. In other words, his submission is that the coating material does not represent either "preparations of cellulose derivatives" or "other artificial plastic materials". He submitted that this submission wasq raised by the respondent both before the Collector (Appeals) as well as before the CEGAT but was not pronounced upon specifically in view of the fact that they held in favour of the respondent o n other grounds. 13. We have seen the grounds of appeal preferred by the respondent before the Collector (Appeals). It does not contain any ground to the above effect. The order of the Collector (Appeal) refers to the argument of the respondents counsel that "the Assistant Collector has wrongly referred the plasticizers and fillers as materials falling under the then Tariff Item 15-A, i.e., plasticizers without any application of mind" and the further argument that " in fact plasticizers are chemicals and fillers and other goods which are not covered nor are assessed under Tariff Item 15-A not being plastic materials". On the above basis, it was argued that the predominant material in the refine cloth is not plasticizer inasmuch as the plastic content is only 24.5%. For appreciating the said argument, one has to turn to Tariff Item 15-A, which speaks of "artificial or synthetic resins and plastic materials and cellulose esters and ethers, an d articles thereof. It may be noticed that the goods referred to under Tariff Item 15-A and the coating material referred to in Tariff Item 19 are not identical. Tariff Item 19 speaks of impregnation, coating and lamination by "preparation s of cellulose derivatives or of other artificial plastic materials". So far as the Tribunal is concerned, only one Member (Shri P.C. Jain), in his dissenting opinion, deals with this aspect in para 16 of his judgment. He rejects the said argument holding that "PVC formulation being used by the respondent company is certainly governed by the expression other artificial plasticizers ". For the said proposition, the learned Member relies upon the decision in Chemicals and Fibers India Ltd. v. Union of India4, a decision of the Bombay High Court wherein it was held that "whereas synthetic resin is a polymer itself, plastic is polymer plus such additives as fillers, colorant plasticizers etc.". Pausing here for a moment, we may say that even according to the respondent the coating material is of three categories, viz., PVC resin 24.5%, plasticizers 13.0% and other fillers, calcium carbonate, secondary plasticizers, pigments, solvents, thinners a nd foaming agents 54.5%. Now, PVC resin is also a plastic as would be evident from the meaning given to it in Encyclopedia Americana, Vol. 22, p. 375 (1988 Edn.). The following statement occurs therein: " POLYVINYL CHLORIDE (PVC) is a tough, strong thermoplastic polymer with an excellent combination of physical and electrical properties. One of the leading plastics, PVC is used in a wide variety of product s, including coated fabrics for upholstery and raincoats, garden hoses, pipes, phonograph, records, floor-tiles, food-wrap films and insulation for wire and cable. PVC products basically are made from a powdery PVC resin, which in turn is made from a gas called vinyl chloride (VC). A large number of molecules of vinyl chloride (CH2-CHCI) are linked like beads on a chain to form the PVC polymer (- CH2CHCI-)." * To the same effect is the statement in McGraw-Hill Encyclopaedia of Science and Technology, Vol. 14, p. 170 (1987 Edn.): "Polyvinyl chloride (PVC) is a tough, strong thermoplastic material which has an excellent combination of physical and electrical properties. The products are usually characterised as plasticised or rigid types. Polyvinyl chloride (and copolymers) is the second most commonly used in polyvinyl resin and one of the most versatile plastics." * 14. The second category is plasticizers (13%), which is undoubtedly one of the basic materials of the plastics. (See Encyclopaedia Americana, Vol. 22 at p. 217). Even in the third category, there are plasticizers but we do not know to what extent. It thus appears ex facie that the coating material employed by the respondent is predominantly, if not wholly, "other artificial plastic materials".15. The majority opinion, of course, does not refer to this aspect at all.16. No reasons are shown and no material is placed before us to show that the said opinion of the Member of the Tribunal (Shri P.C. Jain) is not correct. The only submission has been that the matter be remitted to the Tribunal for a decision on this question. We are not inclined to do so, for if this were the case, the respondent ought to have put forward this argument at the forefront and not concern itself with the interpretation of the Tariff Item. It could have simply said, "my coating material is not one contemplated by the Tariff Item", and if it were so, no further question would have arisen. Instead, it concentrated upon the applicability of the clauses relating to predominance and percentages relying upon the decision of this Court in Multiple Fabrics1. Before the Col lector (Appeals) it relied upon Tariff Item 15-A and submitted that since its coating material is not covered by Tariff Item 15- A, Tariff Item 19 is also not attracted. For all the above reasons, we are not inclined to accede to the request for remand of the matters to the Tribunal for deciding the said question.
### Response:
1
### Explanation:
9. It is argued by Shri Sorabjee that after coating, the cotton fabric no longer retains its identity as cotton fabric and that a new distinct commodity emerges. It is submitted that if the degree and extent of lamination or coating of fabric is such that it ceases to retain its identity as cotton fabric and a new distinct commodity emerges as a result of such coating or lamination, the resultant product cannot be regarded as cotton fabric within the meaning of Tariff Item.This argument does not take into account the fact that Parliament has chosen to include the coated/laminated fabrics within the ambit and purview of "cotton fabrics" and Parliaments power to do so is not questioned and probably cannot be questioned. The fact remains that to start with it is a cotton cloth upon which certain coating material isExplanation 1, was noticed, its purport was not given effect to while holding that "in view of the higher percentage of PVC compound in commodity, it becomes difficult to treat the ultimate goods asfabrics for holding that it is covered by Item 22". Indeed, the above reason is the second of the two reasons given for holding in favour of theThe first reason is that since the manufacture o f fabric and application of PVC compound is simultaneous, there is no preexisting base fabric for the purposes of and within the meaning of Tariff Item 22. Be that as it may, since the proviso was not brought to the notice of this Court and f or that reason the significance of Explanation 1 escaped the Courts notice, it is difficult to hold that the said decision lays down the correct interpretation of Tariff Item 22 or that it helps the respondent before us in interpreting Tariff Item 19.The second category is plasticizers (13%), which is undoubtedly one of the basic materials of the plastics. (See Encyclopaedia Americana, Vol. 22 at p. 217). Even in the third category, there are plasticizers but we do not know to what extent. It thus appears ex facie that the coating material employed by the respondent is predominantly, if not wholly, "other artificial plastic materials".15. The majority opinion, of course, does not refer to this aspect at all.16. No reasons are shown and no material is placed before us to show that the said opinion of the Member of the Tribunal (Shri P.C. Jain) is not correct. The only submission has been that the matter be remitted to the Tribunal for a decision on this question. We are not inclined to do so, for if this were the case, the respondent ought to have put forward this argument at the forefront and not concern itself with the interpretation of the Tariff Item. It could have simply said, "my coating material is not one contemplated by the Tariff Item", and if it were so, no further question would have arisen. Instead, it concentrated upon the applicability of the clauses relating to predominance and percentages relying upon the decision of this Court in Multiple Fabrics1. Before the Col lector (Appeals) it relied upon Tariff Itemand submitted that since its coating material is not covered by Tariff Item 15A, Tariff Item 19 is also not attracted. For all the above reasons, we are not inclined to accede to the request for remand of the matters to the Tribunal for deciding the said question.
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State Of Mysore Vs. S.V.G. Iyengar | service and should also be asked to make good sum of Rs. 4, 576/- being the amount of loss caused to Government in the above connection. The respondent challenged this order by a writ petition on the ground that the Enquiry Officer at Hyderabad had exonerated him of all the charges excepting one and also. because the report of the Enquiry Officer was not furnished to the respondent. The High Court of Mysore allowed the writ petition and quashed the order of the Government. Thereafter the Mysore Government took further steps in the matter and the respondent presented several other writ petitions in the Mysore High Court impinging the subsequent action of the Mysore Government. It is unnecessary for the purpose of the purpose of the present appeal to set out the orders of the Mysore Government and the writ petitions filed by the respondent and the Orders made by the High Court except to state that by an order made on December 10, 1960 he respondent who was to have retired with effect from October 27, 1960, the date on which he completed the age of 55 years was continued in service but under suspension pending completion of the disciplinary proceedings against him and that the Government by a subsequent order dated May 19, 1961 revoked the previous order of December 10, 1960 and permitted the respondent to retire dropping altogether the disciplinary proceedings against him. After his retirement the respondent flied writ petition No. 1280 of 1961 praying for declaration that he should be regarded as having crossed the efficiency bar in his pay scale on February 9, 1952 and that he should be given all the increments after the efficiency bar in the pay scale of an Executive Engineer and that he should be paid the difference and his pension should be fixed on the basis of enhanced salary claimed by him. The claim of the respondent was resisted by the Mysore State on the ground that under r. 38 of the Hyderabad Civil Service Rules a specific order ought to be made permitting the respondent to cross the efficiency bar. The High Court rejected the contention of the appellant and held that consequent upon the dropping of the proceeding against the respondent the increment withheld by way of penalty should be restored and the increased salary should be taken into account in fixing the amount of pension payable to the respondent.3. Rule 38 of the Hyderabad Civil Services Rules, 1952 reads as follows:"Where an efficiency bar is prescribed in a time scale the increment next above the bar shall not be given to a Government servant without the specific sanction of the authority empowered to withhold increments."Rule 52 of the Mysore Civil Services Rules, 1958 is in the same language. as r. 38 of the Hyderabad Civil Service Rules.4. On behalf of the respondent it was contended that the with holding of the increment of the respondent at the efficiency bar was intended to operate as a penalty for alleged misconduct. It was said that upon the facts of the case the only conclusion possible was , that the Government wanted to stop the respondent at the efficiency bar in the time scale with a view to reimburse itself at the expense of the respondent the loss said to have been caused by him to the Government. It was, therefore, argued that after the dropping of disciplinary proceedings against the respondent without recording any finding of guilt no penalty could be imposed. It was Contended that once the Government had taken the decision to stop the respondent at the efficiency bar by way of penalty it must be held that the Government had waived their right to stop the respondent at the efficiency bar for administrative reasons under r. 38. In our opinion there is no warrant for the contentions advanced on behalf of the respondent. It is manifest that in view of the language of r. 38 of the Hyderabad Rules and r. 52 of the Mysore Rules before the respondent could claim payment of increments next above the bar it is necessary that the Government should make a special order sanctioning such payment. It is true that disciplinary proceedings against the respondent were dropped but the result claimed by the respondent cannot automatically follow a result of the dropping of the disciplinary proceedings. In this connection the Attorney General pointed out that the notice dated March 16, 1955 against the respondent asked him to show cause why: ( 1 ) he should not be stopped from crossing. the efficiency bar and (2) why a sum of Rs. 23, 371-14-2 should not be recovered from him on account of loss caused to the Government by his negligence. The stoppage at efficiency bar had no connection with the recovery of loss sustained by the Government and it cannot, therefore, be said that the Government wanted to impose the efficiency bar because it wanted to reimburse itself for the loss caused by the respondent. So far as the language of r. 38 is concerned it is manifest that an express order of the appropriate authority is necessary before the respondent is allowed to cross the efficiency bar. It is not, therefore, possible to accept the contention of the respondent that the Government must be deemed to have given specific sanction under r. 38 of the Hyderabad Rules permitting the respondent to cross the efficiency bar merely because disciplinary proceedings against him had been dropped for certain reasons.5. In the High Court the case was argued by both the parties on the assumption that r. 38 applied to the case of the respondent. During the hearing of the appeal in this Court it was stated by Mr. Iyengar that when the respondent became due for crossing the efficiency bar r. 38 as it stands at present was not in operation. But it was said that a rule similar to r. 38 was in operation at the relevant time.6. | 1[ds]In our opinion there is no warrant for the contentions advanced on behalf of the respondent. It is manifest that in view of the language of r. 38 of the Hyderabad Rules and r. 52 of the Mysore Rules before the respondent could claim payment of increments next above the bar it is necessary that the Government should make a special order sanctioning such payment. It is true that disciplinary proceedings against the respondent were dropped but the result claimed by the respondent cannot automatically follow a result of the dropping of the disciplinarystoppage at efficiency bar had no connection with the recovery of loss sustained by the Government and it cannot, therefore, be said that the Government wanted to impose the efficiency bar because it wanted to reimburse itself for the loss caused by the respondent. So far as the language of r. 38 is concerned it is manifest that an express order of the appropriate authority is necessary before the respondent is allowed to cross the efficiency bar. It is not, therefore, possible to accept the contention of the respondent that the Government must be deemed to have given specific sanction under r. 38 of the Hyderabad Rules permitting the respondent to cross the efficiency bar merely because disciplinary proceedings against him had been dropped for certainour opinion there is no warrant for the contentions advanced on behalf of the respondent. It is manifest that in view of the language of r. 38 of the Hyderabad Rules and r. 52 of the Mysore Rules before the respondent could claim payment of increments next above the bar it is necessary that the Government should make a special order sanctioning such payment. It is true that disciplinary proceedings against the respondent were dropped but the result claimed by the respondent cannot automatically follow a result of the dropping of the disciplinaryn this connection the Attorney General pointed out that the notice dated March 16, 1955 against the respondent asked him to show cause why: ( 1 ) he should not be stopped from crossing. the efficiency bar and (2) why a sum of Rs. 23,should not be recovered from him on account of loss caused to the Government by hisge at efficiency bar had no connection with the recovery of loss sustained by the Government and it cannot, therefore, be said that the Government wanted to impose the efficiency bar because it wanted to reimburse itself for the loss caused by the respondent. So far as the language of r. 38 is concerned it is manifest that an express order of the appropriate authority is necessary before the respondent is allowed to cross the efficiency bar. It is not, therefore, possible to accept the contention of the respondent that the Government must be deemed to have given specific sanction under r. 38 of the Hyderabad Rules permitting the respondent to cross the efficiency bar merely because disciplinary proceedings against him had been dropped for certain | 1 | 1,481 | 527 | ### 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:
service and should also be asked to make good sum of Rs. 4, 576/- being the amount of loss caused to Government in the above connection. The respondent challenged this order by a writ petition on the ground that the Enquiry Officer at Hyderabad had exonerated him of all the charges excepting one and also. because the report of the Enquiry Officer was not furnished to the respondent. The High Court of Mysore allowed the writ petition and quashed the order of the Government. Thereafter the Mysore Government took further steps in the matter and the respondent presented several other writ petitions in the Mysore High Court impinging the subsequent action of the Mysore Government. It is unnecessary for the purpose of the purpose of the present appeal to set out the orders of the Mysore Government and the writ petitions filed by the respondent and the Orders made by the High Court except to state that by an order made on December 10, 1960 he respondent who was to have retired with effect from October 27, 1960, the date on which he completed the age of 55 years was continued in service but under suspension pending completion of the disciplinary proceedings against him and that the Government by a subsequent order dated May 19, 1961 revoked the previous order of December 10, 1960 and permitted the respondent to retire dropping altogether the disciplinary proceedings against him. After his retirement the respondent flied writ petition No. 1280 of 1961 praying for declaration that he should be regarded as having crossed the efficiency bar in his pay scale on February 9, 1952 and that he should be given all the increments after the efficiency bar in the pay scale of an Executive Engineer and that he should be paid the difference and his pension should be fixed on the basis of enhanced salary claimed by him. The claim of the respondent was resisted by the Mysore State on the ground that under r. 38 of the Hyderabad Civil Service Rules a specific order ought to be made permitting the respondent to cross the efficiency bar. The High Court rejected the contention of the appellant and held that consequent upon the dropping of the proceeding against the respondent the increment withheld by way of penalty should be restored and the increased salary should be taken into account in fixing the amount of pension payable to the respondent.3. Rule 38 of the Hyderabad Civil Services Rules, 1952 reads as follows:"Where an efficiency bar is prescribed in a time scale the increment next above the bar shall not be given to a Government servant without the specific sanction of the authority empowered to withhold increments."Rule 52 of the Mysore Civil Services Rules, 1958 is in the same language. as r. 38 of the Hyderabad Civil Service Rules.4. On behalf of the respondent it was contended that the with holding of the increment of the respondent at the efficiency bar was intended to operate as a penalty for alleged misconduct. It was said that upon the facts of the case the only conclusion possible was , that the Government wanted to stop the respondent at the efficiency bar in the time scale with a view to reimburse itself at the expense of the respondent the loss said to have been caused by him to the Government. It was, therefore, argued that after the dropping of disciplinary proceedings against the respondent without recording any finding of guilt no penalty could be imposed. It was Contended that once the Government had taken the decision to stop the respondent at the efficiency bar by way of penalty it must be held that the Government had waived their right to stop the respondent at the efficiency bar for administrative reasons under r. 38. In our opinion there is no warrant for the contentions advanced on behalf of the respondent. It is manifest that in view of the language of r. 38 of the Hyderabad Rules and r. 52 of the Mysore Rules before the respondent could claim payment of increments next above the bar it is necessary that the Government should make a special order sanctioning such payment. It is true that disciplinary proceedings against the respondent were dropped but the result claimed by the respondent cannot automatically follow a result of the dropping of the disciplinary proceedings. In this connection the Attorney General pointed out that the notice dated March 16, 1955 against the respondent asked him to show cause why: ( 1 ) he should not be stopped from crossing. the efficiency bar and (2) why a sum of Rs. 23, 371-14-2 should not be recovered from him on account of loss caused to the Government by his negligence. The stoppage at efficiency bar had no connection with the recovery of loss sustained by the Government and it cannot, therefore, be said that the Government wanted to impose the efficiency bar because it wanted to reimburse itself for the loss caused by the respondent. So far as the language of r. 38 is concerned it is manifest that an express order of the appropriate authority is necessary before the respondent is allowed to cross the efficiency bar. It is not, therefore, possible to accept the contention of the respondent that the Government must be deemed to have given specific sanction under r. 38 of the Hyderabad Rules permitting the respondent to cross the efficiency bar merely because disciplinary proceedings against him had been dropped for certain reasons.5. In the High Court the case was argued by both the parties on the assumption that r. 38 applied to the case of the respondent. During the hearing of the appeal in this Court it was stated by Mr. Iyengar that when the respondent became due for crossing the efficiency bar r. 38 as it stands at present was not in operation. But it was said that a rule similar to r. 38 was in operation at the relevant time.6.
### Response:
1
### Explanation:
In our opinion there is no warrant for the contentions advanced on behalf of the respondent. It is manifest that in view of the language of r. 38 of the Hyderabad Rules and r. 52 of the Mysore Rules before the respondent could claim payment of increments next above the bar it is necessary that the Government should make a special order sanctioning such payment. It is true that disciplinary proceedings against the respondent were dropped but the result claimed by the respondent cannot automatically follow a result of the dropping of the disciplinarystoppage at efficiency bar had no connection with the recovery of loss sustained by the Government and it cannot, therefore, be said that the Government wanted to impose the efficiency bar because it wanted to reimburse itself for the loss caused by the respondent. So far as the language of r. 38 is concerned it is manifest that an express order of the appropriate authority is necessary before the respondent is allowed to cross the efficiency bar. It is not, therefore, possible to accept the contention of the respondent that the Government must be deemed to have given specific sanction under r. 38 of the Hyderabad Rules permitting the respondent to cross the efficiency bar merely because disciplinary proceedings against him had been dropped for certainour opinion there is no warrant for the contentions advanced on behalf of the respondent. It is manifest that in view of the language of r. 38 of the Hyderabad Rules and r. 52 of the Mysore Rules before the respondent could claim payment of increments next above the bar it is necessary that the Government should make a special order sanctioning such payment. It is true that disciplinary proceedings against the respondent were dropped but the result claimed by the respondent cannot automatically follow a result of the dropping of the disciplinaryn this connection the Attorney General pointed out that the notice dated March 16, 1955 against the respondent asked him to show cause why: ( 1 ) he should not be stopped from crossing. the efficiency bar and (2) why a sum of Rs. 23,should not be recovered from him on account of loss caused to the Government by hisge at efficiency bar had no connection with the recovery of loss sustained by the Government and it cannot, therefore, be said that the Government wanted to impose the efficiency bar because it wanted to reimburse itself for the loss caused by the respondent. So far as the language of r. 38 is concerned it is manifest that an express order of the appropriate authority is necessary before the respondent is allowed to cross the efficiency bar. It is not, therefore, possible to accept the contention of the respondent that the Government must be deemed to have given specific sanction under r. 38 of the Hyderabad Rules permitting the respondent to cross the efficiency bar merely because disciplinary proceedings against him had been dropped for certain
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Krishi Utpadan Mandi Samiti Vs. Ved Ram | of the said provisional assessment the trader would be entitled to tender a valid rebuttal to the statutory presumption under Section 17 of the Adhiniyam and argue that no sale having taken place within the notified area, it was not liable to pay any market fee on the movement of goods. If the explanation offered by the trader was accepted the gate pass would be issued without insisting upon any payment of the fee. But if the evidence laid by the trader is not prima facie accepted by the Mandi Samiti the trader or the dealer can be compelled to pay market fee before issue of gate pass to him. The Court further held that if the trader makes the payment without demand the matter ends and the issue finalised. In case, however, he raises a protest then the assessment shall be taken to be provisional in nature making it obligatory for the trader to pay the fee before obtaining the requisite gate pass. After protest has been lodged the provisional assessment shall be followed by a final assessment within a time frame. The Court prescribed a period of two months in respect of each such transaction enabling the aggrieved party to challenge the same under the Act or under the general law of the land before the appropriate fora. 11. The above procedure has been working effectively for the past decade and a half and ought to have been effective in the instant case also. The unfortunate part, however, was that the respondent-company did not respect the procedure stipulated under the above orders of this Court. It did not apply for and obtain gate passes for removal of its goods. The Samiti, therefore, had no occasion to pass any provisional or final order based on the material adduced before it. It is only when the respondent-company filed a declaration that the removal of the stocks pursuant to consignment note No.94 dated 14th May, 2004 in favour of Anand Sales Corporation at Ahmedabad was a stock transfer and did not require a gate pass that the Samiti issued a show-cause notice asking the respondent-company to furnish the documents with regard to the production, sale, purchase, movement and storage of the goods. Based on the figures furnished pursuant to the said show-cause notice the Samiti determined the market fee and the development fee and raised a demand for payment thereof with a direction to the company to follow the prescribed procedure for removal of goods from the mandi area. The revisional authority, as seen above, upheld the assessment of the fee and the consequential directions issued by the Samiti. The High Court, however, completely overlooked the effect of the orders passed by this Court in the two cases mentioned earlier and brought in a new mechanism which could in its opinion be more effective, in dealing with the situation that arose so very often between the Samiti on the one hand and the traders on the other. The High Court failed to appreciate that it was not on virgin ground. The matter was fully covered by the decisions of this Court. Further repair of the procedure and the mechanism so provided could only be under the orders of this Court. The High Court ought to have left it to this Court to determine as to whether the mechanism and procedure provided by our orders required any modification, and if so, in what form and to what extent. Instead of doing that, the High Court embarked upon an exercise which was not necessary especially when the same did no service to judicial discipline. 12. The High Court was also in error in holding that even when the movement of goods without gate passes may have been in violation of the rules regulating the issue of such passes, any such violation could only call for a penalty under the said rules. Assessment of market fee on the removal of such goods from the mandi area was, according to the High Court, a different matter unrelated to the breach of the rules requiring the traders to remove goods only on the authority of validly issued gate passes. The High Court appears to have overlooked the fact that if gate passes are required to be obtained under the rules, removal of stocks without applying for such gate passes and without furnishing prima facie evidence of proof that there was no sale of the goods involved, was a reason enough for the Mandi Samiti to demand payment of the market fee on the stocks that were removed. The absence of gate passes was tantamount to removal of the goods in breach of the relevant rules and also in breach of the directions issued by this Court in the two cases mentioned above. A dealer who adopted such dubious procedure and means could not complain of a failure of opportunity to produce material in support of its claim that no sale was involved. No opportunity to a dealer who was acting in defiance of the rules and removing the goods without any intimation and permission of the Samiti could be granted for the occasion to grant such an opportunity would arise only when the trader applied for the issue of a gate pass. As a matter of fact, the goods having been taken away without gate passes and without any material to show that there was no sale, the Samiti could demand payment of the market fee and leave it open to the respondent-trader to claim refund by rebutting the presumption that the removal was pursuant to a sale. At any rate, the Samiti and the Deputy Director have concurrently held that the respondent-company has not been able to rebut the presumption under Section 17 of the Adhiniyam. We see no reason to interfere with that finding especially when the appraisal of the evidence by the said two authorities has not been shown to us to be in any way perverse to warrant interference with the same.13. | 1[ds]The High Court was also in error in holding that even when the movement of goods without gate passes may have been in violation of the rules regulating the issue of such passes, any such violation could only call for a penalty under the said rules. Assessment of market fee on the removal of such goods from the mandi area was, according to the High Court, a different matter unrelated to the breach of the rules requiring the traders to remove goods only on the authority of validly issued gate passes. The High Court appears to have overlooked the fact that if gate passes are required to be obtained under the rules, removal of stocks without applying for such gate passes and without furnishing prima facie evidence of proof that there was no sale of the goods involved, was a reason enough for the Mandi Samiti to demand payment of the market fee on the stocks that were removed. The absence of gate passes was tantamount to removal of the goods in breach of the relevant rules and also in breach of the directions issued by this Court in the two cases mentioned above. A dealer who adopted such dubious procedure and means could not complain of a failure of opportunity to produce material in support of its claim that no sale was involved. No opportunity to a dealer who was acting in defiance of the rules and removing the goods without any intimation and permission of the Samiti could be granted for the occasion to grant such an opportunity would arise only when the trader applied for the issue of a gate pass. As a matter of fact, the goods having been taken away without gate passes and without any material to show that there was no sale, the Samiti could demand payment of the market fee and leave it open to the respondent-trader to claim refund by rebutting the presumption that the removal was pursuant to a sale. At any rate, the Samiti and the Deputy Director have concurrently held that the respondent-company has not been able to rebut the presumption under Section 17 of the Adhiniyam. We see no reason to interfere with that finding especially when the appraisal of the evidence by the said two authorities has not been shown to us to be in any way perverse to warrant interference with the same. | 1 | 3,822 | 419 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
of the said provisional assessment the trader would be entitled to tender a valid rebuttal to the statutory presumption under Section 17 of the Adhiniyam and argue that no sale having taken place within the notified area, it was not liable to pay any market fee on the movement of goods. If the explanation offered by the trader was accepted the gate pass would be issued without insisting upon any payment of the fee. But if the evidence laid by the trader is not prima facie accepted by the Mandi Samiti the trader or the dealer can be compelled to pay market fee before issue of gate pass to him. The Court further held that if the trader makes the payment without demand the matter ends and the issue finalised. In case, however, he raises a protest then the assessment shall be taken to be provisional in nature making it obligatory for the trader to pay the fee before obtaining the requisite gate pass. After protest has been lodged the provisional assessment shall be followed by a final assessment within a time frame. The Court prescribed a period of two months in respect of each such transaction enabling the aggrieved party to challenge the same under the Act or under the general law of the land before the appropriate fora. 11. The above procedure has been working effectively for the past decade and a half and ought to have been effective in the instant case also. The unfortunate part, however, was that the respondent-company did not respect the procedure stipulated under the above orders of this Court. It did not apply for and obtain gate passes for removal of its goods. The Samiti, therefore, had no occasion to pass any provisional or final order based on the material adduced before it. It is only when the respondent-company filed a declaration that the removal of the stocks pursuant to consignment note No.94 dated 14th May, 2004 in favour of Anand Sales Corporation at Ahmedabad was a stock transfer and did not require a gate pass that the Samiti issued a show-cause notice asking the respondent-company to furnish the documents with regard to the production, sale, purchase, movement and storage of the goods. Based on the figures furnished pursuant to the said show-cause notice the Samiti determined the market fee and the development fee and raised a demand for payment thereof with a direction to the company to follow the prescribed procedure for removal of goods from the mandi area. The revisional authority, as seen above, upheld the assessment of the fee and the consequential directions issued by the Samiti. The High Court, however, completely overlooked the effect of the orders passed by this Court in the two cases mentioned earlier and brought in a new mechanism which could in its opinion be more effective, in dealing with the situation that arose so very often between the Samiti on the one hand and the traders on the other. The High Court failed to appreciate that it was not on virgin ground. The matter was fully covered by the decisions of this Court. Further repair of the procedure and the mechanism so provided could only be under the orders of this Court. The High Court ought to have left it to this Court to determine as to whether the mechanism and procedure provided by our orders required any modification, and if so, in what form and to what extent. Instead of doing that, the High Court embarked upon an exercise which was not necessary especially when the same did no service to judicial discipline. 12. The High Court was also in error in holding that even when the movement of goods without gate passes may have been in violation of the rules regulating the issue of such passes, any such violation could only call for a penalty under the said rules. Assessment of market fee on the removal of such goods from the mandi area was, according to the High Court, a different matter unrelated to the breach of the rules requiring the traders to remove goods only on the authority of validly issued gate passes. The High Court appears to have overlooked the fact that if gate passes are required to be obtained under the rules, removal of stocks without applying for such gate passes and without furnishing prima facie evidence of proof that there was no sale of the goods involved, was a reason enough for the Mandi Samiti to demand payment of the market fee on the stocks that were removed. The absence of gate passes was tantamount to removal of the goods in breach of the relevant rules and also in breach of the directions issued by this Court in the two cases mentioned above. A dealer who adopted such dubious procedure and means could not complain of a failure of opportunity to produce material in support of its claim that no sale was involved. No opportunity to a dealer who was acting in defiance of the rules and removing the goods without any intimation and permission of the Samiti could be granted for the occasion to grant such an opportunity would arise only when the trader applied for the issue of a gate pass. As a matter of fact, the goods having been taken away without gate passes and without any material to show that there was no sale, the Samiti could demand payment of the market fee and leave it open to the respondent-trader to claim refund by rebutting the presumption that the removal was pursuant to a sale. At any rate, the Samiti and the Deputy Director have concurrently held that the respondent-company has not been able to rebut the presumption under Section 17 of the Adhiniyam. We see no reason to interfere with that finding especially when the appraisal of the evidence by the said two authorities has not been shown to us to be in any way perverse to warrant interference with the same.13.
### Response:
1
### Explanation:
The High Court was also in error in holding that even when the movement of goods without gate passes may have been in violation of the rules regulating the issue of such passes, any such violation could only call for a penalty under the said rules. Assessment of market fee on the removal of such goods from the mandi area was, according to the High Court, a different matter unrelated to the breach of the rules requiring the traders to remove goods only on the authority of validly issued gate passes. The High Court appears to have overlooked the fact that if gate passes are required to be obtained under the rules, removal of stocks without applying for such gate passes and without furnishing prima facie evidence of proof that there was no sale of the goods involved, was a reason enough for the Mandi Samiti to demand payment of the market fee on the stocks that were removed. The absence of gate passes was tantamount to removal of the goods in breach of the relevant rules and also in breach of the directions issued by this Court in the two cases mentioned above. A dealer who adopted such dubious procedure and means could not complain of a failure of opportunity to produce material in support of its claim that no sale was involved. No opportunity to a dealer who was acting in defiance of the rules and removing the goods without any intimation and permission of the Samiti could be granted for the occasion to grant such an opportunity would arise only when the trader applied for the issue of a gate pass. As a matter of fact, the goods having been taken away without gate passes and without any material to show that there was no sale, the Samiti could demand payment of the market fee and leave it open to the respondent-trader to claim refund by rebutting the presumption that the removal was pursuant to a sale. At any rate, the Samiti and the Deputy Director have concurrently held that the respondent-company has not been able to rebut the presumption under Section 17 of the Adhiniyam. We see no reason to interfere with that finding especially when the appraisal of the evidence by the said two authorities has not been shown to us to be in any way perverse to warrant interference with the same.
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KRISHNAMURTHY S. SETLUR (DEAD) BY LRS Vs. O.V.NARASIMHA SETTY(DEAD) BY LRS | KS was not the true owner of the property.14. In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted. The High Court has held, and rightly so, that in the proceedings decided in favour of KS, HR or his legal representatives were not made parties. However, the High Court lost sight of the fact that in the proceedings filed by AR, KS was not impleaded as a party though his name was shown in the revenue record. It is obvious that both sides had tried to obtain orders behind each other?s back. Reliance cannot be placed on either of the documents in which all the parties were not duly represented. The net result is that KS is not the owner of the property, but it is equally true that from 1963, he had been shown to be in possession pursuant to the application (Exhibit P-10) and the order (Exhibit P¬11) of the Tehsildar. This possession was adverse to the true owner. It was openly hostile to the claim of HR and his legal representatives and they never filed a suit for possession of the property. Once it is held that KS was in possession of the suit property, the consequence will be that he is in adverse possession. The legal representatives of HR have failed to show- how they obtained possession from HR. Even, according to the case of HR, it was AR who was in possession as a tenant. AR surrendered part of the land to KS and not to HR. No doubt, in later proceedings in which KS was not a party, AR made a statement that he was never a tenant in the suit, but such statement flies in the face of the pleadings of AR in O.S. No.79 of 1949 filed by HR and the decisions in those proceedings. Furthermore, AR had executed a registered sale¬ cum-release deed jointly with KS and this was ratified by the Tehsildar.15. In view of the aforesaid facts, it is apparent that the legal heirs of HR miserably failed to prove how they came into possession of the suit property. Therefore, we are clearly of the view that the High Court gravely erred in coming to the conclusion that KS was not in possession of the suit property when the suit was filed. He may have been dispossessed after filing of the suit but that has no effect on the case.16. In a reference made to a larger Bench of this Court in this case as well as in other connected matters in the case of Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. Civil Appeal No.7764 of 2014, decision dated 07.08.2019Civil Appeal No.7764 of 2014, decision dated 07.08.2019Civil Appeal No.7764 of 2014, decision dated 07.08.2019Civil Appeal No.7764 of 2014, decision dated 07.08.2019 , the larger Bench had held that the plea of adverse possession can be used both as an offence and as a defence i.e. both as sword and as a shield. Relevant portion of the judgment reads as follows:¬?59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner?s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.60. When we consider the law of adverse possession as has developed vis¬à¬vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.61……We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff.?17. Thus, there can be no manner of dispute that a plaintiff can claim title to the property based on adverse possession. | 1[ds]10. From a perusal of the above facts, it is apparent that the claim of KS that he was the true owner of the land had been negatived at all stages. Therefore, HR was, no doubt, the owner of the land.In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted. The High Court has held, and rightly so, that in the proceedings decided in favour of KS, HR or his legal representatives were not made parties. However, the High Court lost sight of the fact that in the proceedings filed by AR, KS was not impleaded as a party though his name was shown in the revenue record. It is obvious that both sides had tried to obtain orders behind each other?s back. Reliance cannot be placed on either of the documents in which all the parties were not duly represented. The net result is that KS is not the owner of the property, but it is equally true that from 1963, he had been shown to be in possession pursuant to the application (Exhibit P-10) and the order (Exhibit P¬11) of the Tehsildar. This possession was adverse to the true owner. It was openly hostile to the claim of HR and his legal representatives and they never filed a suit for possession of the property. Once it is held that KS was in possession of the suit property, the consequence will be that he is in adverse possession. The legal representatives of HR have failed to show- how they obtained possession from HR. Even, according to the case of HR, it was AR who was in possession as a tenant. AR surrendered part of the land to KS and not to HR. No doubt, in later proceedings in which KS was not a party, AR made a statement that he was never a tenant in the suit, but such statement flies in the face of the pleadings of AR in O.S. No.79 of 1949 filed by HR and the decisions in those proceedings. Furthermore, AR had executed a registered sale¬ cum-release deed jointly with KS and this was ratified by the Tehsildar.15. In view of the aforesaid facts, it is apparent that the legal heirs of HR miserably failed to prove how they came into possession of the suit property. Therefore, we are clearly of the view that the High Court gravely erred in coming to the conclusion that KS was not in possession of the suit property when the suit was filed. He may have been dispossessed after filing of the suit but that has no effect on the case.Thus, there can be no manner of dispute that a plaintiff can claim title to the property based on adverse possession. | 1 | 3,202 | 553 | ### 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:
KS was not the true owner of the property.14. In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted. The High Court has held, and rightly so, that in the proceedings decided in favour of KS, HR or his legal representatives were not made parties. However, the High Court lost sight of the fact that in the proceedings filed by AR, KS was not impleaded as a party though his name was shown in the revenue record. It is obvious that both sides had tried to obtain orders behind each other?s back. Reliance cannot be placed on either of the documents in which all the parties were not duly represented. The net result is that KS is not the owner of the property, but it is equally true that from 1963, he had been shown to be in possession pursuant to the application (Exhibit P-10) and the order (Exhibit P¬11) of the Tehsildar. This possession was adverse to the true owner. It was openly hostile to the claim of HR and his legal representatives and they never filed a suit for possession of the property. Once it is held that KS was in possession of the suit property, the consequence will be that he is in adverse possession. The legal representatives of HR have failed to show- how they obtained possession from HR. Even, according to the case of HR, it was AR who was in possession as a tenant. AR surrendered part of the land to KS and not to HR. No doubt, in later proceedings in which KS was not a party, AR made a statement that he was never a tenant in the suit, but such statement flies in the face of the pleadings of AR in O.S. No.79 of 1949 filed by HR and the decisions in those proceedings. Furthermore, AR had executed a registered sale¬ cum-release deed jointly with KS and this was ratified by the Tehsildar.15. In view of the aforesaid facts, it is apparent that the legal heirs of HR miserably failed to prove how they came into possession of the suit property. Therefore, we are clearly of the view that the High Court gravely erred in coming to the conclusion that KS was not in possession of the suit property when the suit was filed. He may have been dispossessed after filing of the suit but that has no effect on the case.16. In a reference made to a larger Bench of this Court in this case as well as in other connected matters in the case of Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. Civil Appeal No.7764 of 2014, decision dated 07.08.2019Civil Appeal No.7764 of 2014, decision dated 07.08.2019Civil Appeal No.7764 of 2014, decision dated 07.08.2019Civil Appeal No.7764 of 2014, decision dated 07.08.2019 , the larger Bench had held that the plea of adverse possession can be used both as an offence and as a defence i.e. both as sword and as a shield. Relevant portion of the judgment reads as follows:¬?59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner?s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.60. When we consider the law of adverse possession as has developed vis¬à¬vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.61……We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff.?17. Thus, there can be no manner of dispute that a plaintiff can claim title to the property based on adverse possession.
### Response:
1
### Explanation:
10. From a perusal of the above facts, it is apparent that the claim of KS that he was the true owner of the land had been negatived at all stages. Therefore, HR was, no doubt, the owner of the land.In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted. The High Court has held, and rightly so, that in the proceedings decided in favour of KS, HR or his legal representatives were not made parties. However, the High Court lost sight of the fact that in the proceedings filed by AR, KS was not impleaded as a party though his name was shown in the revenue record. It is obvious that both sides had tried to obtain orders behind each other?s back. Reliance cannot be placed on either of the documents in which all the parties were not duly represented. The net result is that KS is not the owner of the property, but it is equally true that from 1963, he had been shown to be in possession pursuant to the application (Exhibit P-10) and the order (Exhibit P¬11) of the Tehsildar. This possession was adverse to the true owner. It was openly hostile to the claim of HR and his legal representatives and they never filed a suit for possession of the property. Once it is held that KS was in possession of the suit property, the consequence will be that he is in adverse possession. The legal representatives of HR have failed to show- how they obtained possession from HR. Even, according to the case of HR, it was AR who was in possession as a tenant. AR surrendered part of the land to KS and not to HR. No doubt, in later proceedings in which KS was not a party, AR made a statement that he was never a tenant in the suit, but such statement flies in the face of the pleadings of AR in O.S. No.79 of 1949 filed by HR and the decisions in those proceedings. Furthermore, AR had executed a registered sale¬ cum-release deed jointly with KS and this was ratified by the Tehsildar.15. In view of the aforesaid facts, it is apparent that the legal heirs of HR miserably failed to prove how they came into possession of the suit property. Therefore, we are clearly of the view that the High Court gravely erred in coming to the conclusion that KS was not in possession of the suit property when the suit was filed. He may have been dispossessed after filing of the suit but that has no effect on the case.Thus, there can be no manner of dispute that a plaintiff can claim title to the property based on adverse possession.
|
M.J.THULSIRAMAN Vs. COMMR | Act, the purpose is with respect to religion or charity. [See P. Ramanatha Aiyar: The Law Lexicon, Second Edn., p. 634, 635; Pratapsinghji N. Desai v. Deputy Charity Commissioner Gujarat, 1987 Supp. SCC 714, paragraph 8]. In the present case, the rock inscription clearly provides for the utilization of money from the ?Bakers Choultry? for the purposes of performing the charitable activity of feeding Brahmins during the specified religious festivals. As such, it is clear that the rock inscription creates a ?specific endowment? as specified under Section 6(19) of the Act, which falls within the ambit of the Act. 18. The same conclusion was reached by this Court in the Narayana Ayyangar case (supra), wherein a Fund, instituted for the purposes of feeding Brahmin pilgrims attending the Sri Venkatachalapathiswami shrine at Village Gunaseelam on the occasion of the Rathotsavam festival, was stated to be a religious charity. In that case, the Court held that:?7. On the facts found, it is clear that on the occasion of the Rathotsavam festival of Sri Prasanna Venkatachalapathiswami shrine, pilgrims from many places attend the festival and the object of the charity is to feed Brahmins attending the shrine on the occasion of this festival. It is not disputed that setting up a Fund for feeding Brahmins is a public charity. The primary purpose of the charity is to feed Brahmin pilgrims attending the Rathotsavam. This public charity has therefore a real connection with the Rathotsavam which is a Hindu festival of a religious character, and therefore it is a religious charity within the meaning of Section 6(13) of Madras Act 19 of 1951…?19. Similarly, in the case of K.S. Soundararajan and Ors. v. Commissioner of Hindu Religious and Charitable Endowments and Ors., (2016) 15 SCC 597 , this Court again dealt with a similar issue. In this case, the Court was required to determine the nature of certain charities mentioned in a Will, wherein it was stated that persons of the same caste as the testator would be fed on the occasion of Panguni festival every year. The Will also provided for the supply of food to persons during the day of Chitra Pournami. In this context, the Court held that the abovementioned two charities constitute religious charities, and that it was within the ambit of the High Court under the Act to pass orders regarding the framing of a scheme for administering the same. 20. As regards the contention of the learned counsel for the appellants, that the rock inscription did not constitute a specific endowment as the same was vague, secular in nature and did not result in any divestment of title, it must be stated that a bare perusal of the inscription would indicate that the first two contentions ought to be rejected. The rock inscription clearly stipulates the festivals during which the activity of feeding of Brahmins should be conducted. Not only are these festivals Hindu festivals, but the reference to ?Brahmins? in the rock inscription itself clearly indicates that the endowment is not of a secular nature. 21. Finally, with respect to the learned counsel for the appellants? submission regarding the absence of divestment of property for the constitution of a specific endowment, the same would have to be rejected. A three¬Judge Bench of this Court, in the case of M.R. Goda Rao Sahib v. The State of Madras, AIR 1966 SC 653 , while holding that divestment is necessary, decided on the facts of that case that a settlement deed which provided for a charge on properties for the payment of money amounted to a divestment:?4. There is no dispute that in order that there may be an endowment within the meaning of the Act, the settlor must divest himself of the property endowed. To create an endowment he must give it and if he has given it, he of course has not retained it; he has then divested himself of it. Did the settlors then divest themselves of anything? We think they did. By the instrument the settlors certainly divested themselves of the right to receive a certain part of the income derived from the properties in question. They deprived themselves of the right to deal with the properties free of charge as absolute owners which they previously were...? (emphasis supplied)22. In the facts of the present appeal, the contents of the rock inscription are sufficient for us to hold that there has been a valid divestment and to reject the contention of the counsel for the appellants. The rock inscription clearly indicates that the choultry is to be managed by the community of bakers, who will use the balance funds for the benefit of others. Further, the inscription also states that the managers do not have any power of alienation with respect to the choultry. In the present appeal therefore, as in the case of M.R. Goda Rao Sahib (supra), there has been a clear divestment of the right to receive a certain part of the income, with the inscription also stipulating a bar on the right of the manager to transfer the choultry. 23. Another factor which merits our consideration is the fact that the predecessor¬in¬interest of the appellants had been party to earlier proceedings, before the Charity authorities and the Courts, wherein he had filed pleadings to the effect that the ?Bakers Choultry? constituted a ?specific endowment?. Although the predecessor¬in¬ interest of the applicant ultimately withdrew the application before the Deputy Commissioner wherein he made the said pleading, it is quite disingenuous of him to have subsequently filed an application before the Commissioner claiming the same property to be his personal property. 24. Therefore, taking into consideration the existing law and the facts of the present case, we hold that the ?Bakers Choultry?, and the rock inscription therein, constitute a ?specific endowment? as defined under the Act, and the same is not the private property of the appellants. The well reasoned judgment passed by the High Court, impugned before us, therefore warrants no interference. | 0[ds]10. From the above, it is clear that a specific endowment" means any property or money endowed for the performance of any specific service or charity in a math or temple or for the performance of any other religious charity. As it is admitted that in the present case there is no question of performing the service in the temple or a math, the endowment in the present case must fall under the second category, i.e., it must be for the performance of a religious charity, to be a specific endowment.In the present case, the rock inscription in the ?Bakers Choultry?, which governs the functioning of the choultry, provides for the feeding of Brahmins. This is clearly a charity which benefits the ?public?, in line with the holding of the aforementioned Constitution Bench decision of this Court.Further, the rock inscription specifically states that the charity of feeding the Brahmins is to be done at the time of specific religious festivals, viz., ?Arubathumoovar Brahmotsavam? which is held in the Mylapore temple, and the festival in Sri Thiagarajaswami temple, Thiruvotriyur, Chennai. The phrase ?associated with? in the definition of religious charity has been interpreted in a three¬Judge Bench decision of this Court, in the case of The Commissioner, Madras Hindu Religious and Charitable Endowments v. Narayana Ayyangar and Ors., AIR 1965 SC 1916 , which is extracted as… The expression ?associated? in Section 6(13) of Act 19 of 1951 is used having regard to the history of the legislation, the scheme and objects of the Act, and the context in which the expression occurs, as meaning ?being connected with? or ?in relation to?. The expression does not import any control by the authorities who manage or administer the. As such, the public charity described in the rock inscription, being associated with a religious festival, constitutes a religious charity as defined under the Act.As already mentioned above, under Section 6(19) of the Act, the definition of ?specific endowment? includes any money that has been endowed for the performance of a religious charity. Following our holding that the rock inscription provides for a religious charity, it is sufficient to show that money has been endowed for the performance of the same for it to constitute a specific endowment under the Act.While the word ?endow?, and the connected word ?endowment?, have actually not been defined under the Act, from their usage in the Act and judgments on the subject, it is clear that they relate to the idea of giving, bequeathing or dedicating something, whether property or otherwise, for some purpose. In the context of the Act, the purpose is with respect to religion or charity. [See P. Ramanatha Aiyar: The Law Lexicon, Second Edn., p. 634, 635; Pratapsinghji N. Desai v. Deputy Charity Commissioner Gujarat, 1987 Supp. SCC 714, paragraph 8]. In the present case, the rock inscription clearly provides for the utilization of money from the ?Bakers Choultry? for the purposes of performing the charitable activity of feeding Brahmins during the specified religious festivals. As such, it is clear that the rock inscription creates a ?specific endowment? as specified under Section 6(19) of the Act, which falls within the ambit of the Act.As regards the contention of the learned counsel for the appellants, that the rock inscription did not constitute a specific endowment as the same was vague, secular in nature and did not result in any divestment of title, it must be stated that a bare perusal of the inscription would indicate that the first two contentions ought to be rejected. The rock inscription clearly stipulates the festivals during which the activity of feeding of Brahmins should be conducted. Not only are these festivals Hindu festivals, but the reference to ?Brahmins? in the rock inscription itself clearly indicates that the endowment is not of a secular nature.Finally, with respect to the learned counsel for the appellants? submission regarding the absence of divestment of property for the constitution of a specific endowment, the same would have to be rejected. A three¬Judge Bench of this Court, in the case of M.R. Goda Rao Sahib v. The State of Madras, AIR 1966 SC 653 , while holding that divestment is necessary, decided on the facts of that case that a settlement deed which provided for a charge on properties for the payment of money amounted to aThere is no dispute that in order that there may be an endowment within the meaning of the Act, the settlor must divest himself of the property endowed. To create an endowment he must give it and if he has given it, he of course has not retained it; he has then divested himself of it. Did the settlors then divest themselves of anything? We think they did. By the instrument the settlors certainly divested themselves of the right to receive a certain part of the income derived from the properties in question. They deprived themselves of the right to deal with the properties free of charge as absolute owners which they previously were...In the facts of the present appeal, the contents of the rock inscription are sufficient for us to hold that there has been a valid divestment and to reject the contention of the counsel for the appellants. The rock inscription clearly indicates that the choultry is to be managed by the community of bakers, who will use the balance funds for the benefit of others. Further, the inscription also states that the managers do not have any power of alienation with respect to the choultry. In the present appeal therefore, as in the case of M.R. Goda Rao Sahib (supra), there has been a clear divestment of the right to receive a certain part of the income, with the inscription also stipulating a bar on the right of the manager to transfer the choultry.Another factor which merits our consideration is the fact that the predecessor¬in¬interest of the appellants had been party to earlier proceedings, before the Charity authorities and the Courts, wherein he had filed pleadings to the effect that the ?Bakers Choultry? constituted a ?specific endowment?. Although the predecessor¬in¬ interest of the applicant ultimately withdrew the application before the Deputy Commissioner wherein he made the said pleading, it is quite disingenuous of him to have subsequently filed an application before the Commissioner claiming the same property to be his personal property.Therefore, taking into consideration the existing law and the facts of the present case, we hold that the ?Bakers Choultry?, and the rock inscription therein, constitute a ?specific endowment? as defined under the Act, and the same is not the private property of the appellants. The well reasoned judgment passed by the High Court, impugned before us, therefore warrants no interference.A ?religious charity? has been defined to mean a public charity associated with Hindu festival or observance of a religious character. The second part of Section 6(16) of the Act clarifies that there is no requirement for the public charity to be connected with a temple or a math. | 0 | 3,043 | 1,326 | ### 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:
Act, the purpose is with respect to religion or charity. [See P. Ramanatha Aiyar: The Law Lexicon, Second Edn., p. 634, 635; Pratapsinghji N. Desai v. Deputy Charity Commissioner Gujarat, 1987 Supp. SCC 714, paragraph 8]. In the present case, the rock inscription clearly provides for the utilization of money from the ?Bakers Choultry? for the purposes of performing the charitable activity of feeding Brahmins during the specified religious festivals. As such, it is clear that the rock inscription creates a ?specific endowment? as specified under Section 6(19) of the Act, which falls within the ambit of the Act. 18. The same conclusion was reached by this Court in the Narayana Ayyangar case (supra), wherein a Fund, instituted for the purposes of feeding Brahmin pilgrims attending the Sri Venkatachalapathiswami shrine at Village Gunaseelam on the occasion of the Rathotsavam festival, was stated to be a religious charity. In that case, the Court held that:?7. On the facts found, it is clear that on the occasion of the Rathotsavam festival of Sri Prasanna Venkatachalapathiswami shrine, pilgrims from many places attend the festival and the object of the charity is to feed Brahmins attending the shrine on the occasion of this festival. It is not disputed that setting up a Fund for feeding Brahmins is a public charity. The primary purpose of the charity is to feed Brahmin pilgrims attending the Rathotsavam. This public charity has therefore a real connection with the Rathotsavam which is a Hindu festival of a religious character, and therefore it is a religious charity within the meaning of Section 6(13) of Madras Act 19 of 1951…?19. Similarly, in the case of K.S. Soundararajan and Ors. v. Commissioner of Hindu Religious and Charitable Endowments and Ors., (2016) 15 SCC 597 , this Court again dealt with a similar issue. In this case, the Court was required to determine the nature of certain charities mentioned in a Will, wherein it was stated that persons of the same caste as the testator would be fed on the occasion of Panguni festival every year. The Will also provided for the supply of food to persons during the day of Chitra Pournami. In this context, the Court held that the abovementioned two charities constitute religious charities, and that it was within the ambit of the High Court under the Act to pass orders regarding the framing of a scheme for administering the same. 20. As regards the contention of the learned counsel for the appellants, that the rock inscription did not constitute a specific endowment as the same was vague, secular in nature and did not result in any divestment of title, it must be stated that a bare perusal of the inscription would indicate that the first two contentions ought to be rejected. The rock inscription clearly stipulates the festivals during which the activity of feeding of Brahmins should be conducted. Not only are these festivals Hindu festivals, but the reference to ?Brahmins? in the rock inscription itself clearly indicates that the endowment is not of a secular nature. 21. Finally, with respect to the learned counsel for the appellants? submission regarding the absence of divestment of property for the constitution of a specific endowment, the same would have to be rejected. A three¬Judge Bench of this Court, in the case of M.R. Goda Rao Sahib v. The State of Madras, AIR 1966 SC 653 , while holding that divestment is necessary, decided on the facts of that case that a settlement deed which provided for a charge on properties for the payment of money amounted to a divestment:?4. There is no dispute that in order that there may be an endowment within the meaning of the Act, the settlor must divest himself of the property endowed. To create an endowment he must give it and if he has given it, he of course has not retained it; he has then divested himself of it. Did the settlors then divest themselves of anything? We think they did. By the instrument the settlors certainly divested themselves of the right to receive a certain part of the income derived from the properties in question. They deprived themselves of the right to deal with the properties free of charge as absolute owners which they previously were...? (emphasis supplied)22. In the facts of the present appeal, the contents of the rock inscription are sufficient for us to hold that there has been a valid divestment and to reject the contention of the counsel for the appellants. The rock inscription clearly indicates that the choultry is to be managed by the community of bakers, who will use the balance funds for the benefit of others. Further, the inscription also states that the managers do not have any power of alienation with respect to the choultry. In the present appeal therefore, as in the case of M.R. Goda Rao Sahib (supra), there has been a clear divestment of the right to receive a certain part of the income, with the inscription also stipulating a bar on the right of the manager to transfer the choultry. 23. Another factor which merits our consideration is the fact that the predecessor¬in¬interest of the appellants had been party to earlier proceedings, before the Charity authorities and the Courts, wherein he had filed pleadings to the effect that the ?Bakers Choultry? constituted a ?specific endowment?. Although the predecessor¬in¬ interest of the applicant ultimately withdrew the application before the Deputy Commissioner wherein he made the said pleading, it is quite disingenuous of him to have subsequently filed an application before the Commissioner claiming the same property to be his personal property. 24. Therefore, taking into consideration the existing law and the facts of the present case, we hold that the ?Bakers Choultry?, and the rock inscription therein, constitute a ?specific endowment? as defined under the Act, and the same is not the private property of the appellants. The well reasoned judgment passed by the High Court, impugned before us, therefore warrants no interference.
### Response:
0
### Explanation:
Mylapore temple, and the festival in Sri Thiagarajaswami temple, Thiruvotriyur, Chennai. The phrase ?associated with? in the definition of religious charity has been interpreted in a three¬Judge Bench decision of this Court, in the case of The Commissioner, Madras Hindu Religious and Charitable Endowments v. Narayana Ayyangar and Ors., AIR 1965 SC 1916 , which is extracted as… The expression ?associated? in Section 6(13) of Act 19 of 1951 is used having regard to the history of the legislation, the scheme and objects of the Act, and the context in which the expression occurs, as meaning ?being connected with? or ?in relation to?. The expression does not import any control by the authorities who manage or administer the. As such, the public charity described in the rock inscription, being associated with a religious festival, constitutes a religious charity as defined under the Act.As already mentioned above, under Section 6(19) of the Act, the definition of ?specific endowment? includes any money that has been endowed for the performance of a religious charity. Following our holding that the rock inscription provides for a religious charity, it is sufficient to show that money has been endowed for the performance of the same for it to constitute a specific endowment under the Act.While the word ?endow?, and the connected word ?endowment?, have actually not been defined under the Act, from their usage in the Act and judgments on the subject, it is clear that they relate to the idea of giving, bequeathing or dedicating something, whether property or otherwise, for some purpose. In the context of the Act, the purpose is with respect to religion or charity. [See P. Ramanatha Aiyar: The Law Lexicon, Second Edn., p. 634, 635; Pratapsinghji N. Desai v. Deputy Charity Commissioner Gujarat, 1987 Supp. SCC 714, paragraph 8]. In the present case, the rock inscription clearly provides for the utilization of money from the ?Bakers Choultry? for the purposes of performing the charitable activity of feeding Brahmins during the specified religious festivals. As such, it is clear that the rock inscription creates a ?specific endowment? as specified under Section 6(19) of the Act, which falls within the ambit of the Act.As regards the contention of the learned counsel for the appellants, that the rock inscription did not constitute a specific endowment as the same was vague, secular in nature and did not result in any divestment of title, it must be stated that a bare perusal of the inscription would indicate that the first two contentions ought to be rejected. The rock inscription clearly stipulates the festivals during which the activity of feeding of Brahmins should be conducted. Not only are these festivals Hindu festivals, but the reference to ?Brahmins? in the rock inscription itself clearly indicates that the endowment is not of a secular nature.Finally, with respect to the learned counsel for the appellants? submission regarding the absence of divestment of property for the constitution of a specific endowment, the same would have to be rejected. A three¬Judge Bench of this Court, in the case of M.R. Goda Rao Sahib v. The State of Madras, AIR 1966 SC 653 , while holding that divestment is necessary, decided on the facts of that case that a settlement deed which provided for a charge on properties for the payment of money amounted to aThere is no dispute that in order that there may be an endowment within the meaning of the Act, the settlor must divest himself of the property endowed. To create an endowment he must give it and if he has given it, he of course has not retained it; he has then divested himself of it. Did the settlors then divest themselves of anything? We think they did. By the instrument the settlors certainly divested themselves of the right to receive a certain part of the income derived from the properties in question. They deprived themselves of the right to deal with the properties free of charge as absolute owners which they previously were...In the facts of the present appeal, the contents of the rock inscription are sufficient for us to hold that there has been a valid divestment and to reject the contention of the counsel for the appellants. The rock inscription clearly indicates that the choultry is to be managed by the community of bakers, who will use the balance funds for the benefit of others. Further, the inscription also states that the managers do not have any power of alienation with respect to the choultry. In the present appeal therefore, as in the case of M.R. Goda Rao Sahib (supra), there has been a clear divestment of the right to receive a certain part of the income, with the inscription also stipulating a bar on the right of the manager to transfer the choultry.Another factor which merits our consideration is the fact that the predecessor¬in¬interest of the appellants had been party to earlier proceedings, before the Charity authorities and the Courts, wherein he had filed pleadings to the effect that the ?Bakers Choultry? constituted a ?specific endowment?. Although the predecessor¬in¬ interest of the applicant ultimately withdrew the application before the Deputy Commissioner wherein he made the said pleading, it is quite disingenuous of him to have subsequently filed an application before the Commissioner claiming the same property to be his personal property.Therefore, taking into consideration the existing law and the facts of the present case, we hold that the ?Bakers Choultry?, and the rock inscription therein, constitute a ?specific endowment? as defined under the Act, and the same is not the private property of the appellants. The well reasoned judgment passed by the High Court, impugned before us, therefore warrants no interference.A ?religious charity? has been defined to mean a public charity associated with Hindu festival or observance of a religious character. The second part of Section 6(16) of the Act clarifies that there is no requirement for the public charity to be connected with a temple or a math.
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Ibrahim & Others Vs. State of West Bengal & Another | of the offences charged. He accordingly sentenced them as already stated. The High Court summarily rejected their revision.4. In this appeal it is contended (a) that there was no desertion on the part of the appellants, and (b) even if they be held to have left the ship they were protected by the fact that there was reasonable cause for absenting themselves at the time of the sailing of the ship.5. The matter is governed by the Merchant Shipping Act, 1958. It does not define what is meant by desertion; but in Moore v. Canadian Pacific Steamship Co., 1945-1 All ER 128. Mr. Justice Lynskey gave a definition of desertion from an early case [The West-morland. (1841) 1 Wm Rob 216] as follows :-"I think a deserter is a man who leaves his ship and does not return to it with no other purpose than to break his agreement."The gist of desertion therefore is the existence of an animus not to return to the ship on in other words, to go against the agreements under which the employment of seamen for Sea voyages generally takes place.In our opinion, this definition may be taken as a workable proposition for application to the present case. There is nothing in this case to show that after the seamen left the vessel, they intended to return to it. In fact they went and later took their baggage, because under the law penalty includes forfeiture of the effects left on board. The whole tenor of their conduct, particularly the intervention of labour leaders is indicative of the fact that they left the ship with no intention to return to it unless their demands were met forthwith even though before the Master the Company had stated that the matter would be finally considered at the end of the voyage and the termination of the agreement.There are provisions in the Act under which the seamen have got rights to enforce payment against their employers taking recourse to a Magistrate who in summary proceedings may decide what amount is due to them and order its payment.It is true that this action could only be taken at Cochin where the registered office of the Company is situate, but in any event the crew were required under the agreement to take back the vessel to Cochin and could well have waited till they returned to the home port and then made the demand before the appropriate authority. The way they have acted clearly shows that they were using the weapon of strike with a view to force the issue with their employers and were nut intending to return to the vessel unless their demands were acceded to immediately. In these circumstances, it is legitimate to infer that they were breaking the agreement with the company which was to keep the ship in voyage upto June 10, 1964 which could not take place if all the crew remained on shore and the vessel could not weigh anchor and leave the port without ratings.We are, therefore, satisfied that this was a case of desertion and that it fell within the definition of the term as stated by us.6. Section 191 (1) is in two parts. The first part deals with only desertion and therefore, if desertion was proved, the penalty which the law provides under the Act was duly incurred. There is no excuse against desertion because reasonable cause which is indicated in the same section is included in Cl. (b) and not in Cl. (a). But even if one were to view their conduct as falling under (b) and not (a) as the courts have held, we see no excuse on their part.The operation of shipping requires constant attention from its crew and it is not possible for a shipping company or a vessel to ply the ship if the crew at every port make demands and leave the ship in a body. Such conduct would he subversive of all discipline on board. It is not so long ago that seamen were put in stocks and chains and the leaders were made to walk the plank or hung from the yard-arm or at the least were flogged.The law has made the life of seamen little more liberal but has chosen to regard their duties as of paramount importance and has therefore, in addition to the ordinary liabilities which arise under the general law, added a penalty of imprisonment for absence from duty without reasonable cause and has also provided for forfeiture of wages and the effects left on board. This indicates that the policy of the law is that the crew must perform their duties under such agreements as they execute with the shipping company on pain of being found guilty and punished if they cannot make out that they had sufficient and reasonable cause for what may otherwise be regarded as dereliction of duty. In our opinion, in the present case there was not that sufficient cause even for purpose of Cl. (b) of S. 191 (1).After all the dispute was before the Shipping Master, meetings had taken place and minutes had been recorded.The log book of the shipping Company would show the different voyages and their duration and the muster roll would show the attendance of the crew. It was a matter of mere arithmetical calculation between Re. 1 per day and 62 paise per day to find out how much money was due to each of the ratings. This would not amount to more than Rs. 30 or Rs. 40 per person and this claim might well have waited till the completion of the voyage, because the record of the entire proceedings was kept in the Shipping Masters office and there was machinery in law for the enforcement of a demand. In our opinion, the ratings were overweighed by their leaders and were induced to leave the ship in a body in a manner which can only be described as desertion and therefore their offence was fully established. | 0[ds]6. Section 191 (1) is in two parts. The first part deals with only desertion and therefore, if desertion was proved, the penalty which the law provides under the Act was duly incurred. There is no excuse against desertion because reasonable cause which is indicated in the same section is included in Cl. (b) and not in Cl. (a). But even if one were to view their conduct as falling under (b) and not (a) as the courts have held, we see no excuse on theirour opinion, in the present case there was not that sufficient cause even for purpose of Cl. (b) of S. 191 (1).After all the dispute was before the Shipping Master, meetings had taken place and minutes had been recorded.The log book of the shipping Company would show the different voyages and their duration and the muster roll would show the attendance of the crew. It was a matter of mere arithmetical calculation between Re. 1 per day and 62 paise per day to find out how much money was due to each of the ratings. This would not amount to more than Rs. 30 or Rs. 40 per person and this claim might well have waited till the completion of the voyage, because the record of the entire proceedings was kept in the Shipping Masters office and there was machinery in law for the enforcement of a demand. In our opinion, the ratings were overweighed by their leaders and were induced to leave the ship in a body in a manner which can only be described as desertion and therefore their offence was fully established. | 0 | 1,661 | 310 | ### 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:
of the offences charged. He accordingly sentenced them as already stated. The High Court summarily rejected their revision.4. In this appeal it is contended (a) that there was no desertion on the part of the appellants, and (b) even if they be held to have left the ship they were protected by the fact that there was reasonable cause for absenting themselves at the time of the sailing of the ship.5. The matter is governed by the Merchant Shipping Act, 1958. It does not define what is meant by desertion; but in Moore v. Canadian Pacific Steamship Co., 1945-1 All ER 128. Mr. Justice Lynskey gave a definition of desertion from an early case [The West-morland. (1841) 1 Wm Rob 216] as follows :-"I think a deserter is a man who leaves his ship and does not return to it with no other purpose than to break his agreement."The gist of desertion therefore is the existence of an animus not to return to the ship on in other words, to go against the agreements under which the employment of seamen for Sea voyages generally takes place.In our opinion, this definition may be taken as a workable proposition for application to the present case. There is nothing in this case to show that after the seamen left the vessel, they intended to return to it. In fact they went and later took their baggage, because under the law penalty includes forfeiture of the effects left on board. The whole tenor of their conduct, particularly the intervention of labour leaders is indicative of the fact that they left the ship with no intention to return to it unless their demands were met forthwith even though before the Master the Company had stated that the matter would be finally considered at the end of the voyage and the termination of the agreement.There are provisions in the Act under which the seamen have got rights to enforce payment against their employers taking recourse to a Magistrate who in summary proceedings may decide what amount is due to them and order its payment.It is true that this action could only be taken at Cochin where the registered office of the Company is situate, but in any event the crew were required under the agreement to take back the vessel to Cochin and could well have waited till they returned to the home port and then made the demand before the appropriate authority. The way they have acted clearly shows that they were using the weapon of strike with a view to force the issue with their employers and were nut intending to return to the vessel unless their demands were acceded to immediately. In these circumstances, it is legitimate to infer that they were breaking the agreement with the company which was to keep the ship in voyage upto June 10, 1964 which could not take place if all the crew remained on shore and the vessel could not weigh anchor and leave the port without ratings.We are, therefore, satisfied that this was a case of desertion and that it fell within the definition of the term as stated by us.6. Section 191 (1) is in two parts. The first part deals with only desertion and therefore, if desertion was proved, the penalty which the law provides under the Act was duly incurred. There is no excuse against desertion because reasonable cause which is indicated in the same section is included in Cl. (b) and not in Cl. (a). But even if one were to view their conduct as falling under (b) and not (a) as the courts have held, we see no excuse on their part.The operation of shipping requires constant attention from its crew and it is not possible for a shipping company or a vessel to ply the ship if the crew at every port make demands and leave the ship in a body. Such conduct would he subversive of all discipline on board. It is not so long ago that seamen were put in stocks and chains and the leaders were made to walk the plank or hung from the yard-arm or at the least were flogged.The law has made the life of seamen little more liberal but has chosen to regard their duties as of paramount importance and has therefore, in addition to the ordinary liabilities which arise under the general law, added a penalty of imprisonment for absence from duty without reasonable cause and has also provided for forfeiture of wages and the effects left on board. This indicates that the policy of the law is that the crew must perform their duties under such agreements as they execute with the shipping company on pain of being found guilty and punished if they cannot make out that they had sufficient and reasonable cause for what may otherwise be regarded as dereliction of duty. In our opinion, in the present case there was not that sufficient cause even for purpose of Cl. (b) of S. 191 (1).After all the dispute was before the Shipping Master, meetings had taken place and minutes had been recorded.The log book of the shipping Company would show the different voyages and their duration and the muster roll would show the attendance of the crew. It was a matter of mere arithmetical calculation between Re. 1 per day and 62 paise per day to find out how much money was due to each of the ratings. This would not amount to more than Rs. 30 or Rs. 40 per person and this claim might well have waited till the completion of the voyage, because the record of the entire proceedings was kept in the Shipping Masters office and there was machinery in law for the enforcement of a demand. In our opinion, the ratings were overweighed by their leaders and were induced to leave the ship in a body in a manner which can only be described as desertion and therefore their offence was fully established.
### Response:
0
### Explanation:
6. Section 191 (1) is in two parts. The first part deals with only desertion and therefore, if desertion was proved, the penalty which the law provides under the Act was duly incurred. There is no excuse against desertion because reasonable cause which is indicated in the same section is included in Cl. (b) and not in Cl. (a). But even if one were to view their conduct as falling under (b) and not (a) as the courts have held, we see no excuse on theirour opinion, in the present case there was not that sufficient cause even for purpose of Cl. (b) of S. 191 (1).After all the dispute was before the Shipping Master, meetings had taken place and minutes had been recorded.The log book of the shipping Company would show the different voyages and their duration and the muster roll would show the attendance of the crew. It was a matter of mere arithmetical calculation between Re. 1 per day and 62 paise per day to find out how much money was due to each of the ratings. This would not amount to more than Rs. 30 or Rs. 40 per person and this claim might well have waited till the completion of the voyage, because the record of the entire proceedings was kept in the Shipping Masters office and there was machinery in law for the enforcement of a demand. In our opinion, the ratings were overweighed by their leaders and were induced to leave the ship in a body in a manner which can only be described as desertion and therefore their offence was fully established.
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Anglo American Direct Tea Tradinig Co. Ltd., & Others Vs. CAIT, Kerala | Agricultural Income Tax Act read with R.15 of the Kerala Agricultural Income Tax Rules. 7. Our attention was drawn to the provisions of (a) S.8(2), 24(1) proviso, 24(1) proviso, 25(4) and 25(5) of the Bengal Agricultural Income Tax Act, 1944, and R.7 and 8 of the Bengal Agricultural Income Tax Rules, 1944, (b) S.8 of the Mysore Agricultural Income Tax Act, 1957 and R.6 of the Mysore Agricultural Income Tax Rules, 1957, (c) S.8 of the Coorg Agricultural Income Tax Act, 1951, (d) the second proviso to S.8 of the Assam Agricultural Income Tax Act, 1939 and R.5 of the Assam Agricultural Income Tax Rules, 1939, (e) Explanation.1 to S.2(a)(2) of the Madras Plantations Agricultural Income Tax Act, 1955 and R.7(1) of the Madras Plantations Agricultural Income Tax Rules, 1955 and (f) R.5 of the Bihar Agricultural Income Tax Rules, 1949. Under some Acts and Rules, the Agricultural Income Tax Officer is bound to adopt the assessment of the tea income made by the central income tax authorities. But under some other Acts and Rules, he is authorised in specials cases to disregard this assessment and to make a fresh computation of the tea income. We express no opinion on the construction of these Acts and Rules. For the purpose of these appeals, it is sufficient to say that the Kerala Agricultural Income Tax Act and Rules do not confer upon the Agricultural Income Tax Officer the power to disregard the assessment of the tea income already made by the central income tax authorities. We are unable to introduce by way of implication in a taxing statute a provision which requires explicit statement. 8. Difficulties may arise in making an assessment of agricultural income under the Kerala Agricultural Income Tax Act on the basis of the assessment of the tea income made by the Central income tax authorities. The previous year under S.2(o)(i) of the Kerala Act may be different from the previous year under the Indian Income Tax Act. This difficulty may be resolved by fixing the previous year for this class of income under S.2(o)(ii) in conformity with the previous year under the Indian Income Tax Act. But the artificial previous year under S.2-A is not subject to the provisions of S.2(o)(ii). Moreover, S.22 authorises the assessment of income for the period from the expiry of a previous year to the probable date of the departure of the assessee from the State. It may be difficult to make an assessment under S.22 or on the basis of the previous year under S.2-A in the absence of any rule fixing the income for a broken part of the year with reference to an assessment made under the Indian Income Tax Act. In spite of these and other difficulties in the working of the Act, we are unable to agree with the decision in Commissioner of Agricultural Income Tax Kerala v. Perunad Plantations Ltd. ((1965) 56 I.T.R. 193) or to hold that the Agricultural Income Tax Officer can ignore the assessment of the tea income already made by the central income tax authorities. 9. On behalf of the appellants, it was argued that the power to compute business income under R.24 read with S.10 of the Indian Income Tax Act having regard particularly to proviso (a) to sub-s. (2)(vi), the proviso to sub-s. 2 (vi-b), sub-clause (g) of the second proviso to sub-s. 2(xiv), sub-s (4-A) and the first proviso to sub-s. 5(a) of S.10 must be exercised by the Central Income Tax Officer alone, that there is no provision in the Kerala Act conferring this power on the Agricultural Income Tax Officer and that therefore the assessment of agricultural income must wait until the assessment by the Central Income Tax Officer under R.24 read with S.10. This wider question does not arise for decision and is left open. In all the cases before us, the assessments by the Central Income Tax Officer were completed before the Agricultural Income Tax Officer proceeded to assess the agricultural income. For the purpose of these appeals, it is sufficient to say that the Agricultural Income Tax Officer acting under the Kerala Agricultural Income Tax Act, 1950 is bound to follow the assessment of income by the Central Income Tax Officer under R.24 of the Income Tax Rules, 1922 and R.8 of the Income Tax Rules, 1962 where such assessment has been made before the Agricultural Income Tax Officer proceeds to made the assessment under the Kerala Act. The question referred to the High Court is answered accordingly. We must not be understood to say that the assessment made by the Central Income Tax Officer under R.23 of the Income Tax Rules, 1922 or R.7 of the Income Tax Rules, 1962 is in any way binding on the Agricultural Income Tax Officer. 10. In Civil Appeals Nos. 585 to 588 of 1966 and 589 to 591 of 1966, the Agricultural Income Tax Officer made a surcharged of 5 per cent for the assessment year 1957-58 under the Kerala Surcharge on Taxes Act, 1957. On appeal, the Deputy Commissioner held that the surcharge was rightly made. On further appeal, the Appellate Tribunal held that the levy of the surcharge was illegal. On the application of the respondent, the Appellate Tribunal referred the following additional question of law to the High Court : "Whether on the facts and circumstances of the case the Tribunal is justified in holding that surcharge on agricultural income tax cannot cannot be levied for the assessment year 1957-58 ?". The High Court answered this question in favour of the Revenue and against the assessee. This decision must be set aside. In Karimtharuvi Tea Estate Ltd. v. State of Kerala ([1966] 3 S.C.R. 93 : [1965] 60 I.T.R. 262), this Court held that no surcharge on agricultural income can be levied under the Kerala Surcharge on Taxes Act, 1957 in respect of the assessment year 1957-58. The second question is answered accordingly in favour of the assessee and against the Revenue. 11. | 1[ds]We express no opinion on the construction of these Acts and Rules. For the purpose of these appeals, it is sufficient to say that the Kerala Agricultural Income Tax Act and Rules do not confer upon the Agricultural Income Tax Officer the power to disregard the assessment of the tea income already made by the central income tax authorities. We are unable to introduce by way of implication in a taxing statute a provision which requires explicit statementIn Civil Appeals Nos. 585 to 588 of 1966 and 589 to 591 of 1966, the Agricultural Income Tax Officer made a surcharged of 5 per cent for the assessment year 1957-58 underthe Kerala Surcharge on Taxes Act,. On appeal, the Deputy Commissioner held that the surcharge was rightly made. On further appeal, the Appellate Tribunal held that the levy of the surcharge was illegal. On the application of the respondent, the Appellate Tribunal referred the following additional question of law to the High Court : "Whether on the facts and circumstances of the case the Tribunal is justified in holding that surcharge on agricultural income tax cannot cannot be levied for the assessment year 1957-58 ?". The High Court answered this question in favour of the Revenue and against the assessee. This decision must be set aside. In Karimtharuvi Tea Estate Ltd. v. State of Kerala ([1966] 3 S.C.R. 93 : [1965] 60 I.T.R. 262), this Court held that no surcharge on agricultural income can be levied underthe Kerala Surcharge on Taxes Act,1957in respect of the assessment year. The second question is answered accordingly in favour of the assessee and against the Revenue | 1 | 3,229 | 304 | ### 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:
Agricultural Income Tax Act read with R.15 of the Kerala Agricultural Income Tax Rules. 7. Our attention was drawn to the provisions of (a) S.8(2), 24(1) proviso, 24(1) proviso, 25(4) and 25(5) of the Bengal Agricultural Income Tax Act, 1944, and R.7 and 8 of the Bengal Agricultural Income Tax Rules, 1944, (b) S.8 of the Mysore Agricultural Income Tax Act, 1957 and R.6 of the Mysore Agricultural Income Tax Rules, 1957, (c) S.8 of the Coorg Agricultural Income Tax Act, 1951, (d) the second proviso to S.8 of the Assam Agricultural Income Tax Act, 1939 and R.5 of the Assam Agricultural Income Tax Rules, 1939, (e) Explanation.1 to S.2(a)(2) of the Madras Plantations Agricultural Income Tax Act, 1955 and R.7(1) of the Madras Plantations Agricultural Income Tax Rules, 1955 and (f) R.5 of the Bihar Agricultural Income Tax Rules, 1949. Under some Acts and Rules, the Agricultural Income Tax Officer is bound to adopt the assessment of the tea income made by the central income tax authorities. But under some other Acts and Rules, he is authorised in specials cases to disregard this assessment and to make a fresh computation of the tea income. We express no opinion on the construction of these Acts and Rules. For the purpose of these appeals, it is sufficient to say that the Kerala Agricultural Income Tax Act and Rules do not confer upon the Agricultural Income Tax Officer the power to disregard the assessment of the tea income already made by the central income tax authorities. We are unable to introduce by way of implication in a taxing statute a provision which requires explicit statement. 8. Difficulties may arise in making an assessment of agricultural income under the Kerala Agricultural Income Tax Act on the basis of the assessment of the tea income made by the Central income tax authorities. The previous year under S.2(o)(i) of the Kerala Act may be different from the previous year under the Indian Income Tax Act. This difficulty may be resolved by fixing the previous year for this class of income under S.2(o)(ii) in conformity with the previous year under the Indian Income Tax Act. But the artificial previous year under S.2-A is not subject to the provisions of S.2(o)(ii). Moreover, S.22 authorises the assessment of income for the period from the expiry of a previous year to the probable date of the departure of the assessee from the State. It may be difficult to make an assessment under S.22 or on the basis of the previous year under S.2-A in the absence of any rule fixing the income for a broken part of the year with reference to an assessment made under the Indian Income Tax Act. In spite of these and other difficulties in the working of the Act, we are unable to agree with the decision in Commissioner of Agricultural Income Tax Kerala v. Perunad Plantations Ltd. ((1965) 56 I.T.R. 193) or to hold that the Agricultural Income Tax Officer can ignore the assessment of the tea income already made by the central income tax authorities. 9. On behalf of the appellants, it was argued that the power to compute business income under R.24 read with S.10 of the Indian Income Tax Act having regard particularly to proviso (a) to sub-s. (2)(vi), the proviso to sub-s. 2 (vi-b), sub-clause (g) of the second proviso to sub-s. 2(xiv), sub-s (4-A) and the first proviso to sub-s. 5(a) of S.10 must be exercised by the Central Income Tax Officer alone, that there is no provision in the Kerala Act conferring this power on the Agricultural Income Tax Officer and that therefore the assessment of agricultural income must wait until the assessment by the Central Income Tax Officer under R.24 read with S.10. This wider question does not arise for decision and is left open. In all the cases before us, the assessments by the Central Income Tax Officer were completed before the Agricultural Income Tax Officer proceeded to assess the agricultural income. For the purpose of these appeals, it is sufficient to say that the Agricultural Income Tax Officer acting under the Kerala Agricultural Income Tax Act, 1950 is bound to follow the assessment of income by the Central Income Tax Officer under R.24 of the Income Tax Rules, 1922 and R.8 of the Income Tax Rules, 1962 where such assessment has been made before the Agricultural Income Tax Officer proceeds to made the assessment under the Kerala Act. The question referred to the High Court is answered accordingly. We must not be understood to say that the assessment made by the Central Income Tax Officer under R.23 of the Income Tax Rules, 1922 or R.7 of the Income Tax Rules, 1962 is in any way binding on the Agricultural Income Tax Officer. 10. In Civil Appeals Nos. 585 to 588 of 1966 and 589 to 591 of 1966, the Agricultural Income Tax Officer made a surcharged of 5 per cent for the assessment year 1957-58 under the Kerala Surcharge on Taxes Act, 1957. On appeal, the Deputy Commissioner held that the surcharge was rightly made. On further appeal, the Appellate Tribunal held that the levy of the surcharge was illegal. On the application of the respondent, the Appellate Tribunal referred the following additional question of law to the High Court : "Whether on the facts and circumstances of the case the Tribunal is justified in holding that surcharge on agricultural income tax cannot cannot be levied for the assessment year 1957-58 ?". The High Court answered this question in favour of the Revenue and against the assessee. This decision must be set aside. In Karimtharuvi Tea Estate Ltd. v. State of Kerala ([1966] 3 S.C.R. 93 : [1965] 60 I.T.R. 262), this Court held that no surcharge on agricultural income can be levied under the Kerala Surcharge on Taxes Act, 1957 in respect of the assessment year 1957-58. The second question is answered accordingly in favour of the assessee and against the Revenue. 11.
### Response:
1
### Explanation:
We express no opinion on the construction of these Acts and Rules. For the purpose of these appeals, it is sufficient to say that the Kerala Agricultural Income Tax Act and Rules do not confer upon the Agricultural Income Tax Officer the power to disregard the assessment of the tea income already made by the central income tax authorities. We are unable to introduce by way of implication in a taxing statute a provision which requires explicit statementIn Civil Appeals Nos. 585 to 588 of 1966 and 589 to 591 of 1966, the Agricultural Income Tax Officer made a surcharged of 5 per cent for the assessment year 1957-58 underthe Kerala Surcharge on Taxes Act,. On appeal, the Deputy Commissioner held that the surcharge was rightly made. On further appeal, the Appellate Tribunal held that the levy of the surcharge was illegal. On the application of the respondent, the Appellate Tribunal referred the following additional question of law to the High Court : "Whether on the facts and circumstances of the case the Tribunal is justified in holding that surcharge on agricultural income tax cannot cannot be levied for the assessment year 1957-58 ?". The High Court answered this question in favour of the Revenue and against the assessee. This decision must be set aside. In Karimtharuvi Tea Estate Ltd. v. State of Kerala ([1966] 3 S.C.R. 93 : [1965] 60 I.T.R. 262), this Court held that no surcharge on agricultural income can be levied underthe Kerala Surcharge on Taxes Act,1957in respect of the assessment year. The second question is answered accordingly in favour of the assessee and against the Revenue
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New Shorrock Mills Vs. Maheshbhai T. Rao | behaviour of the respondent a show cause notice under clause 22(1) of the Standing Orders was served on him. This notice was based on the complaint dated 31st December, 1976 which was made by the said Deputy Manager to the management of the appellant Mill.4. Thereafter, a domestic inquiry was held, witnesses were examined and full opportunity was given to the respondent to defend himself. After the inquiry proceedings concluded, the respondent was served with a notice by the Inquiry Officer to show cause why he should not be discharged from the service of the Mill. A reply dated 30th July, 1977 was filed by the respondent. The Inquiry Officer, after considering the entire material on record and also after taking into account the explanation offered by the workman came to the conclusion that the respondent was in fact guilty of misconduct. By order dated 2nd August, 1977 the respondent was discharged from the service as Badli worker with immediate effect. He, however, was given thirty days salary in lieu of the notice period.5. The respondent then moved the Labour Court under Section 79 of The Bombay Industrial Relations Act, 1946, inter alia, praying that the order of discharge dated 2nd August, 1977 be declared as illegal and he should be reinstated with continuity in service and be paid the back wages. No oral or documentary evidence was led before the Labour Court which considered the entire material relating to the matter as had been placed before the Inquiry Officer.6. The Labour Court passed an order dated 22nd June, 1990, and inter alia, held as follows :- (a) That the charge against the respondent was neither vague nor unclear;(b) That the finding of the Departmental Enquiry was legal and proper;(c) That the order of discharge was not passed by way of victimisation;(d) That the Departmental Enquiry had been conducted legally and properly and the respondent was afforded reasonable opportunity of hearing;(e) That in passing the order of discharge, the appellant management had not acted outside the scope of the enquiry;(f) That the respondent workman had seriously misbehaved with his superior officers and was thus guilty of misconduct;(g) That the finding of misconduct reached in the enquiry was neither perverse nor baseless but was proved on the basis of evidence on record. Notwithstanding the fact that it had arrived at the aforesaid conclusion the Labour Court interfered with the punishment which was awarded by observing as follows :- ``Looking to the facts of this case and the facts of the evidence of the witnesses produced in this case, on the basis of the departmental inquiry against the applicant, the allegations levelled against the applicant are proved. But as discussed hereinabove having regard to the decisions, the punishment of discharging the applicant from the service imposed by the opponent mills company is excessive and harsh and it leads the applicant to economic destruction. On account of this, the family members of the applicant may also have to suffer. The punishment of discharging from service may only be imposed when there is no alternative except to discharge the applicant. The Honble High Court and the Honble Supreme Court have in many cases adopted the course that in cases of such a nature, harsh punishment of dismissal of the applicant should not be imposed. The applicant of this matter also on the basis of the decisions stated hereinabove, is entitled to be reinstated in the opponent mill company in his original post with continuity of service. 7. The appellant filed a writ petition before the Gujarat High Court but the same was dismissed in limine by observing that the impugned judgment was just and proper and did not require to be interfered with under Articles 226 and 227 of the Constitution. This appeal arises on the special leave having been granted against the said decision of the High Court. 8. It appears to us that the Labour Court completely misdirected itself in ordering the respondents reinstatement with forty per cent back wages. The Labour Court was exercising jurisdiction under Section 78 of The Bombay Industrial Relations Act, 1946. It had the jurisdiction, inter alia, to decide the disputes regarding the propriety and legality of an order passed by an employer acting or purporting to act under the Standing Orders. The Labour Court, in the present case, having come to the conclusion that the finding of the departmental inquiry was legal and proper, respondents order of discharge was not by way of victimisation and that the respondent workman had seriously misbehaved and was thus guilty of misconduct, ought not to have interfered with the punishment which was awarded, in the manner it did. This is not a case where the court could come to the conclusion that the punishment which was awarded was shockingly disproportionate to the employees conduct and his past record. The Labour Court completely overlooked the fact that even prior to the incident in question, the respondent had misconducted himself on several occasions and had been punished. According to the appellant there were at least three other instances where the respondent had misconducted himself and that he had failed to improve his conduct despite his assurances from time to time. Another aspect which was overlooked by the Labour Court was that on the finding of the Inquiry Officer that the respondent had misbehaved with his superior officer and was guilty of misconduct, the appellant could have dismissed the respondent from service. The appellant chose not to do so. Instead it passed an order of discharging the respondent from service. Lesser punishment having been given by the management itself there was, in our opinion, no justifiable reason for the Labour Court to have set aside the punishment so awarded. We are unable to accept that the punishment imposed by the management was in any way disproportionate to warrant interference by the Labour Court. The direction of the Labour Court ordering reinstatement of the respondent with forty per cent back wages was clearly unwarranted. | 1[ds]8. It appears to us that the Labour Court completely misdirected itself in ordering the respondents reinstatement with forty per cent back wages. The Labour Court was exercising jurisdiction under Section 78 ofThe Bombay Industrial Relations Act, 1946. It had the jurisdiction, inter alia, to decide the disputes regarding the propriety and legality of an order passed by an employer acting or purporting to act under the Standing Orders. The Labour Court, in the present case, having come to the conclusion that the finding of the departmental inquiry was legal and proper, respondents order of discharge was not by way of victimisation and that the respondent workman had seriously misbehaved and was thus guilty of misconduct, ought not to have interfered with the punishment which was awarded, in the manner it did. This is not a case where the court could come to the conclusion that the punishment which was awarded was shockingly disproportionate to the employees conduct and his past record. The Labour Court completely overlooked the fact that even prior to the incident in question, the respondent had misconducted himself on several occasions and had been punished. According to the appellant there were at least three other instances where the respondent had misconducted himself and that he had failed to improve his conduct despite his assurances from time to time. Another aspect which was overlooked by the Labour Court was that on the finding of the Inquiry Officer that the respondent had misbehaved with his superior officer and was guilty of misconduct, the appellant could have dismissed the respondent from service. The appellant chose not to do so. Instead it passed an order of discharging the respondent from service. Lesser punishment having been given by the management itself there was, in our opinion, no justifiable reason for the Labour Court to have set aside the punishment so awarded. We are unable to accept that the punishment imposed by the management was in any way disproportionate to warrant interference by the Labour Court. The direction of the Labour Court ordering reinstatement of the respondent with forty per cent back wages was clearly unwarranted. | 1 | 1,255 | 384 | ### 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:
behaviour of the respondent a show cause notice under clause 22(1) of the Standing Orders was served on him. This notice was based on the complaint dated 31st December, 1976 which was made by the said Deputy Manager to the management of the appellant Mill.4. Thereafter, a domestic inquiry was held, witnesses were examined and full opportunity was given to the respondent to defend himself. After the inquiry proceedings concluded, the respondent was served with a notice by the Inquiry Officer to show cause why he should not be discharged from the service of the Mill. A reply dated 30th July, 1977 was filed by the respondent. The Inquiry Officer, after considering the entire material on record and also after taking into account the explanation offered by the workman came to the conclusion that the respondent was in fact guilty of misconduct. By order dated 2nd August, 1977 the respondent was discharged from the service as Badli worker with immediate effect. He, however, was given thirty days salary in lieu of the notice period.5. The respondent then moved the Labour Court under Section 79 of The Bombay Industrial Relations Act, 1946, inter alia, praying that the order of discharge dated 2nd August, 1977 be declared as illegal and he should be reinstated with continuity in service and be paid the back wages. No oral or documentary evidence was led before the Labour Court which considered the entire material relating to the matter as had been placed before the Inquiry Officer.6. The Labour Court passed an order dated 22nd June, 1990, and inter alia, held as follows :- (a) That the charge against the respondent was neither vague nor unclear;(b) That the finding of the Departmental Enquiry was legal and proper;(c) That the order of discharge was not passed by way of victimisation;(d) That the Departmental Enquiry had been conducted legally and properly and the respondent was afforded reasonable opportunity of hearing;(e) That in passing the order of discharge, the appellant management had not acted outside the scope of the enquiry;(f) That the respondent workman had seriously misbehaved with his superior officers and was thus guilty of misconduct;(g) That the finding of misconduct reached in the enquiry was neither perverse nor baseless but was proved on the basis of evidence on record. Notwithstanding the fact that it had arrived at the aforesaid conclusion the Labour Court interfered with the punishment which was awarded by observing as follows :- ``Looking to the facts of this case and the facts of the evidence of the witnesses produced in this case, on the basis of the departmental inquiry against the applicant, the allegations levelled against the applicant are proved. But as discussed hereinabove having regard to the decisions, the punishment of discharging the applicant from the service imposed by the opponent mills company is excessive and harsh and it leads the applicant to economic destruction. On account of this, the family members of the applicant may also have to suffer. The punishment of discharging from service may only be imposed when there is no alternative except to discharge the applicant. The Honble High Court and the Honble Supreme Court have in many cases adopted the course that in cases of such a nature, harsh punishment of dismissal of the applicant should not be imposed. The applicant of this matter also on the basis of the decisions stated hereinabove, is entitled to be reinstated in the opponent mill company in his original post with continuity of service. 7. The appellant filed a writ petition before the Gujarat High Court but the same was dismissed in limine by observing that the impugned judgment was just and proper and did not require to be interfered with under Articles 226 and 227 of the Constitution. This appeal arises on the special leave having been granted against the said decision of the High Court. 8. It appears to us that the Labour Court completely misdirected itself in ordering the respondents reinstatement with forty per cent back wages. The Labour Court was exercising jurisdiction under Section 78 of The Bombay Industrial Relations Act, 1946. It had the jurisdiction, inter alia, to decide the disputes regarding the propriety and legality of an order passed by an employer acting or purporting to act under the Standing Orders. The Labour Court, in the present case, having come to the conclusion that the finding of the departmental inquiry was legal and proper, respondents order of discharge was not by way of victimisation and that the respondent workman had seriously misbehaved and was thus guilty of misconduct, ought not to have interfered with the punishment which was awarded, in the manner it did. This is not a case where the court could come to the conclusion that the punishment which was awarded was shockingly disproportionate to the employees conduct and his past record. The Labour Court completely overlooked the fact that even prior to the incident in question, the respondent had misconducted himself on several occasions and had been punished. According to the appellant there were at least three other instances where the respondent had misconducted himself and that he had failed to improve his conduct despite his assurances from time to time. Another aspect which was overlooked by the Labour Court was that on the finding of the Inquiry Officer that the respondent had misbehaved with his superior officer and was guilty of misconduct, the appellant could have dismissed the respondent from service. The appellant chose not to do so. Instead it passed an order of discharging the respondent from service. Lesser punishment having been given by the management itself there was, in our opinion, no justifiable reason for the Labour Court to have set aside the punishment so awarded. We are unable to accept that the punishment imposed by the management was in any way disproportionate to warrant interference by the Labour Court. The direction of the Labour Court ordering reinstatement of the respondent with forty per cent back wages was clearly unwarranted.
### Response:
1
### Explanation:
8. It appears to us that the Labour Court completely misdirected itself in ordering the respondents reinstatement with forty per cent back wages. The Labour Court was exercising jurisdiction under Section 78 ofThe Bombay Industrial Relations Act, 1946. It had the jurisdiction, inter alia, to decide the disputes regarding the propriety and legality of an order passed by an employer acting or purporting to act under the Standing Orders. The Labour Court, in the present case, having come to the conclusion that the finding of the departmental inquiry was legal and proper, respondents order of discharge was not by way of victimisation and that the respondent workman had seriously misbehaved and was thus guilty of misconduct, ought not to have interfered with the punishment which was awarded, in the manner it did. This is not a case where the court could come to the conclusion that the punishment which was awarded was shockingly disproportionate to the employees conduct and his past record. The Labour Court completely overlooked the fact that even prior to the incident in question, the respondent had misconducted himself on several occasions and had been punished. According to the appellant there were at least three other instances where the respondent had misconducted himself and that he had failed to improve his conduct despite his assurances from time to time. Another aspect which was overlooked by the Labour Court was that on the finding of the Inquiry Officer that the respondent had misbehaved with his superior officer and was guilty of misconduct, the appellant could have dismissed the respondent from service. The appellant chose not to do so. Instead it passed an order of discharging the respondent from service. Lesser punishment having been given by the management itself there was, in our opinion, no justifiable reason for the Labour Court to have set aside the punishment so awarded. We are unable to accept that the punishment imposed by the management was in any way disproportionate to warrant interference by the Labour Court. The direction of the Labour Court ordering reinstatement of the respondent with forty per cent back wages was clearly unwarranted.
|
Ram Chander Rai & Others Vs. State of Bihar | reference by the Sessions Judge the High Court enhanced it to rigorous imprisonment for two years. The grave and sudden provocation in that case was not construed to have the same effect as in the case of a man who strikes a severe blow under sudden and provoked anger. In the latter case also the accused had been convicted for cutting off his wifes nose and sentenced by the Trial Court to rigorous imprisonment for nine months. On appeal after notice for enhancement the sentence was enhanced to rigorous imprisonment for two years. In the judgment there is also a reference to an unreported decision of the year 1928 in which sentence of one years rigorous imprisonment was enhanced to two years on the authority of Queen Empress v. Abdul Rahiman (ILR 16 Bom 580) and of the decision in Bhagwan Chhagans case (supra). In still another unreported decision of 1927 also referred in Ismail Umars case (supra) sentence of one months rigorous imprisonment was enhanced by the Bombay High Court to one years rigorous imprisonment. Let us now examine the decision of the Bombay High Court in Abdul Rahimans case (supra). We find that the accused in that case had deliberately cut off his wifes nose with a pen knife. The learned Magistrate sentenced him to two years rigorous imprisonment which was the maximum sentence he could impose. The person convicted under Section 326, I.P.C., could then be sentenced to transportation for life or imprisonment for ten year. The Government applied for enhancement of sentence. The High Court observed that in a case of such gravity the learned Magistrate would have exercised a proper discretion if he had sent the prisoner for trial by the High Court. Considering the sentence to be inadequate the convocation and sentence of the accused was quashed and the Magistrate was directed to commit the prisoner for trail by the High Court. The prisoner was subsequently brought up for trial before a Judge of the Bombay High Court and a common jury and on conviction was sentenced to eight years rigorous imprisonment. In the case of Sikender v. Emperor, (AIR 1915 Lah 395) which was also cited at the bar, the accused was convicted under Section 326 I.P.C., for cutting off his wifes nose and was sentenced by the District Magistrate to rigorous imprisonment for four years. On appeal the Sessions Judge while maintaining the conviction reduced the sentence to two years. The Punjab High Court enhanced the sentence to four years rigorous imprisonment observing that leniency in such cases was ordinarily speaking out of place.6. The question of sentence is always one of judicial discretion but the proper exercise of direction in this respect is generally a matter of difficulty. The sentence should neither be to lenient nor disproportionately severe. The former loses its deterrent effect and the latter has a tendency to tempt the offender to commit a more serious offence, if there is an opportunity to do so. The object of punishment for crimes being to impress on the guilty party and other like-minded persons that the life of crime does not pay, so that the purpose of promoting the cause of orderly and civilized society is advanced, the Court has in awarding the sentence a duty to guard itself against the aforesaid two tendencies and to draw a proper balance between them. In order to do so the Court has to consider the nature an gravity of the offence and duly take into account all the relevant circumstance leading to its commission. The difficulty in the right determination of sentence was also noticed by this Court in Adamji Umar Dalal v. State of Bombay, ((1952) 2 SCR 172 : AIR 1952 Sc 14 : 1952 SCJ 820 : 1953 Cri LJ 542) where it was added that no hard and fast rule can be laid down in this respect, it being a matter of discretion in each to be guided by variety of circumstances. In this decision the courts were remained to bear in mind the necessity of proportion between an offence and the penalty. It was further observed that it is not the practice of this Court to interfere by special leave in the matter of punishment imposed for crime committed save in exceptional cases where the sentences are unduly harsh and do not advance the ends of justice. That, the question of sentence is normally a matter of discretion, was again reiterated by this Court in Kapur Chand Pokhraj v. State of Bombay, (AIR 1958 SC 993 : (1959 SCR 250 : (1958) Cri LJ 1558) in which two earlier decisions of this Court making similar observations were also noticed.7. In the present case revenge for an occurrence which took place about 18 years ago appears to be the impelling motive for the crime. It is true that in the earlier occurrence Naumi Rais, face had been permanently disfigured and it was perhaps not easy for his relations to completely forget the disgrace caused by Naumi Rais nose having been cut off. When his sons grew up absence of nose on their fathers face as a result of injury inflicted on the earlier occasion seems to have served as a constant incitement for them to take venge. Their elders in the family instead of exercising a restraining influence apparently instigated them and in fact jointed them in their plan to take revenge. But this provocation, however strong the sentimental urge for is, could by no means be considered to be either sudden or grave for the propose of serving in the eye of law a strong mitigating circumstance. The cowardly act for inflicting the grave injury, as the medical evidence shows, is, in out opinion, inexcusable, though permanent disfigurement of Naumi Rais face which could not be concealed from the public must be assumed to have served as a source of constant irritation for the accused persons. This factor thus cannot be completely ignored while determining the sentence. | 1[ds]4. It is the number and nature of injuries which seems to account for separate convictions. But in these appeals which are limited to the question of sentence only we are concerned with the merits of theseus now examine the decision of the Bombay High Court in Abdul Rahimans case (supra). We find that the accused in that case had deliberately cut off his wifes nose with a pen knife. The learned Magistrate sentenced him to two years rigorous imprisonment which was the maximum sentence he could impose. The person convicted under Section 326, I.P.C., could then be sentenced to transportation for life or imprisonment for ten year. The Government applied for enhancement of sentence. The High Court observed that in a case of such gravity the learned Magistrate would have exercised a proper discretion if he had sent the prisoner for trial by the High Court. Considering the sentence to be inadequate the convocation and sentence of the accused was quashed and the Magistrate was directed to commit the prisoner for trail by the High Court. The prisoner was subsequently brought up for trial before a Judge of the Bombay High Court and a common jury and on conviction was sentenced to eight years rigorous imprisonment.The question of sentence is always one of judicial discretion but the proper exercise of direction in this respect is generally a matter of difficulty. The sentence should neither be to lenient nor disproportionately severe. The former loses its deterrent effect and the latter has a tendency to tempt the offender to commit a more serious offence, if there is an opportunity to do so. The object of punishment for crimes being to impress on the guilty party and otherpersons that the life of crime does not pay, so that the purpose of promoting the cause of orderly and civilized society is advanced, the Court has in awarding the sentence a duty to guard itself against the aforesaid two tendencies and to draw a proper balance between them. In order to do so the Court has to consider the nature an gravity of the offence and duly take into account all the relevant circumstance leading to its commission. The difficulty in the right determination of sentence was also noticed by this Court in Adamji Umar Dalal v. State of Bombay, ((1952) 2 SCR 172 : AIR 1952 Sc 14 : 1952 SCJ 820 : 1953 Cri LJ 542) where it was added that no hard and fast rule can be laid down in this respect, it being a matter of discretion in each to be guided by variety of circumstances. In this decision the courts were remained to bear in mind the necessity of proportion between an offence and the penalty. It was further observed that it is not the practice of this Court to interfere by special leave in the matter of punishment imposed for crime committed save in exceptional cases where the sentences are unduly harsh and do not advance the ends of justice. That, the question of sentence is normally a matter of discretion, was again reiterated by this Court in Kapur Chand Pokhraj v. State of Bombay, (AIR 1958 SC 993 : (1959 SCR 250 : (1958) Cri LJ 1558) in which two earlier decisions of this Court making similar observations were also noticed.7. In the present case revenge for an occurrence which took place about 18 years ago appears to be the impelling motive for the crime. It is true that in the earlier occurrence Naumi Rais, face had been permanently disfigured and it was perhaps not easy for his relations to completely forget the disgrace caused by Naumi Rais nose having been cut off. When his sons grew up absence of nose on their fathers face as a result of injury inflicted on the earlier occasion seems to have served as a constant incitement for them to take venge. Their elders in the family instead of exercising a restraining influence apparently instigated them and in fact jointed them in their plan to take revenge. But this provocation, however strong the sentimental urge for is, could by no means be considered to be either sudden or grave for the propose of serving in the eye of law a strong mitigating circumstance. The cowardly act for inflicting the grave injury, as the medical evidence shows, is, in out opinion, inexcusable, though permanent disfigurement of Naumi Rais face which could not be concealed from the public must be assumed to have served as a source of constant irritation for the accused persons. This factor thus cannot be completely ignored while determining the sentence. | 1 | 2,287 | 831 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
reference by the Sessions Judge the High Court enhanced it to rigorous imprisonment for two years. The grave and sudden provocation in that case was not construed to have the same effect as in the case of a man who strikes a severe blow under sudden and provoked anger. In the latter case also the accused had been convicted for cutting off his wifes nose and sentenced by the Trial Court to rigorous imprisonment for nine months. On appeal after notice for enhancement the sentence was enhanced to rigorous imprisonment for two years. In the judgment there is also a reference to an unreported decision of the year 1928 in which sentence of one years rigorous imprisonment was enhanced to two years on the authority of Queen Empress v. Abdul Rahiman (ILR 16 Bom 580) and of the decision in Bhagwan Chhagans case (supra). In still another unreported decision of 1927 also referred in Ismail Umars case (supra) sentence of one months rigorous imprisonment was enhanced by the Bombay High Court to one years rigorous imprisonment. Let us now examine the decision of the Bombay High Court in Abdul Rahimans case (supra). We find that the accused in that case had deliberately cut off his wifes nose with a pen knife. The learned Magistrate sentenced him to two years rigorous imprisonment which was the maximum sentence he could impose. The person convicted under Section 326, I.P.C., could then be sentenced to transportation for life or imprisonment for ten year. The Government applied for enhancement of sentence. The High Court observed that in a case of such gravity the learned Magistrate would have exercised a proper discretion if he had sent the prisoner for trial by the High Court. Considering the sentence to be inadequate the convocation and sentence of the accused was quashed and the Magistrate was directed to commit the prisoner for trail by the High Court. The prisoner was subsequently brought up for trial before a Judge of the Bombay High Court and a common jury and on conviction was sentenced to eight years rigorous imprisonment. In the case of Sikender v. Emperor, (AIR 1915 Lah 395) which was also cited at the bar, the accused was convicted under Section 326 I.P.C., for cutting off his wifes nose and was sentenced by the District Magistrate to rigorous imprisonment for four years. On appeal the Sessions Judge while maintaining the conviction reduced the sentence to two years. The Punjab High Court enhanced the sentence to four years rigorous imprisonment observing that leniency in such cases was ordinarily speaking out of place.6. The question of sentence is always one of judicial discretion but the proper exercise of direction in this respect is generally a matter of difficulty. The sentence should neither be to lenient nor disproportionately severe. The former loses its deterrent effect and the latter has a tendency to tempt the offender to commit a more serious offence, if there is an opportunity to do so. The object of punishment for crimes being to impress on the guilty party and other like-minded persons that the life of crime does not pay, so that the purpose of promoting the cause of orderly and civilized society is advanced, the Court has in awarding the sentence a duty to guard itself against the aforesaid two tendencies and to draw a proper balance between them. In order to do so the Court has to consider the nature an gravity of the offence and duly take into account all the relevant circumstance leading to its commission. The difficulty in the right determination of sentence was also noticed by this Court in Adamji Umar Dalal v. State of Bombay, ((1952) 2 SCR 172 : AIR 1952 Sc 14 : 1952 SCJ 820 : 1953 Cri LJ 542) where it was added that no hard and fast rule can be laid down in this respect, it being a matter of discretion in each to be guided by variety of circumstances. In this decision the courts were remained to bear in mind the necessity of proportion between an offence and the penalty. It was further observed that it is not the practice of this Court to interfere by special leave in the matter of punishment imposed for crime committed save in exceptional cases where the sentences are unduly harsh and do not advance the ends of justice. That, the question of sentence is normally a matter of discretion, was again reiterated by this Court in Kapur Chand Pokhraj v. State of Bombay, (AIR 1958 SC 993 : (1959 SCR 250 : (1958) Cri LJ 1558) in which two earlier decisions of this Court making similar observations were also noticed.7. In the present case revenge for an occurrence which took place about 18 years ago appears to be the impelling motive for the crime. It is true that in the earlier occurrence Naumi Rais, face had been permanently disfigured and it was perhaps not easy for his relations to completely forget the disgrace caused by Naumi Rais nose having been cut off. When his sons grew up absence of nose on their fathers face as a result of injury inflicted on the earlier occasion seems to have served as a constant incitement for them to take venge. Their elders in the family instead of exercising a restraining influence apparently instigated them and in fact jointed them in their plan to take revenge. But this provocation, however strong the sentimental urge for is, could by no means be considered to be either sudden or grave for the propose of serving in the eye of law a strong mitigating circumstance. The cowardly act for inflicting the grave injury, as the medical evidence shows, is, in out opinion, inexcusable, though permanent disfigurement of Naumi Rais face which could not be concealed from the public must be assumed to have served as a source of constant irritation for the accused persons. This factor thus cannot be completely ignored while determining the sentence.
### Response:
1
### Explanation:
4. It is the number and nature of injuries which seems to account for separate convictions. But in these appeals which are limited to the question of sentence only we are concerned with the merits of theseus now examine the decision of the Bombay High Court in Abdul Rahimans case (supra). We find that the accused in that case had deliberately cut off his wifes nose with a pen knife. The learned Magistrate sentenced him to two years rigorous imprisonment which was the maximum sentence he could impose. The person convicted under Section 326, I.P.C., could then be sentenced to transportation for life or imprisonment for ten year. The Government applied for enhancement of sentence. The High Court observed that in a case of such gravity the learned Magistrate would have exercised a proper discretion if he had sent the prisoner for trial by the High Court. Considering the sentence to be inadequate the convocation and sentence of the accused was quashed and the Magistrate was directed to commit the prisoner for trail by the High Court. The prisoner was subsequently brought up for trial before a Judge of the Bombay High Court and a common jury and on conviction was sentenced to eight years rigorous imprisonment.The question of sentence is always one of judicial discretion but the proper exercise of direction in this respect is generally a matter of difficulty. The sentence should neither be to lenient nor disproportionately severe. The former loses its deterrent effect and the latter has a tendency to tempt the offender to commit a more serious offence, if there is an opportunity to do so. The object of punishment for crimes being to impress on the guilty party and otherpersons that the life of crime does not pay, so that the purpose of promoting the cause of orderly and civilized society is advanced, the Court has in awarding the sentence a duty to guard itself against the aforesaid two tendencies and to draw a proper balance between them. In order to do so the Court has to consider the nature an gravity of the offence and duly take into account all the relevant circumstance leading to its commission. The difficulty in the right determination of sentence was also noticed by this Court in Adamji Umar Dalal v. State of Bombay, ((1952) 2 SCR 172 : AIR 1952 Sc 14 : 1952 SCJ 820 : 1953 Cri LJ 542) where it was added that no hard and fast rule can be laid down in this respect, it being a matter of discretion in each to be guided by variety of circumstances. In this decision the courts were remained to bear in mind the necessity of proportion between an offence and the penalty. It was further observed that it is not the practice of this Court to interfere by special leave in the matter of punishment imposed for crime committed save in exceptional cases where the sentences are unduly harsh and do not advance the ends of justice. That, the question of sentence is normally a matter of discretion, was again reiterated by this Court in Kapur Chand Pokhraj v. State of Bombay, (AIR 1958 SC 993 : (1959 SCR 250 : (1958) Cri LJ 1558) in which two earlier decisions of this Court making similar observations were also noticed.7. In the present case revenge for an occurrence which took place about 18 years ago appears to be the impelling motive for the crime. It is true that in the earlier occurrence Naumi Rais, face had been permanently disfigured and it was perhaps not easy for his relations to completely forget the disgrace caused by Naumi Rais nose having been cut off. When his sons grew up absence of nose on their fathers face as a result of injury inflicted on the earlier occasion seems to have served as a constant incitement for them to take venge. Their elders in the family instead of exercising a restraining influence apparently instigated them and in fact jointed them in their plan to take revenge. But this provocation, however strong the sentimental urge for is, could by no means be considered to be either sudden or grave for the propose of serving in the eye of law a strong mitigating circumstance. The cowardly act for inflicting the grave injury, as the medical evidence shows, is, in out opinion, inexcusable, though permanent disfigurement of Naumi Rais face which could not be concealed from the public must be assumed to have served as a source of constant irritation for the accused persons. This factor thus cannot be completely ignored while determining the sentence.
|
State of Orissa Vs. Pyarimohan Samantaray and Others | promotion to the Indian Administrative Service, in 1960, but did not include his name even though there was no justification for his supersession by those who were arrayed as respondents 4 to 13. The petitioner also felt aggrieved because those respondents were promoted to the Indian Administrative Service by notifications dated May 12, 1962, November 29, 1962, April 25, 1963 and March 27, 1965, while his own claim was overlooked. A list was however prepared by the committee in 1961 in which, according to the petitioner, his name was put at the bottom of the list. It was another grievance of the petitioner that the list was not prepared according to law and the names in it were not arranged in order of seniority in State Civil Service. It was not reviewed and revised every year in spite of the requirement of Regulation 5. The petitioner was not appointed to the Indian Administrative Service until 1968, so that he ranked very low in seniority on the date of his appointment. On the basis of these main averments the petitioner filed the aforesaid petition before the High Courts, for the several reliefs stated in it, including the relief for quashing the select list and for a declaration that he may be treated to be a member of the Indian Administrative Service with effect from May 12, 1962, when, according to him, a vacancy arose in the promotion quota of that service.3. The petitioners claim was traversed in the replies which were filed by the State Government and others, for several reasons. The High Court allowed the petition by its impugned judgment dated April 11, 1975, to extent that it directed the authorities concerned to redetermine his seniority vis-a-vis those of the respondents from 4 to 13 who were still in service, and to give him all consequential benefits as a result of such redetermination. The High Court left he parties to bear their own costs.4. The controversy before us has been confined to the short point whether the High Court erred in not dismissing the petition in spite of the inordinate delay and laches on the part of the petitioner. That is why we have not thought it necessary to refer to the other facts in details for it will be enough to refer to the admitted facts which bear on the controversy before us.5. As has been stated, the list of the State Civil Service officers who were found suitable for appointment to the Indian Administrative Service was prepared in 1960, in which the name of the petitioner was not included while the names of respondents 4 to 13, who were junior to him, were included. The petitioner has stated that he felt aggrieved because of his supersession by his juniors in that list. He contended that his name was included in the list which was prepared in 1961, but it was put at the bottom of the list, i.e., after respondents 4 to 13. That, according to the petitioner, was in contravention of Regulation 5 (3) of the Regulation for reasons mentioned in the petition. The said respondents were promoted to the Indian Administrative Service in 1962 and the petitioner has stated that he thereupon made a representation to the Chief Secretary against his supersession in that very year, but it was rejected on November 9, 1962. Instead of seeking a redress of his grievance by a writ petition after the rejection of his representation, the petitioner has stated that he sent a memorial to the Chief Minister on January 23, 1963. It was rejected on March 16, 1964. The petitioner then made a representation to the Government of India on February 6, 1965, but no order thereon was communicated to him. He made another representation to a Minister of the State Government in December, 1965. According to the petitioner, no order was passed on it also even though he continued to wait until July 12, 1969, when he claims to have addressed another letter to the State Government for the proper fixation of his seniority. It was rejected on November 1, 1969. The petitioner thereupon sent another memorial to the Chief Minister on January 6, 1970, which was rejected on August 26, 1970. Thereafter he made a representation to the Government of India on November 17, 1970 and was further representation to the Chief Secretary on January 3, 1973, and thereafter filed the aforesaid writ petition under Articles 226 and 227 in the Orissa High Court.6. It would thus appear that there is justification for the argument of the Solicitor General that even though a case of action arose to the petitioner as far back as 1962, on the rejection of his representation on November 9, 1962, he allowed some eleven years to go by before filing the writ petition. There is no satisfactory explanation of the inordinate delay for, as has been held by this Court in Rabindra Nath Bose v. Union of India (1970) 2 SCR 697 : (1970) 1 SCC 84 ), the making of repeated representations, after the rejection of one representation, could not be held to be a satisfactory explanation of the delay. The fact therefore remains that the petitioner allowed some 11 years to go by before making a petition for the redress of his grievances. In the meantime a number of other appointments were also made to the India Administrative Service by promotion from the State Civil Service, some of the officers received promotions to higher posts in that service and may even have retired. Those who continued to serve could justifiably think that as there was no challenge to their appointments within the period prescribed for a suit, they could look forward to further promotion and higher terminal benefits on retirement. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was "strenuously" urged for its consideration on behalf of the Government of India. | 1[ds]6. It would thus appear that there is justification for the argument of the Solicitor General that even though a case of action arose to the petitioner as far back as 1962, on the rejection of his representation on November 9, 1962, he allowed some eleven years to go by before filing the writ petition. There is no satisfactory explanation of the inordinate delay for, as has been held by this Court in Rabindra Nath Bose v. Union of India (1970) 2 SCR 697 : (1970) 1 SCC 84 ), the making of repeated representations, after the rejection of one representation, could not be held to be a satisfactory explanation of the delay. The fact therefore remains that the petitioner allowed some 11 years to go by before making a petition for the redress of his grievances. In the meantime a number of other appointments were also made to the India Administrative Service by promotion from the State Civil Service, some of the officers received promotions to higher posts in that service and may even have retired. Those who continued to serve could justifiably think that as there was no challenge to their appointments within the period prescribed for a suit, they could look forward to further promotion and higher terminal benefits on retirement. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was "strenuously" urged for its consideration on behalf of the Government of India. | 1 | 1,231 | 279 | ### 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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promotion to the Indian Administrative Service, in 1960, but did not include his name even though there was no justification for his supersession by those who were arrayed as respondents 4 to 13. The petitioner also felt aggrieved because those respondents were promoted to the Indian Administrative Service by notifications dated May 12, 1962, November 29, 1962, April 25, 1963 and March 27, 1965, while his own claim was overlooked. A list was however prepared by the committee in 1961 in which, according to the petitioner, his name was put at the bottom of the list. It was another grievance of the petitioner that the list was not prepared according to law and the names in it were not arranged in order of seniority in State Civil Service. It was not reviewed and revised every year in spite of the requirement of Regulation 5. The petitioner was not appointed to the Indian Administrative Service until 1968, so that he ranked very low in seniority on the date of his appointment. On the basis of these main averments the petitioner filed the aforesaid petition before the High Courts, for the several reliefs stated in it, including the relief for quashing the select list and for a declaration that he may be treated to be a member of the Indian Administrative Service with effect from May 12, 1962, when, according to him, a vacancy arose in the promotion quota of that service.3. The petitioners claim was traversed in the replies which were filed by the State Government and others, for several reasons. The High Court allowed the petition by its impugned judgment dated April 11, 1975, to extent that it directed the authorities concerned to redetermine his seniority vis-a-vis those of the respondents from 4 to 13 who were still in service, and to give him all consequential benefits as a result of such redetermination. The High Court left he parties to bear their own costs.4. The controversy before us has been confined to the short point whether the High Court erred in not dismissing the petition in spite of the inordinate delay and laches on the part of the petitioner. That is why we have not thought it necessary to refer to the other facts in details for it will be enough to refer to the admitted facts which bear on the controversy before us.5. As has been stated, the list of the State Civil Service officers who were found suitable for appointment to the Indian Administrative Service was prepared in 1960, in which the name of the petitioner was not included while the names of respondents 4 to 13, who were junior to him, were included. The petitioner has stated that he felt aggrieved because of his supersession by his juniors in that list. He contended that his name was included in the list which was prepared in 1961, but it was put at the bottom of the list, i.e., after respondents 4 to 13. That, according to the petitioner, was in contravention of Regulation 5 (3) of the Regulation for reasons mentioned in the petition. The said respondents were promoted to the Indian Administrative Service in 1962 and the petitioner has stated that he thereupon made a representation to the Chief Secretary against his supersession in that very year, but it was rejected on November 9, 1962. Instead of seeking a redress of his grievance by a writ petition after the rejection of his representation, the petitioner has stated that he sent a memorial to the Chief Minister on January 23, 1963. It was rejected on March 16, 1964. The petitioner then made a representation to the Government of India on February 6, 1965, but no order thereon was communicated to him. He made another representation to a Minister of the State Government in December, 1965. According to the petitioner, no order was passed on it also even though he continued to wait until July 12, 1969, when he claims to have addressed another letter to the State Government for the proper fixation of his seniority. It was rejected on November 1, 1969. The petitioner thereupon sent another memorial to the Chief Minister on January 6, 1970, which was rejected on August 26, 1970. Thereafter he made a representation to the Government of India on November 17, 1970 and was further representation to the Chief Secretary on January 3, 1973, and thereafter filed the aforesaid writ petition under Articles 226 and 227 in the Orissa High Court.6. It would thus appear that there is justification for the argument of the Solicitor General that even though a case of action arose to the petitioner as far back as 1962, on the rejection of his representation on November 9, 1962, he allowed some eleven years to go by before filing the writ petition. There is no satisfactory explanation of the inordinate delay for, as has been held by this Court in Rabindra Nath Bose v. Union of India (1970) 2 SCR 697 : (1970) 1 SCC 84 ), the making of repeated representations, after the rejection of one representation, could not be held to be a satisfactory explanation of the delay. The fact therefore remains that the petitioner allowed some 11 years to go by before making a petition for the redress of his grievances. In the meantime a number of other appointments were also made to the India Administrative Service by promotion from the State Civil Service, some of the officers received promotions to higher posts in that service and may even have retired. Those who continued to serve could justifiably think that as there was no challenge to their appointments within the period prescribed for a suit, they could look forward to further promotion and higher terminal benefits on retirement. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was "strenuously" urged for its consideration on behalf of the Government of India.
### Response:
1
### Explanation:
6. It would thus appear that there is justification for the argument of the Solicitor General that even though a case of action arose to the petitioner as far back as 1962, on the rejection of his representation on November 9, 1962, he allowed some eleven years to go by before filing the writ petition. There is no satisfactory explanation of the inordinate delay for, as has been held by this Court in Rabindra Nath Bose v. Union of India (1970) 2 SCR 697 : (1970) 1 SCC 84 ), the making of repeated representations, after the rejection of one representation, could not be held to be a satisfactory explanation of the delay. The fact therefore remains that the petitioner allowed some 11 years to go by before making a petition for the redress of his grievances. In the meantime a number of other appointments were also made to the India Administrative Service by promotion from the State Civil Service, some of the officers received promotions to higher posts in that service and may even have retired. Those who continued to serve could justifiably think that as there was no challenge to their appointments within the period prescribed for a suit, they could look forward to further promotion and higher terminal benefits on retirement. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was "strenuously" urged for its consideration on behalf of the Government of India.
|
Kishan Vs. The State of Madhya Pradesh | nearly neem tree. There he was given a beating by fists and kicks by the appellant and his three brothers Bucha contrived to extricate himself from their grip and picked up a Khutai lying nearby He gave three blows on the head of Har Charan with the Khutai. Har Charan fell down on the ground and became unconscious. Thereafter the appellant and his remaining two brothers, Ganesh and Damrulal, caught hold of Bucha. The appellant snatched the Khutai from the hand of Bucha and gave two or three blows on his head. Bucha fell down on the ground and became unconscious. The appellant, Ganesh and Damrulal carried away Har Charan in a cart and lodged a report with the police. Kanhaiyalal P. W. 6, lodged the F.I.R. about the incident in the Police Station Prithvipur, Bucha died soon afterwards. 3. The prosecution examined four eye witnesses of the occurrence. Kanhaiyalal, P. W. 6, Mst. Khumania, P.W. 1, Mst. Tijia, P.W. 2 Bhagola, P.W. 3. Kanhaiyalal was declared hostile by the prosecution. The Additional Sessions Judge relied on the evidence of Mst. Khumania, Mst. Tijia and Bhagola to the extent that the appellant, Ganesh and Damrulal along with the deceased Har Charan had gone to the house of Bucha and beaten him by fists and kicks. He also found that Bucha extricated himself from their hold and picked up a khutai. He gave three blows on the head of Har Charan. Har Charan fell down and became unconscious. The appellant grappled with Bucha and snatched the khutai from his hand. He then gave two or three blows on the head of Bucha. Bucha fell down and became unconscious. The Sessions Judge found that Ganesh and Damrulal did not participate in beating Bucha after Har Charan had fallen down on the ground. Accordingly, he held that only the appellant was responsible for causing injuries to Bucha. He was of opinion that after Bucha was in possession of the khutia there was a reasonable apprehension of grievous injury in the mind of the appellant. So when the appellant snatched the khutai from his hand and struck blows on his head, he was acting in exercise of the right of self-defence. The appellant had not intention to cause grievous hurt to Bucha or to take his life. Bucha was the aggressor. The Sessions Judge considered that the appellant could be held guilty under Section 304 Part II I.P.C., but as he has acted in exercise of the right of selfdefence, he was not guilty of that offence. The Sessions Judge, therefore, acquitted the appellant as well as his co-accused. 4. The State appealed against the judgment of the Sessions Judge to the High Court. The High Court did not rely on the evidence of Kanhaiyalal. The High Court, however, relied on the evidence of Mst. Khumania, Fijia and Bhagola. Agreeing with the Sessions Judge, the High Court has held that the appellant had inflicted blows on the head of the deceased Bucha by the khutai. The High Court has further agreed with the Sessions Judge that Ganesh did not instigate the appellant to kill Bucha. But there the area of agreement between them ends. Disagreeing with the Sessions Judge, the High Court has held that the appellant and his co-accused were the aggressors; Bucha was not an aggressor So the appellant could not claim to have beaten Bucha in exercise of the right of self-defence. The High Court said: "The respondents had come prepared to beat the deceased and, as stated above, were the aggressors. The respondents, therefore, could not claim protection under a right to defend against Bucha who, in exercise of a right of private defence, wielded the khutai causing serious injuries and even death of one of the attackers. In the result, the High Court has convicted the appellant of the offence of murder under S. 302 I.P.C. 5. Counsel for the appellant has addressed us on two points. Firstly, he has urged that the appellant has acted in exercise of the right of selfdefence. Secondly, he has submitted that the appellants act of causing injury to Bucha falls not within S. 302 but within S. 304 Part II I.P.C. 6. We are unable to accept these arguments. The finding of the Courts below is that the appellant along with his three brothers, Ganesh, Damrulal and Har Charan went to the house of Bucha, pulled him out of his house upto the neem tree and there subjected him to punching and kicking. So they were aggressors.They took the law in their own hands. Bucha contrived to escape from their grip, caught hold of the khutai and struck three blows on the head of Har Charan, Bucha was then acting in exercise of the right of self-defence. Therefore, he was not an aggressor. The appellant could not claim to have beaten Bucha in exercise of the right of self-defence. 7. Turning of the second argument, the appellant and his co-accused had gone to the house of Bucha with the intention of causing physical harm to him. They went unarmed to his house. So they did not then have any intention to kill him. Bucha picked up the khutai and inflicted deadly blows on the head of Har Charan brother of the appellant. Har Charan fell down and became unconscious. (He died soon thereafter). At that moment the appellant hurled the khutai on the head of Bucha. The blow was so severe that there was profuse bleeding inside the brain. One of the skull fractures extended from the right temporal region to the left temporal region and proceeded internally to the base of the skull. Dr. S. N. Banerji, who did the autopsy on the dead body of Bucha has deposed: "With these injuries death was inevitable. This medical opinion clearly brings the case of the appellant within the purview of S. 300, third clause. So the High Court is right in convicting him under S. 302 I.P.C. The appeal is accordingly dismissed. | 0[ds]6. We are unable to accept these arguments. The finding of the Courts below is that the appellant along with his three brothers, Ganesh, Damrulal and Har Charan went to the house of Bucha, pulled him out of his house upto the neem tree and there subjected him to punching and kicking. So they were aggressors.They took the law in their own hands. Bucha contrived to escape from their grip, caught hold of the khutai and struck three blows on the head of Har Charan, Bucha was then acting in exercise of the right ofselfdefence.7. Turning of the second argument, the appellant and hisd had gone to the house of Bucha with the intention of causing physical harm to him. They went unarmed to his house. So they did not then have any intention to kill him. Bucha picked up the khutai and inflicted deadly blows on the head of Har Charan brother of the appellant. Har Charan fell down and became unconscious. (He died soon thereafter). At that moment the appellant hurled the khutai on the head of Bucha. The blow was so severe that there was profuse bleeding inside the brain. One of the skull fractures extended from the right temporal region to the left temporal region and proceeded internally to the base of the skull. Dr. S. N. Banerji, who did the autopsy on the dead body of Bucha has deposed: "With these injuries death was inevitable. This medical opinion clearly brings the case of the appellant within the purview of S. 300, third clause. So the High Court is right in convicting him under S. 302 I.P.C. The appeal is accordingly dismissed. | 0 | 1,362 | 310 | ### 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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nearly neem tree. There he was given a beating by fists and kicks by the appellant and his three brothers Bucha contrived to extricate himself from their grip and picked up a Khutai lying nearby He gave three blows on the head of Har Charan with the Khutai. Har Charan fell down on the ground and became unconscious. Thereafter the appellant and his remaining two brothers, Ganesh and Damrulal, caught hold of Bucha. The appellant snatched the Khutai from the hand of Bucha and gave two or three blows on his head. Bucha fell down on the ground and became unconscious. The appellant, Ganesh and Damrulal carried away Har Charan in a cart and lodged a report with the police. Kanhaiyalal P. W. 6, lodged the F.I.R. about the incident in the Police Station Prithvipur, Bucha died soon afterwards. 3. The prosecution examined four eye witnesses of the occurrence. Kanhaiyalal, P. W. 6, Mst. Khumania, P.W. 1, Mst. Tijia, P.W. 2 Bhagola, P.W. 3. Kanhaiyalal was declared hostile by the prosecution. The Additional Sessions Judge relied on the evidence of Mst. Khumania, Mst. Tijia and Bhagola to the extent that the appellant, Ganesh and Damrulal along with the deceased Har Charan had gone to the house of Bucha and beaten him by fists and kicks. He also found that Bucha extricated himself from their hold and picked up a khutai. He gave three blows on the head of Har Charan. Har Charan fell down and became unconscious. The appellant grappled with Bucha and snatched the khutai from his hand. He then gave two or three blows on the head of Bucha. Bucha fell down and became unconscious. The Sessions Judge found that Ganesh and Damrulal did not participate in beating Bucha after Har Charan had fallen down on the ground. Accordingly, he held that only the appellant was responsible for causing injuries to Bucha. He was of opinion that after Bucha was in possession of the khutia there was a reasonable apprehension of grievous injury in the mind of the appellant. So when the appellant snatched the khutai from his hand and struck blows on his head, he was acting in exercise of the right of self-defence. The appellant had not intention to cause grievous hurt to Bucha or to take his life. Bucha was the aggressor. The Sessions Judge considered that the appellant could be held guilty under Section 304 Part II I.P.C., but as he has acted in exercise of the right of selfdefence, he was not guilty of that offence. The Sessions Judge, therefore, acquitted the appellant as well as his co-accused. 4. The State appealed against the judgment of the Sessions Judge to the High Court. The High Court did not rely on the evidence of Kanhaiyalal. The High Court, however, relied on the evidence of Mst. Khumania, Fijia and Bhagola. Agreeing with the Sessions Judge, the High Court has held that the appellant had inflicted blows on the head of the deceased Bucha by the khutai. The High Court has further agreed with the Sessions Judge that Ganesh did not instigate the appellant to kill Bucha. But there the area of agreement between them ends. Disagreeing with the Sessions Judge, the High Court has held that the appellant and his co-accused were the aggressors; Bucha was not an aggressor So the appellant could not claim to have beaten Bucha in exercise of the right of self-defence. The High Court said: "The respondents had come prepared to beat the deceased and, as stated above, were the aggressors. The respondents, therefore, could not claim protection under a right to defend against Bucha who, in exercise of a right of private defence, wielded the khutai causing serious injuries and even death of one of the attackers. In the result, the High Court has convicted the appellant of the offence of murder under S. 302 I.P.C. 5. Counsel for the appellant has addressed us on two points. Firstly, he has urged that the appellant has acted in exercise of the right of selfdefence. Secondly, he has submitted that the appellants act of causing injury to Bucha falls not within S. 302 but within S. 304 Part II I.P.C. 6. We are unable to accept these arguments. The finding of the Courts below is that the appellant along with his three brothers, Ganesh, Damrulal and Har Charan went to the house of Bucha, pulled him out of his house upto the neem tree and there subjected him to punching and kicking. So they were aggressors.They took the law in their own hands. Bucha contrived to escape from their grip, caught hold of the khutai and struck three blows on the head of Har Charan, Bucha was then acting in exercise of the right of self-defence. Therefore, he was not an aggressor. The appellant could not claim to have beaten Bucha in exercise of the right of self-defence. 7. Turning of the second argument, the appellant and his co-accused had gone to the house of Bucha with the intention of causing physical harm to him. They went unarmed to his house. So they did not then have any intention to kill him. Bucha picked up the khutai and inflicted deadly blows on the head of Har Charan brother of the appellant. Har Charan fell down and became unconscious. (He died soon thereafter). At that moment the appellant hurled the khutai on the head of Bucha. The blow was so severe that there was profuse bleeding inside the brain. One of the skull fractures extended from the right temporal region to the left temporal region and proceeded internally to the base of the skull. Dr. S. N. Banerji, who did the autopsy on the dead body of Bucha has deposed: "With these injuries death was inevitable. This medical opinion clearly brings the case of the appellant within the purview of S. 300, third clause. So the High Court is right in convicting him under S. 302 I.P.C. The appeal is accordingly dismissed.
### Response:
0
### Explanation:
6. We are unable to accept these arguments. The finding of the Courts below is that the appellant along with his three brothers, Ganesh, Damrulal and Har Charan went to the house of Bucha, pulled him out of his house upto the neem tree and there subjected him to punching and kicking. So they were aggressors.They took the law in their own hands. Bucha contrived to escape from their grip, caught hold of the khutai and struck three blows on the head of Har Charan, Bucha was then acting in exercise of the right ofselfdefence.7. Turning of the second argument, the appellant and hisd had gone to the house of Bucha with the intention of causing physical harm to him. They went unarmed to his house. So they did not then have any intention to kill him. Bucha picked up the khutai and inflicted deadly blows on the head of Har Charan brother of the appellant. Har Charan fell down and became unconscious. (He died soon thereafter). At that moment the appellant hurled the khutai on the head of Bucha. The blow was so severe that there was profuse bleeding inside the brain. One of the skull fractures extended from the right temporal region to the left temporal region and proceeded internally to the base of the skull. Dr. S. N. Banerji, who did the autopsy on the dead body of Bucha has deposed: "With these injuries death was inevitable. This medical opinion clearly brings the case of the appellant within the purview of S. 300, third clause. So the High Court is right in convicting him under S. 302 I.P.C. The appeal is accordingly dismissed.
|
Kishanchand Ramdas Gajwani Vs. Chief Controller, I and E, New Delhi | or deemed to have been made under the Act and Section 6 prescribed the Courts which were to take cognisance of such offences. On the 6th March. 1948 the Central Government in exercise of the powers under Section 3(1) of the Act issued a notified order which inter alia provided for debarring permanently or for a specified period licensees or importers from obtaining licences for import of goods. These provisions were sought to be applied by the import control authorities to the Petitioner and may be set out here :-(b) Where a licences is found to have contravened the order or the terms and conditions embodied in or accompanying a licence, the appropriate licensing authority or the Chief Controller of Imports may notify him that, without prejudice to any penalty to which he may-be liable under the Imports and Exports (Control) Act, 1947 (XVIII of 1947), or any other enactment for the time being in force, he shall either permanently or for a specified period be refused any further licence for import of goods.(c) Where an importer is found guilty of contravention of the proviso to the said notification or of any orders or terms of conditions embodied in or accompanying a licence or an application for a licence or any other import trade control rules or regulations duly promulgated, the appropriate licensing authority or the Chief Controller of Imports may notify him that without prejudice to any penalty to which he may be liable under the Imports and Exports (Control) Act, 1947 (XVIII of 1947), or any other enactment for the time being in force, he shall either permanently or for a specified period be refused any licence for import of goods.These provisions were impugned by the Petitioner as illegal and void, not being within the terms of Section 3(1) of the Act.4. Under Section 3(1) of the Act it was open to the Central Government to make provision for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases the import of goods of any specified description. Whatever is comprised within this power could be the subject matter of a notified order. But the scope of that power was strictly limited to the prohibiting, restricting or otherwise controlling of the imports of goods. The notified order could provide for the issue of licences, might prescribe the terms and conditions of the licences and might also provide for the suspension and cancellation of the licences under certain circumstances with a view to effectively provide for prohibiting, restricting or otherwise controlling the import of goods. But if the notified order travelled beyond the purview of this power the provision would certainly be bad as not within the Act.5. It was urged that the power contained in the impugned Clauses (b) & (c) was implicit within the power to make provision for prohibiting, restricting or otherwise controlling the import of goods, because if it were not so there would be no effective cheek or control on the licencees or importers and the policy of the Act would not be effectively carried out. A licencee or importer might obtain a quota certificate or a licence on the basis of fraudulent misrepresentations or forged documents which might be subsequently discovered to be such and then the import control authorities would be without a remedy if they were not invested with the power to impose any such punishment as is provided in the impugned clauses. A mere suspension or cancellation of the licence would not be enough and in the exercise of their discretion the import control authorities might as well deprive the licencee or importer thus found guilty, of an opportunity of being considered for further licences along with other bona fide applicants by making him disgorge the unlawful gains he had made earlier and equalising the distribution of the quotas for goods which would be permitted to be imported.6. It was on the other hand urged that even so, the import control authorities might be justified in refusing to grant a licence to the defaulting applicants but would not be justified in imposing a bar on them for any prospective licensing period, because it would be in the nature of a punishment or penalty and not a provision for effectively exercising the power of prohibiting, restricting or otherwise controlling the imports of goods. It was also urged that refusing to grant licences permanently or for specified periods to such defaulting applicants was certainly not within the legitimate exercise of such power as it would operate beyond the life of the Act and would also be liable to abuse at the hands of the import control authorities without the applicant being entitled as of right to have it scrutinised by higher authorities or by judicial tribunals.7. We are however absolved from the necessity of considering this question of the validity of these impugned provisions, because the order dated the 29th May 1953 is tantamount to a refusal to grant the Petitioner licences for the two items therein mentioned for the two licensing periods July-December 1952 and January-June 1953 and the order dated 11/12th January 1954 is tantamount to a refusal to grant the Petitioner licences for the other items therein mentioned for the three licensing periods July-December 1952, January-December 1953 and July-December 1953. As regards the licensing period July-December 1953 which was anticipated in the order dated the 29th May 1953, the learned Solicitor General appearing for the Respondent has undertaken to consider the Petitioners applications for licences to import the two commodities therein mentioned for this period as if they are still undisposed of and unaffected by the order dated the 29th May 1953.8. The result therefore is that the consideration of the question as to the validity of the impugned Clauses (b) & (c) is merely academical and we refuse to go into the same.9. The alternative contention of Petitioner that the orders complained against were mala fide has no substance in it and is summarily rejected. | 0[ds]A licencee or importer might obtain a quota certificate or a licence on the basis of fraudulent misrepresentations or forged documents which might be subsequently discovered to be such and then the import control authorities would be without a remedy if they were not invested with the power to impose any such punishment as is provided in the impugned clauses. A mere suspension or cancellation of the licence would not be enough and in the exercise of their discretion the import control authorities might as well deprive the licencee or importer thus found guilty, of an opportunity of being considered for further licences along with other bona fide applicants by making him disgorge the unlawful gains he had made earlier and equalising the distribution of the quotas for goods which would be permitted to be imported.We are however absolved from the necessity of considering this question of the validity of these impugned provisions, because the order dated the 29th May 1953 is tantamount to a refusal to grant the Petitioner licences for the two items therein mentioned for the two licensing periods1953 and theorder dated 11/12th January 1954 is tantamount to a refusal to grant the Petitioner licences for the other items therein mentioned for the three licensing periodser 1953 and1953. As regards the licensing period1953 which was anticipated in the order dated the 29th May 1953, the learned Solicitor General appearing for the Respondent has undertaken to consider the Petitioners applications for licences to import the two commodities therein mentioned for this period as if they are still undisposed of and unaffected by the order dated the 29th May 1953.8. The result therefore is that the consideration of the question as to the validity of the impugned Clauses (b) & (c) is merely academical and we refuse to go into the same.9. The alternative contention of Petitioner that the orders complained against were mala fide has no substance in it and is summarily rejected. | 0 | 2,431 | 341 | ### Instruction:
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### Input:
or deemed to have been made under the Act and Section 6 prescribed the Courts which were to take cognisance of such offences. On the 6th March. 1948 the Central Government in exercise of the powers under Section 3(1) of the Act issued a notified order which inter alia provided for debarring permanently or for a specified period licensees or importers from obtaining licences for import of goods. These provisions were sought to be applied by the import control authorities to the Petitioner and may be set out here :-(b) Where a licences is found to have contravened the order or the terms and conditions embodied in or accompanying a licence, the appropriate licensing authority or the Chief Controller of Imports may notify him that, without prejudice to any penalty to which he may-be liable under the Imports and Exports (Control) Act, 1947 (XVIII of 1947), or any other enactment for the time being in force, he shall either permanently or for a specified period be refused any further licence for import of goods.(c) Where an importer is found guilty of contravention of the proviso to the said notification or of any orders or terms of conditions embodied in or accompanying a licence or an application for a licence or any other import trade control rules or regulations duly promulgated, the appropriate licensing authority or the Chief Controller of Imports may notify him that without prejudice to any penalty to which he may be liable under the Imports and Exports (Control) Act, 1947 (XVIII of 1947), or any other enactment for the time being in force, he shall either permanently or for a specified period be refused any licence for import of goods.These provisions were impugned by the Petitioner as illegal and void, not being within the terms of Section 3(1) of the Act.4. Under Section 3(1) of the Act it was open to the Central Government to make provision for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases the import of goods of any specified description. Whatever is comprised within this power could be the subject matter of a notified order. But the scope of that power was strictly limited to the prohibiting, restricting or otherwise controlling of the imports of goods. The notified order could provide for the issue of licences, might prescribe the terms and conditions of the licences and might also provide for the suspension and cancellation of the licences under certain circumstances with a view to effectively provide for prohibiting, restricting or otherwise controlling the import of goods. But if the notified order travelled beyond the purview of this power the provision would certainly be bad as not within the Act.5. It was urged that the power contained in the impugned Clauses (b) & (c) was implicit within the power to make provision for prohibiting, restricting or otherwise controlling the import of goods, because if it were not so there would be no effective cheek or control on the licencees or importers and the policy of the Act would not be effectively carried out. A licencee or importer might obtain a quota certificate or a licence on the basis of fraudulent misrepresentations or forged documents which might be subsequently discovered to be such and then the import control authorities would be without a remedy if they were not invested with the power to impose any such punishment as is provided in the impugned clauses. A mere suspension or cancellation of the licence would not be enough and in the exercise of their discretion the import control authorities might as well deprive the licencee or importer thus found guilty, of an opportunity of being considered for further licences along with other bona fide applicants by making him disgorge the unlawful gains he had made earlier and equalising the distribution of the quotas for goods which would be permitted to be imported.6. It was on the other hand urged that even so, the import control authorities might be justified in refusing to grant a licence to the defaulting applicants but would not be justified in imposing a bar on them for any prospective licensing period, because it would be in the nature of a punishment or penalty and not a provision for effectively exercising the power of prohibiting, restricting or otherwise controlling the imports of goods. It was also urged that refusing to grant licences permanently or for specified periods to such defaulting applicants was certainly not within the legitimate exercise of such power as it would operate beyond the life of the Act and would also be liable to abuse at the hands of the import control authorities without the applicant being entitled as of right to have it scrutinised by higher authorities or by judicial tribunals.7. We are however absolved from the necessity of considering this question of the validity of these impugned provisions, because the order dated the 29th May 1953 is tantamount to a refusal to grant the Petitioner licences for the two items therein mentioned for the two licensing periods July-December 1952 and January-June 1953 and the order dated 11/12th January 1954 is tantamount to a refusal to grant the Petitioner licences for the other items therein mentioned for the three licensing periods July-December 1952, January-December 1953 and July-December 1953. As regards the licensing period July-December 1953 which was anticipated in the order dated the 29th May 1953, the learned Solicitor General appearing for the Respondent has undertaken to consider the Petitioners applications for licences to import the two commodities therein mentioned for this period as if they are still undisposed of and unaffected by the order dated the 29th May 1953.8. The result therefore is that the consideration of the question as to the validity of the impugned Clauses (b) & (c) is merely academical and we refuse to go into the same.9. The alternative contention of Petitioner that the orders complained against were mala fide has no substance in it and is summarily rejected.
### Response:
0
### Explanation:
A licencee or importer might obtain a quota certificate or a licence on the basis of fraudulent misrepresentations or forged documents which might be subsequently discovered to be such and then the import control authorities would be without a remedy if they were not invested with the power to impose any such punishment as is provided in the impugned clauses. A mere suspension or cancellation of the licence would not be enough and in the exercise of their discretion the import control authorities might as well deprive the licencee or importer thus found guilty, of an opportunity of being considered for further licences along with other bona fide applicants by making him disgorge the unlawful gains he had made earlier and equalising the distribution of the quotas for goods which would be permitted to be imported.We are however absolved from the necessity of considering this question of the validity of these impugned provisions, because the order dated the 29th May 1953 is tantamount to a refusal to grant the Petitioner licences for the two items therein mentioned for the two licensing periods1953 and theorder dated 11/12th January 1954 is tantamount to a refusal to grant the Petitioner licences for the other items therein mentioned for the three licensing periodser 1953 and1953. As regards the licensing period1953 which was anticipated in the order dated the 29th May 1953, the learned Solicitor General appearing for the Respondent has undertaken to consider the Petitioners applications for licences to import the two commodities therein mentioned for this period as if they are still undisposed of and unaffected by the order dated the 29th May 1953.8. The result therefore is that the consideration of the question as to the validity of the impugned Clauses (b) & (c) is merely academical and we refuse to go into the same.9. The alternative contention of Petitioner that the orders complained against were mala fide has no substance in it and is summarily rejected.
|
Khilendra Singh Vs. Union of India Ministry of Agriculture Through Secretary & Others | L. Nageswara Rao, J.1. Leave granted.2. The Appellant applied for appointment to the posts of Subject Matter Specialist (Crop Protection & Crop Psychology) in Vivekananda Parvatiya Krishi Anusandhan Sansthan, Almora. The Appellant belongs to "Jaat" caste which was falling within the category of Other Backward Classes (OBCs) in the State of Uttar Pradesh. The Tesildar, Thakurdwara, Moradabad (U.P.) issued a certificate in favour of the Appellant stating that he belongs to Other Backward Classes on 22nd June, 2007. The Appellant was appointed on 2nd January, 2008 in a post reserved for OBCs. A show-cause notice was issued to the Appellant asking him to explain as to why his appointment should not be cancelled as the community to which he belongs is not found in the Central List of OBCs. The Appellant submitted his explanation on 6th November, 2010. An inquiry was conducted and on the basis of the recommendation of the Inquiry Committee, the services of the Appellant were terminated on 20th November, 2010. He approached the High Court of Uttarakhand at Nainital by filing Writ Petition challenging the order of termination. The Writ Petition was dismissed vide judgment dated 24th February, 2011, the legality of which is assailed in the above Appeal.3. The National Commission for Backward Classes was constituted by the National Commission for Backward Classes Act, 1993 (Act 27 of 1993). Section 9 of the Act empowers the Commission to examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. Section 2(c) defines "Lists" as follows:(c) "lists" means lists prepared by the Government of India from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India4. By a proceeding dated 10th September, 1993 the Government of India finalised the Central List of OBCs for each State. A common List for the State of Uttar Pradesh was annexed to the said proceedings in which the caste of "Jaat" was not included. The matter pertaining to the inclusion of "Jaat" in the Central List of OBCs for the States of Uttar Pradesh, Madhya Pradesh, Haryana and Rajasthan came up for consideration before the Commission in the year 1997. The National Commission for Backward Classes recommended inclusion of "Jaat" caste in the OBCs only for the State of Rajasthan and not the other three States. On the basis of the power of review that was conferred on the National Commission for Backward Classes, the matter was examined afresh. The National Commission for Backward Classes conducted hearings in Delhi to consider the request of "Jaat" caste in the Central List of OBCs for nine States including the State of Uttar Pradesh. The National Commission for Backward Classes advised the Central Government not to include the "Jaat" caste/ community in the Central List of OBCs. While rejecting the recommendation made by the National Commission for Backward Classes, the Central Government issued a notification including "Jaat" caste/ community in the Central List of OBCs for the States of Uttar Pradesh/ Uttarakhand and seven other States in 2014.5. A perusal of the facts that are stated in the preceding paragraph on the basis of the counter affidavit filed by the National Commission for Backward Classes would show that "Jaat" caste/ community is in the Central List of OBCs for the State of Uttarakhand from 2014. The Central List of OBCs prepared for the States of Uttar Pradesh in 1993 did not include the "Jaat" caste/ community. The State of Uttarakhand was formed in 2000. By a Resolution passed in 2010, the National Commission for Backward Classes resolved that till the Central List for the State of Uttarakhand was finalized, the List that was in operation in the State of Uttar Pradesh will be followed for appointment to the Central posts reserved for OBCs. The advertisement and selection in this case was made in the year 2007 when the caste to which the Appellant belongs i.e. "Jaat" was not in the Central List for Uttar Pradesh. | 0[ds]5. A perusal of the facts that are stated in the preceding paragraph on the basis of the counter affidavit filed by the National Commission for Backward Classes would show that "Jaat" caste/ community is in the Central List of OBCs for the State of Uttarakhand from 2014. The Central List of OBCs prepared for the States of Uttar Pradesh in 1993 did not include the "Jaat" caste/ community. The State of Uttarakhand was formed in 2000. By a Resolution passed in 2010, the National Commission for Backward Classes resolved that till the Central List for the State of Uttarakhand was finalized, the List that was in operation in the State of Uttar Pradesh will be followed for appointment to the Central posts reserved for OBCs. The advertisement and selection in this case was made in the year 2007 when the caste to which the Appellant belongs i.e. "Jaat" was not in the Central List for Uttar Pradesh. | 0 | 823 | 177 | ### 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:
L. Nageswara Rao, J.1. Leave granted.2. The Appellant applied for appointment to the posts of Subject Matter Specialist (Crop Protection & Crop Psychology) in Vivekananda Parvatiya Krishi Anusandhan Sansthan, Almora. The Appellant belongs to "Jaat" caste which was falling within the category of Other Backward Classes (OBCs) in the State of Uttar Pradesh. The Tesildar, Thakurdwara, Moradabad (U.P.) issued a certificate in favour of the Appellant stating that he belongs to Other Backward Classes on 22nd June, 2007. The Appellant was appointed on 2nd January, 2008 in a post reserved for OBCs. A show-cause notice was issued to the Appellant asking him to explain as to why his appointment should not be cancelled as the community to which he belongs is not found in the Central List of OBCs. The Appellant submitted his explanation on 6th November, 2010. An inquiry was conducted and on the basis of the recommendation of the Inquiry Committee, the services of the Appellant were terminated on 20th November, 2010. He approached the High Court of Uttarakhand at Nainital by filing Writ Petition challenging the order of termination. The Writ Petition was dismissed vide judgment dated 24th February, 2011, the legality of which is assailed in the above Appeal.3. The National Commission for Backward Classes was constituted by the National Commission for Backward Classes Act, 1993 (Act 27 of 1993). Section 9 of the Act empowers the Commission to examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. Section 2(c) defines "Lists" as follows:(c) "lists" means lists prepared by the Government of India from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India4. By a proceeding dated 10th September, 1993 the Government of India finalised the Central List of OBCs for each State. A common List for the State of Uttar Pradesh was annexed to the said proceedings in which the caste of "Jaat" was not included. The matter pertaining to the inclusion of "Jaat" in the Central List of OBCs for the States of Uttar Pradesh, Madhya Pradesh, Haryana and Rajasthan came up for consideration before the Commission in the year 1997. The National Commission for Backward Classes recommended inclusion of "Jaat" caste in the OBCs only for the State of Rajasthan and not the other three States. On the basis of the power of review that was conferred on the National Commission for Backward Classes, the matter was examined afresh. The National Commission for Backward Classes conducted hearings in Delhi to consider the request of "Jaat" caste in the Central List of OBCs for nine States including the State of Uttar Pradesh. The National Commission for Backward Classes advised the Central Government not to include the "Jaat" caste/ community in the Central List of OBCs. While rejecting the recommendation made by the National Commission for Backward Classes, the Central Government issued a notification including "Jaat" caste/ community in the Central List of OBCs for the States of Uttar Pradesh/ Uttarakhand and seven other States in 2014.5. A perusal of the facts that are stated in the preceding paragraph on the basis of the counter affidavit filed by the National Commission for Backward Classes would show that "Jaat" caste/ community is in the Central List of OBCs for the State of Uttarakhand from 2014. The Central List of OBCs prepared for the States of Uttar Pradesh in 1993 did not include the "Jaat" caste/ community. The State of Uttarakhand was formed in 2000. By a Resolution passed in 2010, the National Commission for Backward Classes resolved that till the Central List for the State of Uttarakhand was finalized, the List that was in operation in the State of Uttar Pradesh will be followed for appointment to the Central posts reserved for OBCs. The advertisement and selection in this case was made in the year 2007 when the caste to which the Appellant belongs i.e. "Jaat" was not in the Central List for Uttar Pradesh.
### Response:
0
### Explanation:
5. A perusal of the facts that are stated in the preceding paragraph on the basis of the counter affidavit filed by the National Commission for Backward Classes would show that "Jaat" caste/ community is in the Central List of OBCs for the State of Uttarakhand from 2014. The Central List of OBCs prepared for the States of Uttar Pradesh in 1993 did not include the "Jaat" caste/ community. The State of Uttarakhand was formed in 2000. By a Resolution passed in 2010, the National Commission for Backward Classes resolved that till the Central List for the State of Uttarakhand was finalized, the List that was in operation in the State of Uttar Pradesh will be followed for appointment to the Central posts reserved for OBCs. The advertisement and selection in this case was made in the year 2007 when the caste to which the Appellant belongs i.e. "Jaat" was not in the Central List for Uttar Pradesh.
|
Sitabai & Anr Vs. Ram Chandra | child. The scheme of ss. 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of son ship with the deceased husband of the widow. The other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husbands brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way, the adopted son would become a member of the widows family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that s. 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of ss. 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in sub-s. (4) of s. 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the "step-father" of the adopted child. The true effect and interpretation of ss. 11 and 12 of Act No. 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses. This view is borne out by the decision of the Bombay High Court in Arukushi Narayan v. Janabai Sama Sawat(67 B.L.R. 864). It follows that in the present case plaintiff no. 2 Suresh Chandra, when he was adopted by Bhagiraths widow, became the adopted son of both the widow and her deceased husband Bhagirath and, therefore, became a coparcener with Dulichand in the joint family properties. After the death of Dulichand, plaintiff no. 2 became the sole surviving coparcener and was entitled to the possession of all joint family properties. The Additional District Judge was, therefore, right in granting a decree in favour of the plaintiff no. 2 declaring his title to the agricultural lands in the village Palasia and half share of the house situated in the village.It is contended on behalf of the respondent that the rights of the Inamdars tenants were not heritable under the Madhya Bharat Land Revenue and Tenancy Act, 1950 (Act no. 66 of 1950) and therefore the plaintiffs could not claim to become the Inamdars tenants after the death of Dulichand in the absence of a contract between the Inamdar and themselves. Reference was made to ss. 63 to 88 dealing with the rights of pakka tenants and it was argued that there was no provision in the Act dealing with the rights of an ordinary tenant. Section 87 states:"An ordinary tenant is entitled to hold the land let to him in accordance with such terms as may be agreed upon with the person from whom he holds, provided that they are not inconsistent with the provisions of this Act."Section 89 deals with the rights of sub- tenants and reads:"(1) A sub-tenant is entitled to hold the land let to him in accordance with such terms as may be agreed upon with the person from whom he holds, subject to his compliance with the general conditions of tenancy as laid down in section 55, provided that he shall, in no circumstances, lease out the land to any person."7. It is not possible to accept the argument advanced on behalf of the respondent that under the scheme of Act 66 of 1950 the rights of ordinary tenant are not heritable. It is true that there are special provisions with regard to heritability as regards pakka tenant. But in the absence of any special statutory provision, the heritability of ordinary tenancies must be governed by the personal law of the tenants concerned. Section 86 of the Act contains provisions with regard to mutation of names. Sub-section (1) of s. 8 6 states:"When a holder of land, other than an assignee of proprietary rights, loses his rights, in any land in a village by death or by surrender of abandonment of the land or by transfer of his rights to any other person, or by dispossession or otherwise, the patwari of the village in which the land is situated shah forthwith report the fact to the Tehsildar intimating the name of the new holder and the grounds on which the latter claims to succeed to the title of the former holder. Any person claiming to succeed to the title of the former holder may also apply to the Tehsildar for the mutation of his name within a period of two years from the date the last holder loses his rights."The section applies to all classes of tenants and contemplates heritability and transferability of the rights of a tenant or a subtenant. We accordingly reject the argument of the respondent that the rights of Dulichand were not heritable.8. It is also urged on behalf of the respondent that the jurisdiction of the Civil Court was barred by the provisions of the Madhya Bharat Land Revenue Administration and Ryotwari Land Revenue and Tenancy Act, 1950 (Act no. 66 of 1950). This issue was decided against the respondent in the trial court and also in the first appellate court. The decision of the lower courts on this point was not challenged in the High Court and it is not permissible for the respondent to raise this question at this stage.9. | 1[ds]It is the admitted case of both the parties that the properties consisted of agricultural land and a house jointly held by Bhagirath and Dulichand. After the death of Bhagirath, Dulichand became the sole surviving coparcener of the joint family. At the time when plaintiff no. 2 Suresh Chandra was adopted the joint family still continued to exist and the disputed properties retained their character of coparcenary properties.basis of the decision was that the property which was the joint family property of the Hindu undivided family did not cease to be so because of the "temporary reduction of the coparcenary unit to a single individual". The character of the property, viz. that it was the joint property of a Hindu undivided family, remained the same. Applying the principle to the present case, after the death of Bhagirath the joint family property continued to retain its character in the hands of Dulichand as the widow of Bhagirath was still alive and continued to enjoy the right of maintenance out of the joint familyour view the argument put forward on behalf of the appellant is well-founded and must be accepted asis clear on a reading of the main part of s. 12 and sub-s. (vi) of s. 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. The child altogether ceases to have any ties with the family of his birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption. The result is, as mentioned in s. 14(1) namely where a wife is living, adoption by the husband results in the adoption of the child by both these spouses; the child is not only the child of the adoptive father but also of the adoptive mother. In case of there lying two wives, the child becomes the adoptive child of the senior-most wife in marriage, the junior wife becoming the step-mother of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption, his wife becomes the step-mother of the adopted child. When a widow or an unmarried woman adopts a child, any husband she marries subsequent to adoption becomes the step-father of the adopted child. The scheme of ss. 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of son ship with the deceased husband of the widow. The other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husbands brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way, the adopted son would become a member of the widows family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that s. 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of ss. 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in sub-s. (4) of s. 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the "step-father" of the adopted child. The true effect and interpretation of ss. 11 and 12 of Act No. 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses. This view is borne out by the decision of the Bombay High Court in Arukushi Narayan v. Janabai Sama Sawat(67 B.L.R. 864). It follows that in the present case plaintiff no. 2 Suresh Chandra, when he was adopted by Bhagiraths widow, became the adopted son of both the widow and her deceased husband Bhagirath and, therefore, became a coparcener with Dulichand in the joint family properties. After the death of Dulichand, plaintiff no. 2 became the sole surviving coparcener and was entitled to the possession of all joint family properties. The Additional District Judge was, therefore, right in granting a decree in favour of the plaintiff no. 2 declaring his title to the agricultural lands in the village Palasia and half share of the house situated in theis not possible to accept the argumentadvanced on behalf of the respondent that under the scheme of Act 66 of 1950 the rights of ordinary tenant are not heritable.It is true that there are special provisions with regard to heritability as regards pakka tenant. But in the absence of any special statutory provision, the heritability of ordinary tenancies must be governed by the personal law of the tenants concerned. Section 86 of the Act contains provisions with regard to mutation ofissue was decided against the respondent in the trial court and also in the first appellate court. The decision of the lower courts on this point was not challenged in the High Court and it is not permissible for the respondent to raise this question at this stage. | 1 | 3,563 | 1,083 | ### 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:
child. The scheme of ss. 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of son ship with the deceased husband of the widow. The other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husbands brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way, the adopted son would become a member of the widows family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that s. 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of ss. 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in sub-s. (4) of s. 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the "step-father" of the adopted child. The true effect and interpretation of ss. 11 and 12 of Act No. 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses. This view is borne out by the decision of the Bombay High Court in Arukushi Narayan v. Janabai Sama Sawat(67 B.L.R. 864). It follows that in the present case plaintiff no. 2 Suresh Chandra, when he was adopted by Bhagiraths widow, became the adopted son of both the widow and her deceased husband Bhagirath and, therefore, became a coparcener with Dulichand in the joint family properties. After the death of Dulichand, plaintiff no. 2 became the sole surviving coparcener and was entitled to the possession of all joint family properties. The Additional District Judge was, therefore, right in granting a decree in favour of the plaintiff no. 2 declaring his title to the agricultural lands in the village Palasia and half share of the house situated in the village.It is contended on behalf of the respondent that the rights of the Inamdars tenants were not heritable under the Madhya Bharat Land Revenue and Tenancy Act, 1950 (Act no. 66 of 1950) and therefore the plaintiffs could not claim to become the Inamdars tenants after the death of Dulichand in the absence of a contract between the Inamdar and themselves. Reference was made to ss. 63 to 88 dealing with the rights of pakka tenants and it was argued that there was no provision in the Act dealing with the rights of an ordinary tenant. Section 87 states:"An ordinary tenant is entitled to hold the land let to him in accordance with such terms as may be agreed upon with the person from whom he holds, provided that they are not inconsistent with the provisions of this Act."Section 89 deals with the rights of sub- tenants and reads:"(1) A sub-tenant is entitled to hold the land let to him in accordance with such terms as may be agreed upon with the person from whom he holds, subject to his compliance with the general conditions of tenancy as laid down in section 55, provided that he shall, in no circumstances, lease out the land to any person."7. It is not possible to accept the argument advanced on behalf of the respondent that under the scheme of Act 66 of 1950 the rights of ordinary tenant are not heritable. It is true that there are special provisions with regard to heritability as regards pakka tenant. But in the absence of any special statutory provision, the heritability of ordinary tenancies must be governed by the personal law of the tenants concerned. Section 86 of the Act contains provisions with regard to mutation of names. Sub-section (1) of s. 8 6 states:"When a holder of land, other than an assignee of proprietary rights, loses his rights, in any land in a village by death or by surrender of abandonment of the land or by transfer of his rights to any other person, or by dispossession or otherwise, the patwari of the village in which the land is situated shah forthwith report the fact to the Tehsildar intimating the name of the new holder and the grounds on which the latter claims to succeed to the title of the former holder. Any person claiming to succeed to the title of the former holder may also apply to the Tehsildar for the mutation of his name within a period of two years from the date the last holder loses his rights."The section applies to all classes of tenants and contemplates heritability and transferability of the rights of a tenant or a subtenant. We accordingly reject the argument of the respondent that the rights of Dulichand were not heritable.8. It is also urged on behalf of the respondent that the jurisdiction of the Civil Court was barred by the provisions of the Madhya Bharat Land Revenue Administration and Ryotwari Land Revenue and Tenancy Act, 1950 (Act no. 66 of 1950). This issue was decided against the respondent in the trial court and also in the first appellate court. The decision of the lower courts on this point was not challenged in the High Court and it is not permissible for the respondent to raise this question at this stage.9.
### Response:
1
### Explanation:
It is the admitted case of both the parties that the properties consisted of agricultural land and a house jointly held by Bhagirath and Dulichand. After the death of Bhagirath, Dulichand became the sole surviving coparcener of the joint family. At the time when plaintiff no. 2 Suresh Chandra was adopted the joint family still continued to exist and the disputed properties retained their character of coparcenary properties.basis of the decision was that the property which was the joint family property of the Hindu undivided family did not cease to be so because of the "temporary reduction of the coparcenary unit to a single individual". The character of the property, viz. that it was the joint property of a Hindu undivided family, remained the same. Applying the principle to the present case, after the death of Bhagirath the joint family property continued to retain its character in the hands of Dulichand as the widow of Bhagirath was still alive and continued to enjoy the right of maintenance out of the joint familyour view the argument put forward on behalf of the appellant is well-founded and must be accepted asis clear on a reading of the main part of s. 12 and sub-s. (vi) of s. 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. The child altogether ceases to have any ties with the family of his birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption. The result is, as mentioned in s. 14(1) namely where a wife is living, adoption by the husband results in the adoption of the child by both these spouses; the child is not only the child of the adoptive father but also of the adoptive mother. In case of there lying two wives, the child becomes the adoptive child of the senior-most wife in marriage, the junior wife becoming the step-mother of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption, his wife becomes the step-mother of the adopted child. When a widow or an unmarried woman adopts a child, any husband she marries subsequent to adoption becomes the step-father of the adopted child. The scheme of ss. 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of son ship with the deceased husband of the widow. The other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husbands brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way, the adopted son would become a member of the widows family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that s. 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of ss. 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in sub-s. (4) of s. 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the "step-father" of the adopted child. The true effect and interpretation of ss. 11 and 12 of Act No. 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses. This view is borne out by the decision of the Bombay High Court in Arukushi Narayan v. Janabai Sama Sawat(67 B.L.R. 864). It follows that in the present case plaintiff no. 2 Suresh Chandra, when he was adopted by Bhagiraths widow, became the adopted son of both the widow and her deceased husband Bhagirath and, therefore, became a coparcener with Dulichand in the joint family properties. After the death of Dulichand, plaintiff no. 2 became the sole surviving coparcener and was entitled to the possession of all joint family properties. The Additional District Judge was, therefore, right in granting a decree in favour of the plaintiff no. 2 declaring his title to the agricultural lands in the village Palasia and half share of the house situated in theis not possible to accept the argumentadvanced on behalf of the respondent that under the scheme of Act 66 of 1950 the rights of ordinary tenant are not heritable.It is true that there are special provisions with regard to heritability as regards pakka tenant. But in the absence of any special statutory provision, the heritability of ordinary tenancies must be governed by the personal law of the tenants concerned. Section 86 of the Act contains provisions with regard to mutation ofissue was decided against the respondent in the trial court and also in the first appellate court. The decision of the lower courts on this point was not challenged in the High Court and it is not permissible for the respondent to raise this question at this stage.
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Smt. Prabhawati Vs. Dr. Pritam Kaur | 14, 1966. ORDER Subject; Smt. Prabhawati versus Dr. Pritam Kaur, regarding a portion of premises No. 11 Rampur Mandi Road, Dehra Dun. With reference to her petition dated April 2, 1965. Smt. Prabhawati is informed that after a careful examination of the records of the case and consideration of the version of the opposite party and also in view of other facts relevant to the case, it appears expedient in the ends of justice that the petitioner should not be dispossessed from the disputed premises. Therefore, in exercise of the powers conferred under Section 7-F of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, the Governor is pleased to revoke the permission under Section 3 of the said Act granted by the Rent Control and Eviction Officer Dehradun and confirmed by the Commissioner, Meerut Division, Meerut vide his orders dated March 30, 1965, passed in revision No. 13, to file a Civil Suit of ejectment against the petitioner from the premises in dispute. Sd/- B. N. Chaturvedi Anu. Sachiv." 11. One would search this order in vain for the reason that persuaded the State Government to allow the revision petition. Not a single reason is given for setting aside the order of the Commissioner. But if one delves into the records of the Government as the High Court of Allahabad did, one is left with a feeling that the note of the Irrigation Minister must have weighted heavily on the concerned authority. Our experience in dealing with litigation of this type does not embolden us to say that what happened in his case is a rare exception to the rule. 12. It may also be noted that when the revision petition was pending before the State Government, some busybody by name Ramesh Puri wrote a letter to the Minister for Food and Civil Supply on May 16, 1966 recommending the case of the appellant. In his letter he set forth his qualifications as a "social worker and fighter for freedom since childhood. That letter appears to have found a respectable place in the records of the case. One can only regret for this sorry state of affairs. 13. The appellant has found a match in the respondent. It is interesting to note to note how the respondent cleverly queered the pitch against the appellant. We have earlier noticed that it was at her instance the High Court had quashed the order of the State Government and directed the State Government to rehear and dispose of the revision petition according to law. Soon after getting that order, she tried to over-reach that order by filing a suit for eviction the very next day after the High Court passed its order. The High Court of Allahabad as well as this Court have held that a suit validly instituted after obtaining the required permission under Section 3 (1) does not cease to be maintainable because of any order made by the State Government under Section 7-F during the pendency of the suit - See Bhagwan Das v. Paras Nath, (1969) 2 SCR297 = (AIR 1970 SC 971 ) and Mohammed Ismail v. Nanney Lal, (1969) 3 SCR 394 = (AIR 1970 SC 1919 ). In a rather desperate bid to take some advantage from those decisions, the respondent appears to have rushed to the Civil Court even before the ink on the High Courts order had dried up. Having instituted the suit she presented to the Government what according to her was a fait accompli. The State Government as mentioned earlier felt that the revision petition before it became infructuous because of the institution of the suit. Unfortunately the High Court concurred with that view. 14. Mr. Tarkunde, learned Counsel for the appellant contended before us that no sooner the High Court set aside the order of the Government and directed the State Government to rehear and dispose of the matter according to law, the interim order of stay passed by the State Government stood revived. In support of that contention of his, he has placed reliance on the decision of the Patna High Court in Bankim Chandra v. Chandi Prasad, AIR 1956 Pat 271 the decisions of the Madras High Court in Tavvala Veeraswami v. Pulim Ramanna, ILR 58 Mad 721 = (AIR 1935 Mad 365 FB and Saranatha Aiyangar v. Muthiah Mooppanar, 65 Mad LJ 844 = (AIR 1934 Mad 49 ) and the decision of the Calcutta High Court in Sushila Bali Dasi v. Guest Keen Williams Ltd. ILR (1949)1Cal 177. We do not think it is necessary to consider that contention in this appeal. The principle of law contended for by Mr. Tarkunde, has several facets; but there is not need to go into those facets in this appeal. In our opinion this appeal has to succeed on a much broader ground. No party to a litigation can be permitted to frustrate the decision rendered by having recourse to trickery. The true effect of the order made by the High Court in the writ petition was that the question whether the respondent should be permitted to file a suit for ejectment of the appellant or not must be gone into and decided afresh by the State Government. One of the implications flowing from that order is that the respondent is precluded from filing the intend suit for eviction till the State Government decided the revision petition. Otherwise the direction given by the High Court would remain unobeyed. The respondent cannot be permitted to obstruct the implementation of that direction and that too a direction given at her instance. Consequently it was not open to the respondent to file the suit before the revision petition was disposed of by the State Government. In our opinion, the suit filed by the respondent was a premature one. Such a suit does not bar the State Government from disposing of the order made by the High Court. The State Government was not justified in dismissing the revision petition as being infructuous. | 1[ds]11. One would search this order in vain for the reason that persuaded the State Government to allow the revision petition. Not a single reason is given for setting aside the order of the Commissioner. But if one delves into the records of the Government as the High Court of Allahabad did, one is left with a feeling that the note of the Irrigation Minister must have weighted heavily on the concerned authority. Our experience in dealing with litigation of this type does not embolden us to say that what happened in his case is a rare exception to the rule12. It may also be noted that when the revision petition was pending before the State Government, some busybody by name Ramesh Puri wrote a letter to the Minister for Food and Civil Supply on May 16, 1966 recommending the case of the appellant. In his letter he set forth his qualifications as a "social worker and fighter for freedom since childhood. That letter appears to have found a respectable place in the records of the case. One can only regret for this sorry state of affairs13. The appellant has found a match in the respondent. It is interesting to note to note how the respondent cleverly queered the pitch against the appellant. We have earlier noticed that it was at her instance the High Court had quashed the order of the State Government and directed the State Government to rehear and dispose of the revision petition according to law. Soon after getting that order, she tried to over-reach that order by filing a suit for eviction the very next day after the High Court passed its order. The High Court of Allahabad as well as this Court have held that a suit validly instituted after obtaining the required permission under Section 3 (1) does not cease to be maintainable because of any order made by the State Government under Section 7-F during the pendency of the suit - See Bhagwan Das v. Paras Nath, (1969) 2 SCR297 = (AIR 1970 SC 971 ) and Mohammed Ismail v. Nanney Lal, (1969) 3 SCR 394 = (AIR 1970 SC 1919 ). In a rather desperate bid to take some advantage from those decisions, the respondent appears to have rushed to the Civil Court even before the ink on the High Courts order had dried up. Having instituted the suit she presented to the Government what according to her was a fait accompli. The State Government as mentioned earlier felt that the revision petition before it became infructuous because of the institution of the suit. Unfortunately the High Court concurred with that view14. Mr. Tarkunde, learned Counsel for the appellant contended before us that no sooner the High Court set aside the order of the Government and directed the State Government to rehear and dispose of the matter according to law, the interim order of stay passed by the State Government stood revived. In support of that contention of his, he has placed reliance on the decision of the Patna High Court in Bankim Chandra v. Chandi Prasad, AIR 1956 Pat 271 the decisions of the Madras High Court in Tavvala Veeraswami v. Pulim Ramanna, ILR 58 Mad 721 = (AIR 1935 Mad 365 FB and Saranatha Aiyangar v. Muthiah Mooppanar, 65 Mad LJ 844 = (AIR 1934 Mad 49 ) and the decision of the Calcutta High Court in Sushila Bali Dasi v. Guest Keen Williams Ltd. ILR (1949)1Cal 177. We do not think it is necessary to consider that contention in this appeal. The principle of law contended for by Mr. Tarkunde, has several facets; but there is not need to go into those facets in this appeal. In our opinion this appeal has to succeed on a much broader ground. No party to a litigation can be permitted to frustrate the decision rendered by having recourse to trickery. The true effect of the order made by the High Court in the writ petition was that the question whether the respondent should be permitted to file a suit for ejectment of the appellant or not must be gone into and decided afresh by the State Government. One of the implications flowing from that order is that the respondent is precluded from filing the intend suit for eviction till the State Government decided the revision petition. Otherwise the direction given by the High Court would remain unobeyed. The respondent cannot be permitted to obstruct the implementation of that direction and that too a direction given at her instance. Consequently it was not open to the respondent to file the suit before the revision petition was disposed of by the State Government. In our opinion, the suit filed by the respondent was a premature one. Such a suit does not bar the State Government from disposing of the order made by the High Court. The State Government was not justified in dismissing the revision petition as being infructuous. | 1 | 3,244 | 893 | ### Instruction:
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14, 1966. ORDER Subject; Smt. Prabhawati versus Dr. Pritam Kaur, regarding a portion of premises No. 11 Rampur Mandi Road, Dehra Dun. With reference to her petition dated April 2, 1965. Smt. Prabhawati is informed that after a careful examination of the records of the case and consideration of the version of the opposite party and also in view of other facts relevant to the case, it appears expedient in the ends of justice that the petitioner should not be dispossessed from the disputed premises. Therefore, in exercise of the powers conferred under Section 7-F of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, the Governor is pleased to revoke the permission under Section 3 of the said Act granted by the Rent Control and Eviction Officer Dehradun and confirmed by the Commissioner, Meerut Division, Meerut vide his orders dated March 30, 1965, passed in revision No. 13, to file a Civil Suit of ejectment against the petitioner from the premises in dispute. Sd/- B. N. Chaturvedi Anu. Sachiv." 11. One would search this order in vain for the reason that persuaded the State Government to allow the revision petition. Not a single reason is given for setting aside the order of the Commissioner. But if one delves into the records of the Government as the High Court of Allahabad did, one is left with a feeling that the note of the Irrigation Minister must have weighted heavily on the concerned authority. Our experience in dealing with litigation of this type does not embolden us to say that what happened in his case is a rare exception to the rule. 12. It may also be noted that when the revision petition was pending before the State Government, some busybody by name Ramesh Puri wrote a letter to the Minister for Food and Civil Supply on May 16, 1966 recommending the case of the appellant. In his letter he set forth his qualifications as a "social worker and fighter for freedom since childhood. That letter appears to have found a respectable place in the records of the case. One can only regret for this sorry state of affairs. 13. The appellant has found a match in the respondent. It is interesting to note to note how the respondent cleverly queered the pitch against the appellant. We have earlier noticed that it was at her instance the High Court had quashed the order of the State Government and directed the State Government to rehear and dispose of the revision petition according to law. Soon after getting that order, she tried to over-reach that order by filing a suit for eviction the very next day after the High Court passed its order. The High Court of Allahabad as well as this Court have held that a suit validly instituted after obtaining the required permission under Section 3 (1) does not cease to be maintainable because of any order made by the State Government under Section 7-F during the pendency of the suit - See Bhagwan Das v. Paras Nath, (1969) 2 SCR297 = (AIR 1970 SC 971 ) and Mohammed Ismail v. Nanney Lal, (1969) 3 SCR 394 = (AIR 1970 SC 1919 ). In a rather desperate bid to take some advantage from those decisions, the respondent appears to have rushed to the Civil Court even before the ink on the High Courts order had dried up. Having instituted the suit she presented to the Government what according to her was a fait accompli. The State Government as mentioned earlier felt that the revision petition before it became infructuous because of the institution of the suit. Unfortunately the High Court concurred with that view. 14. Mr. Tarkunde, learned Counsel for the appellant contended before us that no sooner the High Court set aside the order of the Government and directed the State Government to rehear and dispose of the matter according to law, the interim order of stay passed by the State Government stood revived. In support of that contention of his, he has placed reliance on the decision of the Patna High Court in Bankim Chandra v. Chandi Prasad, AIR 1956 Pat 271 the decisions of the Madras High Court in Tavvala Veeraswami v. Pulim Ramanna, ILR 58 Mad 721 = (AIR 1935 Mad 365 FB and Saranatha Aiyangar v. Muthiah Mooppanar, 65 Mad LJ 844 = (AIR 1934 Mad 49 ) and the decision of the Calcutta High Court in Sushila Bali Dasi v. Guest Keen Williams Ltd. ILR (1949)1Cal 177. We do not think it is necessary to consider that contention in this appeal. The principle of law contended for by Mr. Tarkunde, has several facets; but there is not need to go into those facets in this appeal. In our opinion this appeal has to succeed on a much broader ground. No party to a litigation can be permitted to frustrate the decision rendered by having recourse to trickery. The true effect of the order made by the High Court in the writ petition was that the question whether the respondent should be permitted to file a suit for ejectment of the appellant or not must be gone into and decided afresh by the State Government. One of the implications flowing from that order is that the respondent is precluded from filing the intend suit for eviction till the State Government decided the revision petition. Otherwise the direction given by the High Court would remain unobeyed. The respondent cannot be permitted to obstruct the implementation of that direction and that too a direction given at her instance. Consequently it was not open to the respondent to file the suit before the revision petition was disposed of by the State Government. In our opinion, the suit filed by the respondent was a premature one. Such a suit does not bar the State Government from disposing of the order made by the High Court. The State Government was not justified in dismissing the revision petition as being infructuous.
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11. One would search this order in vain for the reason that persuaded the State Government to allow the revision petition. Not a single reason is given for setting aside the order of the Commissioner. But if one delves into the records of the Government as the High Court of Allahabad did, one is left with a feeling that the note of the Irrigation Minister must have weighted heavily on the concerned authority. Our experience in dealing with litigation of this type does not embolden us to say that what happened in his case is a rare exception to the rule12. It may also be noted that when the revision petition was pending before the State Government, some busybody by name Ramesh Puri wrote a letter to the Minister for Food and Civil Supply on May 16, 1966 recommending the case of the appellant. In his letter he set forth his qualifications as a "social worker and fighter for freedom since childhood. That letter appears to have found a respectable place in the records of the case. One can only regret for this sorry state of affairs13. The appellant has found a match in the respondent. It is interesting to note to note how the respondent cleverly queered the pitch against the appellant. We have earlier noticed that it was at her instance the High Court had quashed the order of the State Government and directed the State Government to rehear and dispose of the revision petition according to law. Soon after getting that order, she tried to over-reach that order by filing a suit for eviction the very next day after the High Court passed its order. The High Court of Allahabad as well as this Court have held that a suit validly instituted after obtaining the required permission under Section 3 (1) does not cease to be maintainable because of any order made by the State Government under Section 7-F during the pendency of the suit - See Bhagwan Das v. Paras Nath, (1969) 2 SCR297 = (AIR 1970 SC 971 ) and Mohammed Ismail v. Nanney Lal, (1969) 3 SCR 394 = (AIR 1970 SC 1919 ). In a rather desperate bid to take some advantage from those decisions, the respondent appears to have rushed to the Civil Court even before the ink on the High Courts order had dried up. Having instituted the suit she presented to the Government what according to her was a fait accompli. The State Government as mentioned earlier felt that the revision petition before it became infructuous because of the institution of the suit. Unfortunately the High Court concurred with that view14. Mr. Tarkunde, learned Counsel for the appellant contended before us that no sooner the High Court set aside the order of the Government and directed the State Government to rehear and dispose of the matter according to law, the interim order of stay passed by the State Government stood revived. In support of that contention of his, he has placed reliance on the decision of the Patna High Court in Bankim Chandra v. Chandi Prasad, AIR 1956 Pat 271 the decisions of the Madras High Court in Tavvala Veeraswami v. Pulim Ramanna, ILR 58 Mad 721 = (AIR 1935 Mad 365 FB and Saranatha Aiyangar v. Muthiah Mooppanar, 65 Mad LJ 844 = (AIR 1934 Mad 49 ) and the decision of the Calcutta High Court in Sushila Bali Dasi v. Guest Keen Williams Ltd. ILR (1949)1Cal 177. We do not think it is necessary to consider that contention in this appeal. The principle of law contended for by Mr. Tarkunde, has several facets; but there is not need to go into those facets in this appeal. In our opinion this appeal has to succeed on a much broader ground. No party to a litigation can be permitted to frustrate the decision rendered by having recourse to trickery. The true effect of the order made by the High Court in the writ petition was that the question whether the respondent should be permitted to file a suit for ejectment of the appellant or not must be gone into and decided afresh by the State Government. One of the implications flowing from that order is that the respondent is precluded from filing the intend suit for eviction till the State Government decided the revision petition. Otherwise the direction given by the High Court would remain unobeyed. The respondent cannot be permitted to obstruct the implementation of that direction and that too a direction given at her instance. Consequently it was not open to the respondent to file the suit before the revision petition was disposed of by the State Government. In our opinion, the suit filed by the respondent was a premature one. Such a suit does not bar the State Government from disposing of the order made by the High Court. The State Government was not justified in dismissing the revision petition as being infructuous.
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B. R. PATIL Vs. TULSA Y. SAWKAR & ORS | entire body of the co-owners. In the case of an ouster, the co-owner must indeed have the hostile animus. He must assert a title which is not referable to lawful title. Though the learned counsel for the appellant points out that this possession started prior to 1977 in that the appellant was residing with his father in item No.3 house from somewhere in the early seventies and he continued to reside after his fathers death in the year 1977, when Shri R.M. Patil died in the year 1977, his possession in 1977, was clearly referable to lawful title as a co-owner entitled to inherit under Section 8 of the Hindu Succession Act, 1956. Obviously, he cannot be permitted to set up adverse possession or ouster in the year 1977. As far as the letter which is addressed in 1991 and reply to the letter and suit being beyond 12 years from the date of his reply, again we are of the view that he cannot be permitted to succeed for more reasons than one. In the first place, we have already noticed that this is a case where he is setting up ouster qua only one of the co-owners. Secondly, as it turns out contrary to the submission of the appellant, Mr. S. N. Bhat, learned senior counsel for the respondents points out the appellant was not in exclusive possession of the entire property. The appellant was in possession as even found by the Trial Court only of the Ground Floor. The second plaintiff is found to be in possession of the First Floor and what is more a decree stands granted by the Trial Court in her favour. In fact, even the perusal of the letter relied upon by him in the year 1991 which we have referred to, does not as such reflect the assertion of the hostile title different from that of a co-owner. In substance, what is sought to be stated is that the first plaintiff who is his sister had been given property including jewellery and therefore she does not have a right. He does not proclaim himself to be the absolute owner of the property in his own right. 28. We may additionally notice that the Trial Court has also framed an additional issue No.2, on partial ouster as it were and answered the issue against the appellant. Therefore, this is a case where the appellant has against him concurrent findings of two Courts and in this appeal which is generated by special leave, we are not released from the trammels of Article 136 in the matter of overturning such findings and we cannot certainly classify the findings in this regard in the totality of facts to be such a finding that warrants it being upset. EXCLUSION OF ITEMS 2 AND 3 SCHEDULED IN WRITTEN STATEMENT. ARE THEY SEPARATE PROPERTIES OF THE SECOND DEFENDANT? 29. The next question which is raised relates to the non-inclusion of the properties standing in the name of second defendant that is item Nos.2 and 3 in the schedule to the written statement of the appellant. As far as this contention is concerned, again we do not think that there is merit in the case of the appellant. Admittedly, the second defendant was educated and became an Engineer. He was employed. What really has weighed with the Trial Court is the fact that in view of departure from his obligations under a bond, a suit was filed and decreed against the second defendant who discharged his liability under D-75 dated 17.08.1982 in a sum of Rs.11,330/-. We must notice that item No.2 scheduled in the written statement was purchased in the year 1976. The property consists of a plot and it was allotted to the second defendant for a total sum of Rs.9,800/- in the year 1976. D-75 is in the year 1982. Defendant No.2 has given evidence about the fact that the amounts have been paid by him from his own resources by virtue of his employment in India. It is not as if amount was paid in lumpsum. As regards item No.3 in the written statement, it is a flat purchased in the year 1998. This is much after D-75 which is dated 17.08.1982. The 2nd defendant has deposed of working abroad. The 2nd defendant has spoken about item No.3 being purchased for a sum of Rs.16 lakhs. Having regard to his qualifications, we do not think that the appellant can fault the reversal of the finding though it may be true that the High Court has not dealt with it in a more elaborate manner. In this regard, we may notice that the Trial Court has proceeded on the basis that since Sh. R.M. Patil was earning as a successful lawyer and he became a successful Politician as well, the second defendant being a coparcener, item 2 and 3 should also be included. Even proceeding on the basis that there was a joint family consisting of Sh. R. M. Patil and his sons, it is not the law that a co-owner cannot acquire his own independent or separate properties. In such circumstances, we find there is no merit in this argument as well. IS THE IMPUGNED JUDGMENT INEQUITABLE? 30. Coming to the equity of the matters, the complaint of the appellant is that the appellant is a Senior Citizen and aged about 80 years and while the other siblings have their own properties and only the appellant would be most adversely affected and he will be on the streets. We must notice that the appeals are only maintained against the preliminary decree by which shares have been declared. Therefore, we do not see any reason for us to go into the question about the allotment of properties which is a matter to be gone into in the final decree proceedings. As to what is to be actual division of the properties, it is for the appellant to raise such contentions as are available in this regard. | 0[ds]7. We have already noticed the genealogy of the parties in the manner, we have referred to above. Undoubtedly, the grand parent of the parties was one Shri Marigowda Patil. He had two sons. There is no dispute regarding this. In the plaint, it is true that that the plaintiffs have, no doubt, stated that Shri Marigowda Patil had another son who remained an agriculturist. It is the further plea of the plaintiffs that Shri Marigowda Patil had a bit of landed property which was sufficient to eke out his livelihood. He left the landed property to the other son who remained an agriculturist. It is the further case and which is not open to dispute also that Shri R. M. Patil was got educated and he obtained a Degree of Law and started practicing and later Shri R. M. Patil became a Public Prosecutor and he resigned the post and he entered into politics. He became a successful politician and became a Cabinet Minister holding various portfolios. These facts are, in fact, not in dispute. The only point to be considered under the first head of complaint of the appellant is about the non-inclusion of the property of which there is a faint reference in the plaint, namely, that Shri Marigowda Patil had a bit of landed property and it was left to the other son. The appellant would lay store by the deposition given by one of the witnesses for the plaintiffs, namely, PW-3.8. The appellant, no doubt, in his evidence has crystallized the extent in somewhat greater detail by stating that the property involved, which was Joint Family Property, was about 46 acres of Agricultural Land.11. In the facts of this case having noticed the state of the pleadings and the evidence, we are of the view that the interest of justice lies in rejecting the appellants contention. The appellant has not been able to clearly establish the exact extent or identity of the property available by way of ancestral property. Despite claiming to having documents relating to the properties and admitting to having no difficulty to produce them, he does not produce them. He is unable to even give the boundaries. It is obvious that he does not claim to be in possession of the said properties even if it be as a co-owner on the basis that it is ancestral property. His evidence discloses that in reality and on the ground these properties could not be said to be actually available for the parties to the present suit to lay claims over them. Properties not in the possession of co-sharers/coparceners being omitted cannot result in a suit for the partition of the properties which are in their possession being rejected.We must notice that while it is true, there is no document produced by which it can be established that there was a partition by which the properties stood allotted to the fathers brother of the first appellant. The case which has been set up apparently is more of the nature of an arrangement between the parties by which the appellants grandfather allotted the property to his other son (appellants uncle). DW3, who is the 2nd defendant, speaks of a relinquishment by his father.13. There is the uneducated brother of appellants father who was into agriculture who was given the property in question and the appellants father went on to become a successful advocate and pursued with success also a career in politics. It may have so happened that the said property which is targeted by the appellant may be property in which Sh. R.M. Patil has abandoned his rights. We would not wish to go further into this matter, noticing the aspect of the matter already discussed. Therefore, this appears to be a case where finally before the Court, there is dearth of material to establish both the extent and the identity of the so-called joint family property which is not included in the plaint. Interestingly, the other branch has not come forward with any complaint despite the fact that this is a litigation of the year which commenced in the year 2003. No doubt, they have not been made parties and we need not make any observation in this regard. If the finding that the plaint schedule properties are the separate properties of R.M. Patil is invulnerable that would conclusively rule out the need to implead the appellants uncle or his successor in interest. Suffice it to say in the facts of this case, we do not think that the appellant should be permitted to persuade us to non-suit the plaintiffs on this ground.14. Yet another aspect which we cannot overlook is that the plaintiffs have proceeded to institute the suit on a particular cause of action. As pointed out by Mr. S. N. Bhat, learned senior counsel, the appellant could not have brought the present suit till the year, 1977 when Sh. R. M. Patil was alive. This is for the reason that the cause of action for the present suit is based on the rights of the plaintiff to the separate and self acquired properties of Sh. R. M. Patil. The parties do not have any birth right in the said properties and they could not have brought a suit based on such a right. The cause of action arose therefore only upon his death and on the basis of intestate succession plaintiffs have brought the present suit. A suit for partition in regard to ancestral property/joint family property on the other hand would be premised on birth right.On the cause of action in this case, there is no warrant to complain against the non-impleadment of the appellants uncle or his successors in interest. We may also point out that Order II Rule 3 does not compel a plaintiff to join two or more causes of action in a single suit. The failure to join together all claims arising from a cause of action will be visited with consequences proclaimed in Order II Rule 2. Order II Rule 3 permits the plaintiff to join together different causes of action. No doubt it is a different matter that if there is a misjoinder of causes of action, the power of the court as also the right of the parties to object are to be dealt with in accordance with law which is well settled.17. The Code of Civil Procedure indeed permits a plaintiff to join causes of action but it does not compel a plaintiff to do so. The consequences of not joining all claims arising from a cause of action may be fatal to a plaintiff and we are not in this case to predicate for what would happen in a future litigation. That would at any rate not advance the case of the appellant. Hence for all these reasons, we are of the view that contention of the appellant, must fail.18. We have no quarrel with the proposition that the non-joining of necessary parties is fatal but in the facts of this case, on the cause of action which is projected in the plaint and the schedule of properties which has been made by the plaintiffs, we would not think that the non-joinder of the uncle of the appellant or his legal representatives would imperil the suit filed by the plaintiffs.The learned counsel for the appellant made an attempt to persuade us to hold that the sentence that the properties were the self-acquired properties of his father may be viewed in context and isolated piece of deposition should not overwhelm a large body of deposition which exists otherwise. His deposition that Ningengowda and his children are not concerned to the suit property is fatal to the appellant case that their absence in the party array is fatal to the plaintiffs claim. It further establishes beyond doubt that the next sentence is an admission which cannot be said to be a mistake or capable of being explained away. We would not think that we should permit the appellant to do that. This is for the reason that the appellant had clearly admitted that the plaint schedule properties were the self-acquired properties which belonged to Sh. R.M. Patil. The appellant, admittedly, is an Advocate.In P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314, it is held inter alia as follows: -4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan, 61 Ind App 78 at P 82 (AIR 1934 PC 23 at p.25) (A). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna, 27 Ind App 136 at p.140 (PC)(B). But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part derogation of the other co-heirs title. (See Corea V. Appuhamy, 1912 AC 230 (C). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44 at p. 47(D) quotes, apparently with approval a passage from Culley v. Deod Taylerson, (1840) 3 P & D 539; 52 RR 566 (E) which indicates that such a situation may well lead to an inference of ouster if other circumstances concur. (See also Govindrao v. Rajabai, AIR 1931 PC 48 (F) It may be further mentioned that it is well-settled that the burden of making out ouster is one the person claiming to displace the lawful title of a co-heir by his adverse possession.23. In Md. Mohammad Ali (dead) by lrs. v. Jagadish Kalita and Others (2004) 1 SCC 271 the court inter alia held as follows:31. In Vidya Devi v. Prem Prakash [(1995) 4 SCC 496] this Court upon referring to a large number of decisions observed: (SCC p. 505, paras 27-28)27. … It will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case [P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314] which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen [(1990) 1 SCC 345].28. Ouster does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.32. Yet again in Darshan Singh v. Gujjar Singh [(2002) 2 SCC 62] it is stated: (SCC pp. 65-66, para 7)It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co- sharers.It has further been observed that: (SCC p. 66, para 9)9. In our view, the correct legal position is that possession of a property belonging to several co- sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co- sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.24. The possession of a co-owner however long it may be, hardly by itself, will constitute ouster. In the case of a co-owner, it is presumed that he possesses the property on behalf of the entire body of co-owners. Even non-participation of rent and profits by itself need not amount to ouster. The proof of the ingredients of adverse possession are undoubtedly indispensable even in a plea of ouster. However, there is the additional requirement in the case of ouster that the elements of adverse possession must be shown to have been made known to the co-owner. This is apparently for the reason that the possession of a co-owner is treated as possession of other co-owners. While it may be true that it may not be necessary to actually drive out the co-owner from the property as noticed in Mohd. Zainulabudeen (since deceased) by lrs. v. Sayed Ahmed Mohideen and Others (1990) 1 SCC 345, mere continuance in the possession of a co-owner does not suffice to set up a plea of ouster. The possession of the co-owner will also be referable to lawful title. The possession of the appellant even of the ground floor of the building on the land in question, was entirely in accord with his right as a co-owner.26. Therefore, the appellant has taken up the plea curiously that in view of the correspondence between the first plaintiff and the appellant and the delay with which the suit was filed, the first plaintiff had no right to demand the partition. This stand is further fortified by the prayer in the written statement that the appellant may be allotted 1/4th share which means appellant intended to exclude by the plea of ouster only the first plaintiff.We are afraid that a plea by which a co-owner seeks to only partially oust one co-owner as such does not commend itself to us. As pointed out by Mr. S. N. Bhat, learned senior counsel for the appellant the other co-owners do not dispute the title of the first plaintiff. The appellant curiously does set up exclusive title in himself as he is claiming 1/4th share thereby admitting the title of the other four siblings. The inconsistency and the dichotomy undermines the case of ouster as one of the body of co-owners cannot oust another whose title is not disputed by others and, what is more, their title is admitted by the co-owner, who sets up a plea of ouster. In such circumstances, we do not think that even the plea is one which is tenable in law. That apart what is actually relied on is a letter which is the reply of the appellant to the letter sent by the Ist plaintiff.27. The very essence of adverse possession and therefore ouster lies in a party setting up a hostile title in himself. The possession of a co-owner is ordinarily on his behalf and also on behalf of the entire body of the co-owners. In the case of an ouster, the co-owner must indeed have the hostile animus. He must assert a title which is not referable to lawful title. Though the learned counsel for the appellant points out that this possession started prior to 1977 in that the appellant was residing with his father in item No.3 house from somewhere in the early seventies and he continued to reside after his fathers death in the year 1977, when Shri R.M. Patil died in the year 1977, his possession in 1977, was clearly referable to lawful title as a co-owner entitled to inherit under Section 8 of the Hindu Succession Act, 1956. Obviously, he cannot be permitted to set up adverse possession or ouster in the year 1977. As far as the letter which is addressed in 1991 and reply to the letter and suit being beyond 12 years from the date of his reply, again we are of the view that he cannot be permitted to succeed for more reasons than one. In the first place, we have already noticed that this is a case where he is setting up ouster qua only one of the co-owners. Secondly, as it turns out contrary to the submission of the appellant, Mr. S. N. Bhat, learned senior counsel for the respondents points out the appellant was not in exclusive possession of the entire property. The appellant was in possession as even found by the Trial Court only of the Ground Floor. The second plaintiff is found to be in possession of the First Floor and what is more a decree stands granted by the Trial Court in her favour. In fact, even the perusal of the letter relied upon by him in the year 1991 which we have referred to, does not as such reflect the assertion of the hostile title different from that of a co-owner. In substance, what is sought to be stated is that the first plaintiff who is his sister had been given property including jewellery and therefore she does not have a right. He does not proclaim himself to be the absolute owner of the property in his own right.28. We may additionally notice that the Trial Court has also framed an additional issue No.2, on partial ouster as it were and answered the issue against the appellant. Therefore, this is a case where the appellant has against him concurrent findings of two Courts and in this appeal which is generated by special leave, we are not released from the trammels of Article 136 in the matter of overturning such findings and we cannot certainly classify the findings in this regard in the totality of facts to be such a finding that warrants it being upset.As far as this contention is concerned, again we do not think that there is merit in the case of the appellant. Admittedly, the second defendant was educated and became an Engineer. He was employed. What really has weighed with the Trial Court is the fact that in view of departure from his obligations under a bond, a suit was filed and decreed against the second defendant who discharged his liability under D-75 dated 17.08.1982 in a sum of Rs.11,330/-. We must notice that item No.2 scheduled in the written statement was purchased in the year 1976. The property consists of a plot and it was allotted to the second defendant for a total sum of Rs.9,800/- in the year 1976. D-75 is in the year 1982. Defendant No.2 has given evidence about the fact that the amounts have been paid by him from his own resources by virtue of his employment in India. It is not as if amount was paid in lumpsum. As regards item No.3 in the written statement, it is a flat purchased in the year 1998. This is much after D-75 which is dated 17.08.1982. The 2nd defendant has deposed of working abroad. The 2nd defendant has spoken about item No.3 being purchased for a sum of Rs.16 lakhs. Having regard to his qualifications, we do not think that the appellant can fault the reversal of the finding though it may be true that the High Court has not dealt with it in a more elaborate manner. In this regard, we may notice that the Trial Court has proceeded on the basis that since Sh. R.M. Patil was earning as a successful lawyer and he became a successful Politician as well, the second defendant being a coparcener, item 2 and 3 should also be included. Even proceeding on the basis that there was a joint family consisting of Sh. R. M. Patil and his sons, it is not the law that a co-owner cannot acquire his own independent or separate properties. In such circumstances, we find there is no merit in this argument as well.30. Coming to the equity of the matters, the complaint of the appellant is that the appellant is a Senior Citizen and aged about 80 years and while the other siblings have their own properties and only the appellant would be most adversely affected and he will be on the streets. We must notice that the appeals are only maintained against the preliminary decree by which shares have been declared. Therefore, we do not see any reason for us to go into the question about the allotment of properties which is a matter to be gone into in the final decree proceedings. As to what is to be actual division of the properties, it is for the appellant to raise such contentions as are available in this regard. | 0 | 8,704 | 4,004 | ### Instruction:
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entire body of the co-owners. In the case of an ouster, the co-owner must indeed have the hostile animus. He must assert a title which is not referable to lawful title. Though the learned counsel for the appellant points out that this possession started prior to 1977 in that the appellant was residing with his father in item No.3 house from somewhere in the early seventies and he continued to reside after his fathers death in the year 1977, when Shri R.M. Patil died in the year 1977, his possession in 1977, was clearly referable to lawful title as a co-owner entitled to inherit under Section 8 of the Hindu Succession Act, 1956. Obviously, he cannot be permitted to set up adverse possession or ouster in the year 1977. As far as the letter which is addressed in 1991 and reply to the letter and suit being beyond 12 years from the date of his reply, again we are of the view that he cannot be permitted to succeed for more reasons than one. In the first place, we have already noticed that this is a case where he is setting up ouster qua only one of the co-owners. Secondly, as it turns out contrary to the submission of the appellant, Mr. S. N. Bhat, learned senior counsel for the respondents points out the appellant was not in exclusive possession of the entire property. The appellant was in possession as even found by the Trial Court only of the Ground Floor. The second plaintiff is found to be in possession of the First Floor and what is more a decree stands granted by the Trial Court in her favour. In fact, even the perusal of the letter relied upon by him in the year 1991 which we have referred to, does not as such reflect the assertion of the hostile title different from that of a co-owner. In substance, what is sought to be stated is that the first plaintiff who is his sister had been given property including jewellery and therefore she does not have a right. He does not proclaim himself to be the absolute owner of the property in his own right. 28. We may additionally notice that the Trial Court has also framed an additional issue No.2, on partial ouster as it were and answered the issue against the appellant. Therefore, this is a case where the appellant has against him concurrent findings of two Courts and in this appeal which is generated by special leave, we are not released from the trammels of Article 136 in the matter of overturning such findings and we cannot certainly classify the findings in this regard in the totality of facts to be such a finding that warrants it being upset. EXCLUSION OF ITEMS 2 AND 3 SCHEDULED IN WRITTEN STATEMENT. ARE THEY SEPARATE PROPERTIES OF THE SECOND DEFENDANT? 29. The next question which is raised relates to the non-inclusion of the properties standing in the name of second defendant that is item Nos.2 and 3 in the schedule to the written statement of the appellant. As far as this contention is concerned, again we do not think that there is merit in the case of the appellant. Admittedly, the second defendant was educated and became an Engineer. He was employed. What really has weighed with the Trial Court is the fact that in view of departure from his obligations under a bond, a suit was filed and decreed against the second defendant who discharged his liability under D-75 dated 17.08.1982 in a sum of Rs.11,330/-. We must notice that item No.2 scheduled in the written statement was purchased in the year 1976. The property consists of a plot and it was allotted to the second defendant for a total sum of Rs.9,800/- in the year 1976. D-75 is in the year 1982. Defendant No.2 has given evidence about the fact that the amounts have been paid by him from his own resources by virtue of his employment in India. It is not as if amount was paid in lumpsum. As regards item No.3 in the written statement, it is a flat purchased in the year 1998. This is much after D-75 which is dated 17.08.1982. The 2nd defendant has deposed of working abroad. The 2nd defendant has spoken about item No.3 being purchased for a sum of Rs.16 lakhs. Having regard to his qualifications, we do not think that the appellant can fault the reversal of the finding though it may be true that the High Court has not dealt with it in a more elaborate manner. In this regard, we may notice that the Trial Court has proceeded on the basis that since Sh. R.M. Patil was earning as a successful lawyer and he became a successful Politician as well, the second defendant being a coparcener, item 2 and 3 should also be included. Even proceeding on the basis that there was a joint family consisting of Sh. R. M. Patil and his sons, it is not the law that a co-owner cannot acquire his own independent or separate properties. In such circumstances, we find there is no merit in this argument as well. IS THE IMPUGNED JUDGMENT INEQUITABLE? 30. Coming to the equity of the matters, the complaint of the appellant is that the appellant is a Senior Citizen and aged about 80 years and while the other siblings have their own properties and only the appellant would be most adversely affected and he will be on the streets. We must notice that the appeals are only maintained against the preliminary decree by which shares have been declared. Therefore, we do not see any reason for us to go into the question about the allotment of properties which is a matter to be gone into in the final decree proceedings. As to what is to be actual division of the properties, it is for the appellant to raise such contentions as are available in this regard.
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in law. That apart what is actually relied on is a letter which is the reply of the appellant to the letter sent by the Ist plaintiff.27. The very essence of adverse possession and therefore ouster lies in a party setting up a hostile title in himself. The possession of a co-owner is ordinarily on his behalf and also on behalf of the entire body of the co-owners. In the case of an ouster, the co-owner must indeed have the hostile animus. He must assert a title which is not referable to lawful title. Though the learned counsel for the appellant points out that this possession started prior to 1977 in that the appellant was residing with his father in item No.3 house from somewhere in the early seventies and he continued to reside after his fathers death in the year 1977, when Shri R.M. Patil died in the year 1977, his possession in 1977, was clearly referable to lawful title as a co-owner entitled to inherit under Section 8 of the Hindu Succession Act, 1956. Obviously, he cannot be permitted to set up adverse possession or ouster in the year 1977. As far as the letter which is addressed in 1991 and reply to the letter and suit being beyond 12 years from the date of his reply, again we are of the view that he cannot be permitted to succeed for more reasons than one. In the first place, we have already noticed that this is a case where he is setting up ouster qua only one of the co-owners. Secondly, as it turns out contrary to the submission of the appellant, Mr. S. N. Bhat, learned senior counsel for the respondents points out the appellant was not in exclusive possession of the entire property. The appellant was in possession as even found by the Trial Court only of the Ground Floor. The second plaintiff is found to be in possession of the First Floor and what is more a decree stands granted by the Trial Court in her favour. In fact, even the perusal of the letter relied upon by him in the year 1991 which we have referred to, does not as such reflect the assertion of the hostile title different from that of a co-owner. In substance, what is sought to be stated is that the first plaintiff who is his sister had been given property including jewellery and therefore she does not have a right. He does not proclaim himself to be the absolute owner of the property in his own right.28. We may additionally notice that the Trial Court has also framed an additional issue No.2, on partial ouster as it were and answered the issue against the appellant. Therefore, this is a case where the appellant has against him concurrent findings of two Courts and in this appeal which is generated by special leave, we are not released from the trammels of Article 136 in the matter of overturning such findings and we cannot certainly classify the findings in this regard in the totality of facts to be such a finding that warrants it being upset.As far as this contention is concerned, again we do not think that there is merit in the case of the appellant. Admittedly, the second defendant was educated and became an Engineer. He was employed. What really has weighed with the Trial Court is the fact that in view of departure from his obligations under a bond, a suit was filed and decreed against the second defendant who discharged his liability under D-75 dated 17.08.1982 in a sum of Rs.11,330/-. We must notice that item No.2 scheduled in the written statement was purchased in the year 1976. The property consists of a plot and it was allotted to the second defendant for a total sum of Rs.9,800/- in the year 1976. D-75 is in the year 1982. Defendant No.2 has given evidence about the fact that the amounts have been paid by him from his own resources by virtue of his employment in India. It is not as if amount was paid in lumpsum. As regards item No.3 in the written statement, it is a flat purchased in the year 1998. This is much after D-75 which is dated 17.08.1982. The 2nd defendant has deposed of working abroad. The 2nd defendant has spoken about item No.3 being purchased for a sum of Rs.16 lakhs. Having regard to his qualifications, we do not think that the appellant can fault the reversal of the finding though it may be true that the High Court has not dealt with it in a more elaborate manner. In this regard, we may notice that the Trial Court has proceeded on the basis that since Sh. R.M. Patil was earning as a successful lawyer and he became a successful Politician as well, the second defendant being a coparcener, item 2 and 3 should also be included. Even proceeding on the basis that there was a joint family consisting of Sh. R. M. Patil and his sons, it is not the law that a co-owner cannot acquire his own independent or separate properties. In such circumstances, we find there is no merit in this argument as well.30. Coming to the equity of the matters, the complaint of the appellant is that the appellant is a Senior Citizen and aged about 80 years and while the other siblings have their own properties and only the appellant would be most adversely affected and he will be on the streets. We must notice that the appeals are only maintained against the preliminary decree by which shares have been declared. Therefore, we do not see any reason for us to go into the question about the allotment of properties which is a matter to be gone into in the final decree proceedings. As to what is to be actual division of the properties, it is for the appellant to raise such contentions as are available in this regard.
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K. Narasimhah Vs. H. C. Singri Gowda | the courts decision that the provisions of Art. 320(3) (c) are not mandatory. Naturally, strong reliance has been placed on this decision on behalf of the respondents. It is pointed out that while providing that three clear days notice of special general meeting shall be given to the Councillors, the legislature said in the same breath that in cases of great urgency, notice of such shorter, period as is reasonable should be given to the Councillors of a special general meeting. The decision of what should be considered to be a case of great urgency was left entirely to the President or the Vice-President on whom the duty to call such a meeting is given under S. 27(2). It is urged by the learned Counsel that if the intention of the legislature had been to make the service of three clear days notice mandatory it would not have left the discretion of giving notice for a shorter period for some of the special general meetings in this manner. We see considerable force in this argument. The very fact that while three clear days notice is not to be given of all special general meetings and for some such meetings notice only of such shorter period as is reasonable has to be given justifies the conclusion that the three clear days mentioned in the section was given by the legislature as only a measure of what it considered reasonable. 14. It is necessary also to remember that the main object of giving the notice is to make it possible for the Councillors to so arrange their other business as to be able to attend the meeting. For an ordinary general meeting the notice provided is of seven clear days. That is expected to give enough time for the purpose. But a lesser period-of three clear days-is considered sufficient for special general meetings generally. The obvious reason for providing a shorter period of such meetings is that these are considered more important meetings and Councillors are expected to make it convenient to attend these meetings even at the cost of some inconvenience to themselves. Where the special general meeting is to dispose of some matter of great urgency it is considered that a period of even less than three clear days notice would be sufficient. 15. A consideration of the object of these provisions and the manner in which the object is sought to be achieved indicates that while the legislature did intend that ordinarily the notice as mentioned should be given it could not have intended that the fact that the notice is of less than the period mentioned in the section and thus the Councillors had less time than is ordinarily considered reasonable to arrange his other business to be free to attend the meeting, should have the serious result of making the proceedings of the meeting invalid. 16. It is important to notice in this connection one of the provisions in S. 36 of the Act. It is in these words:- No resolution of a municipal council or any committee appointed under this Act shall be deemed invalid on account of any irregularity in the service of notice upon any councillor or member provided that the proceedings of the municipal council or committee were not prejudicially affected by such irregularity. 17. It is reasonable to think that the service of notice mentioned in this provision refers to the giving of notice to the Councillors. Quite clearly, any irregularity in the manner of giving the notice would be covered by the words irregularity in the service of the notice upon any Councillor. It appears to us, however, reasonable to think that in making such a provision in S. 36 the legislature was not thinking only of irregularity of the mode of service but also of the omission to give notice of the full period as required. 18. It is interesting to notice in this connection that the English law as regards meetings of borough councils and country councils contain a specific provision that want of service of a summons to attend the meeting (which is required to be served on every member of the council) will not affect the validity of the meeting. It may be presumed that the legislature which enacted the Mysore Town Municipalities Act. 1951, was aware of these provisions in English law. It has not gone to the length of saying that the failure to serve the notice will not make the meeting invalid. It has instead said that any irregularity in the service of notice would not make a resolution of the Council invalid provided that the proceedings were not prejudicially affected by such irregularity. The logic of making such a provision in respect of irregularity in the service of notice becomes strong if the fact that the notice given was short of the required period is considered an irregularity. 19. The existence of this provision in S. 36 is a further reason for thinking that the provision as regards any motion or proposition of which notice must be given in S. 27(3) is only directory and not mandatory. 20. We are, therefore, of opinion that the fact that some of the Councillors received less than three clear days notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity. As already stated, nineteen of the twenty Councillors attended the meeting. Of these 19, 15 voted in favour of the resolution of no-confidence against the appellant. There is thus absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the irregularity in the service of notice. 21. We have, therefore, come to the conclusion that the failure to give three clear days notice to some of the Councillors did not affect the validity of the meeting or the resolution of no confidence passed there against the appellant. | 0[ds]As regards the petitioners contention that the meeting was not held in accordance with law as he was not allowed to preside, we are of opinion, on a consideration of what material there is on the record, that it was after he left the meeting that the Vice-President took the chair and thereafter the no confidence resolution was moved and passed. There can therefore be no question of any contravention of the requirement that the President shall preside9. There is, in our opinion, no substance also in the contention that the proviso to S. 23(9) was contravenedWe find it difficult to agree with the High Court that sending the notice amounts to giving the noticeAdmittedly, the notice was signed by more thand of the whole number of Councillors. It is said, however, that fifteen days notice of the intention to move the resolution was not given. This argument which Mr. Iyengar addressed to us but which does not appear to have been urged before the Highs on the assumption that fifteen days notice of the intention to move the resolution has to be given not only to the President but also to the other Councillors. We do not think that that assumption is justified. In our opinion, what is required is that fifteen days notice of the intention to move the resolution has to be given to the President. In other words, all that is required is that before the resolution is actually moved the President has got fifteen days notice. In the present case, the meeting was held on October 14, and the President received the notice on the 25th September. There was thus more than 15 days notice given to him11.Giving of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however giving is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete. We are therefore of opinion that the High Court was wrong in thinking that the notices were given to all the Councillors on the 10th October. In our opinion, the notice given to five of the Councillors was of less than three clear daysThe use of the word shall is not conclusive on the question. As in all the other matters of statutory construction the decision of this question depends on the ascertainment of the legislatures intention. Was it the legislatures intention in making the provision that the failure to comply with it shall have the consequence of making what is done invalid in law? That is the question to be answered. To ascertain the intention the Court has to examine carefully the object of the statute, the consequence that may follow from insisting on a strict observance of the particular provision and above all the general scheme of the other provisions of which it forms a partWe see considerable force in this argument. The very fact that while three clear days notice is not to be given of all special general meetings and for some such meetings notice only of such shorter period as is reasonable has to be given justifies the conclusion that the three clear days mentioned in the section was given by the legislature as only a measure of what it considered reasonable19. The existence of this provision in S. 36 is a further reason for thinking that the provision as regards any motion or proposition of which notice must be given in S. 27(3) is only directory and not mandatory20. We are, therefore, of opinion that the fact that some of the Councillors received less than three clear days notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity. As already stated, nineteen of the twenty Councillors attended the meeting. Of these 19, 15 voted in favour of the resolution of no-confidence against the appellant. There is thus absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the irregularity in the service of notice21. We have, therefore, come to the conclusion that the failure to give three clear days notice to some of the Councillors did not affect the validity of the meeting or the resolution of no confidence passed there against the appellant. | 0 | 2,924 | 873 | ### Instruction:
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the courts decision that the provisions of Art. 320(3) (c) are not mandatory. Naturally, strong reliance has been placed on this decision on behalf of the respondents. It is pointed out that while providing that three clear days notice of special general meeting shall be given to the Councillors, the legislature said in the same breath that in cases of great urgency, notice of such shorter, period as is reasonable should be given to the Councillors of a special general meeting. The decision of what should be considered to be a case of great urgency was left entirely to the President or the Vice-President on whom the duty to call such a meeting is given under S. 27(2). It is urged by the learned Counsel that if the intention of the legislature had been to make the service of three clear days notice mandatory it would not have left the discretion of giving notice for a shorter period for some of the special general meetings in this manner. We see considerable force in this argument. The very fact that while three clear days notice is not to be given of all special general meetings and for some such meetings notice only of such shorter period as is reasonable has to be given justifies the conclusion that the three clear days mentioned in the section was given by the legislature as only a measure of what it considered reasonable. 14. It is necessary also to remember that the main object of giving the notice is to make it possible for the Councillors to so arrange their other business as to be able to attend the meeting. For an ordinary general meeting the notice provided is of seven clear days. That is expected to give enough time for the purpose. But a lesser period-of three clear days-is considered sufficient for special general meetings generally. The obvious reason for providing a shorter period of such meetings is that these are considered more important meetings and Councillors are expected to make it convenient to attend these meetings even at the cost of some inconvenience to themselves. Where the special general meeting is to dispose of some matter of great urgency it is considered that a period of even less than three clear days notice would be sufficient. 15. A consideration of the object of these provisions and the manner in which the object is sought to be achieved indicates that while the legislature did intend that ordinarily the notice as mentioned should be given it could not have intended that the fact that the notice is of less than the period mentioned in the section and thus the Councillors had less time than is ordinarily considered reasonable to arrange his other business to be free to attend the meeting, should have the serious result of making the proceedings of the meeting invalid. 16. It is important to notice in this connection one of the provisions in S. 36 of the Act. It is in these words:- No resolution of a municipal council or any committee appointed under this Act shall be deemed invalid on account of any irregularity in the service of notice upon any councillor or member provided that the proceedings of the municipal council or committee were not prejudicially affected by such irregularity. 17. It is reasonable to think that the service of notice mentioned in this provision refers to the giving of notice to the Councillors. Quite clearly, any irregularity in the manner of giving the notice would be covered by the words irregularity in the service of the notice upon any Councillor. It appears to us, however, reasonable to think that in making such a provision in S. 36 the legislature was not thinking only of irregularity of the mode of service but also of the omission to give notice of the full period as required. 18. It is interesting to notice in this connection that the English law as regards meetings of borough councils and country councils contain a specific provision that want of service of a summons to attend the meeting (which is required to be served on every member of the council) will not affect the validity of the meeting. It may be presumed that the legislature which enacted the Mysore Town Municipalities Act. 1951, was aware of these provisions in English law. It has not gone to the length of saying that the failure to serve the notice will not make the meeting invalid. It has instead said that any irregularity in the service of notice would not make a resolution of the Council invalid provided that the proceedings were not prejudicially affected by such irregularity. The logic of making such a provision in respect of irregularity in the service of notice becomes strong if the fact that the notice given was short of the required period is considered an irregularity. 19. The existence of this provision in S. 36 is a further reason for thinking that the provision as regards any motion or proposition of which notice must be given in S. 27(3) is only directory and not mandatory. 20. We are, therefore, of opinion that the fact that some of the Councillors received less than three clear days notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity. As already stated, nineteen of the twenty Councillors attended the meeting. Of these 19, 15 voted in favour of the resolution of no-confidence against the appellant. There is thus absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the irregularity in the service of notice. 21. We have, therefore, come to the conclusion that the failure to give three clear days notice to some of the Councillors did not affect the validity of the meeting or the resolution of no confidence passed there against the appellant.
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As regards the petitioners contention that the meeting was not held in accordance with law as he was not allowed to preside, we are of opinion, on a consideration of what material there is on the record, that it was after he left the meeting that the Vice-President took the chair and thereafter the no confidence resolution was moved and passed. There can therefore be no question of any contravention of the requirement that the President shall preside9. There is, in our opinion, no substance also in the contention that the proviso to S. 23(9) was contravenedWe find it difficult to agree with the High Court that sending the notice amounts to giving the noticeAdmittedly, the notice was signed by more thand of the whole number of Councillors. It is said, however, that fifteen days notice of the intention to move the resolution was not given. This argument which Mr. Iyengar addressed to us but which does not appear to have been urged before the Highs on the assumption that fifteen days notice of the intention to move the resolution has to be given not only to the President but also to the other Councillors. We do not think that that assumption is justified. In our opinion, what is required is that fifteen days notice of the intention to move the resolution has to be given to the President. In other words, all that is required is that before the resolution is actually moved the President has got fifteen days notice. In the present case, the meeting was held on October 14, and the President received the notice on the 25th September. There was thus more than 15 days notice given to him11.Giving of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however giving is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete. We are therefore of opinion that the High Court was wrong in thinking that the notices were given to all the Councillors on the 10th October. In our opinion, the notice given to five of the Councillors was of less than three clear daysThe use of the word shall is not conclusive on the question. As in all the other matters of statutory construction the decision of this question depends on the ascertainment of the legislatures intention. Was it the legislatures intention in making the provision that the failure to comply with it shall have the consequence of making what is done invalid in law? That is the question to be answered. To ascertain the intention the Court has to examine carefully the object of the statute, the consequence that may follow from insisting on a strict observance of the particular provision and above all the general scheme of the other provisions of which it forms a partWe see considerable force in this argument. The very fact that while three clear days notice is not to be given of all special general meetings and for some such meetings notice only of such shorter period as is reasonable has to be given justifies the conclusion that the three clear days mentioned in the section was given by the legislature as only a measure of what it considered reasonable19. The existence of this provision in S. 36 is a further reason for thinking that the provision as regards any motion or proposition of which notice must be given in S. 27(3) is only directory and not mandatory20. We are, therefore, of opinion that the fact that some of the Councillors received less than three clear days notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity. As already stated, nineteen of the twenty Councillors attended the meeting. Of these 19, 15 voted in favour of the resolution of no-confidence against the appellant. There is thus absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the irregularity in the service of notice21. We have, therefore, come to the conclusion that the failure to give three clear days notice to some of the Councillors did not affect the validity of the meeting or the resolution of no confidence passed there against the appellant.
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India Machinery Stores (P) Ltd Vs. Commissioner Of Income-Tax, Bihar | value of the subject matter and the nature of the question involved, the case fulfils the requirements of Ss. 109 and 110 of the Code of Civil Procedure, and that the case is fit one for appeal to His Majesty in Council." The Judicial Committee observed that where any certificate is granted certifying a case, it is of the utmost importance that the certificate should show clearly upon which ground it is granted. In dealing with the argument that the case covered by Section 109 (c) of the Code of Civil Procedure, 1908, their Lordship observed :"There is no indication in the certificate of what the nature of the question is that it is thought was involved in the hearing of this appeal, nor is there anything to show that the discretion conferred by S. 109 (c) was invoked or was exercised. Their Lordships think x x that these certificates are of great consequences, that they seriously affect the rights of litigant parties, and that they ought to be given in such a form that it is impossible to mistake their meaning upon their face." 10. Again, the Judicial Committee observed in Commr. of I. T. Central Provinces and Berar v. Sir S. M. Chitnavis 59 Ind App 290 = (AIR 1932 PC 178 ) that when a certificate is granted under S. 66A of the Income-tax Act it must be on a question affecting not only a particular assessee and depending upon the state of the evidence in a particular case, but a question of great public importance affecting assessee generally and depending upon general principles. 11. In granting the certificate the High Court merely observed that it was "a fit case for appeal to the Supreme Court"; they did not indicate the grounds which persuaded them to hold that it was a fit case for appeal to this Court. It would be conducive to better administration of justice if in certifying a case under Section 66A (2) of the Indian Income-tax Act as a fit case for appeal, the High Court sets out the question of law which they regard as of great public or private importance which falls to be decided by this Court. 12. Mr. Chagla contended that the rules laid down by the Judicial Committee applicable to a certificate issued under Section 109 (c) of the Code of Civil Procedure, 1908, and under S. 596 of the Code of 1882, in regard to appeals in civil matters have no bearing in determining the meaning of S. 66A (2), for the High Court exercises advisory jurisdiction on a reference on questions of law and on that account even if the question of law which in the view of the High Court arises is not stated in the certificate, it may be presumed when the High Court has certified a case to be fit for appeal, that a substantial question of law is involved, and the technical defect in the certificate may be ignored. We are unable to accept that argument. It is true that under S. 66 (1) and (2) of the Indian Income-tax Act, 1922,only a question of law may be referred to the High Court for opinion, but the right to obtain a certificate under S. 66A (2) arises only when in the proposed appeal a question of great public or private importance arises.It cannot be held that because a question of law alone may be referred to the High Court under S. 66 of the Indian Income-tax Act, in the proposed appeal a question of law of great public or private importance necessarily arises. Any other view, would make every opinion of the High Court in a reference under S. 66 appealable to this Court. In our view, the certificate granted by High Court was defective. 13. It was also urged that a practice is fairly common in some of the High Courts to certify a case under S. 66 A (2) without recording any reasons or the grounds for certifying the case, and we may not penalise the Company when we are enunciating the true rule for the first time. But the practice, in our judgment, was laid down many years ago by the decisions of the Judicial Committee that a certificate under S. 66A (2) which does not set out precisely the grounds or raise a question of great public or private importance does not comply with the requirements of the Act. The jurisdiction of this Court to entertain an appeal from the opinion recorded under the Indian Income-tax Act arises only when a certificate is properly issued by the High Court or when this Court grants special leave under Art. 136 of the Constitution. 14. In our judgment, there is again no merit in the appeal. By cl. 4 of the agreement dated August 2, 1956, it was expressly provided :"That all assets of the vendors in respect of all its business shall be taken over at the book value standing in the book of accounts of the vendors as on the 1st August One Thousand Nine Hundred Fifty-six." It is undisputed that the stock-in-trade was entered in the books of account of the vendors on the date of transfer of the undertaking at Rs. 1,77,285/- and the Company valued the stock-in-trade at Rs. 2,10,285/-. It is true that to the deed of transfer is annexed a Schedule of the assets and liabilities taken over by the Company and in the Schedule the value of stocks at Patna, Muzaffarpur and Purnea is shown at Rs. 2,10,285.87. No attempt was made to explain the discrepancy between the operative part of the agreement and the valuation shown in the Schedule. The Income-tax Officer was of the view that the Company had inflated the opening stock so as to reduce the ultimate profits. That view was confirmed by the Appellate Assistant Commissioner and by the Tribunal. No question of law arose out of the order of the Tribunal. The reference itself was incompetent. | 0[ds]12. Mr. Chagla contended that the rules laid down by the Judicial Committee applicable to a certificate issued under Section 109 (c) of theCode of Civil Procedure, 1908, and under S. 596 of the Code of 1882, in regard to appeals in civil matters have no bearing in determining the meaning of S. 66A (2), for the High Court exercises advisory jurisdiction on a reference on questions of law and on that account even if the question of law which in the view of the High Court arises is not stated in the certificate, it may be presumed when the High Court has certified a case to be fit for appeal, that a substantial question of law is involved, and the technical defect in the certificate may be ignored. We are unable to accept that argument. It is true that under S. 66 (1) and (2) of the IndianIncome-taxAct,1922,only a question of law may be referred to the High Court for opinion, but the right to obtain a certificate under S. 66A (2) arises only when in the proposed appeal a question of great public or private importance arises.It cannot be held that because a question of law alone may be referred to the High Court under S. 66 of the IndianIncome-taxAct,in the proposed appeal a question of law of great public or private importance necessarily arises. Any other view, would make every opinion of the High Court in a reference under S. 66 appealable to this Court14. In our judgment, there is again no merit in the appeal. By cl. 4 of the agreement dated August 2, 1956, it was expressly provided :"That all assets of the vendors in respect of all its business shall be taken over at the book value standing in the book of accounts of the vendors as on the 1st August One Thousand Nine Hundred Fifty-six."It is undisputed that the stock-in-trade was entered in the books of account of the vendors on the date of transfer of the undertaking at Rs. 1,77,285/- and the Company valued the stock-in-trade at Rs. 2,10,285/-. It is true that to the deed of transfer is annexed a Schedule of the assets and liabilities taken over by the Company and in the Schedule the value of stocks at Patna, Muzaffarpur and Purnea is shown at Rs. 2,10,285.87. No attempt was made to explain the discrepancy between the operative part of the agreement and the valuation shown in the Schedule. TheIncome-taxOfficer was of the view that the Company had inflated the opening stock so as to reduce the ultimate profits. That view was confirmed by the Appellate Assistant Commissioner and by the Tribunal. No question of law arose out of the order of the Tribunal. The reference itself was incompetent. | 0 | 2,330 | 514 | ### Instruction:
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value of the subject matter and the nature of the question involved, the case fulfils the requirements of Ss. 109 and 110 of the Code of Civil Procedure, and that the case is fit one for appeal to His Majesty in Council." The Judicial Committee observed that where any certificate is granted certifying a case, it is of the utmost importance that the certificate should show clearly upon which ground it is granted. In dealing with the argument that the case covered by Section 109 (c) of the Code of Civil Procedure, 1908, their Lordship observed :"There is no indication in the certificate of what the nature of the question is that it is thought was involved in the hearing of this appeal, nor is there anything to show that the discretion conferred by S. 109 (c) was invoked or was exercised. Their Lordships think x x that these certificates are of great consequences, that they seriously affect the rights of litigant parties, and that they ought to be given in such a form that it is impossible to mistake their meaning upon their face." 10. Again, the Judicial Committee observed in Commr. of I. T. Central Provinces and Berar v. Sir S. M. Chitnavis 59 Ind App 290 = (AIR 1932 PC 178 ) that when a certificate is granted under S. 66A of the Income-tax Act it must be on a question affecting not only a particular assessee and depending upon the state of the evidence in a particular case, but a question of great public importance affecting assessee generally and depending upon general principles. 11. In granting the certificate the High Court merely observed that it was "a fit case for appeal to the Supreme Court"; they did not indicate the grounds which persuaded them to hold that it was a fit case for appeal to this Court. It would be conducive to better administration of justice if in certifying a case under Section 66A (2) of the Indian Income-tax Act as a fit case for appeal, the High Court sets out the question of law which they regard as of great public or private importance which falls to be decided by this Court. 12. Mr. Chagla contended that the rules laid down by the Judicial Committee applicable to a certificate issued under Section 109 (c) of the Code of Civil Procedure, 1908, and under S. 596 of the Code of 1882, in regard to appeals in civil matters have no bearing in determining the meaning of S. 66A (2), for the High Court exercises advisory jurisdiction on a reference on questions of law and on that account even if the question of law which in the view of the High Court arises is not stated in the certificate, it may be presumed when the High Court has certified a case to be fit for appeal, that a substantial question of law is involved, and the technical defect in the certificate may be ignored. We are unable to accept that argument. It is true that under S. 66 (1) and (2) of the Indian Income-tax Act, 1922,only a question of law may be referred to the High Court for opinion, but the right to obtain a certificate under S. 66A (2) arises only when in the proposed appeal a question of great public or private importance arises.It cannot be held that because a question of law alone may be referred to the High Court under S. 66 of the Indian Income-tax Act, in the proposed appeal a question of law of great public or private importance necessarily arises. Any other view, would make every opinion of the High Court in a reference under S. 66 appealable to this Court. In our view, the certificate granted by High Court was defective. 13. It was also urged that a practice is fairly common in some of the High Courts to certify a case under S. 66 A (2) without recording any reasons or the grounds for certifying the case, and we may not penalise the Company when we are enunciating the true rule for the first time. But the practice, in our judgment, was laid down many years ago by the decisions of the Judicial Committee that a certificate under S. 66A (2) which does not set out precisely the grounds or raise a question of great public or private importance does not comply with the requirements of the Act. The jurisdiction of this Court to entertain an appeal from the opinion recorded under the Indian Income-tax Act arises only when a certificate is properly issued by the High Court or when this Court grants special leave under Art. 136 of the Constitution. 14. In our judgment, there is again no merit in the appeal. By cl. 4 of the agreement dated August 2, 1956, it was expressly provided :"That all assets of the vendors in respect of all its business shall be taken over at the book value standing in the book of accounts of the vendors as on the 1st August One Thousand Nine Hundred Fifty-six." It is undisputed that the stock-in-trade was entered in the books of account of the vendors on the date of transfer of the undertaking at Rs. 1,77,285/- and the Company valued the stock-in-trade at Rs. 2,10,285/-. It is true that to the deed of transfer is annexed a Schedule of the assets and liabilities taken over by the Company and in the Schedule the value of stocks at Patna, Muzaffarpur and Purnea is shown at Rs. 2,10,285.87. No attempt was made to explain the discrepancy between the operative part of the agreement and the valuation shown in the Schedule. The Income-tax Officer was of the view that the Company had inflated the opening stock so as to reduce the ultimate profits. That view was confirmed by the Appellate Assistant Commissioner and by the Tribunal. No question of law arose out of the order of the Tribunal. The reference itself was incompetent.
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12. Mr. Chagla contended that the rules laid down by the Judicial Committee applicable to a certificate issued under Section 109 (c) of theCode of Civil Procedure, 1908, and under S. 596 of the Code of 1882, in regard to appeals in civil matters have no bearing in determining the meaning of S. 66A (2), for the High Court exercises advisory jurisdiction on a reference on questions of law and on that account even if the question of law which in the view of the High Court arises is not stated in the certificate, it may be presumed when the High Court has certified a case to be fit for appeal, that a substantial question of law is involved, and the technical defect in the certificate may be ignored. We are unable to accept that argument. It is true that under S. 66 (1) and (2) of the IndianIncome-taxAct,1922,only a question of law may be referred to the High Court for opinion, but the right to obtain a certificate under S. 66A (2) arises only when in the proposed appeal a question of great public or private importance arises.It cannot be held that because a question of law alone may be referred to the High Court under S. 66 of the IndianIncome-taxAct,in the proposed appeal a question of law of great public or private importance necessarily arises. Any other view, would make every opinion of the High Court in a reference under S. 66 appealable to this Court14. In our judgment, there is again no merit in the appeal. By cl. 4 of the agreement dated August 2, 1956, it was expressly provided :"That all assets of the vendors in respect of all its business shall be taken over at the book value standing in the book of accounts of the vendors as on the 1st August One Thousand Nine Hundred Fifty-six."It is undisputed that the stock-in-trade was entered in the books of account of the vendors on the date of transfer of the undertaking at Rs. 1,77,285/- and the Company valued the stock-in-trade at Rs. 2,10,285/-. It is true that to the deed of transfer is annexed a Schedule of the assets and liabilities taken over by the Company and in the Schedule the value of stocks at Patna, Muzaffarpur and Purnea is shown at Rs. 2,10,285.87. No attempt was made to explain the discrepancy between the operative part of the agreement and the valuation shown in the Schedule. TheIncome-taxOfficer was of the view that the Company had inflated the opening stock so as to reduce the ultimate profits. That view was confirmed by the Appellate Assistant Commissioner and by the Tribunal. No question of law arose out of the order of the Tribunal. The reference itself was incompetent.
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Sicom Limited A Company Registered Under The Provisions of Companies Act Vs. Union of India Through The Secretary, Ministry of Labour & Others | mortgage was created it will be the mortgagee who is entitled to the title as transferee of the property and consequently it ceases to be the property of the mortgagor. To answer the issue the question that will have to be answered is whether the expression transfer of the mortgaged property absolutely would amount to a conveyance and/or sale in favour of the mortgagee by the mortgagor. The nature of the right created by a mortgage (English Mortgage) had come up for consideration before the Privy Council in Ram Kinkar Ram Kinkar Banerjee and Ors. vs. Satya Charan Srimani & Ors (AIR 1939 Privy Council 14). That was a case of an English Mortgage. The issue was whether Section 58 (e) upon its true construction amounts to an absolute transfer of the property. The Privy Council considered the nature of the English Mortgage under the English Law and under Indian Law. We may gainfully refer to the following paragraphs:- 18. Bearing these considerations in mind it remains to consider the effect of the wording of Sec.58(e) of the Act. That Section speaks of the mortgagor -transferring the mortgaged property absolutely to the mortgagee. In using those words does it mean that no interest or no legal interest in the property remains in the mortgagor Their Lordships cannot think so. If the sub-section stopped at the word mortgagee it might be necessary put this construction upon it, but it does not stop there: it adds the proviso that the mortgagee will retransfer the property; upon payment of the mortgage money as agreed. Their Lordships think that with this addition the sub-section upon its true construction does not declare an English mortgage: to be an absolute transfer of the property. It declares only that such a mortgage would be absolute were it not for the proviso for retransfer. It does not determine what legal effect follows from the use a particular form of words; it merely prescribes the form of words necessary to constitute what is known in India as an English mortgage. Sec. 58(e) deals with form, not substance. The substantial rights are dealt with in Ss.58(a) and 60. Whatever form is used nothing more than an interest is transferred and that interest is subject to the right of redemption. The Privy Council then observed as under:- In their view the mortgage of a lease in any of the six forms referred to above is not an absolute assignment under Indian law and does not create privity of estate between the lessor and the mortgagee. A Division Bench of this Court noted the settled law in The Jagadamba Loan Company Limited vs. Raja Shiba Prasad Singh, (XLIII Bombay Law Reporter, 789). This Court paraphrased the law as under:- It was there held that in India even in the case of an English mortgage a legal interest remains in the mortgagor; hence the interest taken by the mortgagee is not an absolute interest and is not such as to render him liable for the burdens of the lease by reason of privity of estate. The issue came up for consideration once again in Narandas Karsondas vs. S.A. Kamtam & Anr., (AIR 1977 SC 774 ). The question for consideration before the Supreme Court was whether the mortgagor can exercise his right of redemption after the mortgagee under an English Mortgage with power to sell the mortgaged property without the intervention of the Court gives notice to the mortgagor to sell the mortgaged property by public auction and sells it by public auction. The position of a mortgage in England was set out thus:- In England, a mortgagee gets an equitable interest in the property. Under the English doctrine a contract of sale transfers an equitable estate to the purchaser. The Court does not assist the mortgagor by granting him a remedy unless there is collusion on the part of the mortgagee. Thereafter considering the law in India it was observed thus:- In India there is no equity or right in property created in favour of the purchaser by the contract between the mortgagee and the proposed purchaser. In India there is no distinction between legal and equitable estates. The law of India knows nothing of that distinction between legal and equitable property in the sense in which it was understood when equity was administered by the Court of Chancellery in England. Under the Indian law, there can be but one owner that is, the legal owner..... Proceeding further and considering the expression Transfer this is what the Court has observed:- In India, the word transfer is defined with reference to the word convey. The word transfer in English law in its narrower and more usual sense refers to the transfer of an estate in land. Section 205 of the Law of Property Act in England defines: Conveyance includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument. The word conveys in Section 5 of the Transfer of Property is used in the wider sense of conveying ownership. Thus the Court noted a distinction between the transfer in English law and conveyance in Indian Law. 8. Considering the law as declared in Ram Kinkar (supra) and Narandas Karsondas (supra) it would be clear that the expression transfer in Section 58(e) of the Transfer of Property Act is not conveyance. The mortgagor continues to have an interest in the property and it is not merely a right of redemption as was sought to be contended on behalf of the petitioners. Once an English mortgage does not create a conveyance in favour of the mortgagee then considering Section 11(2) of the EPF Act there will be a first charge on the said property to the exclusion of all other creditors including secured. The law thus would be that the PF dues under the EPF Act would have the priority of claim irrespective of the provisions of mortgage under the Transfer of Property Act or a sale under the provisions of the State Financial Corporation Act. | 1[ds]In the instant case we are concerned with dues under the E.P.F. Act and the dues of a State Financial Corporation under the provisions of the State Financial Corporation Act.The issue in our opinion between the dues under the EPF Act and other secured State creditors in so far as this Court is concerned is no longer res integra. We may gainfully refer to the several judgments. Firstly, in the case of Janata Sahakari Janata Sahakari Janata Sahakari Bank Ltd. vs. Assistant Provident Fund Bank Ltd. vs. Assistant Provident Fund Bank Ltd. vs. Assistant Provident Fund Commissioner and Recovery Officer & Ors., Writ Commissioner and Recovery Officer & Ors., Writ Commissioner and Recovery Officer & Ors., Writ Petition No.639 of 2005 decided on 23rd June, 2006 Petition No.639 of 2005 decided on 23rd June, 2006 Petition No.639 of 2005 decided on 23rd June, 2006. The issue there was the priority of claim under the provisions of the Securitisation and Reconstruction Act, 2002 (Securitisation Act) and the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952. A learned Division Bench, after noting the provisions was pleased to hold that the Securitisation Act does not have any substantive provision which makes the debts of the banks and financial institutions have a priority over the statutory dues, whereas the EPF Act has a substantive provision to declare the Provident Fund dues would have first charge on the assets of the establishment and would have priority over all other dues. The learned Bench referred to the judgment of the Supreme Court in the case of State Bank of and State Bank of and State Bank of and Jaipur vs. National Iron and Steel Rolling Corporation & Ors. (1995 (2) S.C.C. 19), where the issue was priority of claims under the Rajasthan Sales Tax Act and the claims of the secured creditors. Reliance was also placed on the judgment of the Division Bench of the Kerala High Court in Recovery Officer and Assistant Provident Fund Commissioner vs. Kerala Financial Corporation, (2002 III CLR 191) where the issue was priority of claims between the State Financial Corporation Act and EPF Act. The learned Division Bench of the Kerala High Court held that the P.F. dues would have priority of claim over the dues under the provisions of the State Financial Corporation Act. Another Division Bench of this Court in Indus Agro Products vs. Union of India & Ors., (2006 II CLR 582) was considering the rights of the purchaser who had purchased the property pursuant to the sale conducted under the provisions of the State Financial Corporation Act and the dues under the provisions of the E.P.F. Act. The learned Division Bench was pleased on consideration of the law to take a view that the dues under the provisions of the EPF Act would have priority of claim over the sale under the provisions of the State Financial Corporation Act. The purchaser in that case, therefore, was held to be liable.Considering the law as considered by the two Division Benches of this Court with which we are in respectful agreement and the terminology of Section 11(2) of the EPF Act, we have no manner of doubt that the PF dues would be a first charge on the assets of a company. Respondent No.4, therefore, considering the amounts realized by the petitioner from the sale of the assets, could have made a demand on the petitioner for recovery of the P.F. and other miscellaneous dues including interest in terms of the Act, Rules and RegulationsRelying on this provision the learned Counsel seeks to contend that when an English mortgage is created, the property is transferred in favour of the mortgagee. The only right that the mortgagor retains is for redemption of mortgage. Therefore, on the date when the mortgage was created it will be the mortgagee who is entitled to the title as transferee of the property and consequently it ceases to be the property of the mortgagor. To answer the issue the question that will have to be answered is whether the expression transfer of the mortgaged property absolutely would amount to a conveyance and/or sale in favour of the mortgagee by the mortgagor. The nature of the right created by a mortgage (English Mortgage) had come up for consideration before the Privy Council in Ram Kinkar Ram Kinkar Banerjee and Ors. vs. Satya Charan Srimani & Ors (AIR 1939 Privy Council 14). That was a case of an English Mortgage. The issue was whether Section 58 (e) upon its true construction amounts to an absolute transfer of the property. The Privy Council considered the nature of the English Mortgage under the English Law and under Indian Law. We may gainfully refer to the following paragraphs:18. Bearing these considerations in mind it remains to consider the effect of the wording of Sec.58(e) of the Act. That Section speaks of the mortgagortransferring the mortgaged property absolutely to the mortgagee. In using those words does it mean that no interest or no legal interest in the property remains in the mortgagor Their Lordships cannot think so. If then stopped at the word mortgagee it might be necessary put this construction upon it, but it does not stop there: it adds the proviso that the mortgagee will retransfer the property; upon payment of the mortgage money as agreedThe issue came up for consideration once again in Narandas Karsondas vs. S.A. Kamtam & Anr., (AIR 1977 SC 774 ). The question for consideration before the Supreme Court was whether the mortgagor can exercise his right of redemption after the mortgagee under an English Mortgage with power to sell the mortgaged property without the intervention of the Court gives notice to the mortgagor to sell the mortgaged property by public auction and sells it by public auction. The position of a mortgage in England was set out thus:In England, a mortgagee gets an equitable interest in the property. Under the English doctrine a contract of sale transfers an equitable estate to the purchaser. The Court does not assist the mortgagor by granting him a remedy unless there is collusion on the part of the mortgagee8. Considering the law as declared in Ram Kinkar (supra) and Narandas Karsondas (supra) it would be clear that the expression transfer in Section 58(e) of the Transfer of Property Act is not conveyance. The mortgagor continues to have an interest in the property and it is not merely a right of redemption as was sought to be contended on behalf of the petitioners. Once an English mortgage does not create a conveyance in favour of the mortgagee then considering Section 11(2) of the EPF Act there will be a first charge on the said property to the exclusion of all other creditors including secured. The law thus would be that the PF dues under the EPF Act would have the priority of claim irrespective of the provisions of mortgage under the Transfer of Property Act or a sale under the provisions of the State Financial Corporation Act. | 1 | 3,120 | 1,279 | ### 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:
mortgage was created it will be the mortgagee who is entitled to the title as transferee of the property and consequently it ceases to be the property of the mortgagor. To answer the issue the question that will have to be answered is whether the expression transfer of the mortgaged property absolutely would amount to a conveyance and/or sale in favour of the mortgagee by the mortgagor. The nature of the right created by a mortgage (English Mortgage) had come up for consideration before the Privy Council in Ram Kinkar Ram Kinkar Banerjee and Ors. vs. Satya Charan Srimani & Ors (AIR 1939 Privy Council 14). That was a case of an English Mortgage. The issue was whether Section 58 (e) upon its true construction amounts to an absolute transfer of the property. The Privy Council considered the nature of the English Mortgage under the English Law and under Indian Law. We may gainfully refer to the following paragraphs:- 18. Bearing these considerations in mind it remains to consider the effect of the wording of Sec.58(e) of the Act. That Section speaks of the mortgagor -transferring the mortgaged property absolutely to the mortgagee. In using those words does it mean that no interest or no legal interest in the property remains in the mortgagor Their Lordships cannot think so. If the sub-section stopped at the word mortgagee it might be necessary put this construction upon it, but it does not stop there: it adds the proviso that the mortgagee will retransfer the property; upon payment of the mortgage money as agreed. Their Lordships think that with this addition the sub-section upon its true construction does not declare an English mortgage: to be an absolute transfer of the property. It declares only that such a mortgage would be absolute were it not for the proviso for retransfer. It does not determine what legal effect follows from the use a particular form of words; it merely prescribes the form of words necessary to constitute what is known in India as an English mortgage. Sec. 58(e) deals with form, not substance. The substantial rights are dealt with in Ss.58(a) and 60. Whatever form is used nothing more than an interest is transferred and that interest is subject to the right of redemption. The Privy Council then observed as under:- In their view the mortgage of a lease in any of the six forms referred to above is not an absolute assignment under Indian law and does not create privity of estate between the lessor and the mortgagee. A Division Bench of this Court noted the settled law in The Jagadamba Loan Company Limited vs. Raja Shiba Prasad Singh, (XLIII Bombay Law Reporter, 789). This Court paraphrased the law as under:- It was there held that in India even in the case of an English mortgage a legal interest remains in the mortgagor; hence the interest taken by the mortgagee is not an absolute interest and is not such as to render him liable for the burdens of the lease by reason of privity of estate. The issue came up for consideration once again in Narandas Karsondas vs. S.A. Kamtam & Anr., (AIR 1977 SC 774 ). The question for consideration before the Supreme Court was whether the mortgagor can exercise his right of redemption after the mortgagee under an English Mortgage with power to sell the mortgaged property without the intervention of the Court gives notice to the mortgagor to sell the mortgaged property by public auction and sells it by public auction. The position of a mortgage in England was set out thus:- In England, a mortgagee gets an equitable interest in the property. Under the English doctrine a contract of sale transfers an equitable estate to the purchaser. The Court does not assist the mortgagor by granting him a remedy unless there is collusion on the part of the mortgagee. Thereafter considering the law in India it was observed thus:- In India there is no equity or right in property created in favour of the purchaser by the contract between the mortgagee and the proposed purchaser. In India there is no distinction between legal and equitable estates. The law of India knows nothing of that distinction between legal and equitable property in the sense in which it was understood when equity was administered by the Court of Chancellery in England. Under the Indian law, there can be but one owner that is, the legal owner..... Proceeding further and considering the expression Transfer this is what the Court has observed:- In India, the word transfer is defined with reference to the word convey. The word transfer in English law in its narrower and more usual sense refers to the transfer of an estate in land. Section 205 of the Law of Property Act in England defines: Conveyance includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument. The word conveys in Section 5 of the Transfer of Property is used in the wider sense of conveying ownership. Thus the Court noted a distinction between the transfer in English law and conveyance in Indian Law. 8. Considering the law as declared in Ram Kinkar (supra) and Narandas Karsondas (supra) it would be clear that the expression transfer in Section 58(e) of the Transfer of Property Act is not conveyance. The mortgagor continues to have an interest in the property and it is not merely a right of redemption as was sought to be contended on behalf of the petitioners. Once an English mortgage does not create a conveyance in favour of the mortgagee then considering Section 11(2) of the EPF Act there will be a first charge on the said property to the exclusion of all other creditors including secured. The law thus would be that the PF dues under the EPF Act would have the priority of claim irrespective of the provisions of mortgage under the Transfer of Property Act or a sale under the provisions of the State Financial Corporation Act.
### Response:
1
### Explanation:
Miscellaneous Provisions Act, 1952. A learned Division Bench, after noting the provisions was pleased to hold that the Securitisation Act does not have any substantive provision which makes the debts of the banks and financial institutions have a priority over the statutory dues, whereas the EPF Act has a substantive provision to declare the Provident Fund dues would have first charge on the assets of the establishment and would have priority over all other dues. The learned Bench referred to the judgment of the Supreme Court in the case of State Bank of and State Bank of and State Bank of and Jaipur vs. National Iron and Steel Rolling Corporation & Ors. (1995 (2) S.C.C. 19), where the issue was priority of claims under the Rajasthan Sales Tax Act and the claims of the secured creditors. Reliance was also placed on the judgment of the Division Bench of the Kerala High Court in Recovery Officer and Assistant Provident Fund Commissioner vs. Kerala Financial Corporation, (2002 III CLR 191) where the issue was priority of claims between the State Financial Corporation Act and EPF Act. The learned Division Bench of the Kerala High Court held that the P.F. dues would have priority of claim over the dues under the provisions of the State Financial Corporation Act. Another Division Bench of this Court in Indus Agro Products vs. Union of India & Ors., (2006 II CLR 582) was considering the rights of the purchaser who had purchased the property pursuant to the sale conducted under the provisions of the State Financial Corporation Act and the dues under the provisions of the E.P.F. Act. The learned Division Bench was pleased on consideration of the law to take a view that the dues under the provisions of the EPF Act would have priority of claim over the sale under the provisions of the State Financial Corporation Act. The purchaser in that case, therefore, was held to be liable.Considering the law as considered by the two Division Benches of this Court with which we are in respectful agreement and the terminology of Section 11(2) of the EPF Act, we have no manner of doubt that the PF dues would be a first charge on the assets of a company. Respondent No.4, therefore, considering the amounts realized by the petitioner from the sale of the assets, could have made a demand on the petitioner for recovery of the P.F. and other miscellaneous dues including interest in terms of the Act, Rules and RegulationsRelying on this provision the learned Counsel seeks to contend that when an English mortgage is created, the property is transferred in favour of the mortgagee. The only right that the mortgagor retains is for redemption of mortgage. Therefore, on the date when the mortgage was created it will be the mortgagee who is entitled to the title as transferee of the property and consequently it ceases to be the property of the mortgagor. To answer the issue the question that will have to be answered is whether the expression transfer of the mortgaged property absolutely would amount to a conveyance and/or sale in favour of the mortgagee by the mortgagor. The nature of the right created by a mortgage (English Mortgage) had come up for consideration before the Privy Council in Ram Kinkar Ram Kinkar Banerjee and Ors. vs. Satya Charan Srimani & Ors (AIR 1939 Privy Council 14). That was a case of an English Mortgage. The issue was whether Section 58 (e) upon its true construction amounts to an absolute transfer of the property. The Privy Council considered the nature of the English Mortgage under the English Law and under Indian Law. We may gainfully refer to the following paragraphs:18. Bearing these considerations in mind it remains to consider the effect of the wording of Sec.58(e) of the Act. That Section speaks of the mortgagortransferring the mortgaged property absolutely to the mortgagee. In using those words does it mean that no interest or no legal interest in the property remains in the mortgagor Their Lordships cannot think so. If then stopped at the word mortgagee it might be necessary put this construction upon it, but it does not stop there: it adds the proviso that the mortgagee will retransfer the property; upon payment of the mortgage money as agreedThe issue came up for consideration once again in Narandas Karsondas vs. S.A. Kamtam & Anr., (AIR 1977 SC 774 ). The question for consideration before the Supreme Court was whether the mortgagor can exercise his right of redemption after the mortgagee under an English Mortgage with power to sell the mortgaged property without the intervention of the Court gives notice to the mortgagor to sell the mortgaged property by public auction and sells it by public auction. The position of a mortgage in England was set out thus:In England, a mortgagee gets an equitable interest in the property. Under the English doctrine a contract of sale transfers an equitable estate to the purchaser. The Court does not assist the mortgagor by granting him a remedy unless there is collusion on the part of the mortgagee8. Considering the law as declared in Ram Kinkar (supra) and Narandas Karsondas (supra) it would be clear that the expression transfer in Section 58(e) of the Transfer of Property Act is not conveyance. The mortgagor continues to have an interest in the property and it is not merely a right of redemption as was sought to be contended on behalf of the petitioners. Once an English mortgage does not create a conveyance in favour of the mortgagee then considering Section 11(2) of the EPF Act there will be a first charge on the said property to the exclusion of all other creditors including secured. The law thus would be that the PF dues under the EPF Act would have the priority of claim irrespective of the provisions of mortgage under the Transfer of Property Act or a sale under the provisions of the State Financial Corporation Act.
|
Chandrakanta Tiwari Vs. NEW INDIA ASSURANCE COMPANY LTD. & ANR | otherwise in their written statement hence it has not been proved on record by any of the opposite parties that at the time of the accident, the deceased was driving the vehicle, it is also relevant to mention here that according to written statement of O.P. No. 1, he himself sustained injuries in this accident and he has also admitted the date, time and place of the accident. Therefore, it was legally incumbent upon him to prove his case before the Tribunal as he was the best person to make clear how this accident occurred but as no evidence has been adduced by the O.P. No. 1 in this regard, therefore, there is no reason to disbelieve the evidence adduced on behalf of the claimants by way of P.W. 1. 15. Admittedly this petition has been moved Under Section 163A of the M.V. Act, therefore, legally the claimants are not supposed to prove the rash and negligent act of driving by O.P. No. 1 and in such a petition legally, the claimants are not required even to plead or establish that the death, in respect of which the claim has been made, was due to any wrongly act or negligence or default of the owner driver of the vehicle or any other person and in such a petition, the owner of the vehicle or the authorised insurer is legally liable to make the payment of compensation. 7. So far as issues 3 and 4 are concerned, they read as follows: 3. Whether at the time of accident the deceased was not having a valid driving license? 4. Whether at the time of accident the OP No. 1 was not having a valid driving license? 8. The Tribunal then records in paragraph 17 that both the opposite parties did not press these issues during arguments. 9. Finally, given that the deceased was aged 28 years and that income was not proved, income was taken to be Rs. 36,000/- per annum minus one-third, which made it Rs. 24,000/- per annum. The Multiplier was taken to be 8, keeping in view the old age of the claimant and accordingly, a sum of Rs. 1,92,000/- was arrived at. In addition thereto, Rs. 2,000/- was given as funeral expenses, Rs. 5,000/- as loss of consortium, making it a total of Rs. 1,99,000/- together with simple interest at the rate of 6 per cent per annum on this amount from the date of filing of the claim petition up to the date of actual payment. 10. The High Court, by the impugned judgment, allowed the appeal of the insurance company stating that the claimant, not being an eye witness, could not possibly give evidence as to the accident that took place, as a result of which, the Section 163A petition would have to be dismissed. Also, nothing was brought on record to show that the deceased was having a valid driving license. This would also, therefore, take the case outside the insurance policy, as a result of which, the appeal would deserve to be allowed on this ground also. 11. Section 163A reads as follows: 163A. Special provisions as to payment of compensation on structured formula basis.-- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.--For the purposes of this Sub-section, permanent disability shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation Under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. 12. A perusal of this provision would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person. (emphasis supplied) 13. In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary Under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place. 14. Further, it is also clear, as has been pointed out hereinabove, that so far as the driving licence aspect of the case is concerned, it was squarely given up by the insurance company before the MACT, but then utilised by the High Court to disentitle the claimant to relief. On this ground also, the High Court is incorrect. 15. Coming to the argument based on the maximum liability being Rs. 1 lakh, this argument was never taken before in all the courts below, as a result of which, we do not allow the insurance company to take up the point for the first time before us at this stage. 16. We would have restored the MACTs judgment as it stands but for the fact that there is a glaring mistake in the multiplier, as has been pointed out by Shri Sahoo. | 1[ds]14. It will be relevant to mention here that no controverting evidence on this issue or on issue No. 2 has been adduced by any of the opposite parties though they have made the pleadings otherwise in their written statement hence it has not been proved on record by any of the opposite parties that at the time of the accident, the deceased was driving the vehicle, it is also relevant to mention here that according to written statement of O.P. No. 1, he himself sustained injuries in this accident and he has also admitted the date, time and place of the accident. Therefore, it was legally incumbent upon him to prove his case before the Tribunal as he was the best person to make clear how this accident occurred but as no evidence has been adduced by the O.P. No. 1 in this regard, therefore, there is no reason to disbelieve the evidence adduced on behalf of the claimants by way of P.W. 1.15. Admittedly this petition has been moved Under Section 163A of the M.V. Act, therefore, legally the claimants are not supposed to prove the rash and negligent act of driving by O.P. No. 1 and in such a petition legally, the claimants are not required even to plead or establish that the death, in respect of which the claim has been made, was due to any wrongly act or negligence or default of the owner driver of the vehicle or any other person and in such a petition, the owner of the vehicle or the authorised insurer is legally liable to make the payment of compensation.7. So far as issues 3 and 4 are concerned, they read as follows:3. Whether at the time of accident the deceased was not having a valid driving license?4. Whether at the time of accident the OP No. 1 was not having a valid driving license?8. The Tribunal then records in paragraph 17 that both the opposite parties did not press these issues during arguments.10. The High Court, by the impugned judgment, allowed the appeal of the insurance company stating that the claimant, not being an eye witness, could not possibly give evidence as to the accident that took place, as a result of which, the Section 163A petition would have to be dismissed. Also, nothing was brought on record to show that the deceased was having a valid driving license. This would also, therefore, take the case outside the insurance policy, as a result of which, the appeal would deserve to be allowed on this ground also.12. A perusal of this provision would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person. (emphasis supplied)13. In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary Under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place.14. Further, it is also clear, as has been pointed out hereinabove, that so far as the driving licence aspect of the case is concerned, it was squarely given up by the insurance company before the MACT, but then utilised by the High Court to disentitle the claimant to relief. On this ground also, the High Court is incorrect.15. Coming to the argument based on the maximum liability being Rs. 1 lakh, this argument was never taken before in all the courts below, as a result of which, we do not allow the insurance company to take up the point for the first time before us at this stage.16. We would have restored the MACTs judgment as it stands but for the fact that there is a glaring mistake in the multiplier, as has been pointed out by Shri Sahoo. | 1 | 1,895 | 786 | ### 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:
otherwise in their written statement hence it has not been proved on record by any of the opposite parties that at the time of the accident, the deceased was driving the vehicle, it is also relevant to mention here that according to written statement of O.P. No. 1, he himself sustained injuries in this accident and he has also admitted the date, time and place of the accident. Therefore, it was legally incumbent upon him to prove his case before the Tribunal as he was the best person to make clear how this accident occurred but as no evidence has been adduced by the O.P. No. 1 in this regard, therefore, there is no reason to disbelieve the evidence adduced on behalf of the claimants by way of P.W. 1. 15. Admittedly this petition has been moved Under Section 163A of the M.V. Act, therefore, legally the claimants are not supposed to prove the rash and negligent act of driving by O.P. No. 1 and in such a petition legally, the claimants are not required even to plead or establish that the death, in respect of which the claim has been made, was due to any wrongly act or negligence or default of the owner driver of the vehicle or any other person and in such a petition, the owner of the vehicle or the authorised insurer is legally liable to make the payment of compensation. 7. So far as issues 3 and 4 are concerned, they read as follows: 3. Whether at the time of accident the deceased was not having a valid driving license? 4. Whether at the time of accident the OP No. 1 was not having a valid driving license? 8. The Tribunal then records in paragraph 17 that both the opposite parties did not press these issues during arguments. 9. Finally, given that the deceased was aged 28 years and that income was not proved, income was taken to be Rs. 36,000/- per annum minus one-third, which made it Rs. 24,000/- per annum. The Multiplier was taken to be 8, keeping in view the old age of the claimant and accordingly, a sum of Rs. 1,92,000/- was arrived at. In addition thereto, Rs. 2,000/- was given as funeral expenses, Rs. 5,000/- as loss of consortium, making it a total of Rs. 1,99,000/- together with simple interest at the rate of 6 per cent per annum on this amount from the date of filing of the claim petition up to the date of actual payment. 10. The High Court, by the impugned judgment, allowed the appeal of the insurance company stating that the claimant, not being an eye witness, could not possibly give evidence as to the accident that took place, as a result of which, the Section 163A petition would have to be dismissed. Also, nothing was brought on record to show that the deceased was having a valid driving license. This would also, therefore, take the case outside the insurance policy, as a result of which, the appeal would deserve to be allowed on this ground also. 11. Section 163A reads as follows: 163A. Special provisions as to payment of compensation on structured formula basis.-- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.--For the purposes of this Sub-section, permanent disability shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation Under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. 12. A perusal of this provision would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person. (emphasis supplied) 13. In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary Under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place. 14. Further, it is also clear, as has been pointed out hereinabove, that so far as the driving licence aspect of the case is concerned, it was squarely given up by the insurance company before the MACT, but then utilised by the High Court to disentitle the claimant to relief. On this ground also, the High Court is incorrect. 15. Coming to the argument based on the maximum liability being Rs. 1 lakh, this argument was never taken before in all the courts below, as a result of which, we do not allow the insurance company to take up the point for the first time before us at this stage. 16. We would have restored the MACTs judgment as it stands but for the fact that there is a glaring mistake in the multiplier, as has been pointed out by Shri Sahoo.
### Response:
1
### Explanation:
14. It will be relevant to mention here that no controverting evidence on this issue or on issue No. 2 has been adduced by any of the opposite parties though they have made the pleadings otherwise in their written statement hence it has not been proved on record by any of the opposite parties that at the time of the accident, the deceased was driving the vehicle, it is also relevant to mention here that according to written statement of O.P. No. 1, he himself sustained injuries in this accident and he has also admitted the date, time and place of the accident. Therefore, it was legally incumbent upon him to prove his case before the Tribunal as he was the best person to make clear how this accident occurred but as no evidence has been adduced by the O.P. No. 1 in this regard, therefore, there is no reason to disbelieve the evidence adduced on behalf of the claimants by way of P.W. 1.15. Admittedly this petition has been moved Under Section 163A of the M.V. Act, therefore, legally the claimants are not supposed to prove the rash and negligent act of driving by O.P. No. 1 and in such a petition legally, the claimants are not required even to plead or establish that the death, in respect of which the claim has been made, was due to any wrongly act or negligence or default of the owner driver of the vehicle or any other person and in such a petition, the owner of the vehicle or the authorised insurer is legally liable to make the payment of compensation.7. So far as issues 3 and 4 are concerned, they read as follows:3. Whether at the time of accident the deceased was not having a valid driving license?4. Whether at the time of accident the OP No. 1 was not having a valid driving license?8. The Tribunal then records in paragraph 17 that both the opposite parties did not press these issues during arguments.10. The High Court, by the impugned judgment, allowed the appeal of the insurance company stating that the claimant, not being an eye witness, could not possibly give evidence as to the accident that took place, as a result of which, the Section 163A petition would have to be dismissed. Also, nothing was brought on record to show that the deceased was having a valid driving license. This would also, therefore, take the case outside the insurance policy, as a result of which, the appeal would deserve to be allowed on this ground also.12. A perusal of this provision would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person. (emphasis supplied)13. In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary Under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place.14. Further, it is also clear, as has been pointed out hereinabove, that so far as the driving licence aspect of the case is concerned, it was squarely given up by the insurance company before the MACT, but then utilised by the High Court to disentitle the claimant to relief. On this ground also, the High Court is incorrect.15. Coming to the argument based on the maximum liability being Rs. 1 lakh, this argument was never taken before in all the courts below, as a result of which, we do not allow the insurance company to take up the point for the first time before us at this stage.16. We would have restored the MACTs judgment as it stands but for the fact that there is a glaring mistake in the multiplier, as has been pointed out by Shri Sahoo.
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JUMANI BEGUM Vs. RAM NARAYAN | Taking the monthly income of the deceased at Rs 12,636, one-third was deducted towards personal expenses. Applying a multiplier of 11, the deceased being 53 years of age, the total amount payable was computed at Rs 11,12,000 on account of loss of dependency. A lump sum of Rs 1,25,000 was awarded by the High Court towards conventional head. Since the High Court had affirmed the view of the MACT on contributory negligence, the total compensation was enhanced from Rs 3,81,988 to Rs 6,81,000. 6. In pursuance of the notice that was issued by this Court on 22 January 2019, the office report indicates that service is complete. 7. Learned counsel appearing on behalf of the appellant has assailed the view which has found acceptance with the High Court, both on the finding of contributory negligence and on the computation of compensation. On the first aspect, learned counsel submitted that the order of the MACT indicates that there was an independent witness who had deposed that the truck trailer was parked without any reflectors on the road. It was urged that though the MACT accepted the evidence of the independent witness, it came to the conclusion that there was contributory negligence on the part of the deceased without cogent reason. The High Court, it has been submitted, simply proceeded to affirm the view of the MACT without giving reasons in spite of the fact that it was seized of a substantive appeal against the order of the MACT. On the computation of the compensation, learned counsel submitted that in terms of the judgment of the Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi ( (2007) 16 SCC 680) , the High Court ought to have added an amount of 15% towards future prospects having regard to the age of the deceased and the fact that he was in government employment. 8. On the aspect of contributory negligence, the MACT adverted to the statement of AW 2, who was an independent eye-witness at the spot of the accident, in the following terms: As per an eye witness to the accident, on behalf of the applicant, the statement of AW-2 Mohd. Rafiq Qureshi has been got recorded. According to this witness, at the time of accident he was going from his house situated in Dharsiva to the Dhaba situated at about 2-2.5 kms away from Dharsivan to eat food on the Bilaspur road and when he had reached near Sagar Family Restaurant and Dhaba then suddenly from the side of Bilaspur, Mirza Jumman Beg who was coming on his hero Honda motorcycle from the side of Bilaspur has come and collided on the backside of the truck parked on the road on the left side which truck was of 16 tyres and he had fallen with the Hero Honda motorcycle. This witness has further stated that after eating the food in the Dhaba when he was returning back, he came to know that Mirza jumman Beg has expired. In cross- examination this witness has stated that the truck trailer was parked facing Raipur i.e. its rear was facing Bilaspur. In cross, this witness has denied that there was a radium reflector on the rear side of the truck trailer. This witness has not been given the suggestion in the cross-examination that the indicator of the truck trailer was lit. In cross examination this witness has denied that any bush etc. had been put on the side of the Truck Trailer as indication mark. 9. The MACT then discussed the evidence of the driver of the truck trailer, NAW 1. After analysing the evidence of the driver, the MACT held that his evidence did not inspire confidence, when he stated that indicators on the truck trailer had been lit. On the contrary, the eye-witness, AW 2, in the course of his cross-examination, denied the existence of reflectors at the spot. The MACT noted that it did not appear that the truck trailer had been parked outside the area of the pakka road. In spite of its analysis in the above terms, the MACT surmised that if the lights of the motorcycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of the MACT is purely a matter of surmise. Once the substantive evidence before the MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for the MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. We find from the judgment of the High Court that this aspect has not been discussed at all and the High Court simply proceeded to confirm the finding of contributory negligence. Consequently, on the first limb of the submission, learned counsel appearing on behalf of the appellant is correct and the submission requires to be accepted. 10. On the computation of the compensation which is payable, we are guided by the judgment of the Constitution Bench in Pranay Sethi (supra). The monthly salary of the deceased, who was engaged as an Assistant Grade II in the Water Resources Department of the State of Chhattisgarh was Rs 12,636. Since the deceased was married, one-third deduction would have to be made on account of his personal expenses, which would work out to Rs 4,212. The net income would, therefore, be Rs 8,424. An addition of 15% towards future prospects would be required to be made having regard to the age of the deceased, which was 53. The total income of the deceased would, therefore, work out to Rs 9,687 per month. The yearly income of the deceased would stand computed at Rs 1,16,244. Applying a multiplier of 11, the total loss of dependency would be Rs 12,78,684. In addition to the aforesaid amount, conventional heads amounting to Rs 75,000 would have to be granted in terms of the decision noted above. | 1[ds]After analysing the evidence of the driver, the MACT held that his evidence did not inspire confidence, when he stated that indicators on the truck trailer had been lit. On the contrary, the eye-witness, AW 2, in the course of his cross-examination, denied the existence of reflectors at the spot. The MACT noted that it did not appear that the truck trailer had been parked outside the area of the pakka road. In spite of its analysis in the above terms, the MACT surmised that if the lights of the motorcycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of the MACT is purely a matter of surmise. Once the substantive evidence before the MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for the MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. We find from the judgment of the High Court that this aspect has not been discussed at all and the High Court simply proceeded to confirm the finding of contributory negligence. Consequently, on the first limb of the submission, learned counsel appearing on behalf of the appellant is correct and the submission requires to be accepted10. On the computation of the compensation which is payable, we are guided by the judgment of the Constitution Bench in Pranay Sethi (supra). The monthly salary of the deceased, who was engaged as an Assistant Grade II in the Water Resources Department of the State of Chhattisgarh was Rs 12,636. Since the deceased was married, one-third deduction would have to be made on account of his personal expenses, which would work out to Rs 4,212. The net income would, therefore, be Rs 8,424. An addition of 15% towards future prospects would be required to be made having regard to the age of the deceased, which was 53. The total income of the deceased would, therefore, work out to Rs 9,687 per month. The yearly income of the deceased would stand computed at Rs 1,16,244. Applying a multiplier of 11, the total loss of dependency would be Rs 12,78,684. In addition to the aforesaid amount, conventional heads amounting to Rs 75,000 would have to be granted in terms of the decision noted above. | 1 | 1,424 | 444 | ### 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:
Taking the monthly income of the deceased at Rs 12,636, one-third was deducted towards personal expenses. Applying a multiplier of 11, the deceased being 53 years of age, the total amount payable was computed at Rs 11,12,000 on account of loss of dependency. A lump sum of Rs 1,25,000 was awarded by the High Court towards conventional head. Since the High Court had affirmed the view of the MACT on contributory negligence, the total compensation was enhanced from Rs 3,81,988 to Rs 6,81,000. 6. In pursuance of the notice that was issued by this Court on 22 January 2019, the office report indicates that service is complete. 7. Learned counsel appearing on behalf of the appellant has assailed the view which has found acceptance with the High Court, both on the finding of contributory negligence and on the computation of compensation. On the first aspect, learned counsel submitted that the order of the MACT indicates that there was an independent witness who had deposed that the truck trailer was parked without any reflectors on the road. It was urged that though the MACT accepted the evidence of the independent witness, it came to the conclusion that there was contributory negligence on the part of the deceased without cogent reason. The High Court, it has been submitted, simply proceeded to affirm the view of the MACT without giving reasons in spite of the fact that it was seized of a substantive appeal against the order of the MACT. On the computation of the compensation, learned counsel submitted that in terms of the judgment of the Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi ( (2007) 16 SCC 680) , the High Court ought to have added an amount of 15% towards future prospects having regard to the age of the deceased and the fact that he was in government employment. 8. On the aspect of contributory negligence, the MACT adverted to the statement of AW 2, who was an independent eye-witness at the spot of the accident, in the following terms: As per an eye witness to the accident, on behalf of the applicant, the statement of AW-2 Mohd. Rafiq Qureshi has been got recorded. According to this witness, at the time of accident he was going from his house situated in Dharsiva to the Dhaba situated at about 2-2.5 kms away from Dharsivan to eat food on the Bilaspur road and when he had reached near Sagar Family Restaurant and Dhaba then suddenly from the side of Bilaspur, Mirza Jumman Beg who was coming on his hero Honda motorcycle from the side of Bilaspur has come and collided on the backside of the truck parked on the road on the left side which truck was of 16 tyres and he had fallen with the Hero Honda motorcycle. This witness has further stated that after eating the food in the Dhaba when he was returning back, he came to know that Mirza jumman Beg has expired. In cross- examination this witness has stated that the truck trailer was parked facing Raipur i.e. its rear was facing Bilaspur. In cross, this witness has denied that there was a radium reflector on the rear side of the truck trailer. This witness has not been given the suggestion in the cross-examination that the indicator of the truck trailer was lit. In cross examination this witness has denied that any bush etc. had been put on the side of the Truck Trailer as indication mark. 9. The MACT then discussed the evidence of the driver of the truck trailer, NAW 1. After analysing the evidence of the driver, the MACT held that his evidence did not inspire confidence, when he stated that indicators on the truck trailer had been lit. On the contrary, the eye-witness, AW 2, in the course of his cross-examination, denied the existence of reflectors at the spot. The MACT noted that it did not appear that the truck trailer had been parked outside the area of the pakka road. In spite of its analysis in the above terms, the MACT surmised that if the lights of the motorcycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of the MACT is purely a matter of surmise. Once the substantive evidence before the MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for the MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. We find from the judgment of the High Court that this aspect has not been discussed at all and the High Court simply proceeded to confirm the finding of contributory negligence. Consequently, on the first limb of the submission, learned counsel appearing on behalf of the appellant is correct and the submission requires to be accepted. 10. On the computation of the compensation which is payable, we are guided by the judgment of the Constitution Bench in Pranay Sethi (supra). The monthly salary of the deceased, who was engaged as an Assistant Grade II in the Water Resources Department of the State of Chhattisgarh was Rs 12,636. Since the deceased was married, one-third deduction would have to be made on account of his personal expenses, which would work out to Rs 4,212. The net income would, therefore, be Rs 8,424. An addition of 15% towards future prospects would be required to be made having regard to the age of the deceased, which was 53. The total income of the deceased would, therefore, work out to Rs 9,687 per month. The yearly income of the deceased would stand computed at Rs 1,16,244. Applying a multiplier of 11, the total loss of dependency would be Rs 12,78,684. In addition to the aforesaid amount, conventional heads amounting to Rs 75,000 would have to be granted in terms of the decision noted above.
### Response:
1
### Explanation:
After analysing the evidence of the driver, the MACT held that his evidence did not inspire confidence, when he stated that indicators on the truck trailer had been lit. On the contrary, the eye-witness, AW 2, in the course of his cross-examination, denied the existence of reflectors at the spot. The MACT noted that it did not appear that the truck trailer had been parked outside the area of the pakka road. In spite of its analysis in the above terms, the MACT surmised that if the lights of the motorcycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of the MACT is purely a matter of surmise. Once the substantive evidence before the MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for the MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. We find from the judgment of the High Court that this aspect has not been discussed at all and the High Court simply proceeded to confirm the finding of contributory negligence. Consequently, on the first limb of the submission, learned counsel appearing on behalf of the appellant is correct and the submission requires to be accepted10. On the computation of the compensation which is payable, we are guided by the judgment of the Constitution Bench in Pranay Sethi (supra). The monthly salary of the deceased, who was engaged as an Assistant Grade II in the Water Resources Department of the State of Chhattisgarh was Rs 12,636. Since the deceased was married, one-third deduction would have to be made on account of his personal expenses, which would work out to Rs 4,212. The net income would, therefore, be Rs 8,424. An addition of 15% towards future prospects would be required to be made having regard to the age of the deceased, which was 53. The total income of the deceased would, therefore, work out to Rs 9,687 per month. The yearly income of the deceased would stand computed at Rs 1,16,244. Applying a multiplier of 11, the total loss of dependency would be Rs 12,78,684. In addition to the aforesaid amount, conventional heads amounting to Rs 75,000 would have to be granted in terms of the decision noted above.
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RAJ KUMAR GANDHI Vs. CHANDIGARH ADMINISTRATION | of the Notification dated May 17, 1984, and, therefore, the Notification under Section 4(1) shall stand lapsed. We find no substance in the contention. Firstly the case would be dismissed on a short ground that though this plea was available to the petitioner, he did not raise the same in the first instance and that, therefore, by operation of Section 11 C.P.C. it operates as constructive res judicata. Under first proviso to Section 6(1), as amended in the Land Acquisition (Amendment) Act 68 of 1984 through Section 6 thereof that (i) no declaration in respect of any particular land covered by a notification under Section 4, Sub-section (1) shall be published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance. 1967. but before the commencement of the Land Acquisition (Amendment) Act, 1984, after the expiry of three years from the date of the publication of the notification or (ii) after the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of one year from the date of the publication of the notification. In other words, under the pre-Amendment Act the declaration under Section 6(1) shall not be published after the expiry of three years from the date of Section 4(1) publication and after the commencement of the Amendment Act, the State has no power to proceed with the mater and publish the declaration under Section 6(1) after the expiry of one year from the date of the publication of the notification. Explanation 1 thereto provides the method or mode of computation of the period referred to in the first proviso, namely, the period during which any action or proceeding be taken in pursuance of the notification issued under Sub-section (1) of Section 4 being stayed by an order of a Court shall be excluded, In other words, the period occupied by the order of stay made by a Court shall be excluded. Admittedly, pending writ petition on both the occasions the High Court granted stay of dispossession. Admittedly, the validity of tenability of the notification issued and published under Section 4(1) is subject of adjudication before the High Court. Till the writ petitions are disposed of or the appeals following its heels, the stay of dispossession was in operation. Though there is no specific direction prohibiting the publication of the declaration under Section 6, no useful purpose would be served by publishing Section 6(1) declaration pending adjudication of the legality of Section 4(1) notification. If any action is taken to pre-empt the proceedings, it would be stigmatised either as undue haste or action to over-reach the Courts judicial process. Therefore, the period during which the order of dispossession granted by the High Court operated, should be excluded in computation of the period of three years covered by Clause (1) of the first proviso to the Land Acquisition Act. When it is so computed, the declaration published on the second occasion is perfectly valid. Under these circumstances, we do not find any justification to quash the notification published under Section 6 dated May 17, 1984. The review petitions are accordingly dismissed. No costs. 16. In the instant case, various notifications and declarations under sections 4 and 6 were issued on the same date with respect to the same scheme. Thus, they were part and parcel of the same scheme. Thus, the submission raised by learned counsel for the appellant stands rejected. 17. The second and the last submission raised by learned counsel for the appellant is that the award had been approved by the Advisor to the Administrator whereas it was required to be approved by the Administrator. In this connection, reliance has been placed upon the Chandigarh (Delegation of Powers) Act, 1987 (Act No.2 of 1988). Section 3 thereof provides that any power, authority or jurisdiction or any duty which the Administrator may exercise or discharge under any law in force in the Union Territory of Chandigarh may be exercised or discharged also by such officer or other authority as may be specified in this behalf by the Central Government or the Administrator by notification in the Official Gazette, and any appeal or application for revision can be transferred for disposal to an officer or other authority competent under sub-section (1) to dispose of the same. Ex post facto authorisation dated 7.12.2015 has also been placed on record given by the Administrator authorising the Advisor and validating/approving awards. As the award was approved by the Advisor to the Administrator under his delegated authority, ex-post facto sanction had been granted by the Administrator to all the awards. 18. Apart from that the question of an award having been approved by the advisor to the Administrator was raised in C.W.P. No.17935 of 2014 – Gagandeep Kang & Ors. v. Union Territory of Chandigarh. The writ petition was dismissed by the High Court and the S.L.P. filed in this Court has also been dismissed by this Court. S.L.P. [C] No.355 of 2015 has also been dismissed along with two other matters by this Court. 19. In view of the various decisions rendered in the same matter which have attained finality, it would not be appropriate to take a different view. Reliance has been placed by learned counsel for the appellant on the decisions of this Court in Surinder Singh Brar & Ors. v. Union of India & Ors. (2013) 1 SCC 403 and Gurbinder Kaur Brar & Anr. v. Union of India & Ors. (2013) 11 SCC 228. In both the cases, the matter was with respect to sanction for land acquisition which was not granted by the appropriate Government i.e., the Administrator. In the instant case, the Advisor had approved the award. Since there is ex- post facto approval and a large number of other matters have already been dismissed, it is not considered appropriate to make interference in this matter on the aforesaid ground, particularly when sanction for acquisition had been granted by the appropriate authority, is not in dispute in the instant matter. | 0[ds]It is apparent from the notification issued under section 4 and declaration under section 6 that notification under section 4 had been issued for the development of residential-cum-commercial complex and for construction of college building and sports stadium etc. by the Notified Area Committee, Manimajra, Union Territory Chandigarh and declarations under section 6 had also been issued for the aforesaid purpose i.e. Scheme No.3. Though different notification under section 21 and declaration under section 6 had been issued, they are related to scheme No.3 only. Scheme No.3 is one and this aspect has been considered by the High Court in the decisions of Puran Chand Gupta & Ors. (supra) and Devinder Kumar (supra) and the matters have travelled to this Court with respect to same notification and a 3 -Judge Bench of this Court in the case of Puran Chand Gupta & Ors. v. Union of India & Ors., C.A. Nos.663-664 of 2000 decided on 8.8.2001 has observed:The point at issue is covered by the judgment of a Bench of three learned Judges delivered in Yusufbhai Noormohmed Nendoliya vs. State of Gujarat & Anr. (1991 (4) S.C.C. 531). That Judgment has been subsequently followed by several Benches of this court. It has been urged by Mr. R.K. Jain, learned counsel for the appellants, that the view taken therein can be contrary to the interest of the landholder and that, therefore, the Section should be so construed that it refers only to an order of stay obtained by a particular landholder in whose case alone the Explanation would apply. Having regard to the view that has consistently been taken by this court over several years, we are not disposed to take a contrary view and refer the matter to a larger Bench. Accordingly, the civil appeals are dismissed. No order as to costs.10. In Devinder Kumar (supra) also the question about Pocket Nos.8 and 6 was considered and the High Court has held that it would not make any difference in the matter as the scheme was one. Thus, it is apparent that in view of the decision in Puran Chand Gupta (supra) rendered by a 3-Judge Bench of this Court, no case for interference is made out on merits of the case. As the question raised is similar as urged in the aforesaid matter, a large number of matters were decided along with Puran Chand (supra) by the High Court. When the scheme was same i.e. No.3, obviously authorities could not have proceeded further pocket-wise and they were justified not to proceed further in view of the various stay orders granted by the High Court from time to time with respect to different pockets of the scheme No.3.In view of the decision in Puran Chand Gupta (supra) which has dealt with the case by a reasoned order, we do not find it appropriate to interfere on the aforesaid ground urged by learned counsel appearing on behalf of the appellants.Thus, it is apparent that when the stay has been granted in one matter and when the scheme was one, authorities were justified in the facts and circumstances of the instant case to stay their hands. Moreover, a large number of writ petitions have been dismissed by the High Court and orders have attained finality and this Court has also dismissed the appeals/S.L.P.s. Thus, we are not inclined to take a different view in the instant case.13. Learned counsel has also referred to the decision of Government of T.N. & Anr. v. Vasantha Bai (1995) Supp. 2 SCC 423, in which this Court has considered the object of section 11A as delay in passing the award would cause untold hardship and in case the award was not passed within the time limit, the acquisition would lapse. Yusufbhais decision (supra) has been relied upon so also the decision of Singappa v. State of Karnataka (supra). There is no dispute with the proposition laid down in the aforesaid decisions. However, facts of each and every case have to be seen and whether time can be excluded or not, it has also been laid down that the time spent during which there was stay, has to be excluded. Thus, no sustenance can be derived from the aforesaid decision of Vasantha Bai (supra) by the appellants14. Learned counsel has also relied upon Yusufbhai Noormohmed Nendoliya v. State of Gujarat & Anr. (1991) 4 SCC 531 in which this Court has opined that the Explanation to section 11A is in the widest possible terms and there is no warrant for limiting the action or proceedings referred to in the Explanation to actions or proceedings preceding the making of the award under section 11. Therefore, the period of an injunction obtained by the landholder from the High Courttaking possession of the land has to be excluded in computing the period of two years. The decision is of no help to the submission espoused on behalf16. In the instant case, various notifications and declarations under sections 4 and 6 were issued on the same date with respect to the same scheme. Thus, they were part and parcel of the same scheme. Thus, the submission raised by learned counsel for the appellant stands rejected.As the award was approved by the Advisor to the Administrator under his delegated authority, ex-post facto sanction had been granted by the Administrator to all the awards.18. Apart from that the question of an award having been approved by the advisor to the Administrator was raised in C.W.P. No.17935 of 2014 – Gagandeep Kang & Ors. v. Union Territory of Chandigarh. The writ petition was dismissed by the High Court and the S.L.P. filed in this Court has also been dismissed by this Court. S.L.P. [C] No.355 of 2015 has also been dismissed along with two other matters by this Court.In view of the various decisions rendered in the same matter which have attained finality, it would not be appropriate to take a different view. Reliance has been placed by learned counsel for the appellant on the decisions of this Court in Surinder Singh Brar & Ors. v. Union of India & Ors. (2013) 1 SCC 403 and Gurbinder Kaur Brar &Anr. v. Union of India & Ors. (2013) 11 SCC 228. In both the cases, the matter was with respect to sanction for land acquisition which was not granted by the appropriate Government i.e., the Administrator. In the instant case, the Advisor had approved the award. Since there is ex- post facto approval and a large number of other matters have already been dismissed, it is not considered appropriate to make interference in this matter on the aforesaid ground, particularly when sanction for acquisition had been granted by the appropriate authority, is not in dispute in the instant matter. | 0 | 4,976 | 1,252 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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of the Notification dated May 17, 1984, and, therefore, the Notification under Section 4(1) shall stand lapsed. We find no substance in the contention. Firstly the case would be dismissed on a short ground that though this plea was available to the petitioner, he did not raise the same in the first instance and that, therefore, by operation of Section 11 C.P.C. it operates as constructive res judicata. Under first proviso to Section 6(1), as amended in the Land Acquisition (Amendment) Act 68 of 1984 through Section 6 thereof that (i) no declaration in respect of any particular land covered by a notification under Section 4, Sub-section (1) shall be published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance. 1967. but before the commencement of the Land Acquisition (Amendment) Act, 1984, after the expiry of three years from the date of the publication of the notification or (ii) after the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of one year from the date of the publication of the notification. In other words, under the pre-Amendment Act the declaration under Section 6(1) shall not be published after the expiry of three years from the date of Section 4(1) publication and after the commencement of the Amendment Act, the State has no power to proceed with the mater and publish the declaration under Section 6(1) after the expiry of one year from the date of the publication of the notification. Explanation 1 thereto provides the method or mode of computation of the period referred to in the first proviso, namely, the period during which any action or proceeding be taken in pursuance of the notification issued under Sub-section (1) of Section 4 being stayed by an order of a Court shall be excluded, In other words, the period occupied by the order of stay made by a Court shall be excluded. Admittedly, pending writ petition on both the occasions the High Court granted stay of dispossession. Admittedly, the validity of tenability of the notification issued and published under Section 4(1) is subject of adjudication before the High Court. Till the writ petitions are disposed of or the appeals following its heels, the stay of dispossession was in operation. Though there is no specific direction prohibiting the publication of the declaration under Section 6, no useful purpose would be served by publishing Section 6(1) declaration pending adjudication of the legality of Section 4(1) notification. If any action is taken to pre-empt the proceedings, it would be stigmatised either as undue haste or action to over-reach the Courts judicial process. Therefore, the period during which the order of dispossession granted by the High Court operated, should be excluded in computation of the period of three years covered by Clause (1) of the first proviso to the Land Acquisition Act. When it is so computed, the declaration published on the second occasion is perfectly valid. Under these circumstances, we do not find any justification to quash the notification published under Section 6 dated May 17, 1984. The review petitions are accordingly dismissed. No costs. 16. In the instant case, various notifications and declarations under sections 4 and 6 were issued on the same date with respect to the same scheme. Thus, they were part and parcel of the same scheme. Thus, the submission raised by learned counsel for the appellant stands rejected. 17. The second and the last submission raised by learned counsel for the appellant is that the award had been approved by the Advisor to the Administrator whereas it was required to be approved by the Administrator. In this connection, reliance has been placed upon the Chandigarh (Delegation of Powers) Act, 1987 (Act No.2 of 1988). Section 3 thereof provides that any power, authority or jurisdiction or any duty which the Administrator may exercise or discharge under any law in force in the Union Territory of Chandigarh may be exercised or discharged also by such officer or other authority as may be specified in this behalf by the Central Government or the Administrator by notification in the Official Gazette, and any appeal or application for revision can be transferred for disposal to an officer or other authority competent under sub-section (1) to dispose of the same. Ex post facto authorisation dated 7.12.2015 has also been placed on record given by the Administrator authorising the Advisor and validating/approving awards. As the award was approved by the Advisor to the Administrator under his delegated authority, ex-post facto sanction had been granted by the Administrator to all the awards. 18. Apart from that the question of an award having been approved by the advisor to the Administrator was raised in C.W.P. No.17935 of 2014 – Gagandeep Kang & Ors. v. Union Territory of Chandigarh. The writ petition was dismissed by the High Court and the S.L.P. filed in this Court has also been dismissed by this Court. S.L.P. [C] No.355 of 2015 has also been dismissed along with two other matters by this Court. 19. In view of the various decisions rendered in the same matter which have attained finality, it would not be appropriate to take a different view. Reliance has been placed by learned counsel for the appellant on the decisions of this Court in Surinder Singh Brar & Ors. v. Union of India & Ors. (2013) 1 SCC 403 and Gurbinder Kaur Brar & Anr. v. Union of India & Ors. (2013) 11 SCC 228. In both the cases, the matter was with respect to sanction for land acquisition which was not granted by the appropriate Government i.e., the Administrator. In the instant case, the Advisor had approved the award. Since there is ex- post facto approval and a large number of other matters have already been dismissed, it is not considered appropriate to make interference in this matter on the aforesaid ground, particularly when sanction for acquisition had been granted by the appropriate authority, is not in dispute in the instant matter.
### Response:
0
### Explanation:
in the case of Puran Chand Gupta & Ors. v. Union of India & Ors., C.A. Nos.663-664 of 2000 decided on 8.8.2001 has observed:The point at issue is covered by the judgment of a Bench of three learned Judges delivered in Yusufbhai Noormohmed Nendoliya vs. State of Gujarat & Anr. (1991 (4) S.C.C. 531). That Judgment has been subsequently followed by several Benches of this court. It has been urged by Mr. R.K. Jain, learned counsel for the appellants, that the view taken therein can be contrary to the interest of the landholder and that, therefore, the Section should be so construed that it refers only to an order of stay obtained by a particular landholder in whose case alone the Explanation would apply. Having regard to the view that has consistently been taken by this court over several years, we are not disposed to take a contrary view and refer the matter to a larger Bench. Accordingly, the civil appeals are dismissed. No order as to costs.10. In Devinder Kumar (supra) also the question about Pocket Nos.8 and 6 was considered and the High Court has held that it would not make any difference in the matter as the scheme was one. Thus, it is apparent that in view of the decision in Puran Chand Gupta (supra) rendered by a 3-Judge Bench of this Court, no case for interference is made out on merits of the case. As the question raised is similar as urged in the aforesaid matter, a large number of matters were decided along with Puran Chand (supra) by the High Court. When the scheme was same i.e. No.3, obviously authorities could not have proceeded further pocket-wise and they were justified not to proceed further in view of the various stay orders granted by the High Court from time to time with respect to different pockets of the scheme No.3.In view of the decision in Puran Chand Gupta (supra) which has dealt with the case by a reasoned order, we do not find it appropriate to interfere on the aforesaid ground urged by learned counsel appearing on behalf of the appellants.Thus, it is apparent that when the stay has been granted in one matter and when the scheme was one, authorities were justified in the facts and circumstances of the instant case to stay their hands. Moreover, a large number of writ petitions have been dismissed by the High Court and orders have attained finality and this Court has also dismissed the appeals/S.L.P.s. Thus, we are not inclined to take a different view in the instant case.13. Learned counsel has also referred to the decision of Government of T.N. & Anr. v. Vasantha Bai (1995) Supp. 2 SCC 423, in which this Court has considered the object of section 11A as delay in passing the award would cause untold hardship and in case the award was not passed within the time limit, the acquisition would lapse. Yusufbhais decision (supra) has been relied upon so also the decision of Singappa v. State of Karnataka (supra). There is no dispute with the proposition laid down in the aforesaid decisions. However, facts of each and every case have to be seen and whether time can be excluded or not, it has also been laid down that the time spent during which there was stay, has to be excluded. Thus, no sustenance can be derived from the aforesaid decision of Vasantha Bai (supra) by the appellants14. Learned counsel has also relied upon Yusufbhai Noormohmed Nendoliya v. State of Gujarat & Anr. (1991) 4 SCC 531 in which this Court has opined that the Explanation to section 11A is in the widest possible terms and there is no warrant for limiting the action or proceedings referred to in the Explanation to actions or proceedings preceding the making of the award under section 11. Therefore, the period of an injunction obtained by the landholder from the High Courttaking possession of the land has to be excluded in computing the period of two years. The decision is of no help to the submission espoused on behalf16. In the instant case, various notifications and declarations under sections 4 and 6 were issued on the same date with respect to the same scheme. Thus, they were part and parcel of the same scheme. Thus, the submission raised by learned counsel for the appellant stands rejected.As the award was approved by the Advisor to the Administrator under his delegated authority, ex-post facto sanction had been granted by the Administrator to all the awards.18. Apart from that the question of an award having been approved by the advisor to the Administrator was raised in C.W.P. No.17935 of 2014 – Gagandeep Kang & Ors. v. Union Territory of Chandigarh. The writ petition was dismissed by the High Court and the S.L.P. filed in this Court has also been dismissed by this Court. S.L.P. [C] No.355 of 2015 has also been dismissed along with two other matters by this Court.In view of the various decisions rendered in the same matter which have attained finality, it would not be appropriate to take a different view. Reliance has been placed by learned counsel for the appellant on the decisions of this Court in Surinder Singh Brar & Ors. v. Union of India & Ors. (2013) 1 SCC 403 and Gurbinder Kaur Brar &Anr. v. Union of India & Ors. (2013) 11 SCC 228. In both the cases, the matter was with respect to sanction for land acquisition which was not granted by the appropriate Government i.e., the Administrator. In the instant case, the Advisor had approved the award. Since there is ex- post facto approval and a large number of other matters have already been dismissed, it is not considered appropriate to make interference in this matter on the aforesaid ground, particularly when sanction for acquisition had been granted by the appropriate authority, is not in dispute in the instant matter.
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Tarun Bharat Sangh Vs. Union of India | Jeevan Reddy and N. Venkatachala (J. J.)1. These review petit ions are filed by M/s Starke and Company Private Limited which holds certain mining leases in the area covered by our order dated 8-4-1993. At the insistent request of Shri M.C. Bhandare, we directed these review petitions to be posted for hearing in Court. Accordingly, we have heard Shri Bhandare at some length.2. The main contention of the review-petitioner is that the mines in respect of which it holds leases are not within the protected forest area notified in the notifi cation, dated 1-1-1975 issued by the Government of Rajasthan under Section 29 of the Rajasthan Forest Act. It is submitted that the Jain Committee Report is wrong insofar as it holds that the review-petitioners mines fall within the protected forest area. 3. In our opinion, there are a number of reasons why these review petitions cannot be allowed: (1) Before determining the protected forest area, Justice Jain Committee heard all the parties concerned. It is an admitted fact that the re view-petitioner was represented before the Jain Committee and a plea had been put forward on its behalf (through Shri Bhupendra Consul) that its mines are outside the Survey No. 145. The review-petitioner, however, chose not to represent it self in subsequent hearings before the committee and also did not care to produce any material in support of its plea that its mines are situated outside the protected forest area.(2) The case of review-petitioner itself is that it is one of those 57 mines which were closed by the Government of Rajasthan even in the month of February 1993. It is said that it then approached this Court by way of an application but no such application was placed before us at the hearing of the matter i n March/April 1993 or at any time before the orders dated 8-4-1993 were pronounced. Even today, no such application is placed before us. Only an assertion is made that such an application was filed but that it was not placed before the Court. The allegation has remained unestablished. This shows that the petitioner was not vigilant and has been sleeping over his rights, if any. The petitioner cannot say that it was not aware of all that was going on in this Court or that it was not aware of the proceedings of the committee. An oral assertion is made that the committee told the petitioner that it is inquiring into the notification dated 1-1-1975 and that it will take up 1966 notification later. On the basis of the said intimation, the petitioner says, it kept quiet and did not participate in the proceedings before the committee. This oral assertion cannot be accepted. No material has been produced in support of the same.(3) The report of the Justice Jain Committee shows (vide p. 434 of the record) that the committee has not only considered the notification dated 1-1-1975 but also the notification of 1966 and it is on that basis that it has determined the protected areas in the villages concerned including in Nangalheri, which is the village concerned herein. The list of mines (Appendix A enclosed to the report) clearly mentions at SI. Nos. 37-38 that the mines of the review-petitioner are situated within the protected forest area. If in spite of this, the review-petitioner chose to remain quiet and did not take any proceedings at the appropriate time, it has to blame itself, if indeed it is suffering any prejudice on account of the orders of this Court dated 8-4-1993. | 0[ds]3. In our opinion, there are a number of reasons why these review petitions cannot beBefore determining the protected forest area, Justice Jain Committee heard all the parties concerned. It is an admitted fact that the re view-petitioner was represented before the Jain Committee and a plea had been put forward on its behalf (through Shri Bhupendra Consul) that its mines are outside the Survey No. 145. The review-petitioner, however, chose not to represent it self in subsequent hearings before the committee and also did not care to produce any material in support of its plea that its mines are situated outside the protected forest area.(2) The case of review-petitioner itself is that it is one of those 57 mines which were closed by the Government of Rajasthan even in the month of February 1993. It is said that it then approached this Court by way of an application but no such application was placed before us at the hearing of the matter i n March/April 1993 or at any time before the orders dated 8-4-1993 were pronounced. Even today, no such application is placed before us. Only an assertion is made that such an application was filed but that it was not placed before the Court. The allegation has remained unestablished. This shows that the petitioner was not vigilant and has been sleeping over his rights, if any. The petitioner cannot say that it was not aware of all that was going on in this Court or that it was not aware of the proceedings of the committee. An oral assertion is made that the committee told the petitioner that it is inquiring into the notification dated 1-1-1975 and that it will take up 1966 notification later. On the basis of the said intimation, the petitioner says, it kept quiet and did not participate in the proceedings before the committee. This oral assertion cannot be accepted. No material has been produced in support of the same.(3) The report of the Justice Jain Committee shows (vide p. 434 of the record) that the committee has not only considered the notification dated 1-1-1975 but also the notification of 1966 and it is on that basis that it has determined the protected areas in the villages concerned including in Nangalheri, which is the village concerned herein. | 0 | 656 | 427 | ### 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:
Jeevan Reddy and N. Venkatachala (J. J.)1. These review petit ions are filed by M/s Starke and Company Private Limited which holds certain mining leases in the area covered by our order dated 8-4-1993. At the insistent request of Shri M.C. Bhandare, we directed these review petitions to be posted for hearing in Court. Accordingly, we have heard Shri Bhandare at some length.2. The main contention of the review-petitioner is that the mines in respect of which it holds leases are not within the protected forest area notified in the notifi cation, dated 1-1-1975 issued by the Government of Rajasthan under Section 29 of the Rajasthan Forest Act. It is submitted that the Jain Committee Report is wrong insofar as it holds that the review-petitioners mines fall within the protected forest area. 3. In our opinion, there are a number of reasons why these review petitions cannot be allowed: (1) Before determining the protected forest area, Justice Jain Committee heard all the parties concerned. It is an admitted fact that the re view-petitioner was represented before the Jain Committee and a plea had been put forward on its behalf (through Shri Bhupendra Consul) that its mines are outside the Survey No. 145. The review-petitioner, however, chose not to represent it self in subsequent hearings before the committee and also did not care to produce any material in support of its plea that its mines are situated outside the protected forest area.(2) The case of review-petitioner itself is that it is one of those 57 mines which were closed by the Government of Rajasthan even in the month of February 1993. It is said that it then approached this Court by way of an application but no such application was placed before us at the hearing of the matter i n March/April 1993 or at any time before the orders dated 8-4-1993 were pronounced. Even today, no such application is placed before us. Only an assertion is made that such an application was filed but that it was not placed before the Court. The allegation has remained unestablished. This shows that the petitioner was not vigilant and has been sleeping over his rights, if any. The petitioner cannot say that it was not aware of all that was going on in this Court or that it was not aware of the proceedings of the committee. An oral assertion is made that the committee told the petitioner that it is inquiring into the notification dated 1-1-1975 and that it will take up 1966 notification later. On the basis of the said intimation, the petitioner says, it kept quiet and did not participate in the proceedings before the committee. This oral assertion cannot be accepted. No material has been produced in support of the same.(3) The report of the Justice Jain Committee shows (vide p. 434 of the record) that the committee has not only considered the notification dated 1-1-1975 but also the notification of 1966 and it is on that basis that it has determined the protected areas in the villages concerned including in Nangalheri, which is the village concerned herein. The list of mines (Appendix A enclosed to the report) clearly mentions at SI. Nos. 37-38 that the mines of the review-petitioner are situated within the protected forest area. If in spite of this, the review-petitioner chose to remain quiet and did not take any proceedings at the appropriate time, it has to blame itself, if indeed it is suffering any prejudice on account of the orders of this Court dated 8-4-1993.
### Response:
0
### Explanation:
3. In our opinion, there are a number of reasons why these review petitions cannot beBefore determining the protected forest area, Justice Jain Committee heard all the parties concerned. It is an admitted fact that the re view-petitioner was represented before the Jain Committee and a plea had been put forward on its behalf (through Shri Bhupendra Consul) that its mines are outside the Survey No. 145. The review-petitioner, however, chose not to represent it self in subsequent hearings before the committee and also did not care to produce any material in support of its plea that its mines are situated outside the protected forest area.(2) The case of review-petitioner itself is that it is one of those 57 mines which were closed by the Government of Rajasthan even in the month of February 1993. It is said that it then approached this Court by way of an application but no such application was placed before us at the hearing of the matter i n March/April 1993 or at any time before the orders dated 8-4-1993 were pronounced. Even today, no such application is placed before us. Only an assertion is made that such an application was filed but that it was not placed before the Court. The allegation has remained unestablished. This shows that the petitioner was not vigilant and has been sleeping over his rights, if any. The petitioner cannot say that it was not aware of all that was going on in this Court or that it was not aware of the proceedings of the committee. An oral assertion is made that the committee told the petitioner that it is inquiring into the notification dated 1-1-1975 and that it will take up 1966 notification later. On the basis of the said intimation, the petitioner says, it kept quiet and did not participate in the proceedings before the committee. This oral assertion cannot be accepted. No material has been produced in support of the same.(3) The report of the Justice Jain Committee shows (vide p. 434 of the record) that the committee has not only considered the notification dated 1-1-1975 but also the notification of 1966 and it is on that basis that it has determined the protected areas in the villages concerned including in Nangalheri, which is the village concerned herein.
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Pandurang Dnyanoba Lad Vs. Dada Rama Methe & Ors | landlord and tenant came intro existence between them and since the respondents did not exercise their right to repurchase the land within the period prescribed by section 32-O of the Tenancy Act, they have forfeited that right. According to the appellant, the provisions of the Tenancy Act and the Alienations Abolition Act are in a material respect inconsistent and the inconsistency has to be resolved by giving precedence to the latter Act.The merit of these contentions depends upon the validity of the basic that with the abolition of Inams which the Alienations Abolition act brought about, the relationship of landlord and tenant between the appellant and the respondents came to an end. We see no warrant for this premise.3. By section 4 of the Alienations Abolition Act, all alienations in the merged territories were abolished with effect from the appointed date. As a result of the abolition of Inams effected by section 4, all alienated lands became liable under section S to the payment of land revenue in accordance with the provisions of the Bombay Land Revenue Code, 1879. Sections 6, 7, 8 and 9 of the Alienations Abolition Act provide for the grant of occupancy rights in respect of the erstwhile Inam lands. There is no provision in that Act by virtue of which the relationship of landlord and tenant between the ex Inamdar and his tenant would stand extinguished. On the contrary, section 28 provides that nothing contained in the Act shall in any way be deemed to affect the application of any of the provisions of the Tenancy Act to any alienated land or, "the mutual rights and obligations of a landlord and his tenants save in so far as the said provisions are not in any way inconsistent with the express provisions of this Act". None of the provisions of the Tenancy Act, particularly the provision contained in section 32 of the Tenancy Act under which tenants became entitled to purchase the lands held by them in that capacity on the tillers day, is in any way inconsistent with any of the express provisions of the Alienations Abolition Act. Section 32 of the Tenancy Act must therefore govern the rights of the ex-Inamdar and his tenants notwithstanding the abolition of the Inams brought about by the Alienations Abolition Act. Since the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act, they are entitled to purchase the land under section 32. Consequently, it was competent to the Agricultural Lands Tribunal to commence the price fixation proceedings under section 32G of the Tenancy Act.Section 32-o of the Tenancy Act applies only to tenancies created after the tillers day. It provides that in respect of such tenancies, a tenant desirous of exercising the right of purchase must give an intimation to the landlord and the Tribunal within one year from the commencement of his tenancy. As observed by us, the relationship of landlord and tenant between the appellant and respondents did not come to an end on the introduction of the Alienations Abolition Act nor indeed is there any legal justification for the theory that on the cesser of that relationship a new relationship of landlord and tenant came into existence between the parties so as to attract the application of section 32G. The object of the Alienations Abolition A ct was "to abolish .... alienations of miscellaneous character 2 prevailing in the merged territories", that is to say, to abolish the Inam grants prevailing in those territories. The elimination of Inamdars as intermediaries, not the eviction of the tillers of the soil, was the object of that Act. By section 4, what was abolished was all alienations, all rights legally subsisting in respect of a1ienations and all other incidents of such alienations. A tenancy created by a n Inamdar is not a right in respect of the alienation nor an incident of the alienation. In simple words, all rights of the Inamdars stood determined on the introduction of the Alienations Abolition Act; the rights of tenants continued to exist and were expressly protected by section 28 of the Alienations Abolition Act.4. The provision contained in section 32G(6) of the Tenancy Act shows that nothing contained in the Alienations Abolition Act can affect the tenants right of purchase under section 32. Section 32G(6) provides that if any land is re-granted to the holder under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule IlI of the Tenancy Act on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding the land on lease created before the re-grant and such person shall, as a tenant, be deemed to have purchased the land under section 32G as if the condition that it was not transferable was not the condition of re-grant. The Alienations Abolition Act is included in Schedule III of the Tenancy Act as item No. 21. Thus, even if the land, after the abolition of the Inam effected under the Alie nations Abolition Act, was re-granted to the appellant on condition that it was not transferable, such a condition cannot affect the right of the respondent to purchase the land under section 32 and 32G of the Tenancy Act. In other words, the statutory purchase of a land by a tenant under the provisions of the Tenancy Act is excepted from the restraint of non-transferability. It is undisputed that the respondents were holding the land on. a lease created before the occupancy rights were re-g ranted to the appellant on the abolition of the Inam. The questions raised before us on behalf of the appellant merited careful consideration and we would have been happy to have the benefit of a considered judgment by the High Court. But the Revenue Tribunal was right in its decision and so the summary dismissal of the Writ Petition by the High Court has not caused any failure of justice.5. | 0[ds]The merit of these contentions depends upon the validity of the basic that with the abolition of Inams which the Alienations Abolition act brought about, the relationship of landlord and tenant between the appellant and the respondents came to an end. We see no warrant for thisprovision contained in section 32G(6) of the Tenancy Act shows that nothing contained in the Alienations Abolition Act can affect the tenants right of purchase under section 32. Section 32G(6) provides that if any land is re-granted to the holder under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule IlI of the Tenancy Act on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding the land on lease created before the re-grant and such person shall, as a tenant, be deemed to have purchased the land under section 32G as if the condition that it was not transferable was not the condition of re-grant. The Alienations Abolition Act is included in Schedule III of the Tenancy Act as item No. 21. Thus, even if the land, after the abolition of the Inam effected under the Alie nations Abolition Act, was re-granted to the appellant on condition that it was not transferable, such a condition cannot affect the right of the respondent to purchase the land under section 32 and 32G of the Tenancy Act. In other words, the statutory purchase of a land by a tenant under the provisions of the Tenancy Act is excepted from the restraint of non-transferability. It is undisputed that the respondents were holding the land on. a lease created before the occupancy rights were re-g ranted to the appellant on the abolition of the Inam. The questions raised before us on behalf of the appellant merited careful consideration and we would have been happy to have the benefit of a considered judgment by the High Court. But the Revenue Tribunal was right in its decision and so the summary dismissal of the Writ Petition by the High Court has not caused any failure of justice. | 0 | 1,492 | 384 | ### 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:
landlord and tenant came intro existence between them and since the respondents did not exercise their right to repurchase the land within the period prescribed by section 32-O of the Tenancy Act, they have forfeited that right. According to the appellant, the provisions of the Tenancy Act and the Alienations Abolition Act are in a material respect inconsistent and the inconsistency has to be resolved by giving precedence to the latter Act.The merit of these contentions depends upon the validity of the basic that with the abolition of Inams which the Alienations Abolition act brought about, the relationship of landlord and tenant between the appellant and the respondents came to an end. We see no warrant for this premise.3. By section 4 of the Alienations Abolition Act, all alienations in the merged territories were abolished with effect from the appointed date. As a result of the abolition of Inams effected by section 4, all alienated lands became liable under section S to the payment of land revenue in accordance with the provisions of the Bombay Land Revenue Code, 1879. Sections 6, 7, 8 and 9 of the Alienations Abolition Act provide for the grant of occupancy rights in respect of the erstwhile Inam lands. There is no provision in that Act by virtue of which the relationship of landlord and tenant between the ex Inamdar and his tenant would stand extinguished. On the contrary, section 28 provides that nothing contained in the Act shall in any way be deemed to affect the application of any of the provisions of the Tenancy Act to any alienated land or, "the mutual rights and obligations of a landlord and his tenants save in so far as the said provisions are not in any way inconsistent with the express provisions of this Act". None of the provisions of the Tenancy Act, particularly the provision contained in section 32 of the Tenancy Act under which tenants became entitled to purchase the lands held by them in that capacity on the tillers day, is in any way inconsistent with any of the express provisions of the Alienations Abolition Act. Section 32 of the Tenancy Act must therefore govern the rights of the ex-Inamdar and his tenants notwithstanding the abolition of the Inams brought about by the Alienations Abolition Act. Since the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act, they are entitled to purchase the land under section 32. Consequently, it was competent to the Agricultural Lands Tribunal to commence the price fixation proceedings under section 32G of the Tenancy Act.Section 32-o of the Tenancy Act applies only to tenancies created after the tillers day. It provides that in respect of such tenancies, a tenant desirous of exercising the right of purchase must give an intimation to the landlord and the Tribunal within one year from the commencement of his tenancy. As observed by us, the relationship of landlord and tenant between the appellant and respondents did not come to an end on the introduction of the Alienations Abolition Act nor indeed is there any legal justification for the theory that on the cesser of that relationship a new relationship of landlord and tenant came into existence between the parties so as to attract the application of section 32G. The object of the Alienations Abolition A ct was "to abolish .... alienations of miscellaneous character 2 prevailing in the merged territories", that is to say, to abolish the Inam grants prevailing in those territories. The elimination of Inamdars as intermediaries, not the eviction of the tillers of the soil, was the object of that Act. By section 4, what was abolished was all alienations, all rights legally subsisting in respect of a1ienations and all other incidents of such alienations. A tenancy created by a n Inamdar is not a right in respect of the alienation nor an incident of the alienation. In simple words, all rights of the Inamdars stood determined on the introduction of the Alienations Abolition Act; the rights of tenants continued to exist and were expressly protected by section 28 of the Alienations Abolition Act.4. The provision contained in section 32G(6) of the Tenancy Act shows that nothing contained in the Alienations Abolition Act can affect the tenants right of purchase under section 32. Section 32G(6) provides that if any land is re-granted to the holder under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule IlI of the Tenancy Act on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding the land on lease created before the re-grant and such person shall, as a tenant, be deemed to have purchased the land under section 32G as if the condition that it was not transferable was not the condition of re-grant. The Alienations Abolition Act is included in Schedule III of the Tenancy Act as item No. 21. Thus, even if the land, after the abolition of the Inam effected under the Alie nations Abolition Act, was re-granted to the appellant on condition that it was not transferable, such a condition cannot affect the right of the respondent to purchase the land under section 32 and 32G of the Tenancy Act. In other words, the statutory purchase of a land by a tenant under the provisions of the Tenancy Act is excepted from the restraint of non-transferability. It is undisputed that the respondents were holding the land on. a lease created before the occupancy rights were re-g ranted to the appellant on the abolition of the Inam. The questions raised before us on behalf of the appellant merited careful consideration and we would have been happy to have the benefit of a considered judgment by the High Court. But the Revenue Tribunal was right in its decision and so the summary dismissal of the Writ Petition by the High Court has not caused any failure of justice.5.
### Response:
0
### Explanation:
The merit of these contentions depends upon the validity of the basic that with the abolition of Inams which the Alienations Abolition act brought about, the relationship of landlord and tenant between the appellant and the respondents came to an end. We see no warrant for thisprovision contained in section 32G(6) of the Tenancy Act shows that nothing contained in the Alienations Abolition Act can affect the tenants right of purchase under section 32. Section 32G(6) provides that if any land is re-granted to the holder under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule IlI of the Tenancy Act on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding the land on lease created before the re-grant and such person shall, as a tenant, be deemed to have purchased the land under section 32G as if the condition that it was not transferable was not the condition of re-grant. The Alienations Abolition Act is included in Schedule III of the Tenancy Act as item No. 21. Thus, even if the land, after the abolition of the Inam effected under the Alie nations Abolition Act, was re-granted to the appellant on condition that it was not transferable, such a condition cannot affect the right of the respondent to purchase the land under section 32 and 32G of the Tenancy Act. In other words, the statutory purchase of a land by a tenant under the provisions of the Tenancy Act is excepted from the restraint of non-transferability. It is undisputed that the respondents were holding the land on. a lease created before the occupancy rights were re-g ranted to the appellant on the abolition of the Inam. The questions raised before us on behalf of the appellant merited careful consideration and we would have been happy to have the benefit of a considered judgment by the High Court. But the Revenue Tribunal was right in its decision and so the summary dismissal of the Writ Petition by the High Court has not caused any failure of justice.
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M/S. Harish Chandra & Company Vs. State Of U.P. Thr. Superintending Eng | evidence. It was not permissible in law; Thirdly, the High Court should have confined its inquiry to find out as to whether any legal misconduct was committed by the arbitrator and, if so, how and in what manner. It was, however, not done; Fourthly, the High Court went into the factual question by referring to clause 26 of the agreement for holding that the arbitrator passed an award contrary to clause 26 and thereby traveled beyond the terms of agreement which constituted a legal misconduct on his part. This finding, in our view, is, on the face of it, untenable in law for the reason, inter alia, that this objection was neither raised before the arbitrator and nor before the Trial Court in the manner in which it was raised for the first time in the High Court. In any event, in the absence of any finding recorded by the arbitrator and the Trial Court, such issue could not have been gone into for the first time in appeal by the High Court. That apart, it has otherwise no substance on facts for the simple reason that it being a question of fact, the same could not be examined in appeal; Fifthly, the High Court failed to see that clause 26 only prohibits the appellant from assigning the agreement to any third person. Clause 26, therefore, had nothing to do with the claims filed by the appellants. It was an admitted fact that the appellant did not assign the agreement to any third person. If some work was got done by the appellant by employing some small contractor then it did not constitute a case of assignment of a whole agreement in favour of small contractors within the meaning of clause 26 so as to empower the State to cancel the agreement on such ground. The finding of the High Court that the award is rendered bad because it was passed in contravention of clause 26 of the agreement is, therefore, not legally sustainable in law; Sixthly, the High Court further failed to see that there was no error apparent on the face of the record in the findings recorded by the arbitrator; Seventhly, the High Court also failed to see that the Trial Court had elaborately gone into all the factual issues and rightly did not find any substance in the objections raised by the respondent; and lastly, the award being a reasoned one (running into 36 pages-Annexure P5 pages 127-163 of the SLP paper book), the reasoning of the arbitrator could not be said to be perverse to the extent that no man with ordinary prudence could take such view and nor any finding of the arbitrator was against any provision of law or in contravention of any of the clauses of the agreement so as to constitute a case of legal misconduct on the part of the arbitrator within the meaning of Section 30 of the Act for setting aside an award. 38) We, on perusal of the award, find that the main claim of the appellant (claimant) against the State was claim No. 12 which was in relation to the work done by the appellant of breaking of large pieces of hard rock from 9.00 Km to 9.80 Km distance. Since the respondent (State) disputed the appellants claim on various factual grounds and hence the issue centered around to the questions as to whether the appellant did this work and, if so, how and in what manner and to what extent and lastly, what should be the rate at which the appellant should be paid, if it is held that the appellant has done the work. 39) The arbitrator in Paras 19 to 36 of the award examined these issues on the basis of the evidence adduced by the parties and held that the appellant has done the work in question and, therefore, they were entitled to claim its price for the work done. Though the appellant, in their claim petition, claimed the money at the rate of Rs.30 per Cu M but the arbitrator did not accept the rates claimed by the appellant and instead awarded the amount to the appellant at the rate of Rs.12.97 per Cu.M. 40) So far as claim No. 13 was concerned, it pertained to interest claimed by the appellant on their some amount whereas the claim No. 17 was in relation to some deductions already made by the respondent in the appellants bills for certain work done under the agreement. 41) In our considered view, it is clear from the facts of the case that the claims made by the appellant were essentially based on facts. They were accordingly probed on oral and documentary evidence adduced by the parties, which resulted in partial success of 3 claims in appellants favour and rejection of 3 claims. So far as the State is concerned, they did not pursue their counter claim consequent upon its rejection by the arbitrator. 42) We have not been able to notice any kind of perversity in the arbitrators reasoning and nor are we able to notice any kind of apparent error whether legal or otherwise in the award which may constitute a case of any legal misconduct on the part of the arbitrator empowering the Court to set aside the award by taking recourse to Section 30 of the Act. The reasoning and the conclusion arrived at by the arbitrator is one of the possible view which is capable of being taken by the arbitrator on the material brought on record and we find no legal ground to set it aside the same. 43) Learned counsel for the respondent made sincere attempt to support the reasoning and the conclusion reached by the High Court but in the light of what we have discussed above, we can not accept any of his submissions. 44) In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the High Court. | 1[ds]41) In our considered view, it is clear from the facts of the case that the claims made by the appellant were essentially based on facts. They were accordingly probed on oral and documentary evidence adduced by the parties, which resulted in partial success of 3 claims in appellants favour and rejection of 3 claims. So far as the State is concerned, they did not pursue their counter claim consequent upon its rejection by the arbitrator42) We have not been able to notice any kind of perversity in the arbitrators reasoning and nor are we able to notice any kind of apparent error whether legal or otherwise in the award which may constitute a case of any legal misconduct on the part of the arbitrator empowering the Court to set aside the award by taking recourse to Section 30 of the Act. The reasoning and the conclusion arrived at by the arbitrator is one of the possible view which is capable of being taken by the arbitrator on the material brought on record and we find no legal ground to set it aside the samewe are unable to concur with the reasoning and the conclusion arrived at by the High Court | 1 | 4,886 | 213 | ### 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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evidence. It was not permissible in law; Thirdly, the High Court should have confined its inquiry to find out as to whether any legal misconduct was committed by the arbitrator and, if so, how and in what manner. It was, however, not done; Fourthly, the High Court went into the factual question by referring to clause 26 of the agreement for holding that the arbitrator passed an award contrary to clause 26 and thereby traveled beyond the terms of agreement which constituted a legal misconduct on his part. This finding, in our view, is, on the face of it, untenable in law for the reason, inter alia, that this objection was neither raised before the arbitrator and nor before the Trial Court in the manner in which it was raised for the first time in the High Court. In any event, in the absence of any finding recorded by the arbitrator and the Trial Court, such issue could not have been gone into for the first time in appeal by the High Court. That apart, it has otherwise no substance on facts for the simple reason that it being a question of fact, the same could not be examined in appeal; Fifthly, the High Court failed to see that clause 26 only prohibits the appellant from assigning the agreement to any third person. Clause 26, therefore, had nothing to do with the claims filed by the appellants. It was an admitted fact that the appellant did not assign the agreement to any third person. If some work was got done by the appellant by employing some small contractor then it did not constitute a case of assignment of a whole agreement in favour of small contractors within the meaning of clause 26 so as to empower the State to cancel the agreement on such ground. The finding of the High Court that the award is rendered bad because it was passed in contravention of clause 26 of the agreement is, therefore, not legally sustainable in law; Sixthly, the High Court further failed to see that there was no error apparent on the face of the record in the findings recorded by the arbitrator; Seventhly, the High Court also failed to see that the Trial Court had elaborately gone into all the factual issues and rightly did not find any substance in the objections raised by the respondent; and lastly, the award being a reasoned one (running into 36 pages-Annexure P5 pages 127-163 of the SLP paper book), the reasoning of the arbitrator could not be said to be perverse to the extent that no man with ordinary prudence could take such view and nor any finding of the arbitrator was against any provision of law or in contravention of any of the clauses of the agreement so as to constitute a case of legal misconduct on the part of the arbitrator within the meaning of Section 30 of the Act for setting aside an award. 38) We, on perusal of the award, find that the main claim of the appellant (claimant) against the State was claim No. 12 which was in relation to the work done by the appellant of breaking of large pieces of hard rock from 9.00 Km to 9.80 Km distance. Since the respondent (State) disputed the appellants claim on various factual grounds and hence the issue centered around to the questions as to whether the appellant did this work and, if so, how and in what manner and to what extent and lastly, what should be the rate at which the appellant should be paid, if it is held that the appellant has done the work. 39) The arbitrator in Paras 19 to 36 of the award examined these issues on the basis of the evidence adduced by the parties and held that the appellant has done the work in question and, therefore, they were entitled to claim its price for the work done. Though the appellant, in their claim petition, claimed the money at the rate of Rs.30 per Cu M but the arbitrator did not accept the rates claimed by the appellant and instead awarded the amount to the appellant at the rate of Rs.12.97 per Cu.M. 40) So far as claim No. 13 was concerned, it pertained to interest claimed by the appellant on their some amount whereas the claim No. 17 was in relation to some deductions already made by the respondent in the appellants bills for certain work done under the agreement. 41) In our considered view, it is clear from the facts of the case that the claims made by the appellant were essentially based on facts. They were accordingly probed on oral and documentary evidence adduced by the parties, which resulted in partial success of 3 claims in appellants favour and rejection of 3 claims. So far as the State is concerned, they did not pursue their counter claim consequent upon its rejection by the arbitrator. 42) We have not been able to notice any kind of perversity in the arbitrators reasoning and nor are we able to notice any kind of apparent error whether legal or otherwise in the award which may constitute a case of any legal misconduct on the part of the arbitrator empowering the Court to set aside the award by taking recourse to Section 30 of the Act. The reasoning and the conclusion arrived at by the arbitrator is one of the possible view which is capable of being taken by the arbitrator on the material brought on record and we find no legal ground to set it aside the same. 43) Learned counsel for the respondent made sincere attempt to support the reasoning and the conclusion reached by the High Court but in the light of what we have discussed above, we can not accept any of his submissions. 44) In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the High Court.
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1
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41) In our considered view, it is clear from the facts of the case that the claims made by the appellant were essentially based on facts. They were accordingly probed on oral and documentary evidence adduced by the parties, which resulted in partial success of 3 claims in appellants favour and rejection of 3 claims. So far as the State is concerned, they did not pursue their counter claim consequent upon its rejection by the arbitrator42) We have not been able to notice any kind of perversity in the arbitrators reasoning and nor are we able to notice any kind of apparent error whether legal or otherwise in the award which may constitute a case of any legal misconduct on the part of the arbitrator empowering the Court to set aside the award by taking recourse to Section 30 of the Act. The reasoning and the conclusion arrived at by the arbitrator is one of the possible view which is capable of being taken by the arbitrator on the material brought on record and we find no legal ground to set it aside the samewe are unable to concur with the reasoning and the conclusion arrived at by the High Court
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The Tax Recovery Officer, II, Sadar Nagpur Vs. Gangadhar Vishwanath Rande (dead) through Mrs. Shobas Ravindra Nemiwant | Rules 59 to 62 of Order XXI, prior to the amendment of 1976, provide for a summary investigation into possession as distinct from a thorough trial of ultimate right. No doubt, it is impossible to separate altogether the question of possession and of title. Thus, if the judgment-debtor was in possession, he may have been in possession as agent or trustee for another, and this has to be enquired into. To that extent title may be a part of the inquiry. Similarly, if the property attached is claimed by a third party who adduces evidence to show that he was possessed of the property under some kind of a title, the property will have to be released from attachment. The procedure is not meant to decide intricate questions of law as to title to the property. Therefore, where a claim is made to the property attached, by someone claiming to be a transferee from the judgment-debtor and the claim is disallowed, the claimant can institute a suit under Order XXI, Rule 63 to establish his title to the property. In such a suit it would be open to the attaching creditor to plead in defence that the transfer was in fraud of the general body of creditors and was void under Section 53 of the Transfer of Property Act. Similarly, if the claim of the transferee is allowed, the attaching creditor may sue on behalf of himself and all other creditors under Section 53 of the Transfer of Property Act for a declaration that the transfer was void as it was in fraud of the creditors. 11. In the case of C. Abdul Shukkoor Saheb v Arji Papa Rao deceased by his heirs and Lrs and Ors, AIR 1963 SC 1150 at page 1158, this Court considered, inter alia, the nature of the proceedings under Order XXI, Rules 58 to 61 prior to the amendment of the Civil Procedure Code in 1976. This Court observed, "In the summary proceedings under Order XXI, Rule 58 to 61, having regard to the terms of Rule 61, the Court is concerned only with the question as to whether the transferee is in possession of the property in his own right and not on behalf of the judgment-debtor. When a transfer is real, though it is liable to be impeached as a fraud on creditors, and the transferee has entered into possession, he would succeed in the summary proceedings, with the result that it is the defeated attaching creditor who would have to figure as a plaintiff........ In every case, therefore, where a transfer is real, but it is liable to set aside under Section 53(1) of the Transfer of Property Act, on the provisions of Order XXI, Rules 58 to 61 Civil Procedure Code, the transferee is bound to succeed in the summary proceedings and the attaching decree- holder would have to figure as a plaintiff......" This Court also held that where the suit is filed by the transferee if the decision in the summary proceedings goes against him, it is open to the attaching creditor to plead in his defence that the transaction is vitiated by fraud and is void under section 53 of the Transfer of Property Act. 12. In the light of this discussion about the provisions of Order XXI, Rules 58 to 63, if we examine Rule 11(4) of the Second Schedule to the Income-tax Act, it is clear that the Tax Recovery Officer is required to examine whether the possession of the third party is of a claimant in his own right or in trust for the assessee or on account of the assessee. If he comes to a conclusion that the transferee is in possession in his or her own right, he will have to raise the attachment. If the Department desires to have the desire transaction of transfer declared void under Section 281, the Department being in the position of a creditor, will have to file a suit for a declaration that the transaction of transfer is void under Section 281 of the Income Tax Act.13. In the present case the Tax Recovery Officer could not have examined whether the transfer was void under Section 281 of the Income Tax Act. His adjudication of the transfer as void under Section 281 is without jurisdiction. The Tax Recovery Officer has relied upon the earlier order of the Income Tax Officer dated 9.5.1974 declaring that the transactions is void under Section 281 of the Income Tax Act. In the earlier proceedings, however, although the High Court has not set aside this order of the Income Tax Officer, the High Court has expressly held that the order amounted only to an intention of declaration on the part of the Department to treat the transaction as void under Section 281. such a declaration cannot affect the legal rights of the parties affected under Rule 11. The High Court expressly held that the rights of the parties under Rule 11 were not affected in any way by this declaration. The Department, therefore, cannot proceed on the assumption that the transaction is void under Section 281, nor can the Tax Recovery Officer, while proceeding under Rule 11, declare a transaction of transfer as void under Section 281 by relying on the Order of 9.5.1974 or otherwise. His jurisdiction relates to examine possession, and only incidentally, any question of right to possession as claimed by the Objector. The High Court has, therefore, rightly set aside the order of the Tax Recovery Officer.14. However, the right of the Department to have the transfer declared as void under Section 281 of the Income Tax Act, as it stood at the relevant time, is not thereby taken away. We are informed that the property continues to be under attachment by virtue of interim orders passed in this appeal. The Department may, if it so desires, take appropriate proceedings in accordance with law for having the transfer declared as void under Section 281 of the Income-tax Act. | 0[ds]No doubt, it is impossible to separate altogether the question of possession and of title. Thus, if thewas in possession, he may have been in possession as agent or trustee for another, and this has to be enquired into. To that extent title may be a part of the inquiry. Similarly, if the property attached is claimed by a third party who adduces evidence to show that he was possessed of the property under some kind of a title, the property will have to be released from attachment. The procedure is not meant to decide intricate questions of law as to title to the property. Therefore, where a claim is made to the property attached, by someone claiming to be a transferee from theand the claim is disallowed, the claimant can institute a suit under Order XXI, Rule 63 to establish his title to the property. In such a suit it would be open to the attaching creditor to plead in defence that the transfer was in fraud of the general body of creditors and was void under Section 53 of the Transfer of Property Act. Similarly, if the claim of the transferee is allowed, the attaching creditor may sue on behalf of himself and all other creditors under Section 53 of the Transfer of Property Act for a declaration that the transfer was void as it was in fraud of the creditors.In the light of this discussion about the provisions of Order XXI, Rules 58 to 63, if we examine Rule 11(4) of the Second Schedule to theAct, it is clear that the Tax Recovery Officer is required to examine whether the possession of the third party is of a claimant in his own right or in trust for the assessee or on account of the assessee. If he comes to a conclusion that the transferee is in possession in his or her own right, he will have to raise the attachment. If the Department desires to have the desire transaction of transfer declared void under Section 281, the Department being in the position of a creditor, will have to file a suit for a declaration that the transaction of transfer is void under Section 281 of the Income Tax Act.13. In the present case the Tax Recovery Officer could not have examined whether the transfer was void under Section 281 of the Income Tax Act. His adjudication of the transfer as void under Section 281 is without jurisdiction. The Tax Recovery Officer has relied upon the earlier order of the Income Tax Officer dated 9.5.1974 declaring that the transactions is void under Section 281 of the Income Tax Act. In the earlier proceedings, however, although the High Court has not set aside this order of the Income Tax Officer, the High Court has expressly held that the order amounted only to an intention of declaration on the part of the Department to treat the transaction as void under Section 281. such a declaration cannot affect the legal rights of the parties affected under Rule 11. The High Court expressly held that the rights of the parties under Rule 11 were not affected in any way by this declaration. The Department, therefore, cannot proceed on the assumption that the transaction is void under Section 281, nor can the Tax Recovery Officer, while proceeding under Rule 11, declare a transaction of transfer as void under Section 281 by relying on the Order of 9.5.1974 or otherwise. His jurisdiction relates to examine possession, and only incidentally, any question of right to possession as claimed by the Objector. The High Court has, therefore, rightly set aside the order of the Tax Recovery Officer.14. However, the right of the Department to have the transfer declared as void under Section 281 of the Income Tax Act, as it stood at the relevant time, is not thereby taken away. We are informed that the property continues to be under attachment by virtue of interim orders passed in this appeal. The Department may, if it so desires, take appropriate proceedings in accordance with law for having the transfer declared as void under Section 281 of the | 0 | 3,131 | 754 | ### 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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Rules 59 to 62 of Order XXI, prior to the amendment of 1976, provide for a summary investigation into possession as distinct from a thorough trial of ultimate right. No doubt, it is impossible to separate altogether the question of possession and of title. Thus, if the judgment-debtor was in possession, he may have been in possession as agent or trustee for another, and this has to be enquired into. To that extent title may be a part of the inquiry. Similarly, if the property attached is claimed by a third party who adduces evidence to show that he was possessed of the property under some kind of a title, the property will have to be released from attachment. The procedure is not meant to decide intricate questions of law as to title to the property. Therefore, where a claim is made to the property attached, by someone claiming to be a transferee from the judgment-debtor and the claim is disallowed, the claimant can institute a suit under Order XXI, Rule 63 to establish his title to the property. In such a suit it would be open to the attaching creditor to plead in defence that the transfer was in fraud of the general body of creditors and was void under Section 53 of the Transfer of Property Act. Similarly, if the claim of the transferee is allowed, the attaching creditor may sue on behalf of himself and all other creditors under Section 53 of the Transfer of Property Act for a declaration that the transfer was void as it was in fraud of the creditors. 11. In the case of C. Abdul Shukkoor Saheb v Arji Papa Rao deceased by his heirs and Lrs and Ors, AIR 1963 SC 1150 at page 1158, this Court considered, inter alia, the nature of the proceedings under Order XXI, Rules 58 to 61 prior to the amendment of the Civil Procedure Code in 1976. This Court observed, "In the summary proceedings under Order XXI, Rule 58 to 61, having regard to the terms of Rule 61, the Court is concerned only with the question as to whether the transferee is in possession of the property in his own right and not on behalf of the judgment-debtor. When a transfer is real, though it is liable to be impeached as a fraud on creditors, and the transferee has entered into possession, he would succeed in the summary proceedings, with the result that it is the defeated attaching creditor who would have to figure as a plaintiff........ In every case, therefore, where a transfer is real, but it is liable to set aside under Section 53(1) of the Transfer of Property Act, on the provisions of Order XXI, Rules 58 to 61 Civil Procedure Code, the transferee is bound to succeed in the summary proceedings and the attaching decree- holder would have to figure as a plaintiff......" This Court also held that where the suit is filed by the transferee if the decision in the summary proceedings goes against him, it is open to the attaching creditor to plead in his defence that the transaction is vitiated by fraud and is void under section 53 of the Transfer of Property Act. 12. In the light of this discussion about the provisions of Order XXI, Rules 58 to 63, if we examine Rule 11(4) of the Second Schedule to the Income-tax Act, it is clear that the Tax Recovery Officer is required to examine whether the possession of the third party is of a claimant in his own right or in trust for the assessee or on account of the assessee. If he comes to a conclusion that the transferee is in possession in his or her own right, he will have to raise the attachment. If the Department desires to have the desire transaction of transfer declared void under Section 281, the Department being in the position of a creditor, will have to file a suit for a declaration that the transaction of transfer is void under Section 281 of the Income Tax Act.13. In the present case the Tax Recovery Officer could not have examined whether the transfer was void under Section 281 of the Income Tax Act. His adjudication of the transfer as void under Section 281 is without jurisdiction. The Tax Recovery Officer has relied upon the earlier order of the Income Tax Officer dated 9.5.1974 declaring that the transactions is void under Section 281 of the Income Tax Act. In the earlier proceedings, however, although the High Court has not set aside this order of the Income Tax Officer, the High Court has expressly held that the order amounted only to an intention of declaration on the part of the Department to treat the transaction as void under Section 281. such a declaration cannot affect the legal rights of the parties affected under Rule 11. The High Court expressly held that the rights of the parties under Rule 11 were not affected in any way by this declaration. The Department, therefore, cannot proceed on the assumption that the transaction is void under Section 281, nor can the Tax Recovery Officer, while proceeding under Rule 11, declare a transaction of transfer as void under Section 281 by relying on the Order of 9.5.1974 or otherwise. His jurisdiction relates to examine possession, and only incidentally, any question of right to possession as claimed by the Objector. The High Court has, therefore, rightly set aside the order of the Tax Recovery Officer.14. However, the right of the Department to have the transfer declared as void under Section 281 of the Income Tax Act, as it stood at the relevant time, is not thereby taken away. We are informed that the property continues to be under attachment by virtue of interim orders passed in this appeal. The Department may, if it so desires, take appropriate proceedings in accordance with law for having the transfer declared as void under Section 281 of the Income-tax Act.
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No doubt, it is impossible to separate altogether the question of possession and of title. Thus, if thewas in possession, he may have been in possession as agent or trustee for another, and this has to be enquired into. To that extent title may be a part of the inquiry. Similarly, if the property attached is claimed by a third party who adduces evidence to show that he was possessed of the property under some kind of a title, the property will have to be released from attachment. The procedure is not meant to decide intricate questions of law as to title to the property. Therefore, where a claim is made to the property attached, by someone claiming to be a transferee from theand the claim is disallowed, the claimant can institute a suit under Order XXI, Rule 63 to establish his title to the property. In such a suit it would be open to the attaching creditor to plead in defence that the transfer was in fraud of the general body of creditors and was void under Section 53 of the Transfer of Property Act. Similarly, if the claim of the transferee is allowed, the attaching creditor may sue on behalf of himself and all other creditors under Section 53 of the Transfer of Property Act for a declaration that the transfer was void as it was in fraud of the creditors.In the light of this discussion about the provisions of Order XXI, Rules 58 to 63, if we examine Rule 11(4) of the Second Schedule to theAct, it is clear that the Tax Recovery Officer is required to examine whether the possession of the third party is of a claimant in his own right or in trust for the assessee or on account of the assessee. If he comes to a conclusion that the transferee is in possession in his or her own right, he will have to raise the attachment. If the Department desires to have the desire transaction of transfer declared void under Section 281, the Department being in the position of a creditor, will have to file a suit for a declaration that the transaction of transfer is void under Section 281 of the Income Tax Act.13. In the present case the Tax Recovery Officer could not have examined whether the transfer was void under Section 281 of the Income Tax Act. His adjudication of the transfer as void under Section 281 is without jurisdiction. The Tax Recovery Officer has relied upon the earlier order of the Income Tax Officer dated 9.5.1974 declaring that the transactions is void under Section 281 of the Income Tax Act. In the earlier proceedings, however, although the High Court has not set aside this order of the Income Tax Officer, the High Court has expressly held that the order amounted only to an intention of declaration on the part of the Department to treat the transaction as void under Section 281. such a declaration cannot affect the legal rights of the parties affected under Rule 11. The High Court expressly held that the rights of the parties under Rule 11 were not affected in any way by this declaration. The Department, therefore, cannot proceed on the assumption that the transaction is void under Section 281, nor can the Tax Recovery Officer, while proceeding under Rule 11, declare a transaction of transfer as void under Section 281 by relying on the Order of 9.5.1974 or otherwise. His jurisdiction relates to examine possession, and only incidentally, any question of right to possession as claimed by the Objector. The High Court has, therefore, rightly set aside the order of the Tax Recovery Officer.14. However, the right of the Department to have the transfer declared as void under Section 281 of the Income Tax Act, as it stood at the relevant time, is not thereby taken away. We are informed that the property continues to be under attachment by virtue of interim orders passed in this appeal. The Department may, if it so desires, take appropriate proceedings in accordance with law for having the transfer declared as void under Section 281 of the
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KARBHARI AND OTHERS Vs. DEEPAK V. CHENGEDE AND OTHERS | the Election Programme and the stipulation therein were contrary to the provisions of the Constitution of the Sabha and as such the Programme deserved to be quashed. The Industrial Court, Ahmednagar by its order dated 05.06.2018 accepted the challenge and while quashing the Election Programme, it directed as under: ?The Election Officer shall conduct the election as per constitution without insisting for undertaking-wise election for the post of Vice-President and Secretary. There shall be no reservation for women.? 9. The appellants who are also members of the Sabha, challenged the decision of the Industrial Court, Ahmednagar by filing Writ Petition No.5599 of 2018 in the High Court which by its judgment and order presently under appeal found that no interference was called for and dismissed the writ petition. 10. In this appeal challenging the correctness of the decision of the High Court, we heard Mr. B.H. Marlapalle, learned Senior Counsel for the appellants and Mr. Vinay Navare, learned Senior Counsel for the respondents. 11. The order of the Election Officer contemplated following stipulations which were not part of the Constitution of the Sabha: (a) Unit wise reservation to the posts of Vice-Presidents and Secretaries whereunder all seven units would elect Vice-Presidents and Secretaries independently and the Electoral College in that behalf would be each of those units and not the General Body of members. (b) Certain reservation was stipulated for women, namely, eight seats were reserved for women. Though the Electoral College was supposed to be members from the concerned unit or branch, it was not clear how seven units could be electing eight women executive members. 12. Mr. Marlapalle, learned Senior Counsel fairly accepted that the stipulations made by the Election Officer carving out Electoral Colleges and concept of reservation as mentioned above were not consistent with the Constitution of the Sabha. He however submitted that the idea of having separate Electoral Colleges for each of those seven units would give adequate representation to every unit. According to him, though the Constitution of the Sabha may be completely silent insofar as those issues are concerned, there was no prohibition to adopt such ideas, which in any case, were completely laudable and reasonable. It was submitted by him that in certain cases what is not prohibited can certainly be permitted. He relied upon the decision of this Court reported in Laxmidas Dayabhai Kabarwala v. Nanabhai Chunilal Kabarwala (1964) 2 SCR 567 at 578 , the relevant portion being:- ?11. The question has therefore to be considered on principle as to whether there is anything in law — statutory or otherwise — which precludes a court from treating a counter-claim as a plaint in a cross-suit. We are unable to see any. No doubt, the Civil Procedure Code prescribes the contents of a plaint and it might very well be that a counterclaim which is to be treated as a cross-suit might not conform to all these requirements but this by itself is not sufficient to deny to the Court the power and the jurisdiction to read and construe the pleadings in a 13. Referring to the decision of this Court reported in National Textile Workers? Union and others v. P.R. Ramakrishnan and others4 where the workers were given a right to be heard in winding up petition, Mr. Marlapalle, learned Senior Counsel relied upon the following observations:reasonable manner.? 13. Referring to the decision of this Court reported in National Textile Workers? Union and others v. P.R. Ramakrishnan and others (1983) 1 SCC 228 where the workers were given a right to be heard in winding up petition, Mr. Marlapalle, learned Senior Counsel relied upon the following observations: ?7. ……… The right to apply for winding up of a company being a creature of statute, none other than those on whom the right to present a winding up petition is conferred by the statute can make an application for winding up a company and no such right having been conferred on the workers, they cannot prefer a winding up petition against a company. But from this exclusion of the workers from the right to present a winding up petition, it does not follow as a necessary consequence that the workers have no right to appear and be heard in a winding up petition filed by one or more of the persons specified in Section 439.? 14. The facts and the circumstances in which the above-mentioned observations were made by this Court were completely distinct and different. The first case concerned the power of the Court to grant adequate relief while in the second case the issue was if in the ultimate analysis the company was to be wound up, the workers would be adversely affected and as such whether they should be given a right of hearing in winding up proceedings or not. Those cases were of completely different dimension, whereas we are presently concerned with the issue whether an election to a union of workers has to be in accordance with its constitution or otherwise. However laudable may be the objectives, the Election Officer could not have gone beyond the confines of the Constitution of the Sabha and could not have imported ideas which were not rooted in the Constitution of the Sabha. It may be that as a matter of practice, various panels which contested elections to the Sabha, were ensuring that there be equitable distribution and every unit was adequately represented. But that idea cannot be implemented through Election Programme. The Programme must be completely in accord with the governing Statute and the Constitution of the Sabha. In the absence of the idea of unit wise representation and reservation emanating either from the governing Statute or the Constitution of the Sabha, the Election Programme cannot by itself, invent and implement such idea 15. The Industrial Court as well as the High Court were completely justified in taking the view as aforesaid. We, therefore, find no merit in the submissions advanced by the learned Senior Counsel for the appellants. | 0[ds]14. The facts and the circumstances in which the above-mentioned observations were made by this Court were completely distinct and different. The first case concerned the power of the Court to grant adequate relief while in the second case the issue was if in the ultimate analysis the company was to be wound up, the workers would be adversely affected and as such whether they should be given a right of hearing in winding up proceedings or not. Those cases were of completely different dimension, whereas we are presently concerned with the issue whether an election to a union of workers has to be in accordance with its constitution or otherwise. However laudable may be the objectives, the Election Officer could not have gone beyond the confines of the Constitution of the Sabha and could not have imported ideas which were not rooted in the Constitution of the Sabha. It may be that as a matter of practice, various panels which contested elections to the Sabha, were ensuring that there be equitable distribution and every unit was adequately represented. But that idea cannot be implemented through Election Programme. The Programme must be completely in accord with the governing Statute and the Constitution of the Sabha. In the absence of the idea of unit wise representation and reservation emanating either from the governing Statute or the Constitution of the Sabha, the Election Programme cannot by itself, invent and implement suchThe Industrial Court as well as the High Court were completely justified in taking the view as aforesaid. We, therefore, find no merit in the submissions advanced by the learned Senior Counsel for the appellants. | 0 | 2,177 | 298 | ### Instruction:
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the Election Programme and the stipulation therein were contrary to the provisions of the Constitution of the Sabha and as such the Programme deserved to be quashed. The Industrial Court, Ahmednagar by its order dated 05.06.2018 accepted the challenge and while quashing the Election Programme, it directed as under: ?The Election Officer shall conduct the election as per constitution without insisting for undertaking-wise election for the post of Vice-President and Secretary. There shall be no reservation for women.? 9. The appellants who are also members of the Sabha, challenged the decision of the Industrial Court, Ahmednagar by filing Writ Petition No.5599 of 2018 in the High Court which by its judgment and order presently under appeal found that no interference was called for and dismissed the writ petition. 10. In this appeal challenging the correctness of the decision of the High Court, we heard Mr. B.H. Marlapalle, learned Senior Counsel for the appellants and Mr. Vinay Navare, learned Senior Counsel for the respondents. 11. The order of the Election Officer contemplated following stipulations which were not part of the Constitution of the Sabha: (a) Unit wise reservation to the posts of Vice-Presidents and Secretaries whereunder all seven units would elect Vice-Presidents and Secretaries independently and the Electoral College in that behalf would be each of those units and not the General Body of members. (b) Certain reservation was stipulated for women, namely, eight seats were reserved for women. Though the Electoral College was supposed to be members from the concerned unit or branch, it was not clear how seven units could be electing eight women executive members. 12. Mr. Marlapalle, learned Senior Counsel fairly accepted that the stipulations made by the Election Officer carving out Electoral Colleges and concept of reservation as mentioned above were not consistent with the Constitution of the Sabha. He however submitted that the idea of having separate Electoral Colleges for each of those seven units would give adequate representation to every unit. According to him, though the Constitution of the Sabha may be completely silent insofar as those issues are concerned, there was no prohibition to adopt such ideas, which in any case, were completely laudable and reasonable. It was submitted by him that in certain cases what is not prohibited can certainly be permitted. He relied upon the decision of this Court reported in Laxmidas Dayabhai Kabarwala v. Nanabhai Chunilal Kabarwala (1964) 2 SCR 567 at 578 , the relevant portion being:- ?11. The question has therefore to be considered on principle as to whether there is anything in law — statutory or otherwise — which precludes a court from treating a counter-claim as a plaint in a cross-suit. We are unable to see any. No doubt, the Civil Procedure Code prescribes the contents of a plaint and it might very well be that a counterclaim which is to be treated as a cross-suit might not conform to all these requirements but this by itself is not sufficient to deny to the Court the power and the jurisdiction to read and construe the pleadings in a 13. Referring to the decision of this Court reported in National Textile Workers? Union and others v. P.R. Ramakrishnan and others4 where the workers were given a right to be heard in winding up petition, Mr. Marlapalle, learned Senior Counsel relied upon the following observations:reasonable manner.? 13. Referring to the decision of this Court reported in National Textile Workers? Union and others v. P.R. Ramakrishnan and others (1983) 1 SCC 228 where the workers were given a right to be heard in winding up petition, Mr. Marlapalle, learned Senior Counsel relied upon the following observations: ?7. ……… The right to apply for winding up of a company being a creature of statute, none other than those on whom the right to present a winding up petition is conferred by the statute can make an application for winding up a company and no such right having been conferred on the workers, they cannot prefer a winding up petition against a company. But from this exclusion of the workers from the right to present a winding up petition, it does not follow as a necessary consequence that the workers have no right to appear and be heard in a winding up petition filed by one or more of the persons specified in Section 439.? 14. The facts and the circumstances in which the above-mentioned observations were made by this Court were completely distinct and different. The first case concerned the power of the Court to grant adequate relief while in the second case the issue was if in the ultimate analysis the company was to be wound up, the workers would be adversely affected and as such whether they should be given a right of hearing in winding up proceedings or not. Those cases were of completely different dimension, whereas we are presently concerned with the issue whether an election to a union of workers has to be in accordance with its constitution or otherwise. However laudable may be the objectives, the Election Officer could not have gone beyond the confines of the Constitution of the Sabha and could not have imported ideas which were not rooted in the Constitution of the Sabha. It may be that as a matter of practice, various panels which contested elections to the Sabha, were ensuring that there be equitable distribution and every unit was adequately represented. But that idea cannot be implemented through Election Programme. The Programme must be completely in accord with the governing Statute and the Constitution of the Sabha. In the absence of the idea of unit wise representation and reservation emanating either from the governing Statute or the Constitution of the Sabha, the Election Programme cannot by itself, invent and implement such idea 15. The Industrial Court as well as the High Court were completely justified in taking the view as aforesaid. We, therefore, find no merit in the submissions advanced by the learned Senior Counsel for the appellants.
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0
### Explanation:
14. The facts and the circumstances in which the above-mentioned observations were made by this Court were completely distinct and different. The first case concerned the power of the Court to grant adequate relief while in the second case the issue was if in the ultimate analysis the company was to be wound up, the workers would be adversely affected and as such whether they should be given a right of hearing in winding up proceedings or not. Those cases were of completely different dimension, whereas we are presently concerned with the issue whether an election to a union of workers has to be in accordance with its constitution or otherwise. However laudable may be the objectives, the Election Officer could not have gone beyond the confines of the Constitution of the Sabha and could not have imported ideas which were not rooted in the Constitution of the Sabha. It may be that as a matter of practice, various panels which contested elections to the Sabha, were ensuring that there be equitable distribution and every unit was adequately represented. But that idea cannot be implemented through Election Programme. The Programme must be completely in accord with the governing Statute and the Constitution of the Sabha. In the absence of the idea of unit wise representation and reservation emanating either from the governing Statute or the Constitution of the Sabha, the Election Programme cannot by itself, invent and implement suchThe Industrial Court as well as the High Court were completely justified in taking the view as aforesaid. We, therefore, find no merit in the submissions advanced by the learned Senior Counsel for the appellants.
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Anne Nageswara Rao Vs. Public Prosecutor, Andhra Pradesh | going to Telaprolu for seeing a festival there and they were carrying some vegetables with them on kavadies to sell there. P.Ws, 1 and 2 were going in front while the deceased was coming behind. They saw the appellant coming on a cycle and passing them and hearing a thud turned back and saw the appellant stabbing the deceased. This was at about 5 oclock. They sent word through some villagers to the members of the family of the deceased about the incident and as nobody turned up till 9p.m. P.W. 1 went to Telaprolu and informed the Circle Inspector of Police. The FIR was registered at 10 Oclock and the Inspector and two policemen reached the scene of occurrence at 11.30 p.m. The learned Sessions Judge after considering all the evidence acquitted the accused but the High Court on appeal by the State set aside the judgment of the Sessions Judge and convicted the appellant.3. The P.Ws, 1 and 2 are the only two witnesses who speak to the occurrence. There was an incident on the 1st of April, 1969 in which there was a quarrel between one Anne Koteswara Rao and the mother of the deceased and some others belonging to Anne Koteswara Raos party came there and beat the brother of the deceased. One Nakka Venkateswara Rao, P.W. 5., was said to have interfered and been beaten by the appellant and others. In the meantime the deceased who came there also abused the appellant and others of his party. This is said to be, the motive for the murder.4. After the incident P.Ws, 1 and 2 waited at the spot till 9 oclock and then P.W, 1 went and made a report about the incident to the police leaving P.W. 2 near the body. But according to P.W. 3, the mother of the deceased, when she went to the place of occurrence there was nobody there. According to P.W. 4, the brother of the deceased, he reached the scene of offence after having come to know about it at 8-9 p.m. and when he went there only the police constables were there. P.W. 5 who came to know about the occurrence at 8 p.m. went along with P.Ws. 3 and 4 and he saw only the police there. Thus none of the three witnesses speak to the presence of P.W. 2. His presence there not being established his presence at the time of occurrence becomes highly doubtful. We also find it difficult to believe that the occurrence having taken place at 5 oclock P.W. 1 would have waited till 9 oclock before he went and reported to the police. The place where the occurrence took place was the road for people from ten or twelve villages to go to Telaprolu and many people were passing along and he could very well have asked some of them to go and tell the police or immediately after the occurrence he could have asked P.W. 2. if it is true that he was there. to go and report to the police or ask him to stay there and himself gone to the police. If P.W.1 had sent word to the members of the family of the deceased at about 5o clock it cannot be that they did not reach the scene of occurrence till 11.30 p.m. because it is only by that time that the police were at the scene of occurrence.5. We are not also able to persuade ourselves that there is sufficient motive for the appellant to murder the deceased. The deceased was not only the person involved in the quarrel on the 1 st of April on the opposite side and there does not seem to be any particular reason why the appellant should have taken into his head to murder him. The appellant was not the person who was directly involved in the qauarrel on the l st of April. In the circumstances we are not able to agree that the presence of the three kavadies at the scene of occurrence and the fact that the prosecution story is substantially the same as was set out in the F.I.R. can be said to establish beyond reasonable doubt that the deceased and P.Ws. 1 and 2 were going to Telaprolu together and the incident took place when they were so going.6. The evidence of P.Ws. 1 and 2 shows that they and the deceased had never before gone together to sell vegetables. If the occurrence took place at 5 P.M, as alleged by P.Ws. 1 and 2 the report to the police at 10 P.M. would show that the whole story as found in the F.I.R, had been thought up by that time. The arrival of P. Ws. 3 to 5 at the scene of occurrence after 11.30 P.M. would seem to show that they must have heard of the murder at 10 P.M. or later, roughly the same time as the police heard about it. It may well be that finding the dead body at 9 P.M. the matter was reported to the police and P.Ws. 3 and 4 were also informed about it. P.W.1 had at least some motive to falsely implicate the appellant. In the circumstances we think it unsafe to rely upon the sole testimony of P.W.1 as we have held that the presence of P.W. 2 cannot at all be said to have been established.7. We do not therefore think that the High Court was justified in interfering with the well considered judgment of the learned Sessions Judge. The utmost that can be said is that two views are possible and it is not therefore a case where the High Court was justified in setting aside an order of acquittal and convicting the appellant. Indeed we would say that the balance of probabilities is slightly in favour of the appellant. This is certainly not a case where the guilt of the appellant could be said to have been established beyond reasonable doubt. | 1[ds]5. We are not also able to persuade ourselves that there is sufficient motive for the appellant to murder the deceased. The deceased was not only the person involved in the quarrel on the 1 st of April on the opposite side and there does not seem to be any particular reason why the appellant should have taken into his head to murder him. The appellant was not the person who was directly involved in the qauarrel on the l st of April. In the circumstances we are not able to agree that the presence of the three kavadies at the scene of occurrence and the fact that the prosecution story is substantially the same as was set out in the F.I.R. can be said to establish beyond reasonable doubt that the deceased and P.Ws. 1 and 2 were going to Telaprolu together and the incident took place when they were so going.6. The evidence of P.Ws. 1 and 2 shows that they and the deceased had never before gone together to sell vegetables. If the occurrence took place at 5 P.M, as alleged by P.Ws. 1 and 2 the report to the police at 10 P.M. would show that the whole story as found in the F.I.R, had been thought up by that time. The arrival of P. Ws. 3 to 5 at the scene of occurrence after 11.30 P.M. would seem to show that they must have heard of the murder at 10 P.M. or later, roughly the same time as the police heard about it. It may well be that finding the dead body at 9 P.M. the matter was reported to the police and P.Ws. 3 and 4 were also informed about it. P.W.1 had at least some motive to falsely implicate the appellant. In the circumstances we think it unsafe to rely upon the sole testimony of P.W.1 as we have held that the presence of P.W. 2 cannot at all be said to have been established.7. We do not therefore think that the High Court was justified in interfering with the well considered judgment of the learned Sessions Judge. The utmost that can be said is that two views are possible and it is not therefore a case where the High Court was justified in setting aside an order of acquittal and convicting the appellant. Indeed we would say that the balance of probabilities is slightly in favour of the appellant. This is certainly not a case where the guilt of the appellant could be said to have been established beyond reasonable doubt. | 1 | 1,144 | 459 | ### Instruction:
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going to Telaprolu for seeing a festival there and they were carrying some vegetables with them on kavadies to sell there. P.Ws, 1 and 2 were going in front while the deceased was coming behind. They saw the appellant coming on a cycle and passing them and hearing a thud turned back and saw the appellant stabbing the deceased. This was at about 5 oclock. They sent word through some villagers to the members of the family of the deceased about the incident and as nobody turned up till 9p.m. P.W. 1 went to Telaprolu and informed the Circle Inspector of Police. The FIR was registered at 10 Oclock and the Inspector and two policemen reached the scene of occurrence at 11.30 p.m. The learned Sessions Judge after considering all the evidence acquitted the accused but the High Court on appeal by the State set aside the judgment of the Sessions Judge and convicted the appellant.3. The P.Ws, 1 and 2 are the only two witnesses who speak to the occurrence. There was an incident on the 1st of April, 1969 in which there was a quarrel between one Anne Koteswara Rao and the mother of the deceased and some others belonging to Anne Koteswara Raos party came there and beat the brother of the deceased. One Nakka Venkateswara Rao, P.W. 5., was said to have interfered and been beaten by the appellant and others. In the meantime the deceased who came there also abused the appellant and others of his party. This is said to be, the motive for the murder.4. After the incident P.Ws, 1 and 2 waited at the spot till 9 oclock and then P.W, 1 went and made a report about the incident to the police leaving P.W. 2 near the body. But according to P.W. 3, the mother of the deceased, when she went to the place of occurrence there was nobody there. According to P.W. 4, the brother of the deceased, he reached the scene of offence after having come to know about it at 8-9 p.m. and when he went there only the police constables were there. P.W. 5 who came to know about the occurrence at 8 p.m. went along with P.Ws. 3 and 4 and he saw only the police there. Thus none of the three witnesses speak to the presence of P.W. 2. His presence there not being established his presence at the time of occurrence becomes highly doubtful. We also find it difficult to believe that the occurrence having taken place at 5 oclock P.W. 1 would have waited till 9 oclock before he went and reported to the police. The place where the occurrence took place was the road for people from ten or twelve villages to go to Telaprolu and many people were passing along and he could very well have asked some of them to go and tell the police or immediately after the occurrence he could have asked P.W. 2. if it is true that he was there. to go and report to the police or ask him to stay there and himself gone to the police. If P.W.1 had sent word to the members of the family of the deceased at about 5o clock it cannot be that they did not reach the scene of occurrence till 11.30 p.m. because it is only by that time that the police were at the scene of occurrence.5. We are not also able to persuade ourselves that there is sufficient motive for the appellant to murder the deceased. The deceased was not only the person involved in the quarrel on the 1 st of April on the opposite side and there does not seem to be any particular reason why the appellant should have taken into his head to murder him. The appellant was not the person who was directly involved in the qauarrel on the l st of April. In the circumstances we are not able to agree that the presence of the three kavadies at the scene of occurrence and the fact that the prosecution story is substantially the same as was set out in the F.I.R. can be said to establish beyond reasonable doubt that the deceased and P.Ws. 1 and 2 were going to Telaprolu together and the incident took place when they were so going.6. The evidence of P.Ws. 1 and 2 shows that they and the deceased had never before gone together to sell vegetables. If the occurrence took place at 5 P.M, as alleged by P.Ws. 1 and 2 the report to the police at 10 P.M. would show that the whole story as found in the F.I.R, had been thought up by that time. The arrival of P. Ws. 3 to 5 at the scene of occurrence after 11.30 P.M. would seem to show that they must have heard of the murder at 10 P.M. or later, roughly the same time as the police heard about it. It may well be that finding the dead body at 9 P.M. the matter was reported to the police and P.Ws. 3 and 4 were also informed about it. P.W.1 had at least some motive to falsely implicate the appellant. In the circumstances we think it unsafe to rely upon the sole testimony of P.W.1 as we have held that the presence of P.W. 2 cannot at all be said to have been established.7. We do not therefore think that the High Court was justified in interfering with the well considered judgment of the learned Sessions Judge. The utmost that can be said is that two views are possible and it is not therefore a case where the High Court was justified in setting aside an order of acquittal and convicting the appellant. Indeed we would say that the balance of probabilities is slightly in favour of the appellant. This is certainly not a case where the guilt of the appellant could be said to have been established beyond reasonable doubt.
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1
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5. We are not also able to persuade ourselves that there is sufficient motive for the appellant to murder the deceased. The deceased was not only the person involved in the quarrel on the 1 st of April on the opposite side and there does not seem to be any particular reason why the appellant should have taken into his head to murder him. The appellant was not the person who was directly involved in the qauarrel on the l st of April. In the circumstances we are not able to agree that the presence of the three kavadies at the scene of occurrence and the fact that the prosecution story is substantially the same as was set out in the F.I.R. can be said to establish beyond reasonable doubt that the deceased and P.Ws. 1 and 2 were going to Telaprolu together and the incident took place when they were so going.6. The evidence of P.Ws. 1 and 2 shows that they and the deceased had never before gone together to sell vegetables. If the occurrence took place at 5 P.M, as alleged by P.Ws. 1 and 2 the report to the police at 10 P.M. would show that the whole story as found in the F.I.R, had been thought up by that time. The arrival of P. Ws. 3 to 5 at the scene of occurrence after 11.30 P.M. would seem to show that they must have heard of the murder at 10 P.M. or later, roughly the same time as the police heard about it. It may well be that finding the dead body at 9 P.M. the matter was reported to the police and P.Ws. 3 and 4 were also informed about it. P.W.1 had at least some motive to falsely implicate the appellant. In the circumstances we think it unsafe to rely upon the sole testimony of P.W.1 as we have held that the presence of P.W. 2 cannot at all be said to have been established.7. We do not therefore think that the High Court was justified in interfering with the well considered judgment of the learned Sessions Judge. The utmost that can be said is that two views are possible and it is not therefore a case where the High Court was justified in setting aside an order of acquittal and convicting the appellant. Indeed we would say that the balance of probabilities is slightly in favour of the appellant. This is certainly not a case where the guilt of the appellant could be said to have been established beyond reasonable doubt.
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M/S. K.C.C. Software Ltd. Vs. Director Of Income Tax (Inv.) | requiring special attention.(i) Details of packages of cash which are to be deposited into the Personal deposit Account in the Reserve Bank/State Bank.(j) Details of packages of bullions, jewellery etc. required to be deposited in the strong room/safe deposit vault of the bank.(k) Work regarding valuation of jewellery seized.(l) Details of sealed covers containing damaged/mutilated documents.(m) Particulars of complaints filed in police, as result of any incident during the search, which are required to be followed up.5.02. Deposit of CashThe cash seized is required to be deposited in the bank in the Personal Deposit Account of the Commissioner, at the earliest opportunity preferably on the next working day. However, if due to unavoidable reasons, it is not possible, the cash with other valuables may be kept in the strong room of the Commissioner or the safe deposit vault of the bank. Where cash has been brought in sealed packet, it is expected that the authorized officer has already issued a letter to the assessee requesting him to be present before the ADIT-in-charge on the following morning before 12 O’ clock. Where the cash seized relates to an assessee who is assessed in the charge of some other Commissioner, a crossed account payee demand draft in favour of the concerned Commissioner should be obtained and dispatched to him.” 15. It is stated that amount has not become a part of the Consolidated Fund of India and is deposited in separate PD account of the concerned Commissioner and is held in the custody till final determination of the tax liability by the assessing officer for the relevant assessment years. 16. On a bare reading of the Manual it is clear that the same is relatable to cash seized and cash in bank is conceptually different from cash in hand. 17. In Shanti Prasad Jain v. The Director of Enforcement (1963 (2) SCR 297 ) it was inter alia observed as follows: “Under the law the time relationship between a Banker and a customer is that of a debtor and creditor and that it makes no difference in that relationship that the deposits were conditional.xx xx xxNow the law is well settled that when moneys are deposited in a Bank, the relationship that is constituted between the banker and the customer is one of the debtor and creditor and not trustee and beneficiary. The banker is entitled to use the monies without being called upon to account for such user, his only liability being to return the amount in accordance with the terms agreed between him and the customer. And it makes no difference in the jural relationship whether the deposits were made by the customer himself, or by some other persons, provided the customer accepted them. There might be special arrangement under which a Banker might be constituted a trustee, but apart from such an arrangement, his position qua Banker is that of a debtor, and not trustee. The law was stated in those terms in the old and well-known decision of the House of Lords in Foley v. Hill (1848 11 H.L.C. 289 E.R. 1002) and that has never been questioned.” 18. In the judgment of House of Lords in Foley v. Hill [(1843 to 1860) All E.R. Re-print 16] referred in the aforesaid judgment of the Constitution Bench, it was inter alia held as under: “Money, when paid into a bank, ceases altogether to be the money of the owner, it is then the money of the banker, who is bound to return an equivalent by paying a similar sum to that deposited with him when he is asked for it. The money paid into the bankers, is money known by the customer to be placed there for the purpose of being under the control of the banker; It is then the banker’s money; he is known to deal with it as his own; he makes what profit on it he can, which profit he retains to himself, paying back only the principal, according to the custom of bankers in some places, or the principal and a small rate of interest, according to the custom of bankers in other places’. He is guilty of no breach of trust in employing it, he is not answerable to the customer if he puts it into jeopardy, if he engages in a hazardous speculation; he is not bound to keep it or deal with it as the property of the customer, but he is, of course, answerable for the amount because he has contracted, having received that money, to repay to the customer, when demanded, a sum equivalent to that paid into his hands. That has been the subject of discussion in various cases, and that has been established to be the relative situation of banker and customer. That being established, to be the relative situation of banker and customer, the banker is not an agent or factor, but he is a debtor.” 19. At this juncture, it is to be clarified about the impermissibility to convert assets to cash and thereafter impound the same. We need not go into the broader issue in view of the fact that there is no challenge to the order passed under Section 132B of the Act. But it has been stated by learned counsel for the revenue that it is permissible to complete the assessment by 31st March, 2008. In view of the aforesaid scenario, we dispose of the appeal with the following directions: (i) In view of the non challenge to the order passed under Section 132B, no relief can be granted to the appellants.(ii) However, it would be in the interests of the assessee as well as the revenue if the amount transferred to the PD account of the Commissioner is kept in interest bearing fixed deposit as ultimately in the event the assessee succeeds, would be entitled to interest as provided in the statute. The assessment has to be completed on or before 31st March, 2008 i.e. within the time statutorily provided. 20. | 0[ds]is to be clarified about the impermissibility to convert assets to cash and thereafter impound the same. We need not go into the broader issue in view of the fact that there is no challenge to the order passed under Section 132B of the Act. But it has been stated by learned counsel for the revenue that it is permissible to complete the assessment by 31st March, 2008. In view of the aforesaid scenario, we dispose of the appeal with the followingIn view of the non challenge to the order passed under Section 132B, no relief can be granted to the appellants.(ii) However, it would be in the interests of the assessee as well as the revenue if the amount transferred to the PD account of the Commissioner is kept in interest bearing fixed deposit as ultimately in the event the assessee succeeds, would be entitled to interest as provided in the statute. The assessment has to be completed on or before 31st March, 2008 i.e. within the time statutorily provided. | 0 | 3,511 | 191 | ### Instruction:
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requiring special attention.(i) Details of packages of cash which are to be deposited into the Personal deposit Account in the Reserve Bank/State Bank.(j) Details of packages of bullions, jewellery etc. required to be deposited in the strong room/safe deposit vault of the bank.(k) Work regarding valuation of jewellery seized.(l) Details of sealed covers containing damaged/mutilated documents.(m) Particulars of complaints filed in police, as result of any incident during the search, which are required to be followed up.5.02. Deposit of CashThe cash seized is required to be deposited in the bank in the Personal Deposit Account of the Commissioner, at the earliest opportunity preferably on the next working day. However, if due to unavoidable reasons, it is not possible, the cash with other valuables may be kept in the strong room of the Commissioner or the safe deposit vault of the bank. Where cash has been brought in sealed packet, it is expected that the authorized officer has already issued a letter to the assessee requesting him to be present before the ADIT-in-charge on the following morning before 12 O’ clock. Where the cash seized relates to an assessee who is assessed in the charge of some other Commissioner, a crossed account payee demand draft in favour of the concerned Commissioner should be obtained and dispatched to him.” 15. It is stated that amount has not become a part of the Consolidated Fund of India and is deposited in separate PD account of the concerned Commissioner and is held in the custody till final determination of the tax liability by the assessing officer for the relevant assessment years. 16. On a bare reading of the Manual it is clear that the same is relatable to cash seized and cash in bank is conceptually different from cash in hand. 17. In Shanti Prasad Jain v. The Director of Enforcement (1963 (2) SCR 297 ) it was inter alia observed as follows: “Under the law the time relationship between a Banker and a customer is that of a debtor and creditor and that it makes no difference in that relationship that the deposits were conditional.xx xx xxNow the law is well settled that when moneys are deposited in a Bank, the relationship that is constituted between the banker and the customer is one of the debtor and creditor and not trustee and beneficiary. The banker is entitled to use the monies without being called upon to account for such user, his only liability being to return the amount in accordance with the terms agreed between him and the customer. And it makes no difference in the jural relationship whether the deposits were made by the customer himself, or by some other persons, provided the customer accepted them. There might be special arrangement under which a Banker might be constituted a trustee, but apart from such an arrangement, his position qua Banker is that of a debtor, and not trustee. The law was stated in those terms in the old and well-known decision of the House of Lords in Foley v. Hill (1848 11 H.L.C. 289 E.R. 1002) and that has never been questioned.” 18. In the judgment of House of Lords in Foley v. Hill [(1843 to 1860) All E.R. Re-print 16] referred in the aforesaid judgment of the Constitution Bench, it was inter alia held as under: “Money, when paid into a bank, ceases altogether to be the money of the owner, it is then the money of the banker, who is bound to return an equivalent by paying a similar sum to that deposited with him when he is asked for it. The money paid into the bankers, is money known by the customer to be placed there for the purpose of being under the control of the banker; It is then the banker’s money; he is known to deal with it as his own; he makes what profit on it he can, which profit he retains to himself, paying back only the principal, according to the custom of bankers in some places, or the principal and a small rate of interest, according to the custom of bankers in other places’. He is guilty of no breach of trust in employing it, he is not answerable to the customer if he puts it into jeopardy, if he engages in a hazardous speculation; he is not bound to keep it or deal with it as the property of the customer, but he is, of course, answerable for the amount because he has contracted, having received that money, to repay to the customer, when demanded, a sum equivalent to that paid into his hands. That has been the subject of discussion in various cases, and that has been established to be the relative situation of banker and customer. That being established, to be the relative situation of banker and customer, the banker is not an agent or factor, but he is a debtor.” 19. At this juncture, it is to be clarified about the impermissibility to convert assets to cash and thereafter impound the same. We need not go into the broader issue in view of the fact that there is no challenge to the order passed under Section 132B of the Act. But it has been stated by learned counsel for the revenue that it is permissible to complete the assessment by 31st March, 2008. In view of the aforesaid scenario, we dispose of the appeal with the following directions: (i) In view of the non challenge to the order passed under Section 132B, no relief can be granted to the appellants.(ii) However, it would be in the interests of the assessee as well as the revenue if the amount transferred to the PD account of the Commissioner is kept in interest bearing fixed deposit as ultimately in the event the assessee succeeds, would be entitled to interest as provided in the statute. The assessment has to be completed on or before 31st March, 2008 i.e. within the time statutorily provided. 20.
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0
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is to be clarified about the impermissibility to convert assets to cash and thereafter impound the same. We need not go into the broader issue in view of the fact that there is no challenge to the order passed under Section 132B of the Act. But it has been stated by learned counsel for the revenue that it is permissible to complete the assessment by 31st March, 2008. In view of the aforesaid scenario, we dispose of the appeal with the followingIn view of the non challenge to the order passed under Section 132B, no relief can be granted to the appellants.(ii) However, it would be in the interests of the assessee as well as the revenue if the amount transferred to the PD account of the Commissioner is kept in interest bearing fixed deposit as ultimately in the event the assessee succeeds, would be entitled to interest as provided in the statute. The assessment has to be completed on or before 31st March, 2008 i.e. within the time statutorily provided.
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Commissioner Of Income-Tax, Keralaand Coimbatore Vs. Puthiya Ponmanichintakam. Wakfmanager P. P. Ayesha Bi Bi | not relevant for the present purpose.6. Can it be said that, under the document, the individual shares of the beneficiaries are specified? The document does not expressly specify the shares of the beneficiaries; nor does it do so by necessary implication. Indeed, the individual shares of the beneficiaries are not germane to the objects of the document. The Muthawalli was directed to bear, out of the income, the expenses necessary for maintaining the members of the tarwad and to conduct the necessary religious ceremonies. The distribution of the family income and family expenses was left to the discretion of the Muthawalli; the document also further contemplated that the Muthawalli by his prudent and efficient management would save sufficient amount; for purchasing properties. The directions indicate beyond any reasonable doubt that no specified share of the income was given to any of the beneficiaries, and their right was nothing more than to be maintained having regard to their reasonable requirements which were left to the discretion of Muthawalli. While it is true that the number of beneficiaries would be ascertainable at any given point of time it is not possible to hold, as the High Court held that under the document the beneficiaries had equal shares in the income. The beneficiaries had no specified share in the income but only had the right to be maintained. The construction put upon the document by the High Court cannot, therefore, be sustained on the plain wording of the document. We therefore, hold that under the terms of the document the individual shares of the beneficiaries are indeterminate within the meaning of the first proviso to S. 41(1) of the Act. If so, under the said proviso the assessee is liable to pay income-tax at the maximum rate.7. The alternative contention of learned counsel for the respondent remains to be considered. The argument is that under the Wakf deed the properties vest in the Almighty and, therefore, the Muthawalli receives the income only on behalf of the Almighty and not on behalf of any person within the meaning of S. 41(1) of the Act, with the result that S. 41 (1) is not applicable to the assessment in question. The argument is rather subtle, but it has no force. There are three effective answers to this contention:8. Firstly, it was not raised before the High Court -the only question argued before the High Court was whether the beneficiaries of the trust and their individual shares of the income of the trust were ascertainable.9. Secondly, though under the Mahomedan Law the properties dedicated under a Wakf deed belong to the Almighty, it is only in the ideal sense, for the Muthawalli in the name of the Almighty utilises the income for the purposes and for the benefit of the beneficiaries mentioned therein. Under the Mahomedan Law, the moment a Wakf is created all rights of property pass out of the wakif and vest in the Almighty. The property does not vest in the Muthawalli, for he is merely a manager and not a trustee in the technical sense. Though Wakf property belongs to the Almighty, the practical significance of that concept is explained in Jewan Doss Sahoo v. Shah Kubeer-ood-deen, 2 Moo Ind App 390 (421) (PC) thus:"... . . . . . .. . . Wakf signifies the appropriation if a particular article in such a manner as subjects it to the rules of divine property, hence the appropriators right in it is extinguished, and it becomes a property of God, by the advantage of it resulting to his creatures.That is, though in an ideal sense the property vests in the Almighty, the property is held for the benefit of His creatures, that is the beneficiaries. Though at one time it was considered that to constitute a valid Wakf there must be dedication of property solely to the worship of God or for religious or charitable purposes the Wakf Validating Act, 1913, discarded that view and enacted by S. 3 that a Mussalman can create a wakf for the maintenance and support, wholly or partially, of his family, children or descendants provided the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character. Section 4 of the said Act goes further and says that a wakf shall not be invalid by the mere circumstance that the benefit reserved for the poor or for religious purposes is postponed until the extinction of the family. It is, therefore, manifest that under the Mahomedan Law, the property vests only in the Almighty but the Muthawalli acting in His name, utilises the income for the advantage of the beneficiaries. Therefore the words "on behalf of any person in S. 41 of the Act can only mean on behalf of the beneficiaries and not on behalf of the Almighty.10. The third and more effective answer to the argument is that S. 41(1) of the Act provides for a vicarious assessment in order to facilitate the levy and collection of income-tax from a trustee in respect of income of the beneficiaries. In express terms it equates the Muthawalli of a wakf to a trustee. For the purpose of S. 41 the Muthawalli is treated as a trustee and, on the analogy of a trustee, he holds the property for the benefit of the beneficiaries. There is no scope for importing the Mahomedan Law of Wakf in S. 41, when the section in express terms treats the Muthawalli as a trustee, though he is not one in the technical sense under the Mahomedan Law. If the argument of learned counsel for the respondent be accepted, would make S. 41 of the Act otiose so far as wakfs are concerned, for in every case of wakf the property would be held for the Almighty and not for any person. We, therefore, reject this contention and answer the question in the affirmative. | 1[ds]It is agreed that the first exception does not apply to the instant case. But the question that falls to be decided is whether the individual shares of the persons on whose behalf the income is receivable are indeterminate or unknown. The answer to the question depends upon the construction of the provisions of the Wakf deed. The Wakf deed was executed on December 20 1915 by Umbichi and his wife dedicating their entire property, moveable and immoveable, of total value of rupees one lakh for the objects mentioned therein. The Muthawalli appointed thereunder was directed to manage the properties in such a way as "to do acts necessary for charitable purposes. and to meet the maintenance expenses of their children and grand-children and the female children that might be born to them in future and to the male children born to the said female children." The document proceeded to give further specific directions in the management of the properties. After payment of taxes and meeting the expenses incurred for repairs and maintenance of the properties, the balance of the income should be utilised for the "daily necessary expenses of the house and food expenses as we are doing now", and for purchasing "dresses and other necessities for the then male and female members of the tarwad and for conducting "nerchas (ceremonies) such as Yasin Moulooth, etc., charitable ceremonies for feedling the poor and such other necessary expenses", and out of the balance if any, the Muthawalli was directed to acquire properties yielding good income. The rest of the recitals in the document are not relevant for the presentdocument does not expressly specify the shares of the beneficiaries; nor does it do so by necessary implication. Indeed, the individual shares of the beneficiaries are not germane to the objects of the document. The Muthawalli was directed to bear, out of the income, the expenses necessary for maintaining the members of the tarwad and to conduct the necessary religious ceremonies. The distribution of the family income and family expenses was left to the discretion of the Muthawalli; the document also further contemplated that the Muthawalli by his prudent and efficient management would save sufficient amount; for purchasing properties. The directions indicate beyond any reasonable doubt that no specified share of the income was given to any of the beneficiaries, and their right was nothing more than to be maintained having regard to their reasonable requirements which were left to the discretion of Muthawalli. While it is true that the number of beneficiaries would be ascertainable at any given point of time it is not possible to hold, as the High Court held that under the document the beneficiaries had equal shares in the income. The beneficiaries had no specified share in the income but only had the right to be maintained. The construction put upon the document by the High Court cannot, therefore, be sustained on the plain wording of the document. We therefore, hold that under the terms of the document the individual shares of the beneficiaries are indeterminate within the meaning of the first proviso to S. 41(1) of the Act. If so, under the said proviso the assessee is liable to pay income-tax at the maximumis, though in an ideal sense the property vests in the Almighty, the property is held for the benefit of His creatures, that is the beneficiaries. Though at one time it was considered that to constitute a valid Wakf there must be dedication of property solely to the worship of God or for religious or charitable purposes the Wakf Validating Act, 1913, discarded that view and enacted by S. 3 that a Mussalman can create a wakf for the maintenance and support, wholly or partially, of his family, children or descendants provided the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character. Section 4 of the said Act goes further and says that a wakf shall not be invalid by the mere circumstance that the benefit reserved for the poor or for religious purposes is postponed until the extinction of the family. It is, therefore, manifest that under the Mahomedan Law, the property vests only in the Almighty but the Muthawalli acting in His name, utilises the income for the advantage of the beneficiaries. Therefore the words "on behalf of any person in S. 41 of the Act can only mean on behalf of the beneficiaries and not on behalf of the Almighty.10. The third and more effective answer to the argument is that S. 41(1) of the Act provides for a vicarious assessment in order to facilitate the levy and collection of income-tax from a trustee in respect of income of the beneficiaries. In express terms it equates the Muthawalli of a wakf to a trustee. For the purpose of S. 41 the Muthawalli is treated as a trustee and, on the analogy of a trustee, he holds the property for the benefit of the beneficiaries. There is no scope for importing the Mahomedan Law of Wakf in S. 41, when the section in express terms treats the Muthawalli as a trustee, though he is not one in the technical sense under the Mahomedan Law. If the argument of learned counsel for the respondent be accepted, would make S. 41 of the Act otiose so far as wakfs are concerned, for in every case of wakf the property would be held for the Almighty and not for any person. We, therefore, reject this contention and answer the question in the affirmative. | 1 | 2,464 | 1,031 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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not relevant for the present purpose.6. Can it be said that, under the document, the individual shares of the beneficiaries are specified? The document does not expressly specify the shares of the beneficiaries; nor does it do so by necessary implication. Indeed, the individual shares of the beneficiaries are not germane to the objects of the document. The Muthawalli was directed to bear, out of the income, the expenses necessary for maintaining the members of the tarwad and to conduct the necessary religious ceremonies. The distribution of the family income and family expenses was left to the discretion of the Muthawalli; the document also further contemplated that the Muthawalli by his prudent and efficient management would save sufficient amount; for purchasing properties. The directions indicate beyond any reasonable doubt that no specified share of the income was given to any of the beneficiaries, and their right was nothing more than to be maintained having regard to their reasonable requirements which were left to the discretion of Muthawalli. While it is true that the number of beneficiaries would be ascertainable at any given point of time it is not possible to hold, as the High Court held that under the document the beneficiaries had equal shares in the income. The beneficiaries had no specified share in the income but only had the right to be maintained. The construction put upon the document by the High Court cannot, therefore, be sustained on the plain wording of the document. We therefore, hold that under the terms of the document the individual shares of the beneficiaries are indeterminate within the meaning of the first proviso to S. 41(1) of the Act. If so, under the said proviso the assessee is liable to pay income-tax at the maximum rate.7. The alternative contention of learned counsel for the respondent remains to be considered. The argument is that under the Wakf deed the properties vest in the Almighty and, therefore, the Muthawalli receives the income only on behalf of the Almighty and not on behalf of any person within the meaning of S. 41(1) of the Act, with the result that S. 41 (1) is not applicable to the assessment in question. The argument is rather subtle, but it has no force. There are three effective answers to this contention:8. Firstly, it was not raised before the High Court -the only question argued before the High Court was whether the beneficiaries of the trust and their individual shares of the income of the trust were ascertainable.9. Secondly, though under the Mahomedan Law the properties dedicated under a Wakf deed belong to the Almighty, it is only in the ideal sense, for the Muthawalli in the name of the Almighty utilises the income for the purposes and for the benefit of the beneficiaries mentioned therein. Under the Mahomedan Law, the moment a Wakf is created all rights of property pass out of the wakif and vest in the Almighty. The property does not vest in the Muthawalli, for he is merely a manager and not a trustee in the technical sense. Though Wakf property belongs to the Almighty, the practical significance of that concept is explained in Jewan Doss Sahoo v. Shah Kubeer-ood-deen, 2 Moo Ind App 390 (421) (PC) thus:"... . . . . . .. . . Wakf signifies the appropriation if a particular article in such a manner as subjects it to the rules of divine property, hence the appropriators right in it is extinguished, and it becomes a property of God, by the advantage of it resulting to his creatures.That is, though in an ideal sense the property vests in the Almighty, the property is held for the benefit of His creatures, that is the beneficiaries. Though at one time it was considered that to constitute a valid Wakf there must be dedication of property solely to the worship of God or for religious or charitable purposes the Wakf Validating Act, 1913, discarded that view and enacted by S. 3 that a Mussalman can create a wakf for the maintenance and support, wholly or partially, of his family, children or descendants provided the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character. Section 4 of the said Act goes further and says that a wakf shall not be invalid by the mere circumstance that the benefit reserved for the poor or for religious purposes is postponed until the extinction of the family. It is, therefore, manifest that under the Mahomedan Law, the property vests only in the Almighty but the Muthawalli acting in His name, utilises the income for the advantage of the beneficiaries. Therefore the words "on behalf of any person in S. 41 of the Act can only mean on behalf of the beneficiaries and not on behalf of the Almighty.10. The third and more effective answer to the argument is that S. 41(1) of the Act provides for a vicarious assessment in order to facilitate the levy and collection of income-tax from a trustee in respect of income of the beneficiaries. In express terms it equates the Muthawalli of a wakf to a trustee. For the purpose of S. 41 the Muthawalli is treated as a trustee and, on the analogy of a trustee, he holds the property for the benefit of the beneficiaries. There is no scope for importing the Mahomedan Law of Wakf in S. 41, when the section in express terms treats the Muthawalli as a trustee, though he is not one in the technical sense under the Mahomedan Law. If the argument of learned counsel for the respondent be accepted, would make S. 41 of the Act otiose so far as wakfs are concerned, for in every case of wakf the property would be held for the Almighty and not for any person. We, therefore, reject this contention and answer the question in the affirmative.
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1
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It is agreed that the first exception does not apply to the instant case. But the question that falls to be decided is whether the individual shares of the persons on whose behalf the income is receivable are indeterminate or unknown. The answer to the question depends upon the construction of the provisions of the Wakf deed. The Wakf deed was executed on December 20 1915 by Umbichi and his wife dedicating their entire property, moveable and immoveable, of total value of rupees one lakh for the objects mentioned therein. The Muthawalli appointed thereunder was directed to manage the properties in such a way as "to do acts necessary for charitable purposes. and to meet the maintenance expenses of their children and grand-children and the female children that might be born to them in future and to the male children born to the said female children." The document proceeded to give further specific directions in the management of the properties. After payment of taxes and meeting the expenses incurred for repairs and maintenance of the properties, the balance of the income should be utilised for the "daily necessary expenses of the house and food expenses as we are doing now", and for purchasing "dresses and other necessities for the then male and female members of the tarwad and for conducting "nerchas (ceremonies) such as Yasin Moulooth, etc., charitable ceremonies for feedling the poor and such other necessary expenses", and out of the balance if any, the Muthawalli was directed to acquire properties yielding good income. The rest of the recitals in the document are not relevant for the presentdocument does not expressly specify the shares of the beneficiaries; nor does it do so by necessary implication. Indeed, the individual shares of the beneficiaries are not germane to the objects of the document. The Muthawalli was directed to bear, out of the income, the expenses necessary for maintaining the members of the tarwad and to conduct the necessary religious ceremonies. The distribution of the family income and family expenses was left to the discretion of the Muthawalli; the document also further contemplated that the Muthawalli by his prudent and efficient management would save sufficient amount; for purchasing properties. The directions indicate beyond any reasonable doubt that no specified share of the income was given to any of the beneficiaries, and their right was nothing more than to be maintained having regard to their reasonable requirements which were left to the discretion of Muthawalli. While it is true that the number of beneficiaries would be ascertainable at any given point of time it is not possible to hold, as the High Court held that under the document the beneficiaries had equal shares in the income. The beneficiaries had no specified share in the income but only had the right to be maintained. The construction put upon the document by the High Court cannot, therefore, be sustained on the plain wording of the document. We therefore, hold that under the terms of the document the individual shares of the beneficiaries are indeterminate within the meaning of the first proviso to S. 41(1) of the Act. If so, under the said proviso the assessee is liable to pay income-tax at the maximumis, though in an ideal sense the property vests in the Almighty, the property is held for the benefit of His creatures, that is the beneficiaries. Though at one time it was considered that to constitute a valid Wakf there must be dedication of property solely to the worship of God or for religious or charitable purposes the Wakf Validating Act, 1913, discarded that view and enacted by S. 3 that a Mussalman can create a wakf for the maintenance and support, wholly or partially, of his family, children or descendants provided the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character. Section 4 of the said Act goes further and says that a wakf shall not be invalid by the mere circumstance that the benefit reserved for the poor or for religious purposes is postponed until the extinction of the family. It is, therefore, manifest that under the Mahomedan Law, the property vests only in the Almighty but the Muthawalli acting in His name, utilises the income for the advantage of the beneficiaries. Therefore the words "on behalf of any person in S. 41 of the Act can only mean on behalf of the beneficiaries and not on behalf of the Almighty.10. The third and more effective answer to the argument is that S. 41(1) of the Act provides for a vicarious assessment in order to facilitate the levy and collection of income-tax from a trustee in respect of income of the beneficiaries. In express terms it equates the Muthawalli of a wakf to a trustee. For the purpose of S. 41 the Muthawalli is treated as a trustee and, on the analogy of a trustee, he holds the property for the benefit of the beneficiaries. There is no scope for importing the Mahomedan Law of Wakf in S. 41, when the section in express terms treats the Muthawalli as a trustee, though he is not one in the technical sense under the Mahomedan Law. If the argument of learned counsel for the respondent be accepted, would make S. 41 of the Act otiose so far as wakfs are concerned, for in every case of wakf the property would be held for the Almighty and not for any person. We, therefore, reject this contention and answer the question in the affirmative.
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Bhrigunath Tewary and Ramlal Rajbhar Vs. State of West Bengal | Hidayatullah, C.J.1. These are two petitions under Article 32 of the Constitution seeking writs of Habeas Corpus against the detention of the petitioners under Section 3 (2) of the Preventive Detention Act. The facts in these two petitioners are practically the same. We shall take up first the petition of Bhringunath Tewary (Writ Petition No. 332 of 1969).He was detained under the orders of the District Magistrate, Burdwan, passed on September 1, 1969 under Section 3 (2) of the Preventive Detention Act. He was arrested a week later and the grounds were served on him the very same day. He made his representation which was rejected by the Government and later by the Advisory Board. His detention has now been confirmed and he petitions against his detention.2. In the grounds which were furnished to him, 4 matters are stated. He was seen in the act of removing railway stores and materials on 5-1-1969 in a truck. Later, on 9-4-1969, he was associated in a raid on a railway siding and the raiding party stole railway stores and materials and carried them off in a truck. His name was being taken by his associates and it was presumed that he was one of the raiders. On 9-8-1969 in the early hours of the morning, he was arrested red-handed with a piece of brass with railway markings on it, which was serviceable railway material. Again, on 14-8-1969, two persons were arrested with some brass materials having railway markings on them and they confessed that they were taking them to the petitioner for sale. In the affidavit which has been sworn, it has been stated that the petitioner is a dangerous person who indulges in stealing railway stores and equipments essential for the running of trains and maintenance of railway communications, and by his activities had caused great loss to the railway administration and inconvenience to the general public.3. We have considered the matter from the ground of expedition which has to be observed in disposing of representations etc., made by detenus. There is no evidence of any delay in this case. We have also considered it from the point of view of whether the grounds are germane to the detention for maintenance of services essential to the community. Affidavit shows that he is carrying on large-scale operations with a view to stealing railway stores and materials and thereby impairing the proper running of trains and communications. This is not a case in which a man steals something which is discarded by the railways and considered to be unserviceable. He steals serviceable and useful parts of railway equipments and thereby prevents the proper operation of railway facilities to the public. His activities cannot be looked at as isolated incidents. They must be considered to be a part of an organised operation in which not only this petitioner but also the other petitioner before us participated. They were found carrying away railway property not in small quantities but in trucks. In these circumstances we cannot but hold that the grounds are relevant to the detention. The petition accordingly fails and will be dismissed.4. As regards the remaining petitioner Ramlal Rajbhar (W. P. No. 347/69), it is sufficient to say that the grounds are identical. We see no reason to interfere in the case of this petitioner also. | 0[ds]3. We have considered the matter from the ground of expedition which has to be observed in disposing of representations etc., made by detenus. There is no evidence of any delay in this case. We have also considered it from the point of view of whether the grounds are germane to the detention for maintenance of services essential to the community. Affidavit shows that he is carrying onoperations with a view to stealing railway stores and materials and thereby impairing the proper running of trains and communications. This is not a case in which a man steals something which is discarded by the railways and considered to be unserviceable. He steals serviceable and useful parts of railway equipments and thereby prevents the proper operation of railway facilities to the public. His activities cannot be looked at as isolated incidents. They must be considered to be a part of an organised operation in which not only this petitioner but also the other petitioner before us participated. They were found carrying away railway property not in small quantities but in trucks. In these circumstances we cannot but hold that the grounds are relevant to the detention. The petition accordingly fails and will be dismissed.4. As regards the remaining petitioner Ramlal Rajbhar (W. P. No. 347/69), it is sufficient to say that the grounds are identical. We see no reason to interfere in the case of this petitioner also. | 0 | 608 | 261 | ### 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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Hidayatullah, C.J.1. These are two petitions under Article 32 of the Constitution seeking writs of Habeas Corpus against the detention of the petitioners under Section 3 (2) of the Preventive Detention Act. The facts in these two petitioners are practically the same. We shall take up first the petition of Bhringunath Tewary (Writ Petition No. 332 of 1969).He was detained under the orders of the District Magistrate, Burdwan, passed on September 1, 1969 under Section 3 (2) of the Preventive Detention Act. He was arrested a week later and the grounds were served on him the very same day. He made his representation which was rejected by the Government and later by the Advisory Board. His detention has now been confirmed and he petitions against his detention.2. In the grounds which were furnished to him, 4 matters are stated. He was seen in the act of removing railway stores and materials on 5-1-1969 in a truck. Later, on 9-4-1969, he was associated in a raid on a railway siding and the raiding party stole railway stores and materials and carried them off in a truck. His name was being taken by his associates and it was presumed that he was one of the raiders. On 9-8-1969 in the early hours of the morning, he was arrested red-handed with a piece of brass with railway markings on it, which was serviceable railway material. Again, on 14-8-1969, two persons were arrested with some brass materials having railway markings on them and they confessed that they were taking them to the petitioner for sale. In the affidavit which has been sworn, it has been stated that the petitioner is a dangerous person who indulges in stealing railway stores and equipments essential for the running of trains and maintenance of railway communications, and by his activities had caused great loss to the railway administration and inconvenience to the general public.3. We have considered the matter from the ground of expedition which has to be observed in disposing of representations etc., made by detenus. There is no evidence of any delay in this case. We have also considered it from the point of view of whether the grounds are germane to the detention for maintenance of services essential to the community. Affidavit shows that he is carrying on large-scale operations with a view to stealing railway stores and materials and thereby impairing the proper running of trains and communications. This is not a case in which a man steals something which is discarded by the railways and considered to be unserviceable. He steals serviceable and useful parts of railway equipments and thereby prevents the proper operation of railway facilities to the public. His activities cannot be looked at as isolated incidents. They must be considered to be a part of an organised operation in which not only this petitioner but also the other petitioner before us participated. They were found carrying away railway property not in small quantities but in trucks. In these circumstances we cannot but hold that the grounds are relevant to the detention. The petition accordingly fails and will be dismissed.4. As regards the remaining petitioner Ramlal Rajbhar (W. P. No. 347/69), it is sufficient to say that the grounds are identical. We see no reason to interfere in the case of this petitioner also.
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0
### Explanation:
3. We have considered the matter from the ground of expedition which has to be observed in disposing of representations etc., made by detenus. There is no evidence of any delay in this case. We have also considered it from the point of view of whether the grounds are germane to the detention for maintenance of services essential to the community. Affidavit shows that he is carrying onoperations with a view to stealing railway stores and materials and thereby impairing the proper running of trains and communications. This is not a case in which a man steals something which is discarded by the railways and considered to be unserviceable. He steals serviceable and useful parts of railway equipments and thereby prevents the proper operation of railway facilities to the public. His activities cannot be looked at as isolated incidents. They must be considered to be a part of an organised operation in which not only this petitioner but also the other petitioner before us participated. They were found carrying away railway property not in small quantities but in trucks. In these circumstances we cannot but hold that the grounds are relevant to the detention. The petition accordingly fails and will be dismissed.4. As regards the remaining petitioner Ramlal Rajbhar (W. P. No. 347/69), it is sufficient to say that the grounds are identical. We see no reason to interfere in the case of this petitioner also.
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Collector of Central Excise Vs. Simac India (P) Ltd | notification").3. The assessee manufactures hand knitting machines and sells them, in bulk, to M/s. Singer Sewing Machine Company (for short, "M/s. Singer"). It claimed benefit of the notification. The superintendent, central excise, issued a notice dated 16th July, 1976 to the assessee to show cause as to why the benefit of the exemption notification should not be denied to it. On 3rd January, 1979, the assistant collector of central excise, Thane, division I, accepted the contention of the assessee extending the benefit of the notification. However, the collector (appeals) issued a show cause notice on 24 December, 1979 calling upon the assessee to show cause as to why the benefit of the notification should not be denied and consequentially, made a demand for the differential duty of Rs. 18,55,570.69 by revising the order of the assistant collector. On appeal, against the order of the collector (appeals), the tribunal, by the impugned order, held that the assessee was entitled to the benefit of the exemption notification. It is against that order, the revenue is in appeal before us.4. Mr. A. K. Ganguli, learned senior counsel appearing for the revenue, contends that in view of the findings recorded by the tribunal itself, the assessee would not be entitled to the benefit of the exemption notification. He has also invited our attention to the findings recorded by the collector (appeals) to show that the buyer of the machines, namely, M/s. Singer, was having financial and other interest and, therefore, it resulted in the determination of the price within the meaning of clause (iv) of the exemption notification. Mr. G. Umapathy, learned counsel appearing for the assessee, on the other hand, contends that the tribunal has come to a clear finding that there was no evidence on record to show that the invoice price was influenced by any relation-ship between M/s. Singer and the assessee. 5. We have perused the order under challenge and the exemption notification. The exemption notification, insofar as it is relevant for our purposes, reads as under: "Notification No. 120/75-CE Dated30-4-1975(6) Goods falling under item no. 68 cleared from the factory of manufactures, on sale, are exempt from so much of the duty of excise leviable thereon as is in excess of the duty calculated on the basis of the invoice price (excluding duty and local taxes, if any, included in such price) charged by the manufacturer from the sale of such goods:Provided that if the aforesaid exemption shall be admissible only if:(i)-(iii) * * *(iv) The invoice price is not influenced by any commercial, financial or other relationship whether by contract or otherwise between the manufacturer or any person associated in business with the manufacturer and the buyer or any person associated in business with the buyer other than the relationship created by sale of the aforesaid goods;" 6. A perusal of the exemption notification, extracted above, shows that where the price of the goods, falling under item 68 of the first schedule, assessed under S.4 of the Central Excise and Salt Act, 1944 and the rules made thereunder is more than the invoice price, the notification grants exemption in respect of so much of the duty of excise leviable on it as is in excess of the duty calculated on the basis of invoice price charged by the manufacturer from the sale. In the circumstances mentioned in Clause (iv), the benefit of the exemption would be lost when the invoice price is influenced by any commercial, financial or other relationship, whether by contract or otherwise, between the manufacturer or any person associated in business with the manufacturer and the buyer or any person associated in business with the buyer, other than the relationship created by sale of the aforesaid goods. The import of the notification has been succinctly summed up by this Court in Texmaco Limited v. Collector of Central Excise, Calcutta, (JT 1991 (6) SC 180 ) in the following words: "The (exemption) notification posits and predicates the possibility that the invoice value could be lesser than the assessable value and, taking into account the need to mitigate the hardship on the manufacturer of being called upon to pay duty on the value in excess of the invoice value, seeks to exempt the manufacturer from payment of duty in excess of the duty calculated on the basis of the invoice price." 7. Now turning to the order under challenge, in paragraph (21), the tribunal noted: "The nature of relationship between Simac and Singer, Singers interest in the sale of Simac products, Simacs dependence on Singer for finances, sale, marketing etc., exceeded the normal area of a buyer and the seller and would have made the prices tainted, but for the exemption notification No. 120/75-CE." So also, in paragraph (24), it held as under: "We have seen that the involvement of Singer in the activities of Simac was more than that of a normal buyer. For the purposes of S.4 of the Act it could amount to a favoured buyer, but for notification No. 120/75-CE, the same criteria could not apply." 8. A perusal of the above extracts of the order under appeal shows that the tribunal was not very clear about the import of the exemption notification. The tribunal further held, in paragraph (29), as under: "The relationship was created by the sale of goods between Simac and Singer, and no evidence has been brought on record as in what way the invoice prices were influenced by such a relationship, and as to what extent Simacs sale prices as such could not be the prices for S.4 of the Act." 9. This portion of the order under appeal ignores the evidence referred to by the collector (appeals) in paragraph (7) of his order. We may also note that the contention of the assessee that in view of the conclusion arrived at by the tribunal, the other contentions, namely, the power to issue the notice and the question of limitation, which were urged before it, were not considered. | 1[ds]6. A perusal of the exemption notification, extracted above, shows that where the price of the goods, falling under item 68 of the first schedule, assessed under S.4 of the Central Excise and Salt Act, 1944 and the rules made thereunder is more than the invoice price, the notification grants exemption in respect of so much of the duty of excise leviable on it as is in excess of the duty calculated on the basis of invoice price charged by the manufacturer from the sale. In the circumstances mentioned in Clause (iv), the benefit of the exemption would be lost when the invoice price is influenced by any commercial, financial or other relationship, whether by contract or otherwise, between the manufacturer or any person associated in business with the manufacturer and the buyer or any person associated in business with the buyer, other than the relationship created by sale of the aforesaid goods.A perusal of the above extracts of the order under appeal shows that the tribunal was not very clear about the import of the exemption notification.This portion of the order under appeal ignores the evidence referred to by the collector (appeals) in paragraph (7) of his order. We may also note that the contention of the assessee that in view of the conclusion arrived at by the tribunal, the other contentions, namely, the power to issue the notice and the question of limitation, which were urged before it, were not considered. | 1 | 1,260 | 273 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
notification").3. The assessee manufactures hand knitting machines and sells them, in bulk, to M/s. Singer Sewing Machine Company (for short, "M/s. Singer"). It claimed benefit of the notification. The superintendent, central excise, issued a notice dated 16th July, 1976 to the assessee to show cause as to why the benefit of the exemption notification should not be denied to it. On 3rd January, 1979, the assistant collector of central excise, Thane, division I, accepted the contention of the assessee extending the benefit of the notification. However, the collector (appeals) issued a show cause notice on 24 December, 1979 calling upon the assessee to show cause as to why the benefit of the notification should not be denied and consequentially, made a demand for the differential duty of Rs. 18,55,570.69 by revising the order of the assistant collector. On appeal, against the order of the collector (appeals), the tribunal, by the impugned order, held that the assessee was entitled to the benefit of the exemption notification. It is against that order, the revenue is in appeal before us.4. Mr. A. K. Ganguli, learned senior counsel appearing for the revenue, contends that in view of the findings recorded by the tribunal itself, the assessee would not be entitled to the benefit of the exemption notification. He has also invited our attention to the findings recorded by the collector (appeals) to show that the buyer of the machines, namely, M/s. Singer, was having financial and other interest and, therefore, it resulted in the determination of the price within the meaning of clause (iv) of the exemption notification. Mr. G. Umapathy, learned counsel appearing for the assessee, on the other hand, contends that the tribunal has come to a clear finding that there was no evidence on record to show that the invoice price was influenced by any relation-ship between M/s. Singer and the assessee. 5. We have perused the order under challenge and the exemption notification. The exemption notification, insofar as it is relevant for our purposes, reads as under: "Notification No. 120/75-CE Dated30-4-1975(6) Goods falling under item no. 68 cleared from the factory of manufactures, on sale, are exempt from so much of the duty of excise leviable thereon as is in excess of the duty calculated on the basis of the invoice price (excluding duty and local taxes, if any, included in such price) charged by the manufacturer from the sale of such goods:Provided that if the aforesaid exemption shall be admissible only if:(i)-(iii) * * *(iv) The invoice price is not influenced by any commercial, financial or other relationship whether by contract or otherwise between the manufacturer or any person associated in business with the manufacturer and the buyer or any person associated in business with the buyer other than the relationship created by sale of the aforesaid goods;" 6. A perusal of the exemption notification, extracted above, shows that where the price of the goods, falling under item 68 of the first schedule, assessed under S.4 of the Central Excise and Salt Act, 1944 and the rules made thereunder is more than the invoice price, the notification grants exemption in respect of so much of the duty of excise leviable on it as is in excess of the duty calculated on the basis of invoice price charged by the manufacturer from the sale. In the circumstances mentioned in Clause (iv), the benefit of the exemption would be lost when the invoice price is influenced by any commercial, financial or other relationship, whether by contract or otherwise, between the manufacturer or any person associated in business with the manufacturer and the buyer or any person associated in business with the buyer, other than the relationship created by sale of the aforesaid goods. The import of the notification has been succinctly summed up by this Court in Texmaco Limited v. Collector of Central Excise, Calcutta, (JT 1991 (6) SC 180 ) in the following words: "The (exemption) notification posits and predicates the possibility that the invoice value could be lesser than the assessable value and, taking into account the need to mitigate the hardship on the manufacturer of being called upon to pay duty on the value in excess of the invoice value, seeks to exempt the manufacturer from payment of duty in excess of the duty calculated on the basis of the invoice price." 7. Now turning to the order under challenge, in paragraph (21), the tribunal noted: "The nature of relationship between Simac and Singer, Singers interest in the sale of Simac products, Simacs dependence on Singer for finances, sale, marketing etc., exceeded the normal area of a buyer and the seller and would have made the prices tainted, but for the exemption notification No. 120/75-CE." So also, in paragraph (24), it held as under: "We have seen that the involvement of Singer in the activities of Simac was more than that of a normal buyer. For the purposes of S.4 of the Act it could amount to a favoured buyer, but for notification No. 120/75-CE, the same criteria could not apply." 8. A perusal of the above extracts of the order under appeal shows that the tribunal was not very clear about the import of the exemption notification. The tribunal further held, in paragraph (29), as under: "The relationship was created by the sale of goods between Simac and Singer, and no evidence has been brought on record as in what way the invoice prices were influenced by such a relationship, and as to what extent Simacs sale prices as such could not be the prices for S.4 of the Act." 9. This portion of the order under appeal ignores the evidence referred to by the collector (appeals) in paragraph (7) of his order. We may also note that the contention of the assessee that in view of the conclusion arrived at by the tribunal, the other contentions, namely, the power to issue the notice and the question of limitation, which were urged before it, were not considered.
### Response:
1
### Explanation:
6. A perusal of the exemption notification, extracted above, shows that where the price of the goods, falling under item 68 of the first schedule, assessed under S.4 of the Central Excise and Salt Act, 1944 and the rules made thereunder is more than the invoice price, the notification grants exemption in respect of so much of the duty of excise leviable on it as is in excess of the duty calculated on the basis of invoice price charged by the manufacturer from the sale. In the circumstances mentioned in Clause (iv), the benefit of the exemption would be lost when the invoice price is influenced by any commercial, financial or other relationship, whether by contract or otherwise, between the manufacturer or any person associated in business with the manufacturer and the buyer or any person associated in business with the buyer, other than the relationship created by sale of the aforesaid goods.A perusal of the above extracts of the order under appeal shows that the tribunal was not very clear about the import of the exemption notification.This portion of the order under appeal ignores the evidence referred to by the collector (appeals) in paragraph (7) of his order. We may also note that the contention of the assessee that in view of the conclusion arrived at by the tribunal, the other contentions, namely, the power to issue the notice and the question of limitation, which were urged before it, were not considered.
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Swarn Kaur Vs. Gurmukh Singh & Others | when his body was shown to them at the rivulet by P.W.19, was a serious circumstance, which has to be considered and held against the accused. 34. With that when we come to the next question as to the failure of the accused in not having come forward with any acceptable explanation for not taking any steps by them to trace the missing of the deceased, except stating that they reported him missing to the police is yet another circumstance creating serious doubts about the credibility in their stand. When admittedly, the deceased was engaged at the instance of A2 for the purpose of cooking food for the pilgrims and subsequently he was found missing when the tour programme was on going, we fail to understand as to how by taking a mere stand that such missing of the person was simply reported to the police without any further action taken in that respect is one other circumstance to be considered against the accused. When the deceased was engaged and was taken along with the pilgrims, which was led by the second accused, it was the responsibility of the second accused to have shown what were the earnest efforts taken by him to trace the whereabouts of the deceased. Unfortunately, except the mere statement that along with A3 and A4, he went to Shah Talai police station and reported about the missing of the deceased, nothing else was shown as to what were the further steps taken by him to trace the deceased. Further, the evidence of P.W.2 that the accused offered to compensate the missing of the deceased was yet another circumstance to be taken into account while considering the guilt of the accused. 35. Therefore, the said conduct of the accused would only go to show that the said circumstance is also one other relevant circumstance, which has to be considered along with the other circumstances, which were all found proved and adverse against the accused. 36. With that when we come to the last of the circumstance viz., the version of P.W.2 and P.W.12 that after reporting about the missing of the deceased to them by A2 and A3 on 01.04.2002, on 04.04.2002, they came and reported that the deceased was no more and that they were prepared to pay a sum of Rs.1,00,000/- by way of compensation, was last of the circumstance which if accepted to be true would be a clinching piece of circumstance, that would complete the other chain of circumstances to fasten the alleged offence against the accused persons. The Trial Court which had the advantage of watching the demonour of P.W.2 and P.W.12, has noted that no serious answer was elicited from the mouth of the said witnesses, as regards the alleged offer of compensation made by A2 and A4. There is no valid reason to interfere with the said conclusion of the Trial Court in the absence of any other legally acceptable counter evidence to doubt the version of P.W.2 and P.W.12. Therefore, if A2 and A4, had made an attempt and offered the compensation of Rs.1,00,000/- after informing P.W.2 about the death of the deceased, the only conclusion which could be drawn based on the other chain of circumstances, which we have found to have been established without any scope of contradiction, was the culpability of the accused in having eliminated the deceased by inflicting the injuries upon him, as narrated by P.W.6 and as found to have existed by the expert witness viz., the postmortem doctor P.W.23 in Ex.P.W.23/A. 37. We are convinced that every one of the circumstances which were demonstrated to have been proved, sufficiently established the guilt of the accused and consequently, the conclusion of the Trial Court in having found the accused guilty was perfectly justified and the interference with the same by the High Court without sufficient reasoning was therefore, liable to be set aside. 38. Now, we address as to the nature of the offence committed by the accused. PW-23, Dr. A.K. Sharma, who conducted the post-mortem examination, has found the cause of death to be the head injury. But, the question is whether that itself would be sufficient to hold the accused guilty of the offence under Section 302 of the Indian Penal Code. The injuries found on the person of the deceased, as quoted in the preceding paragraph of the judgment, shows presence of only a small contusion of the size of 2 cm x 1 cm on the xiphisternum and the underlying bone was also found to be normal. 39. It is well settled that intention is always lodged in the mind of the accused but, to gather the intention one of the relevant factors which the court looks into is the nature of injury inflicted on the deceased. In our opinion, from the nature of injuries found on the person of the deceased it cannot safely be said that the accused assaulted the deceased with intention to cause such injury so as to cause death. It appears to us that the accused persons were upset by the poor quality of food cooked by the deceased and, therefore, assaulted him. The nature of injury or the weapon used do not suggest that the accused assaulted him with the intention of causing death. However, we are of the opinion that the accused knew that the injury inflicted by them is likely to cause death. Hence, in our opinion, the accused shall be liable to be convicted for offence under Section 304 Part II of the Indian Penal Code. In the facts and circumstances of the case, we are of the opinion that sentence of 7 years’ rigorous imprisonment each and fine of Rs.50,000/- each shall meet the ends of justice. Each of the accused shall deposit the fine amount within three months failing which they shall suffer imprisonment for a further period of one year. Out of the fine amount the appellants shall be paid a sum of Rs.2 lakhs. 40. | 1[ds]We are convinced that every one of the circumstances which were demonstrated to have been proved, sufficiently established the guilt of the accused and consequently, the conclusion of the Trial Court in having found the accused guilty was perfectly justified and the interference with the same by the High Court without sufficient reasoning was therefore, liable to be setis well settled that intention is always lodged in the mind of the accused but, to gather the intention one of the relevant factors which the court looks into is the nature of injury inflicted on the deceased. In our opinion, from the nature of injuries found on the person of the deceased it cannot safely be said that the accused assaulted the deceased with intention to cause such injury so as to cause death. It appears to us that the accused persons were upset by the poor quality of food cooked by the deceased and, therefore, assaulted him. The nature of injury or the weapon used do not suggest that the accused assaulted him with the intention of causing death. However, we are of the opinion that the accused knew that the injury inflicted by them is likely to cause death. Hence, in our opinion, the accused shall be liable to be convicted for offence under Section 304 Part II of the Indian Penal Code. In the facts and circumstances of the case, we are of the opinion that sentence of 7rigorous imprisonment each and fine of Rs.50,000/- each shall meet the ends of justice. Each of the accused shall deposit the fine amount within three months failing which they shall suffer imprisonment for a further period of one year. Out of the fine amount the appellants shall be paid a sum of Rs.2 lakhs. | 1 | 6,168 | 319 | ### 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:
when his body was shown to them at the rivulet by P.W.19, was a serious circumstance, which has to be considered and held against the accused. 34. With that when we come to the next question as to the failure of the accused in not having come forward with any acceptable explanation for not taking any steps by them to trace the missing of the deceased, except stating that they reported him missing to the police is yet another circumstance creating serious doubts about the credibility in their stand. When admittedly, the deceased was engaged at the instance of A2 for the purpose of cooking food for the pilgrims and subsequently he was found missing when the tour programme was on going, we fail to understand as to how by taking a mere stand that such missing of the person was simply reported to the police without any further action taken in that respect is one other circumstance to be considered against the accused. When the deceased was engaged and was taken along with the pilgrims, which was led by the second accused, it was the responsibility of the second accused to have shown what were the earnest efforts taken by him to trace the whereabouts of the deceased. Unfortunately, except the mere statement that along with A3 and A4, he went to Shah Talai police station and reported about the missing of the deceased, nothing else was shown as to what were the further steps taken by him to trace the deceased. Further, the evidence of P.W.2 that the accused offered to compensate the missing of the deceased was yet another circumstance to be taken into account while considering the guilt of the accused. 35. Therefore, the said conduct of the accused would only go to show that the said circumstance is also one other relevant circumstance, which has to be considered along with the other circumstances, which were all found proved and adverse against the accused. 36. With that when we come to the last of the circumstance viz., the version of P.W.2 and P.W.12 that after reporting about the missing of the deceased to them by A2 and A3 on 01.04.2002, on 04.04.2002, they came and reported that the deceased was no more and that they were prepared to pay a sum of Rs.1,00,000/- by way of compensation, was last of the circumstance which if accepted to be true would be a clinching piece of circumstance, that would complete the other chain of circumstances to fasten the alleged offence against the accused persons. The Trial Court which had the advantage of watching the demonour of P.W.2 and P.W.12, has noted that no serious answer was elicited from the mouth of the said witnesses, as regards the alleged offer of compensation made by A2 and A4. There is no valid reason to interfere with the said conclusion of the Trial Court in the absence of any other legally acceptable counter evidence to doubt the version of P.W.2 and P.W.12. Therefore, if A2 and A4, had made an attempt and offered the compensation of Rs.1,00,000/- after informing P.W.2 about the death of the deceased, the only conclusion which could be drawn based on the other chain of circumstances, which we have found to have been established without any scope of contradiction, was the culpability of the accused in having eliminated the deceased by inflicting the injuries upon him, as narrated by P.W.6 and as found to have existed by the expert witness viz., the postmortem doctor P.W.23 in Ex.P.W.23/A. 37. We are convinced that every one of the circumstances which were demonstrated to have been proved, sufficiently established the guilt of the accused and consequently, the conclusion of the Trial Court in having found the accused guilty was perfectly justified and the interference with the same by the High Court without sufficient reasoning was therefore, liable to be set aside. 38. Now, we address as to the nature of the offence committed by the accused. PW-23, Dr. A.K. Sharma, who conducted the post-mortem examination, has found the cause of death to be the head injury. But, the question is whether that itself would be sufficient to hold the accused guilty of the offence under Section 302 of the Indian Penal Code. The injuries found on the person of the deceased, as quoted in the preceding paragraph of the judgment, shows presence of only a small contusion of the size of 2 cm x 1 cm on the xiphisternum and the underlying bone was also found to be normal. 39. It is well settled that intention is always lodged in the mind of the accused but, to gather the intention one of the relevant factors which the court looks into is the nature of injury inflicted on the deceased. In our opinion, from the nature of injuries found on the person of the deceased it cannot safely be said that the accused assaulted the deceased with intention to cause such injury so as to cause death. It appears to us that the accused persons were upset by the poor quality of food cooked by the deceased and, therefore, assaulted him. The nature of injury or the weapon used do not suggest that the accused assaulted him with the intention of causing death. However, we are of the opinion that the accused knew that the injury inflicted by them is likely to cause death. Hence, in our opinion, the accused shall be liable to be convicted for offence under Section 304 Part II of the Indian Penal Code. In the facts and circumstances of the case, we are of the opinion that sentence of 7 years’ rigorous imprisonment each and fine of Rs.50,000/- each shall meet the ends of justice. Each of the accused shall deposit the fine amount within three months failing which they shall suffer imprisonment for a further period of one year. Out of the fine amount the appellants shall be paid a sum of Rs.2 lakhs. 40.
### Response:
1
### Explanation:
We are convinced that every one of the circumstances which were demonstrated to have been proved, sufficiently established the guilt of the accused and consequently, the conclusion of the Trial Court in having found the accused guilty was perfectly justified and the interference with the same by the High Court without sufficient reasoning was therefore, liable to be setis well settled that intention is always lodged in the mind of the accused but, to gather the intention one of the relevant factors which the court looks into is the nature of injury inflicted on the deceased. In our opinion, from the nature of injuries found on the person of the deceased it cannot safely be said that the accused assaulted the deceased with intention to cause such injury so as to cause death. It appears to us that the accused persons were upset by the poor quality of food cooked by the deceased and, therefore, assaulted him. The nature of injury or the weapon used do not suggest that the accused assaulted him with the intention of causing death. However, we are of the opinion that the accused knew that the injury inflicted by them is likely to cause death. Hence, in our opinion, the accused shall be liable to be convicted for offence under Section 304 Part II of the Indian Penal Code. In the facts and circumstances of the case, we are of the opinion that sentence of 7rigorous imprisonment each and fine of Rs.50,000/- each shall meet the ends of justice. Each of the accused shall deposit the fine amount within three months failing which they shall suffer imprisonment for a further period of one year. Out of the fine amount the appellants shall be paid a sum of Rs.2 lakhs.
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M/S. Makhija Construction & Enggr.P.Ltd Vs. Indore Development Authority | is - Was it constituted for educational purposes? Out of 67 objects mentioned in its Memorandum of Association, the main objects of the appellant were to carry on the business of constructing, building, roads, bridges etc. and to act as a supplier of hardware, paints, sanitary fittings, construction material and so on. The objects incidental or ancillary to the attainment of the main objects, are specified in Clauses 3 to 28. Other objects are mentioned in Clauses 30 to 67. These include a wide variety of possible diversification of the appellants business. The last Clauses reads: The last Clauses reads: 67. To establish and construct shopping markets, show rooms Nursing homes, schools, clubs houses, cinemas, office premises and other buildings for commercial purposes on lands seized and licence basis. 13. We do not read this as in any way justifying the appellants claim that it was constituted for educational purposes. To be constituted for means the primary objective of the constitution. The primary objective of the appellant was certainly not to carry on educational activities. Besides the language of Clauses 67 does not indicate that even this object is to carry on the running of the management of the school, but rather pertains to the construction of school buildings. Where the object was to carry on the business, this has been specifically so stated in the remaining objects clauses, for example in Clauses 30-31, 34-37, 40-42, 44-64 and 66 of the Memorandum. 14. The importance of the requirement for being involved with educational activities will also appear from the Regulations for Transfer of Property and other Ancillary Matters, 1987 framed under the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam 1973, where Regulation 33 (which refers to the respondent No.1 as the Authority) says that :- (i) The Authority may transfer any property ear-marked in the layout of any scheme for fulfillment of any community needs like education, medical, social, etc. by direct negotiations with such registered institutions which run hospitals, schools or to such bodies dedicated to science, art, music, literature, etc or engaged in other social or community purposes. (ii) The Authority shall determine the rate of premium on No profit No loss basis, each year commencing from 1st October, at which such property shall be transferred to such institutions or bodies. 15. The fact that the appellant had bid the highest was, in the circumstances, immaterial as the object of allotting the land to an educational institution was not the making of profit. The learned Single Judge was therefore wrong in construing the advertisement dated 22nd September, 1993 in the manner he did and the Appellate Court erred in dismissing Crescents appeal. In our opinion the appellant was not competent to participate in the tender. 16. However, the appellant is entitled to succeed on the ground that the order of the Division Bench disposing of Crescents appeal operated as res judicata to bind not only Crescent but also Jagriti and the appellant. It makes no difference that Jagriti was a co-respondent with the appellant. The principle of res judicata has been held to bind co-defendants if the relief given or refused by the earlier decision involved a determination of an issue between co-defendants (or co-respondents as the case may be). This statement of the law has been approved as far back as in 1939 in Munni Bibi vs. Trilokinath 58 I.A. 158, 165, where it has been said that to apply the rule of res judicata as between co-defendants three conditions are requisite. (1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3). the question between the defendants must have been finally decided. 17. This view has been consistently followed by this Court. (See: Iftikhar Ahmed vs. Sahid Meharban Ali, (1974) 2 SCC 151 where the principle was extended to bind co-plaintiffs; Mahboob Sahab vs. Syed Ismail AIR 1995 SC 1205 ). 18. In the present case the facts show that all the three conditions were fulfilled. There was a conflict of interest between the two co-respondents in Crescents appeal, namely between Jagriti and the appellants. For the purposes of deciding the relief, if any, to be granted to Crescent it was necessary for the Appellate Court to decide whether the appellant was entitled to participate. Although, the decision of the Appellate Court is cryptic, nevertheless, it cannot be said that the Court had not applied its judicial mind to the merits of the case. The exact language of the order disposing of the Crescents appeal reads as follows:- Heard. Dismissed as the order of the Honble Single Judge has done substantial justice, it also says that I.D.A. would decide the matter by all considerations. This order is passed after hearing the L/C of the parties for about an hours. 19. Jagritis counsel was recorded as being present. The fact that the Appellate Court was wrong in affirming the decision of the learned Single Judge would not make the decision less binding. (See: State of West Bengal vs. Hemant Kumar Bhattacharjee AIR 1966 SC 1061 ; Gorie Gouri Naidu vs. Thandrothu Bodemma AIR 1997 SC 808 , 809) 20. The counsel for Jagriti has referred us to several decisions viz. Gopal Upadhyaya and others vs. Union of India and others 1986 (Supp) SCC 501, Ambica Quarry Works vs. State of Gujarat and others (1987) 1 SCC 213 , Deena Alias Deen Dayal and and others vs. Union of India and others etc. etc. (1983) 4 SCC 645 and Krishena Kumar vs. Union of India and others (1990) 4 SCC 207. None of the decisions are apposite. They refer to the principle of precedent which is distinct from the principle of res judicata. A precedent operates to bind in similar situations in a distinct case. Res judicata operates to bind parties to proceedings for no other reason, but that there should be an end to litigation. | 1[ds]11. On the merits, Jagritis submissions appear to be correct13. We do not read this as in any way justifying the appellants claim that it was constituted for educational purposes. To be constituted for means the primary objective of the constitution. The primary objective of the appellant was certainly not to carry on educational activities. Besides the language of Clauses 67 does not indicate that even this object is to carry on the running of the management of the school, but rather pertains to the construction of school buildings. Where the object was to carry on the business, this has been specifically so stated in the remaining objects clauses, for example in Clauses4 and 66 of the Memorandum15. The fact that the appellant had bid the highest was, in the circumstances, immaterial as the object of allotting the land to an educational institution was not the making of profit. The learned Single Judge was therefore wrong in construing the advertisement dated 22nd September, 1993 in the manner he did and the Appellate Court erred in dismissing Crescents appeal. In our opinion the appellant was not competent to participate in the tender16. However, the appellant is entitled to succeed on the ground that the order of the Division Bench disposing of Crescents appeal operated as res judicata to bind not only Crescent but also Jagriti and the appellant. It makes no difference that Jagriti was at with the appellant. The principle of res judicata has been held to binds if the relief given or refused by the earlier decision involved a determination of an issue betweens as the case may be). This statement of the law has been approved as far back as in 1939 in Munni Bibi vs. Trilokinath 58 I.A. 158, 165, where it has been said that to apply the rule of res judicata as betweens three conditions are requisite17. This view has been consistently followed by this Court. (See: Iftikhar Ahmed vs. Sahid Meharban Ali, (1974) 2 SCC 151 where the principle was extended to bind; Mahboob Sahab vs. Syed Ismail AIR 1995 SC 1205 )18. In the present case the facts show that all the three conditions were fulfilled. There was a conflict of interest between the twos in Crescents appeal, namely between Jagriti and the appellants. For the purposes of deciding the relief, if any, to be granted to Crescent it was necessary for the Appellate Court to decide whether the appellant was entitled to participate. Although, the decision of the Appellate Court is cryptic, nevertheless, it cannot be said that the Court had not applied its judicial mind to the merits of the case19. Jagritis counsel was recorded as being present. The fact that the Appellate Court was wrong in affirming the decision of the learned Single Judge would not make the decision less binding. (See: State of West Bengal vs. Hemant Kumar Bhattacharjee AIR 1966 SC 1061 ; Gorie Gouri Naidu vs. Thandrothu Bodemma AIR 1997 SC 808 , 809)20. The counsel for Jagriti has referred us to several decisions viz. Gopal Upadhyaya and others vs. Union of India and others 1986 (Supp) SCC 501, Ambica Quarry Works vs. State of Gujarat and others (1987) 1 SCC 213 , Deena Alias Deen Dayal and and others vs. Union of India and others etc. etc. (1983) 4 SCC 645 and Krishena Kumar vs. Union of India and others (1990) 4 SCC 207. None of the decisions are apposite. They refer to the principle of precedent which is distinct from the principle of res judicata. A precedent operates to bind in similar situations in a distinct case. Res judicata operates to bind parties to proceedings for no other reason, but that there should be an end to litigation. | 1 | 2,311 | 698 | ### 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:
is - Was it constituted for educational purposes? Out of 67 objects mentioned in its Memorandum of Association, the main objects of the appellant were to carry on the business of constructing, building, roads, bridges etc. and to act as a supplier of hardware, paints, sanitary fittings, construction material and so on. The objects incidental or ancillary to the attainment of the main objects, are specified in Clauses 3 to 28. Other objects are mentioned in Clauses 30 to 67. These include a wide variety of possible diversification of the appellants business. The last Clauses reads: The last Clauses reads: 67. To establish and construct shopping markets, show rooms Nursing homes, schools, clubs houses, cinemas, office premises and other buildings for commercial purposes on lands seized and licence basis. 13. We do not read this as in any way justifying the appellants claim that it was constituted for educational purposes. To be constituted for means the primary objective of the constitution. The primary objective of the appellant was certainly not to carry on educational activities. Besides the language of Clauses 67 does not indicate that even this object is to carry on the running of the management of the school, but rather pertains to the construction of school buildings. Where the object was to carry on the business, this has been specifically so stated in the remaining objects clauses, for example in Clauses 30-31, 34-37, 40-42, 44-64 and 66 of the Memorandum. 14. The importance of the requirement for being involved with educational activities will also appear from the Regulations for Transfer of Property and other Ancillary Matters, 1987 framed under the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam 1973, where Regulation 33 (which refers to the respondent No.1 as the Authority) says that :- (i) The Authority may transfer any property ear-marked in the layout of any scheme for fulfillment of any community needs like education, medical, social, etc. by direct negotiations with such registered institutions which run hospitals, schools or to such bodies dedicated to science, art, music, literature, etc or engaged in other social or community purposes. (ii) The Authority shall determine the rate of premium on No profit No loss basis, each year commencing from 1st October, at which such property shall be transferred to such institutions or bodies. 15. The fact that the appellant had bid the highest was, in the circumstances, immaterial as the object of allotting the land to an educational institution was not the making of profit. The learned Single Judge was therefore wrong in construing the advertisement dated 22nd September, 1993 in the manner he did and the Appellate Court erred in dismissing Crescents appeal. In our opinion the appellant was not competent to participate in the tender. 16. However, the appellant is entitled to succeed on the ground that the order of the Division Bench disposing of Crescents appeal operated as res judicata to bind not only Crescent but also Jagriti and the appellant. It makes no difference that Jagriti was a co-respondent with the appellant. The principle of res judicata has been held to bind co-defendants if the relief given or refused by the earlier decision involved a determination of an issue between co-defendants (or co-respondents as the case may be). This statement of the law has been approved as far back as in 1939 in Munni Bibi vs. Trilokinath 58 I.A. 158, 165, where it has been said that to apply the rule of res judicata as between co-defendants three conditions are requisite. (1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3). the question between the defendants must have been finally decided. 17. This view has been consistently followed by this Court. (See: Iftikhar Ahmed vs. Sahid Meharban Ali, (1974) 2 SCC 151 where the principle was extended to bind co-plaintiffs; Mahboob Sahab vs. Syed Ismail AIR 1995 SC 1205 ). 18. In the present case the facts show that all the three conditions were fulfilled. There was a conflict of interest between the two co-respondents in Crescents appeal, namely between Jagriti and the appellants. For the purposes of deciding the relief, if any, to be granted to Crescent it was necessary for the Appellate Court to decide whether the appellant was entitled to participate. Although, the decision of the Appellate Court is cryptic, nevertheless, it cannot be said that the Court had not applied its judicial mind to the merits of the case. The exact language of the order disposing of the Crescents appeal reads as follows:- Heard. Dismissed as the order of the Honble Single Judge has done substantial justice, it also says that I.D.A. would decide the matter by all considerations. This order is passed after hearing the L/C of the parties for about an hours. 19. Jagritis counsel was recorded as being present. The fact that the Appellate Court was wrong in affirming the decision of the learned Single Judge would not make the decision less binding. (See: State of West Bengal vs. Hemant Kumar Bhattacharjee AIR 1966 SC 1061 ; Gorie Gouri Naidu vs. Thandrothu Bodemma AIR 1997 SC 808 , 809) 20. The counsel for Jagriti has referred us to several decisions viz. Gopal Upadhyaya and others vs. Union of India and others 1986 (Supp) SCC 501, Ambica Quarry Works vs. State of Gujarat and others (1987) 1 SCC 213 , Deena Alias Deen Dayal and and others vs. Union of India and others etc. etc. (1983) 4 SCC 645 and Krishena Kumar vs. Union of India and others (1990) 4 SCC 207. None of the decisions are apposite. They refer to the principle of precedent which is distinct from the principle of res judicata. A precedent operates to bind in similar situations in a distinct case. Res judicata operates to bind parties to proceedings for no other reason, but that there should be an end to litigation.
### Response:
1
### Explanation:
11. On the merits, Jagritis submissions appear to be correct13. We do not read this as in any way justifying the appellants claim that it was constituted for educational purposes. To be constituted for means the primary objective of the constitution. The primary objective of the appellant was certainly not to carry on educational activities. Besides the language of Clauses 67 does not indicate that even this object is to carry on the running of the management of the school, but rather pertains to the construction of school buildings. Where the object was to carry on the business, this has been specifically so stated in the remaining objects clauses, for example in Clauses4 and 66 of the Memorandum15. The fact that the appellant had bid the highest was, in the circumstances, immaterial as the object of allotting the land to an educational institution was not the making of profit. The learned Single Judge was therefore wrong in construing the advertisement dated 22nd September, 1993 in the manner he did and the Appellate Court erred in dismissing Crescents appeal. In our opinion the appellant was not competent to participate in the tender16. However, the appellant is entitled to succeed on the ground that the order of the Division Bench disposing of Crescents appeal operated as res judicata to bind not only Crescent but also Jagriti and the appellant. It makes no difference that Jagriti was at with the appellant. The principle of res judicata has been held to binds if the relief given or refused by the earlier decision involved a determination of an issue betweens as the case may be). This statement of the law has been approved as far back as in 1939 in Munni Bibi vs. Trilokinath 58 I.A. 158, 165, where it has been said that to apply the rule of res judicata as betweens three conditions are requisite17. This view has been consistently followed by this Court. (See: Iftikhar Ahmed vs. Sahid Meharban Ali, (1974) 2 SCC 151 where the principle was extended to bind; Mahboob Sahab vs. Syed Ismail AIR 1995 SC 1205 )18. In the present case the facts show that all the three conditions were fulfilled. There was a conflict of interest between the twos in Crescents appeal, namely between Jagriti and the appellants. For the purposes of deciding the relief, if any, to be granted to Crescent it was necessary for the Appellate Court to decide whether the appellant was entitled to participate. Although, the decision of the Appellate Court is cryptic, nevertheless, it cannot be said that the Court had not applied its judicial mind to the merits of the case19. Jagritis counsel was recorded as being present. The fact that the Appellate Court was wrong in affirming the decision of the learned Single Judge would not make the decision less binding. (See: State of West Bengal vs. Hemant Kumar Bhattacharjee AIR 1966 SC 1061 ; Gorie Gouri Naidu vs. Thandrothu Bodemma AIR 1997 SC 808 , 809)20. The counsel for Jagriti has referred us to several decisions viz. Gopal Upadhyaya and others vs. Union of India and others 1986 (Supp) SCC 501, Ambica Quarry Works vs. State of Gujarat and others (1987) 1 SCC 213 , Deena Alias Deen Dayal and and others vs. Union of India and others etc. etc. (1983) 4 SCC 645 and Krishena Kumar vs. Union of India and others (1990) 4 SCC 207. None of the decisions are apposite. They refer to the principle of precedent which is distinct from the principle of res judicata. A precedent operates to bind in similar situations in a distinct case. Res judicata operates to bind parties to proceedings for no other reason, but that there should be an end to litigation.
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SHIV RAJ GUPTA Vs. COMMISSIONER OF INCOME-TAX, DELHI-IV | concern of the assessee – it is the assessees expertise in this field on all counts that was the threat perception of the SWC group which cannot be second guessed by the revenue. Equally the fact that there was no penalty clause for violation of the Deed of Covenant, has been found by us to be incorrect given the letter dated 02.04.1994. The fact that the respondent-assessee in his letter dated 26.03.1998 in reply to the show cause notice had stated that the SWC group had gained substantial commercial advantage by the purchase of shares in CDBL as the turnover increased from INR 9.79 crores in the accounting period ending 31.03.1991 to INR 45.17 crores in the accounting period ending 31.03.1997 is again neither here nor there. As a matter of fact, the SWC group, due to its own advertisement and marketing efforts, may well have reached this figure after a period of six years (the date 30.09.1995 is wrongly recorded by the High Court in paragraph 19 – the correct date as per the letter dated 26.03.1998 is 31.03.1991, as has been pointed out by us hereinabove). 19. It only remains for us to point out the judgment in Guffic Chem (P) Ltd. v. CIT (2011) 4 SCC 254. In this case, the question set out by the Court is as follows: Whether a payment under an agreement not to compete (negative covenant agreement) is a capital receipt or a revenue receipt is the question which arises for determination in this case? Here, the Court was dealing with an amount of INR 50 lakhs received by the appellant-assessee from Ranbaxy as a non-compete fee under an agreement dated 31.03.1997. This Court in negating the application of Section 28(ii)(a) to such receipt, held as follows: Decision 4. The position in law is clear and well settled. There is a dichotomy between receipt of compensation by an assessee for the loss of agency and receipt of compensation attributable to the negative/restrictive covenant. The compensation received for the loss of agency is a revenue receipt whereas the compensation attributable to a negative/restrictive covenant is a capital receipt. 5. The above dichotomy is clearly spelt out in the judgment of this Court in Gillanders case [(1964) 53 ITR 283 (SC)] , in which the facts were as follows: the assessee in that case carried on business in diverse fields besides acting as managing agents, shipping agents, purchasing agents and secretaries. The assessee also acted as importers and distributors on behalf of foreign principals and bought and sold on its own account. Under an agreement which was terminable at will the assessee acted as a sole agent of explosives manufactured by Imperial Chemical Industries (Export) Ltd. That agency was terminated and by way of compensation Imperial Chemical Industries (Export) Ltd. paid for first three years after the termination of the agency two-fifths of the commission accrued on its sales in the territory of the agency of the appellant and in addition in the third year full commission was paid for the sales in that year. Imperial Chemical Industries (Export) Ltd. took a formal undertaking from the assessee to refrain from selling or accepting any agency for explosives. 6. Two questions arose for determination in Gillanders case [(1964) 53 ITR 283 (SC)] , namely, whether the amounts received by the appellant for loss of agency was in normal course of business and therefore whether they constituted revenue receipt? The second question which arose before this Court was whether the amount received by the assessee (compensation) on the condition not to carry on a competitive business was in the nature of capital receipt? It was held that the compensation received by the assessee for loss of agency was a revenue receipt whereas compensation received for refraining from carrying on competitive business was a capital receipt. 7. This dichotomy has not been appreciated by the High Court in its impugned judgment. The High Court has misinterpreted the judgment of this Court in Gillanders case [(1964) 53 ITR 283 (SC)] . In the present case, the Department has not impugned the genuineness of the transaction. In the present case, we are of the view that the High Court has erred in interfering with the concurrent findings of fact recorded by CIT (A) and the Tribunal. 8. One more aspect needs to be highlighted. The payment received as non-competition fee under a negative covenant was always treated as a capital receipt till Assessment Year 2003-2004. It is only vide the Finance Act, 2002 with effect from 1-4-2003 that the said capital receipt is now made taxable [see Section 28(v-a)]. The Finance Act, 2002 itself indicates that during the relevant assessment year compensation received by the assessee under non- competition agreement was a capital receipt, not taxable under the 1961 Act. It became taxable only with effect from 1-4-2003. It is well settled that a liability cannot be created retrospectively. In the present case, compensation received under the non-competition agreement became taxable as a capital receipt and not as a revenue receipt by specific legislative mandate vide Section 28(v-a) and that too with effect from 1-4-2003. Hence, the said Section 28(v-a) is amendatory and not clarificatory. 9. Lastly, in CIT v. Rai Bahadur Jairam Valji [(1959) 35 ITR 148 (SC)] it was held by this Court that if a contract is entered into in the ordinary course of business, any compensation received for its termination (loss of agency) would be a revenue receipt. In the present case, both CIT(A) as well as the Tribunal, came to the conclusion that the agreement entered into by the assessee with Ranbaxy led to loss of source of business; that payment was received under the negative covenant and therefore the receipt of Rs. 50 lakhs by the assessee from Ranbaxy was in the nature of capital receipt. In fact, in order to put an end to the litigation, Parliament stepped in to specifically tax such receipts under the non-competition agreement with effect from 1-4-2003. | 1[ds]12. Having heard learned counsel for both parties, we are of the view that the appeal needs to succeed first on the preliminary ground raised by the learned counsel for the appellant.This provision, being modelled on a similar provision that is contained in Section 100 of the Code of Civil Procedure, makes it clear that the High Courts jurisdiction depends upon a substantial question of law being involved in the appeal before it. First and foremost, it shall formulate that question and on the question so formulated, the High Court may then pronounce judgement, either by answering the question in the affirmative or negative or by stating that the case at hand does not involve any such question. If the High Court wishes to hear the appeal on any other substantial question of law not formulated by it, it may, for reasons to be recorded, formulate and hear such questions if it is satisfied that the case involves such question – See section 260-A (4). Under sub-section (6), the High Court may also determine any issue which, though raised, has not been determined by the Appellate Tribunal or has been wrongly determined by the Appellate Tribunal by reason of a decision on a substantial question of law raised.14. It can be seen that the substantial question of law that was raised by the High Court did not contain any question as to whether the non-compete fee could be taxed under any provision other than Section 28(ii)(a) of the Income Tax Act, 1961. Without giving an opportunity to the parties followed by reasons for framing any other substantial question of law as to the taxability of such amount as a capital receipt in the hands of the assessee, the High Court answered the substantial question of law raised as follows:63. In view of the aforesaid discussion, we deem it appropriate and proper to treat Rs. 6.60 crores as consideration paid for sale of shares, rather than a payment under Section 28(ii)(a) of the Act.65. The substantial question of law is accordingly answered in favour of the appellant-Revenue and against the respondent-assessee but holding that Rs.6.60 crores was taxable as capital gains in the hands of the respondent-assessee being a part of the full value sale consideration paid for transfer of shares. The appellant-Revenue will be entitled to costs as per the Delhi High Court Rules.Clearly, without any recorded reasons and without framing any substantial question of law on whether the said amount could be taxed under any other provision of the Income Tax Act, the High Court went ahead and held that the amount of INR 6.6 crores received by the assessee was received as part of the full value of sale consideration paid for transfer of shares – and not for handing over management and control of CDBL and is consequently not taxable under Section 28(ii)(a) of the Income Tax Act. Nor is it exempt as a capital receipt being non- compete fee, as it is taxable as a capital gain in the hands of the respondent-assessee as part of the full value of sale consideration paid for transfer of shares. This finding would clearly be in the teeth of Section 260-A (4), requiring the judgment to be set aside on this score.15. Coming to the merits, the High Court found:22. …No doubt, market price of each share was only Rs.3/- per share and the purchase price under the MOU was Rs.30/-, but the total consideration received was merely about Rs.56 lacs. What was allegedly paid as non-compete fee was ten times more, i.e. Rs.6.60 crores. The figure per se does not appear to be a realistic payment made on account of non-compete fee, dehors and without reference to sale of shares, loss of management and control of CDBL. The assessee had attributed an astronomical sum as payment toward non-compete fee, unconnected with the sale of shares and hence not taxable. Noticeably, the price received for sale of shares, it is accepted was taxable as capital gain. The contention that quoted price of each share was mere Rs. 3 only, viz. price as declared of Rs. 30/- is fallacious and off beam. The argument of the assessee suffers from a basic and fundamental flaw which is conspicuous and evident.This finding flies in the face of settled law. A catena of judgments has held that commercial expediency has to be adjudged from the point of view of the assessee and that the Income Tax Department cannot enter into the thicket of reasonableness of amounts paid by the assessee. This Court in CIT v. Walchand & Co. (1967) 3 SCR 214 stated as follows:It is open to the Tribunal to come to a conclusion either that the alleged payment is not real or that it is not incurred by the assessee in the character of a trader or that it is not laid out wholly and exclusively for the purpose of the business of the assessee and to disallow it. But it is not the function of the Tribunal to determine the remuneration which in their view should be paid to in employee of the assessee. When a claim for allowance under Section 10(2)(xv) of the Income Tax Act is made, the Income Tax Authorities have to decide whether the expenditure claimed as an allowance was incurred voluntarily and on grounds of commercial expediency. In applying the test of commercial expediency for determining whether the expenditure was wholly and exclusively laid out for the purpose of the business, reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the Revenue.[at page 217]17. We may only reiterate as correctly found by the majority judgments of the Appellate Tribunal, that:(i) A share of the face value of INR 10 and market value of INR 3 was sold for INR 30 as a result of control premium having to be paid.(ii) It is important to note that each member of the family was paid for his/her shares in the company, the lions share being paid to the assessees son and wife as they held the most number of shares within the said family.(iii) The non-compete fee of INR 6.6 crores was paid only to the assessee. This was for the reason stated in the Deed of Covenant, namely, that Shri Shiv Raj Gupta had acquired considerable knowledge, skill, expertise and specialisation in the liquor business. There is no doubt that on facts he has been Chairman and Managing Director of CDBL for a period of about 35 years; that he also owned a concern, namely M/s Maltings Ltd., which manufactured and sold IMFL and beer and that he was the President of All India Distilleries Association and H.P. Distilleries Association.(iv) It is further recorded in the judgment of the Accounting Member that the amount of INR 6.6 crores was arrived at as a result of negotiations between the SWC group and the appellant.(v) That the restrictive covenant for a period of 10 years resulted in the payment of INR 66 lakhs per year so that the appellant …will not start or engage himself, directly or indirectly, or provide any service, assistance or support of any nature, whatsoever, to or in relation to the manufacturing, dealing and supplying or marketing of IMFL and/or Beer. Given the personal expertise of the assessee, the perception of the SWC group was that Shri Gupta could either start a rival business or engage himself in a rival business, which would include manufacturing and marketing of IMFL and Beer at which he was an old hand, having experience of 35 years.(vi) As was correctly held by the second Judicial Member, it was also clear that the withholding of INR 3 crores out of INR 6.6 crores for a period of two years by way of a public deposit with the SWC group for the purpose of deduction of any loss on account of any breach of the MoU, was akin to a penalty clause, making it clear thereby that there was no colourable device involved in having two separate agreements for two entirely separate and distinct purposes.18. The reasons given by the learned Assessing Officer and the minority judgment of the Appellate Tribunal are all reasons which transgress the lines drawn by the judgments cited, which state that the revenue has no business to second guess commercial or business expediency of what parties at arms-length decide for each other. For example, stating that there was no rationale behind the payment of INR 6.6 crores and that the assessee was not a probable or perceptible threat or competitor to the SWC group is the perception of the Assessing Officer, which cannot take the place of business reality from the point of view of the assessee, as has been pointed out by us hereinabove. The fact that M/s Maltings Ltd. had incurred a loss in the previous year is again neither here nor there. It may in future be a direct threat to the SWC group and may turn around and make profits in future years. Besides, M/s Maltings Ltd. is only one concern of the assessee – it is the assessees expertise in this field on all counts that was the threat perception of the SWC group which cannot be second guessed by the revenue. Equally the fact that there was no penalty clause for violation of the Deed of Covenant, has been found by us to be incorrect given the letter dated 02.04.1994. The fact that the respondent-assessee in his letter dated 26.03.1998 in reply to the show cause notice had stated that the SWC group had gained substantial commercial advantage by the purchase of shares in CDBL as the turnover increased from INR 9.79 crores in the accounting period ending 31.03.1991 to INR 45.17 crores in the accounting period ending 31.03.1997 is again neither here nor there. As a matter of fact, the SWC group, due to its own advertisement and marketing efforts, may well have reached this figure after a period of six years (the date 30.09.1995 is wrongly recorded by the High Court in paragraph 19 – the correct date as per the letter dated 26.03.1998 is 31.03.1991, as has been pointed out by us hereinabove).4. The position in law is clear and well settled. There is a dichotomy between receipt of compensation by an assessee for the loss of agency and receipt of compensation attributable to the negative/restrictive covenant. The compensation received for the loss of agency is a revenue receipt whereas the compensation attributable to a negative/restrictive covenant is a capital receipt.5. The above dichotomy is clearly spelt out in the judgment of this Court in Gillanders case [(1964) 53 ITR 283 (SC)] , in which the facts were as follows: the assessee in that case carried on business in diverse fields besides acting as managing agents, shipping agents, purchasing agents and secretaries. The assessee also acted as importers and distributors on behalf of foreign principals and bought and sold on its own account. Under an agreement which was terminable at will the assessee acted as a sole agent of explosives manufactured by Imperial Chemical Industries (Export) Ltd. That agency was terminated and by way of compensation Imperial Chemical Industries (Export) Ltd. paid for first three years after the termination of the agency two-fifths of the commission accrued on its sales in the territory of the agency of the appellant and in addition in the third year full commission was paid for the sales in that year. Imperial Chemical Industries (Export) Ltd. took a formal undertaking from the assessee to refrain from selling or accepting any agency for explosives.6. Two questions arose for determination in Gillanders case [(1964) 53 ITR 283 (SC)] , namely, whether the amounts received by the appellant for loss of agency was in normal course of business and therefore whether they constituted revenue receipt? The second question which arose before this Court was whether the amount received by the assessee (compensation) on the condition not to carry on a competitive business was in the nature of capital receipt? It was held that the compensation received by the assessee for loss of agency was a revenue receipt whereas compensation received for refraining from carrying on competitive business was a capital receipt.7. This dichotomy has not been appreciated by the High Court in its impugned judgment. The High Court has misinterpreted the judgment of this Court in Gillanders case [(1964) 53 ITR 283 (SC)] . In the present case, the Department has not impugned the genuineness of the transaction. In the present case, we are of the view that the High Court has erred in interfering with the concurrent findings of fact recorded by CIT (A) and the Tribunal.8. One more aspect needs to be highlighted. The payment received as non-competition fee under a negative covenant was always treated as a capital receipt till Assessment Year 2003-2004. It is only vide the Finance Act, 2002 with effect from 1-4-2003 that the said capital receipt is now made taxable [see Section 28(v-a)]. The Finance Act, 2002 itself indicates that during the relevant assessment year compensation received by the assessee under non- competition agreement was a capital receipt, not taxable under the 1961 Act. It became taxable only with effect from 1-4-2003. It is well settled that a liability cannot be created retrospectively. In the present case, compensation received under the non-competition agreement became taxable as a capital receipt and not as a revenue receipt by specific legislative mandate vide Section 28(v-a) and that too with effect from 1-4-2003. Hence, the said Section 28(v-a) is amendatory and not clarificatory.9. Lastly, in CIT v. Rai Bahadur Jairam Valji [(1959) 35 ITR 148 (SC)] it was held by this Court that if a contract is entered into in the ordinary course of business, any compensation received for its termination (loss of agency) would be a revenue receipt. In the present case, both CIT(A) as well as the Tribunal, came to the conclusion that the agreement entered into by the assessee with Ranbaxy led to loss of source of business; that payment was received under the negative covenant and therefore the receipt of Rs. 50 lakhs by the assessee from Ranbaxy was in the nature of capital receipt. In fact, in order to put an end to the litigation, Parliament stepped in to specifically tax such receipts under the non-competition agreement with effect from 1-4-2003.19. It only remains for us to point out the judgment in Guffic Chem (P) Ltd. v. CIT (2011) 4 SCC 254. In this case, the question set out by the Court is as follows:Whether a payment under an agreement not to compete (negative covenant agreement) is a capital receipt or a revenue receipt is the question which arises for determination in this, the Court was dealing with an amount of INR 50 lakhs received by the appellant-assessee from Ranbaxy as a non-compete fee under an agreement dated 31.03.1997. This Court in negating the application of Section 28(ii)(a) to such receipt, held as follows: | 1 | 7,937 | 2,801 | ### 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:
concern of the assessee – it is the assessees expertise in this field on all counts that was the threat perception of the SWC group which cannot be second guessed by the revenue. Equally the fact that there was no penalty clause for violation of the Deed of Covenant, has been found by us to be incorrect given the letter dated 02.04.1994. The fact that the respondent-assessee in his letter dated 26.03.1998 in reply to the show cause notice had stated that the SWC group had gained substantial commercial advantage by the purchase of shares in CDBL as the turnover increased from INR 9.79 crores in the accounting period ending 31.03.1991 to INR 45.17 crores in the accounting period ending 31.03.1997 is again neither here nor there. As a matter of fact, the SWC group, due to its own advertisement and marketing efforts, may well have reached this figure after a period of six years (the date 30.09.1995 is wrongly recorded by the High Court in paragraph 19 – the correct date as per the letter dated 26.03.1998 is 31.03.1991, as has been pointed out by us hereinabove). 19. It only remains for us to point out the judgment in Guffic Chem (P) Ltd. v. CIT (2011) 4 SCC 254. In this case, the question set out by the Court is as follows: Whether a payment under an agreement not to compete (negative covenant agreement) is a capital receipt or a revenue receipt is the question which arises for determination in this case? Here, the Court was dealing with an amount of INR 50 lakhs received by the appellant-assessee from Ranbaxy as a non-compete fee under an agreement dated 31.03.1997. This Court in negating the application of Section 28(ii)(a) to such receipt, held as follows: Decision 4. The position in law is clear and well settled. There is a dichotomy between receipt of compensation by an assessee for the loss of agency and receipt of compensation attributable to the negative/restrictive covenant. The compensation received for the loss of agency is a revenue receipt whereas the compensation attributable to a negative/restrictive covenant is a capital receipt. 5. The above dichotomy is clearly spelt out in the judgment of this Court in Gillanders case [(1964) 53 ITR 283 (SC)] , in which the facts were as follows: the assessee in that case carried on business in diverse fields besides acting as managing agents, shipping agents, purchasing agents and secretaries. The assessee also acted as importers and distributors on behalf of foreign principals and bought and sold on its own account. Under an agreement which was terminable at will the assessee acted as a sole agent of explosives manufactured by Imperial Chemical Industries (Export) Ltd. That agency was terminated and by way of compensation Imperial Chemical Industries (Export) Ltd. paid for first three years after the termination of the agency two-fifths of the commission accrued on its sales in the territory of the agency of the appellant and in addition in the third year full commission was paid for the sales in that year. Imperial Chemical Industries (Export) Ltd. took a formal undertaking from the assessee to refrain from selling or accepting any agency for explosives. 6. Two questions arose for determination in Gillanders case [(1964) 53 ITR 283 (SC)] , namely, whether the amounts received by the appellant for loss of agency was in normal course of business and therefore whether they constituted revenue receipt? The second question which arose before this Court was whether the amount received by the assessee (compensation) on the condition not to carry on a competitive business was in the nature of capital receipt? It was held that the compensation received by the assessee for loss of agency was a revenue receipt whereas compensation received for refraining from carrying on competitive business was a capital receipt. 7. This dichotomy has not been appreciated by the High Court in its impugned judgment. The High Court has misinterpreted the judgment of this Court in Gillanders case [(1964) 53 ITR 283 (SC)] . In the present case, the Department has not impugned the genuineness of the transaction. In the present case, we are of the view that the High Court has erred in interfering with the concurrent findings of fact recorded by CIT (A) and the Tribunal. 8. One more aspect needs to be highlighted. The payment received as non-competition fee under a negative covenant was always treated as a capital receipt till Assessment Year 2003-2004. It is only vide the Finance Act, 2002 with effect from 1-4-2003 that the said capital receipt is now made taxable [see Section 28(v-a)]. The Finance Act, 2002 itself indicates that during the relevant assessment year compensation received by the assessee under non- competition agreement was a capital receipt, not taxable under the 1961 Act. It became taxable only with effect from 1-4-2003. It is well settled that a liability cannot be created retrospectively. In the present case, compensation received under the non-competition agreement became taxable as a capital receipt and not as a revenue receipt by specific legislative mandate vide Section 28(v-a) and that too with effect from 1-4-2003. Hence, the said Section 28(v-a) is amendatory and not clarificatory. 9. Lastly, in CIT v. Rai Bahadur Jairam Valji [(1959) 35 ITR 148 (SC)] it was held by this Court that if a contract is entered into in the ordinary course of business, any compensation received for its termination (loss of agency) would be a revenue receipt. In the present case, both CIT(A) as well as the Tribunal, came to the conclusion that the agreement entered into by the assessee with Ranbaxy led to loss of source of business; that payment was received under the negative covenant and therefore the receipt of Rs. 50 lakhs by the assessee from Ranbaxy was in the nature of capital receipt. In fact, in order to put an end to the litigation, Parliament stepped in to specifically tax such receipts under the non-competition agreement with effect from 1-4-2003.
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profits in future years. Besides, M/s Maltings Ltd. is only one concern of the assessee – it is the assessees expertise in this field on all counts that was the threat perception of the SWC group which cannot be second guessed by the revenue. Equally the fact that there was no penalty clause for violation of the Deed of Covenant, has been found by us to be incorrect given the letter dated 02.04.1994. The fact that the respondent-assessee in his letter dated 26.03.1998 in reply to the show cause notice had stated that the SWC group had gained substantial commercial advantage by the purchase of shares in CDBL as the turnover increased from INR 9.79 crores in the accounting period ending 31.03.1991 to INR 45.17 crores in the accounting period ending 31.03.1997 is again neither here nor there. As a matter of fact, the SWC group, due to its own advertisement and marketing efforts, may well have reached this figure after a period of six years (the date 30.09.1995 is wrongly recorded by the High Court in paragraph 19 – the correct date as per the letter dated 26.03.1998 is 31.03.1991, as has been pointed out by us hereinabove).4. The position in law is clear and well settled. There is a dichotomy between receipt of compensation by an assessee for the loss of agency and receipt of compensation attributable to the negative/restrictive covenant. The compensation received for the loss of agency is a revenue receipt whereas the compensation attributable to a negative/restrictive covenant is a capital receipt.5. The above dichotomy is clearly spelt out in the judgment of this Court in Gillanders case [(1964) 53 ITR 283 (SC)] , in which the facts were as follows: the assessee in that case carried on business in diverse fields besides acting as managing agents, shipping agents, purchasing agents and secretaries. The assessee also acted as importers and distributors on behalf of foreign principals and bought and sold on its own account. Under an agreement which was terminable at will the assessee acted as a sole agent of explosives manufactured by Imperial Chemical Industries (Export) Ltd. That agency was terminated and by way of compensation Imperial Chemical Industries (Export) Ltd. paid for first three years after the termination of the agency two-fifths of the commission accrued on its sales in the territory of the agency of the appellant and in addition in the third year full commission was paid for the sales in that year. Imperial Chemical Industries (Export) Ltd. took a formal undertaking from the assessee to refrain from selling or accepting any agency for explosives.6. Two questions arose for determination in Gillanders case [(1964) 53 ITR 283 (SC)] , namely, whether the amounts received by the appellant for loss of agency was in normal course of business and therefore whether they constituted revenue receipt? The second question which arose before this Court was whether the amount received by the assessee (compensation) on the condition not to carry on a competitive business was in the nature of capital receipt? It was held that the compensation received by the assessee for loss of agency was a revenue receipt whereas compensation received for refraining from carrying on competitive business was a capital receipt.7. This dichotomy has not been appreciated by the High Court in its impugned judgment. The High Court has misinterpreted the judgment of this Court in Gillanders case [(1964) 53 ITR 283 (SC)] . In the present case, the Department has not impugned the genuineness of the transaction. In the present case, we are of the view that the High Court has erred in interfering with the concurrent findings of fact recorded by CIT (A) and the Tribunal.8. One more aspect needs to be highlighted. The payment received as non-competition fee under a negative covenant was always treated as a capital receipt till Assessment Year 2003-2004. It is only vide the Finance Act, 2002 with effect from 1-4-2003 that the said capital receipt is now made taxable [see Section 28(v-a)]. The Finance Act, 2002 itself indicates that during the relevant assessment year compensation received by the assessee under non- competition agreement was a capital receipt, not taxable under the 1961 Act. It became taxable only with effect from 1-4-2003. It is well settled that a liability cannot be created retrospectively. In the present case, compensation received under the non-competition agreement became taxable as a capital receipt and not as a revenue receipt by specific legislative mandate vide Section 28(v-a) and that too with effect from 1-4-2003. Hence, the said Section 28(v-a) is amendatory and not clarificatory.9. Lastly, in CIT v. Rai Bahadur Jairam Valji [(1959) 35 ITR 148 (SC)] it was held by this Court that if a contract is entered into in the ordinary course of business, any compensation received for its termination (loss of agency) would be a revenue receipt. In the present case, both CIT(A) as well as the Tribunal, came to the conclusion that the agreement entered into by the assessee with Ranbaxy led to loss of source of business; that payment was received under the negative covenant and therefore the receipt of Rs. 50 lakhs by the assessee from Ranbaxy was in the nature of capital receipt. In fact, in order to put an end to the litigation, Parliament stepped in to specifically tax such receipts under the non-competition agreement with effect from 1-4-2003.19. It only remains for us to point out the judgment in Guffic Chem (P) Ltd. v. CIT (2011) 4 SCC 254. In this case, the question set out by the Court is as follows:Whether a payment under an agreement not to compete (negative covenant agreement) is a capital receipt or a revenue receipt is the question which arises for determination in this, the Court was dealing with an amount of INR 50 lakhs received by the appellant-assessee from Ranbaxy as a non-compete fee under an agreement dated 31.03.1997. This Court in negating the application of Section 28(ii)(a) to such receipt, held as follows:
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Tekan And Others Vs. Ganeshi | may be mentioned that the appellant is a lessee from the owner of the land and his lease comprises, a larger area of land including the land of which the respondent is the tenant. The contention on behalf of the appellant before the Commissioner was that he was a landowner within the meaning of that word in s. 2 (1) of the Act and was therefore entitled to eject the respondent. The Commissioner held that the position of a lessee was just like a mortgagee with possession and that a lessee was s. landowner for all purposes. He therefore allowed the appeal and restored the order of ejectment passed by the Assistant Collector. Thereupon the respondent went in revision to the Financial Commissioner, who held that a mere lessee with only constructive possession as in this case could not be included in the term , landowner"as used in the Act, and that. even if the appellant was the landlord of the respondent he could not be held to be a landowner within the meaning of the Act. He therefore allowed the revision, set aside the order of the Commissioner and restored that of the Collector dismissing the appellants application for ejectment. This was followed by an application by the appellant to this Court for special leave, which was granted; and that is how the matter has come up before us.The only question that has been urged on behalf of the appellant before us is that the Financial Commissioner went wrong in holding that he was not a landowner. The question whether the appellant is a landowner or not depends upon the definition of that term in the Act, which is in these terms:-" * (1) Landowner means a person defined as such in the Punjab land Revenue Act, 1887, (Act XVII of 1887), and shall include an allottee and lessee as defined in clauses (b) and (c). respectively of section 2 of the East Punjab Displaced Persons (Land Resettlement) Act, 1949, (Act XXXVI of 1949) hereinafter referred to as the Resettlement Act. Explanation-In respect of land mortgaged with possession, the mortgagee shall be deemed to be the landowner."It is not in dispute that the appellant is not an allottee or a lessee as defined in cls. (b) and (c) of s. 2 of the East Punjab Displaced Persons (Land Resettlement) Act, (No. XXXVI of 1949). It is also not in dispute that the appellant is not a mortgagee with possession. Therefore he can only claim to be a landowner within this definition if he is a landowner as defined in the Punjab Land Revenue Act, (No. XVII of 1887). In that Act the definition of the word , landowner"as given in s. 3 (2) is in these terms :-" landowner does not include a tenant or an assignee of land revenue, but does include a person to whom a holding has been transferred, or an estate or holding has been let in farm under this Act for the recovery of an arrear of land-revenue or of a sum recoverable as such as arrear and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof or in the enjoyment of any part of the profits of an estate." * 2. The contention on behalf of the -appellant is that he must be held to be a landowner within the meaning of this sub- section as he is in the enjoyment of the part of the profits of the estate. It is obvious that the last part of the definition on which this argument is based applies to persons who are other than tenants and assignees of land revenue, and so we will have to determine whether the appe- llant is a tenant; if he is, he is not a landowner. We have therefore to go to the Punjab Tenancy Act, (No. XVI of 1887), to find out who is a tenant, and whether the appellant is a tenant, within that Act. Definition of "tenant" in s. 4 (5) of that Act is as follows: - 11(5) , tenant means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person but it does not include- (a) an inferior landowner, or (b) a mortgagee of the rights of a land-owner, or (c)a person to whom a holding has been transferred, or an estate or holding has been let in farm under the Punjab Land Revenue Act. 1887 for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or (d)a person who takes from the Government a lease of unoccupied land for the purpose of subletting it. 3. It is not in dispute that the appellant does not come within the four exceptions mentioned in this subsection. It has therefore to be seen whether the appellant is a person who holds land under another person and is, or but for a special contract would be liable to pay rent for that land to that other person. We are of opinion that the appellant satisfies this definition of the term "tenant" in s. 4 (5). As a lessee he holds land under another person, namely, the owner of the land from whom he has taken the lease and is liable to pay rent equal to the lease money for the land which he has taken on lease to that other person. The appellant is therefore clearly a tenant within s. 4 (5) of the Punjab Tenancy Act. He cannot therefore be a landowner under s. 3 (2) of the Punjab Land Revenue Act. Incidentally we may add that this conclusion is borne out by the fact that in the copy of the Girdawari entries, the appellant in shown as a tenant, the entry being" * 4. Tekan and others, Gairmaurasian first through Ganeshi Gair Maurasi secondhalf. | 0[ds]It is obvious that the last part of the definition on which this argument is based applies to persons who are other than tenants and assignees of land revenue, and so we will have to determine whether the appe- llant is a tenant; if he is, he is not a landowner. We have therefore to go to the Punjab Tenancy Act, (No. XVI of 1887), to find out who is a tenant, and whether the appellant is a tenant, within that Act. Definition of "tenant" in s. 4 (5) of that Act is as follows: - 11(5) , tenant means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person but it does not include- (a) an inferior landowner, or (b) a mortgagee of the rights of a land-owner, or (c)a person to whom a holding has been transferred, or an estate or holding has been let in farm under the Punjab Land Revenue Act. 1887 for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or (d)a person who takes from the Government a lease of unoccupied land for the purpose of subletting itIt is not in dispute that the appellant does not come within the four exceptions mentioned in this subsection. It has therefore to be seen whether the appellant is a person who holds land under another person and is, or but for a special contract would be liable to pay rent for that land to that other person. We are of opinion that the appellant satisfies this definition of the term "tenant" in s. 4 (5). As a lessee he holds land under another person, namely, the owner of the land from whom he has taken the lease and is liable to pay rent equal to the lease money for the land which he has taken on lease to that other person. The appellant is therefore clearly a tenant within s. 4 (5) of the Punjab Tenancy Act. He cannot therefore be a landowner under s. 3 (2) of the Punjab Land Revenue Act. Incidentally we may add that this conclusion is borne out by the fact that in the copy of the Girdawari entries, the appellant in shown as a tenant, the entry being" *Tekan and others, Gairmaurasian first through Ganeshi Gair Maurasi secondhalf. | 0 | 1,388 | 472 | ### 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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may be mentioned that the appellant is a lessee from the owner of the land and his lease comprises, a larger area of land including the land of which the respondent is the tenant. The contention on behalf of the appellant before the Commissioner was that he was a landowner within the meaning of that word in s. 2 (1) of the Act and was therefore entitled to eject the respondent. The Commissioner held that the position of a lessee was just like a mortgagee with possession and that a lessee was s. landowner for all purposes. He therefore allowed the appeal and restored the order of ejectment passed by the Assistant Collector. Thereupon the respondent went in revision to the Financial Commissioner, who held that a mere lessee with only constructive possession as in this case could not be included in the term , landowner"as used in the Act, and that. even if the appellant was the landlord of the respondent he could not be held to be a landowner within the meaning of the Act. He therefore allowed the revision, set aside the order of the Commissioner and restored that of the Collector dismissing the appellants application for ejectment. This was followed by an application by the appellant to this Court for special leave, which was granted; and that is how the matter has come up before us.The only question that has been urged on behalf of the appellant before us is that the Financial Commissioner went wrong in holding that he was not a landowner. The question whether the appellant is a landowner or not depends upon the definition of that term in the Act, which is in these terms:-" * (1) Landowner means a person defined as such in the Punjab land Revenue Act, 1887, (Act XVII of 1887), and shall include an allottee and lessee as defined in clauses (b) and (c). respectively of section 2 of the East Punjab Displaced Persons (Land Resettlement) Act, 1949, (Act XXXVI of 1949) hereinafter referred to as the Resettlement Act. Explanation-In respect of land mortgaged with possession, the mortgagee shall be deemed to be the landowner."It is not in dispute that the appellant is not an allottee or a lessee as defined in cls. (b) and (c) of s. 2 of the East Punjab Displaced Persons (Land Resettlement) Act, (No. XXXVI of 1949). It is also not in dispute that the appellant is not a mortgagee with possession. Therefore he can only claim to be a landowner within this definition if he is a landowner as defined in the Punjab Land Revenue Act, (No. XVII of 1887). In that Act the definition of the word , landowner"as given in s. 3 (2) is in these terms :-" landowner does not include a tenant or an assignee of land revenue, but does include a person to whom a holding has been transferred, or an estate or holding has been let in farm under this Act for the recovery of an arrear of land-revenue or of a sum recoverable as such as arrear and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof or in the enjoyment of any part of the profits of an estate." * 2. The contention on behalf of the -appellant is that he must be held to be a landowner within the meaning of this sub- section as he is in the enjoyment of the part of the profits of the estate. It is obvious that the last part of the definition on which this argument is based applies to persons who are other than tenants and assignees of land revenue, and so we will have to determine whether the appe- llant is a tenant; if he is, he is not a landowner. We have therefore to go to the Punjab Tenancy Act, (No. XVI of 1887), to find out who is a tenant, and whether the appellant is a tenant, within that Act. Definition of "tenant" in s. 4 (5) of that Act is as follows: - 11(5) , tenant means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person but it does not include- (a) an inferior landowner, or (b) a mortgagee of the rights of a land-owner, or (c)a person to whom a holding has been transferred, or an estate or holding has been let in farm under the Punjab Land Revenue Act. 1887 for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or (d)a person who takes from the Government a lease of unoccupied land for the purpose of subletting it. 3. It is not in dispute that the appellant does not come within the four exceptions mentioned in this subsection. It has therefore to be seen whether the appellant is a person who holds land under another person and is, or but for a special contract would be liable to pay rent for that land to that other person. We are of opinion that the appellant satisfies this definition of the term "tenant" in s. 4 (5). As a lessee he holds land under another person, namely, the owner of the land from whom he has taken the lease and is liable to pay rent equal to the lease money for the land which he has taken on lease to that other person. The appellant is therefore clearly a tenant within s. 4 (5) of the Punjab Tenancy Act. He cannot therefore be a landowner under s. 3 (2) of the Punjab Land Revenue Act. Incidentally we may add that this conclusion is borne out by the fact that in the copy of the Girdawari entries, the appellant in shown as a tenant, the entry being" * 4. Tekan and others, Gairmaurasian first through Ganeshi Gair Maurasi secondhalf.
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It is obvious that the last part of the definition on which this argument is based applies to persons who are other than tenants and assignees of land revenue, and so we will have to determine whether the appe- llant is a tenant; if he is, he is not a landowner. We have therefore to go to the Punjab Tenancy Act, (No. XVI of 1887), to find out who is a tenant, and whether the appellant is a tenant, within that Act. Definition of "tenant" in s. 4 (5) of that Act is as follows: - 11(5) , tenant means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person but it does not include- (a) an inferior landowner, or (b) a mortgagee of the rights of a land-owner, or (c)a person to whom a holding has been transferred, or an estate or holding has been let in farm under the Punjab Land Revenue Act. 1887 for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or (d)a person who takes from the Government a lease of unoccupied land for the purpose of subletting itIt is not in dispute that the appellant does not come within the four exceptions mentioned in this subsection. It has therefore to be seen whether the appellant is a person who holds land under another person and is, or but for a special contract would be liable to pay rent for that land to that other person. We are of opinion that the appellant satisfies this definition of the term "tenant" in s. 4 (5). As a lessee he holds land under another person, namely, the owner of the land from whom he has taken the lease and is liable to pay rent equal to the lease money for the land which he has taken on lease to that other person. The appellant is therefore clearly a tenant within s. 4 (5) of the Punjab Tenancy Act. He cannot therefore be a landowner under s. 3 (2) of the Punjab Land Revenue Act. Incidentally we may add that this conclusion is borne out by the fact that in the copy of the Girdawari entries, the appellant in shown as a tenant, the entry being" *Tekan and others, Gairmaurasian first through Ganeshi Gair Maurasi secondhalf.
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Rabia Bai Vs. The Custodian-General Of Evacueeproperty | any time after the transfer, the transferer becomes an evacuee within the meaning of S. 2, or the property of the transferer is declared or notified to be an evacuee property within the meaning of the Act, unless the transfer is confirmed by the Custodian in accordance with the provisions of this Act. It would thus be clear that all transfers made after the 14th day of August, 1947, but before the 7th day of May, 1954, are hit by this section, and that obviously would bring within the mischief of the section a large number of transfers effected at a time when no evacuee law was in force in respect of them. Reading S. 40 (a) and (4) together it appears that the transfers hit by the former provision would be valid only if they are confirmed under the latter provision. It is possible that a transfer made during the prohibited period may have been entered into in good faith or was for valuable consideration and did not attract any of the provisions contained in cls. (a), (b) and (c) of S. 40 (4). In such a case merely because it was effected within the prohibited period it would not become void and the Custodian may have to confirm it; but where such a transfer attracts the provisions of S. 40 (4) (a) for instance, it would not be affirmed and it would remain inoperative. This shows that the main object of the Act was to preserve the property of persons who had migrated to Pakistan till the Government of India could come to some understanding with the Pakistan Government in regard to adjustment of claims of Indian evacuees in respect of the properties left by them in Pakistan. The idea then presumably was that the two Governments should agree on the valuation of the evacuee properties left by evacuees in the two respective countries and the difference in the said valuation should be amicably adjusted between them. After such adjustment was made it was intended to compensate the evacuees in regard to the loss incurred by them in respect of the properties left by them in the two respective countries. That this intention did not succeed is another matter. There can, however, be no doubt about the policy and object of the Act, and in determining the content of the expression "good faith" in the context of the main provision of S. 40 (1) this object and policy of the Act must be borne in mind. 11. Section 40 (4) refers to three kinds of cases where the transfer may not be confirmed; cl. (a) deals with transactions which are not entered into in good faith or for valuable consideration; cl. (b) deals with transactions which are prohibited under any law for the time being in force; and cl. (c) deals with cases of transactions which are not confirmed for any other reason. It would thus be seen that the scope of the three clauses is very wide. It is not only transactions prohibited under any law that fall within the mischief of S. 40 (4); but transactions which are not entered into in good faith or for valuable consideration also fall within its mischief. Now, if the test prescribed by S. 3 (22) of the General Clauses Act as interpreted by Mr. Sastri is held to be relevant a large number of transactions may have to be confirmed even though they are shown to have been deliberately entered into with the object of evading the provisions of S. 40 (1). In our opinion, the fact that the evacuee law had not been extended at the relevant time to Madras would not be decisive in the matter. It was well known that the said law was being extended from Province to Province as it was deemed necessary, and indeed the letter written by the vendor to Mohideen clearly shows that the vendor knew as much. The history of the evacuee laws passed in several States and by the Central Government and Legislature from time to time shows that the Legislatures were attempting to meet with an unprecedented problem, and the laws passed by them in India and Pakistan at the material time made it perfectly clear to the evacuees from both the countries that the two countries were adopting appropriate legislative measures to protect the evacuee properties and prevent their transfers. Therefore, if a vendor sold his property not for any necessity or for any other legitimate purpose but solely with the object of converting it into cash and removing it to Pakistan, that clearly was intended to defeat the provisions of the Act which he knew would soon be extended to Madras, and so it would be difficult to hold that he was acting honestly within the meaning of S. 40 (4) (a) of the Act. An intention to defeat the provisions of the Act cannot be said to be honest in the context. If despite his intention to defeat the application of the Act a transaction is upheld as entered into in good faith many transactions may escape the application of S. 40 (1), and that clearly would defeat the purpose of the Act. It is significant that though the provisions of S. 40 (1) are drastic they have been deliberately made retrospective, and that emphatically brings out the aim and object of the Act; and it would be unreasonable to ignore this aim and object of the Act in construing the expression "good faith" in in S. 40 (4) (a).We would, therefore, hold that having regard to the aim and object of the emergency legislation with which we are concerned in the present case the expression "good faith" used in S. 40 (4) (a) has been properly construed by the respondent when he held that a deliberate intention to defeat the apprehended application of the evacuee law which was responsible for the transfer in question brings the transfer within the mischief of S. 40 (4)(a). | 0[ds]8. It is clear that if a transaction is affected by absence of good faith either in the vendor or the vendee its confirmation may properly be rejected under S. 40 (4) (a); in other words, good faith is required both in the vendor and the vendee. In that sense the provisions of S. 40 (4) (a) are more rigorous and stringent than those of S. 53 (1) of the Transfer of Property Act. Under the latter section which deals with fraudulent transfers the rights of a transferee in good faith and for consideration are expressly protected; that, however, is not the position under S. 40 (4) (a). Therefore, the fact that the appellant paid valuable consideration for the transaction and is not shown to have acted otherwise than in good faith entering into the transaction would not justify her claim for confirmation of the said transaction if it is shown that the vendor had not acted in good faith in entering into the said transaction. The fact that consideration was paid by the appellant and that she was acting in good faith may perhaps be relevant in determining the character of her conduct in regard to the transaction; but it would not be relevant or material in determining the character of the conduct of the vendor in relation to the transfer. This position is not seriously disputed before usWe do not think we can attach much importance to the argument that even where the evacuee law applied confirmation of sale transactions was intended to be automatic subject to the satisfaction of the two conditions specified in the Press Note. We are bound to assume that the question about confirming sale transactions was required to be, and was in fact, dealt with by the appropriate authorities under the relevant statutory provisions which were in force at the material time. It is, however, true that no evacuee law had been extended to Madras at the time when the impugned transaction was completed, and that naturally raises the question as towhether if a transaction had been entered into deliberately and consciously with the object of evading the application of evacuee law which it was apprehended would soon be extended to Madras, does that fact attract the provisions of S. 40 (4) (a) of the Act?As we have already indicated the respondent has answered this question in the affirmative, and Mr. Sastri contends that this conclusion is erroneous in lawIt would thus be clear that all transfers made after the 14th day of August, 1947, but before the 7th day of May, 1954, are hit by this section, and that obviously would bring within the mischief of the section a large number of transfers effected at a time when no evacuee law was in force in respect of them. Reading S. 40 (a) and (4) together it appears that the transfers hit by the former provision would be valid only if they are confirmed under the latter provision. It is possible that a transfer made during the prohibited period may have been entered into in good faith or was for valuable consideration and did not attract any of the provisions contained in cls. (a), (b) and (c) of S. 40 (4). In such a case merely because it was effected within the prohibited period it would not become void and the Custodian may have to confirm it; but where such a transfer attracts the provisions of S. 40 (4) (a) for instance, it would not be affirmed and it would remain inoperative. This shows that the main object of the Act was to preserve the property of persons who had migrated to Pakistan till the Government of India could come to some understanding with the Pakistan Government in regard to adjustment of claims of Indian evacuees in respect of the properties left by them in Pakistan. The idea then presumably was that the two Governments should agree on the valuation of the evacuee properties left by evacuees in the two respective countries and the difference in the said valuation should be amicably adjusted between them. After such adjustment was made it was intended to compensate the evacuees in regard to the loss incurred by them in respect of the properties left by them in the two respective countries. That this intention did not succeed is another matter. There can, however, be no doubt about the policy and object of the Act, and in determining the content of the expression "good faith" in the context of the main provision of S. 40 (1) this object and policy of the Act must be borne in mindTherefore, if a vendor sold his property not for any necessity or for any other legitimate purpose but solely with the object of converting it into cash and removing it to Pakistan, that clearly was intended to defeat the provisions of the Act which he knew would soon be extended to Madras, and so it would be difficult to hold that he was acting honestly within the meaning of S. 40 (4) (a) of the Act. An intention to defeat the provisions of the Act cannot be said to be honest in the context. If despite his intention to defeat the application of the Act a transaction is upheld as entered into in good faith many transactions may escape the application of S. 40 (1), and that clearly would defeat the purpose of the Act. It is significant that though the provisions of S. 40 (1) are drastic they have been deliberately made retrospective, and that emphatically brings out the aim and object of the Act; and it would be unreasonable to ignore this aim and object of the Act in construing the expression "good faith" in in S. 40 (4) (a).We would, therefore, hold that having regard to the aim and object of the emergency legislation with which we are concerned in the present case the expression "good faith" used in S. 40 (4) (a) has been properly construed by the respondent when he held that a deliberate intention to defeat the apprehended application of the evacuee law which was responsible for the transfer in question brings the transfer within the mischief of S. 40 (4)(a). | 0 | 4,395 | 1,162 | ### 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:
any time after the transfer, the transferer becomes an evacuee within the meaning of S. 2, or the property of the transferer is declared or notified to be an evacuee property within the meaning of the Act, unless the transfer is confirmed by the Custodian in accordance with the provisions of this Act. It would thus be clear that all transfers made after the 14th day of August, 1947, but before the 7th day of May, 1954, are hit by this section, and that obviously would bring within the mischief of the section a large number of transfers effected at a time when no evacuee law was in force in respect of them. Reading S. 40 (a) and (4) together it appears that the transfers hit by the former provision would be valid only if they are confirmed under the latter provision. It is possible that a transfer made during the prohibited period may have been entered into in good faith or was for valuable consideration and did not attract any of the provisions contained in cls. (a), (b) and (c) of S. 40 (4). In such a case merely because it was effected within the prohibited period it would not become void and the Custodian may have to confirm it; but where such a transfer attracts the provisions of S. 40 (4) (a) for instance, it would not be affirmed and it would remain inoperative. This shows that the main object of the Act was to preserve the property of persons who had migrated to Pakistan till the Government of India could come to some understanding with the Pakistan Government in regard to adjustment of claims of Indian evacuees in respect of the properties left by them in Pakistan. The idea then presumably was that the two Governments should agree on the valuation of the evacuee properties left by evacuees in the two respective countries and the difference in the said valuation should be amicably adjusted between them. After such adjustment was made it was intended to compensate the evacuees in regard to the loss incurred by them in respect of the properties left by them in the two respective countries. That this intention did not succeed is another matter. There can, however, be no doubt about the policy and object of the Act, and in determining the content of the expression "good faith" in the context of the main provision of S. 40 (1) this object and policy of the Act must be borne in mind. 11. Section 40 (4) refers to three kinds of cases where the transfer may not be confirmed; cl. (a) deals with transactions which are not entered into in good faith or for valuable consideration; cl. (b) deals with transactions which are prohibited under any law for the time being in force; and cl. (c) deals with cases of transactions which are not confirmed for any other reason. It would thus be seen that the scope of the three clauses is very wide. It is not only transactions prohibited under any law that fall within the mischief of S. 40 (4); but transactions which are not entered into in good faith or for valuable consideration also fall within its mischief. Now, if the test prescribed by S. 3 (22) of the General Clauses Act as interpreted by Mr. Sastri is held to be relevant a large number of transactions may have to be confirmed even though they are shown to have been deliberately entered into with the object of evading the provisions of S. 40 (1). In our opinion, the fact that the evacuee law had not been extended at the relevant time to Madras would not be decisive in the matter. It was well known that the said law was being extended from Province to Province as it was deemed necessary, and indeed the letter written by the vendor to Mohideen clearly shows that the vendor knew as much. The history of the evacuee laws passed in several States and by the Central Government and Legislature from time to time shows that the Legislatures were attempting to meet with an unprecedented problem, and the laws passed by them in India and Pakistan at the material time made it perfectly clear to the evacuees from both the countries that the two countries were adopting appropriate legislative measures to protect the evacuee properties and prevent their transfers. Therefore, if a vendor sold his property not for any necessity or for any other legitimate purpose but solely with the object of converting it into cash and removing it to Pakistan, that clearly was intended to defeat the provisions of the Act which he knew would soon be extended to Madras, and so it would be difficult to hold that he was acting honestly within the meaning of S. 40 (4) (a) of the Act. An intention to defeat the provisions of the Act cannot be said to be honest in the context. If despite his intention to defeat the application of the Act a transaction is upheld as entered into in good faith many transactions may escape the application of S. 40 (1), and that clearly would defeat the purpose of the Act. It is significant that though the provisions of S. 40 (1) are drastic they have been deliberately made retrospective, and that emphatically brings out the aim and object of the Act; and it would be unreasonable to ignore this aim and object of the Act in construing the expression "good faith" in in S. 40 (4) (a).We would, therefore, hold that having regard to the aim and object of the emergency legislation with which we are concerned in the present case the expression "good faith" used in S. 40 (4) (a) has been properly construed by the respondent when he held that a deliberate intention to defeat the apprehended application of the evacuee law which was responsible for the transfer in question brings the transfer within the mischief of S. 40 (4)(a).
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### Explanation:
faith is required both in the vendor and the vendee. In that sense the provisions of S. 40 (4) (a) are more rigorous and stringent than those of S. 53 (1) of the Transfer of Property Act. Under the latter section which deals with fraudulent transfers the rights of a transferee in good faith and for consideration are expressly protected; that, however, is not the position under S. 40 (4) (a). Therefore, the fact that the appellant paid valuable consideration for the transaction and is not shown to have acted otherwise than in good faith entering into the transaction would not justify her claim for confirmation of the said transaction if it is shown that the vendor had not acted in good faith in entering into the said transaction. The fact that consideration was paid by the appellant and that she was acting in good faith may perhaps be relevant in determining the character of her conduct in regard to the transaction; but it would not be relevant or material in determining the character of the conduct of the vendor in relation to the transfer. This position is not seriously disputed before usWe do not think we can attach much importance to the argument that even where the evacuee law applied confirmation of sale transactions was intended to be automatic subject to the satisfaction of the two conditions specified in the Press Note. We are bound to assume that the question about confirming sale transactions was required to be, and was in fact, dealt with by the appropriate authorities under the relevant statutory provisions which were in force at the material time. It is, however, true that no evacuee law had been extended to Madras at the time when the impugned transaction was completed, and that naturally raises the question as towhether if a transaction had been entered into deliberately and consciously with the object of evading the application of evacuee law which it was apprehended would soon be extended to Madras, does that fact attract the provisions of S. 40 (4) (a) of the Act?As we have already indicated the respondent has answered this question in the affirmative, and Mr. Sastri contends that this conclusion is erroneous in lawIt would thus be clear that all transfers made after the 14th day of August, 1947, but before the 7th day of May, 1954, are hit by this section, and that obviously would bring within the mischief of the section a large number of transfers effected at a time when no evacuee law was in force in respect of them. Reading S. 40 (a) and (4) together it appears that the transfers hit by the former provision would be valid only if they are confirmed under the latter provision. It is possible that a transfer made during the prohibited period may have been entered into in good faith or was for valuable consideration and did not attract any of the provisions contained in cls. (a), (b) and (c) of S. 40 (4). In such a case merely because it was effected within the prohibited period it would not become void and the Custodian may have to confirm it; but where such a transfer attracts the provisions of S. 40 (4) (a) for instance, it would not be affirmed and it would remain inoperative. This shows that the main object of the Act was to preserve the property of persons who had migrated to Pakistan till the Government of India could come to some understanding with the Pakistan Government in regard to adjustment of claims of Indian evacuees in respect of the properties left by them in Pakistan. The idea then presumably was that the two Governments should agree on the valuation of the evacuee properties left by evacuees in the two respective countries and the difference in the said valuation should be amicably adjusted between them. After such adjustment was made it was intended to compensate the evacuees in regard to the loss incurred by them in respect of the properties left by them in the two respective countries. That this intention did not succeed is another matter. There can, however, be no doubt about the policy and object of the Act, and in determining the content of the expression "good faith" in the context of the main provision of S. 40 (1) this object and policy of the Act must be borne in mindTherefore, if a vendor sold his property not for any necessity or for any other legitimate purpose but solely with the object of converting it into cash and removing it to Pakistan, that clearly was intended to defeat the provisions of the Act which he knew would soon be extended to Madras, and so it would be difficult to hold that he was acting honestly within the meaning of S. 40 (4) (a) of the Act. An intention to defeat the provisions of the Act cannot be said to be honest in the context. If despite his intention to defeat the application of the Act a transaction is upheld as entered into in good faith many transactions may escape the application of S. 40 (1), and that clearly would defeat the purpose of the Act. It is significant that though the provisions of S. 40 (1) are drastic they have been deliberately made retrospective, and that emphatically brings out the aim and object of the Act; and it would be unreasonable to ignore this aim and object of the Act in construing the expression "good faith" in in S. 40 (4) (a).We would, therefore, hold that having regard to the aim and object of the emergency legislation with which we are concerned in the present case the expression "good faith" used in S. 40 (4) (a) has been properly construed by the respondent when he held that a deliberate intention to defeat the apprehended application of the evacuee law which was responsible for the transfer in question brings the transfer within the mischief of S. 40 (4)(a).
|
The Tahsildar, Taluk Office, Thanjore & Others Vs. G. Thambidurai & Another | the government, was not a willful defaulter of the land tax and that the default was due to circumstances beyond his control and that the assignment is otherwise unobjectionable to the satisfaction of the assigning authority. In the absence of the discharge of this otherwise statutorily prescribed obligation, it would be idle for him to contend that he was, even sans the same, entitled to be preferred in the matter of assignment of the "bought in" land merely on the cancellation of the previous assignment in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar.23. As the enumerated facts culled from the pleadings and the documents on record would proclaim, no evidence is forthcoming of any endeavour made by respondent No.1/plaintiff to this effect or the satisfaction of the assigning authority on these three otherwise inalienable aspects so as to render him preferable to others for the assignment of the "bought in" land. Contrary thereto, it is the specific stand of the appellants/defendants that admittedly the land was "bought in" in the year 1935 for the failure of the original owner/the respondent No.1 to pay the land tax in 1935, whereafter till 1958, he did not either object to such take over or offer to pay the arrears. It was only in 1958, when the "bought in" land was assigned in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar that he questioned the same on the ground of want of prior notice to him. This challenge, to reiterate, was focused only on the assignment of the "bought in" land to the Sanaiyars without prior notice to him and is not qua the process by which the land had been bought in by the government. Noticeably, the proceedings before the revenue authorities initiated on this challenge by the respondent No.1/plaintiff to the assignment of the "bought in" land to the Sanaiyars were also confined to the grievance of want of notice to the respondent No.1/plaintiff prior to such endowment to them. There is no shred of evidence to demonstrate that the default in the payment of land tax, which resulted in the taking over of the land by the government was not willful and that the same was due to circumstances beyond the defaulters control and further that the assignment, if to be made to the respondent No.1/plaintiff would be unobjectionable in the facts and circumstances of the case. Significantly, the respondent No.1/plaintiff admits that the land was "bought in" by the government in the year 1935 in view of the failure to pay the land tax. To reiterate, this process had not been objected to until the suit was filed in the year 2005. In any view of the matter, any demurral to this process of taking over of the land in 1935, even if made in the year 2005 in the suit, can by no means be taken of cognizance of or be entertained. As a matter of fact, PW1 (respondent No.1/plaintiff) did admit that the land was auctioned for failure to pay the land revenue and it was essentially therefore his burden to also establish that such default was not willful and was due to circumstances beyond his control and that the assignment to him was otherwise not objectionable, as obligated by RSO 45(4). The belated willingness of respondent No.1/plaintiff to clear the arrear land tax post 1958 also does not further his case in this regard. On the other hand, it would be permissible to deduce that the inactive, casual and passive disposition of the respondent No.1/plaintiff to offer payment of the arrears due immediately after 1935, till at least 30 years hence, demonstrates not only a willful default in that regard but also a persistent unwillingness to clear the outstanding dues, which in terms of RSO 45(4) disqualifies him to avail any preference in the matter of assignment of the "bought in" lands.24. It is the foundational principle of law that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all and all other methods of performance are necessarily forbidden. This pristine legal postulation is traceable to the decision in Taylor v. Taylor [1875] 1 Ch. D. 426 which was followed in Nazir Ahmed v. The King Emperor L.R. 63 Ind Ap 372 and in a plethora of pronouncements thereafter. Tested on this anvil as well, the preference in the matter of reassignment of the suit land in favour of the respondent No. 1 sans the adherence to the mandatory pre-requisites engrafted in RSO 45(4) could not have been extended to him.25. That the suit was filed claiming restoration of the land relying on RSO 45(4) seven decades after the land had been bought in, is writ large on the face of the record. As the above analysis evince that in the facts of the case, the respondent No.1/plaintiff was not entitled to the preference as contemplated in RSO 45(4), the omission on the part of the revenue authorities to hold a public auction before leasing out the suit land to Sericulture Development Department and Bharat Petroleum Corporation Ltd., is of no consequence. The preference to an original owner or his undisputed heir in the matter of assignment of "bought in" lands being contingent on the compliance of the essential pre-requisites therefor, as eluded hereinbefore, we are of the unhesitant opinion that the High Court was wrong in decreeing the suit on the sole ground that no notice had been issued to the respondent No.1/plaintiff prior to the assignment of the "bought in" land in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar in the year 1958 and that the same was cancelled in the related revenue proceedings. The apparent huge delay on the part of respondent No.1/plaintiff in offering to clear off the arrears and in the institution of the suit are as well formidable factors weighing against him. RSO 45(4) being of binding dispensation, any assignment in departure therefrom, cannot receive judicial imprimatur. | 0[ds]21. It would thus be evident that to avail the preference in the matter of assignment of "bought in" lands, the obligatoryis the absence of willful default in the payment of land tax by the original owner. Further the default, if any, was due to circumstances beyond his control and that assignment to him again is otherwise unobjectionable. It is only when theseexist and the assigning authority is satisfied that the original owner was not a willful defaulter and that the default was due to circumstances beyond the defaulters control and that such assignment is otherwise unobjectionable that the original owners or the undisputed heirs would have to be preferred to the outsiders. If it is not proved to the satisfaction of the assigning authority that the original owner was neither a willful defaulter nor was the default due to circumstance beyond his control and that the assignment proposed is otherwise not objectionable, the subsequent steps as outlined in RSO 45(4) with regard thereto in favour of such assignment would be wholly impertinent. As a matter of fact, as the provision predicates, the procedure prescribed for the assignment of the "bought in" lands in favour of the original owners or their undisputed heirs distinctlythese contingencies. In absence thereof, the concerned authority is under no obligation to issue notice either to the original owners or their undisputed heir(s) informing him/them that the land would beem if he/they pay the arrears, back assessment, back balance of loan, if any etc. on their application to the Tahsildar to the said effect. The eventuality of a fresh sale would occur in case, in response to such notice, no application for reassignment is received from the original owner or his undisputed heir or if he/they inform the Tahsildar that he/they do not desire to have the land back. Here again, the Revisional Divisional Officer, at his discretion and if he is satisfied that the fresh sale would not fetch more than Rs. 10 per acre, would refrain from undertaking that exercise and instead direct that the land be struck off in the Taluk Register No.18A and classed as ordinary village waste.22. In the face of such clear and unambiguous method of disposal of "bought in" lands, as prescribed by RSO 45(4), there is no semblance of doubt that for an original owner or his undisputed heir to claim preference in the matter of assignment thereof to him/them, the above threewould have to be essentially complied with. In absence of such compliance, any plea of preference in the assignment of "bought in" lands under RSO 45(4) is patently fallacious and untenable. As a corollary, even if such an assignment has been made, as in the instant case in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar, which ultimately had been cancelled, the same would not per se either indicate that the aforementionedwere satisfied or would render the respondent No.1/plaintiff automatically eligible to avail the preference in the matter of such assignment under RSO 45(4). In our view, it would be incumbent upon the respondent No.1/plaintiff in order to prove his entitlement for such preference, to establish that the original owner, when the land was "bought in" by the government, was not a willful defaulter of the land tax and that the default was due to circumstances beyond his control and that the assignment is otherwise unobjectionable to the satisfaction of the assigning authority. In the absence of the discharge of this otherwise statutorily prescribed obligation, it would be idle for him to contend that he was, even sans the same, entitled to be preferred in the matter of assignment of the "bought in" land merely on the cancellation of the previous assignment in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar.23. As the enumerated facts culled from the pleadings and the documents on record would proclaim, no evidence is forthcoming of any endeavour made by respondent No.1/plaintiff to this effect or the satisfaction of the assigning authority on these three otherwise inalienable aspects so as to render him preferable to others for the assignment of the "bought in" land. Contrary thereto, it is the specific stand of the appellants/defendants that admittedly the land was "bought in" in the year 1935 for the failure of the original owner/the respondent No.1 to pay the land tax in 1935, whereafter till 1958, he did not either object to such take over or offer to pay the arrears. It was only in 1958, when the "bought in" land was assigned in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar that he questioned the same on the ground of want of prior notice to him. This challenge, to reiterate, was focused only on the assignment of the "bought in" land to the Sanaiyars without prior notice to him and is not qua the process by which the land had been bought in by the government. Noticeably, the proceedings before the revenue authorities initiated on this challenge by the respondent No.1/plaintiff to the assignment of the "bought in" land to the Sanaiyars were also confined to the grievance of want of notice to the respondent No.1/plaintiff prior to such endowment to them. There is no shred of evidence to demonstrate that the default in the payment of land tax, which resulted in the taking over of the land by the government was not willful and that the same was due to circumstances beyond the defaulters control and further that the assignment, if to be made to the respondent No.1/plaintiff would be unobjectionable in the facts and circumstances of the case. Significantly, the respondent No.1/plaintiff admits that the land was "bought in" by the government in the year 1935 in view of the failure to pay the land tax. To reiterate, this process had not been objected to until the suit was filed in the year 2005. In any view of the matter, any demurral to this process of taking over of the land in 1935, even if made in the year 2005 in the suit, can by no means be taken of cognizance of or be entertained. As a matter of fact, PW1 (respondent No.1/plaintiff) did admit that the land was auctioned for failure to pay the land revenue and it was essentially therefore his burden to also establish that such default was not willful and was due to circumstances beyond his control and that the assignment to him was otherwise not objectionable, as obligated by RSO 45(4). The belated willingness of respondent No.1/plaintiff to clear the arrear land tax post 1958 also does not further his case in this regard. On the other hand, it would be permissible to deduce that the inactive, casual and passive disposition of the respondent No.1/plaintiff to offer payment of the arrears due immediately after 1935, till at least 30 years hence, demonstrates not only a willful default in that regard but also a persistent unwillingness to clear the outstanding dues, which in terms of RSO 45(4) disqualifies him to avail any preference in the matter of assignment of the "bought in" lands.24. It is the foundational principle of law that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all and all other methods of performance are necessarily forbidden. This pristine legal postulation is traceable to the decision in Taylor v. Taylor [1875] 1 Ch. D. 426 which was followed in Nazir Ahmed v. The King Emperor L.R. 63 Ind Ap 372 and in a plethora of pronouncements thereafter. Tested on this anvil as well, the preference in the matter of reassignment of the suit land in favour of the respondent No. 1 sans the adherence to the mandatoryengrafted in RSO 45(4) could not have been extended to him.25. That the suit was filed claiming restoration of the land relying on RSO 45(4) seven decades after the land had been bought in, is writ large on the face of the record. As the above analysis evince that in the facts of the case, the respondent No.1/plaintiff was not entitled to the preference as contemplated in RSO 45(4), the omission on the part of the revenue authorities to hold a public auction before leasing out the suit land to Sericulture Development Department and Bharat Petroleum Corporation Ltd., is of no consequence. The preference to an original owner or his undisputed heir in the matter of assignment of "bought in" lands being contingent on the compliance of the essentialtherefor, as eluded hereinbefore, we are of the unhesitant opinion that the High Court was wrong in decreeing the suit on the sole ground that no notice had been issued to the respondent No.1/plaintiff prior to the assignment of the "bought in" land in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar in the year 1958 and that the same was cancelled in the related revenue proceedings. The apparent huge delay on the part of respondent No.1/plaintiff in offering to clear off the arrears and in the institution of the suit are as well formidable factors weighing against him. RSO 45(4) being of binding dispensation, any assignment in departure therefrom, cannot receive judicial imprimatur. | 0 | 6,338 | 1,699 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the government, was not a willful defaulter of the land tax and that the default was due to circumstances beyond his control and that the assignment is otherwise unobjectionable to the satisfaction of the assigning authority. In the absence of the discharge of this otherwise statutorily prescribed obligation, it would be idle for him to contend that he was, even sans the same, entitled to be preferred in the matter of assignment of the "bought in" land merely on the cancellation of the previous assignment in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar.23. As the enumerated facts culled from the pleadings and the documents on record would proclaim, no evidence is forthcoming of any endeavour made by respondent No.1/plaintiff to this effect or the satisfaction of the assigning authority on these three otherwise inalienable aspects so as to render him preferable to others for the assignment of the "bought in" land. Contrary thereto, it is the specific stand of the appellants/defendants that admittedly the land was "bought in" in the year 1935 for the failure of the original owner/the respondent No.1 to pay the land tax in 1935, whereafter till 1958, he did not either object to such take over or offer to pay the arrears. It was only in 1958, when the "bought in" land was assigned in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar that he questioned the same on the ground of want of prior notice to him. This challenge, to reiterate, was focused only on the assignment of the "bought in" land to the Sanaiyars without prior notice to him and is not qua the process by which the land had been bought in by the government. Noticeably, the proceedings before the revenue authorities initiated on this challenge by the respondent No.1/plaintiff to the assignment of the "bought in" land to the Sanaiyars were also confined to the grievance of want of notice to the respondent No.1/plaintiff prior to such endowment to them. There is no shred of evidence to demonstrate that the default in the payment of land tax, which resulted in the taking over of the land by the government was not willful and that the same was due to circumstances beyond the defaulters control and further that the assignment, if to be made to the respondent No.1/plaintiff would be unobjectionable in the facts and circumstances of the case. Significantly, the respondent No.1/plaintiff admits that the land was "bought in" by the government in the year 1935 in view of the failure to pay the land tax. To reiterate, this process had not been objected to until the suit was filed in the year 2005. In any view of the matter, any demurral to this process of taking over of the land in 1935, even if made in the year 2005 in the suit, can by no means be taken of cognizance of or be entertained. As a matter of fact, PW1 (respondent No.1/plaintiff) did admit that the land was auctioned for failure to pay the land revenue and it was essentially therefore his burden to also establish that such default was not willful and was due to circumstances beyond his control and that the assignment to him was otherwise not objectionable, as obligated by RSO 45(4). The belated willingness of respondent No.1/plaintiff to clear the arrear land tax post 1958 also does not further his case in this regard. On the other hand, it would be permissible to deduce that the inactive, casual and passive disposition of the respondent No.1/plaintiff to offer payment of the arrears due immediately after 1935, till at least 30 years hence, demonstrates not only a willful default in that regard but also a persistent unwillingness to clear the outstanding dues, which in terms of RSO 45(4) disqualifies him to avail any preference in the matter of assignment of the "bought in" lands.24. It is the foundational principle of law that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all and all other methods of performance are necessarily forbidden. This pristine legal postulation is traceable to the decision in Taylor v. Taylor [1875] 1 Ch. D. 426 which was followed in Nazir Ahmed v. The King Emperor L.R. 63 Ind Ap 372 and in a plethora of pronouncements thereafter. Tested on this anvil as well, the preference in the matter of reassignment of the suit land in favour of the respondent No. 1 sans the adherence to the mandatory pre-requisites engrafted in RSO 45(4) could not have been extended to him.25. That the suit was filed claiming restoration of the land relying on RSO 45(4) seven decades after the land had been bought in, is writ large on the face of the record. As the above analysis evince that in the facts of the case, the respondent No.1/plaintiff was not entitled to the preference as contemplated in RSO 45(4), the omission on the part of the revenue authorities to hold a public auction before leasing out the suit land to Sericulture Development Department and Bharat Petroleum Corporation Ltd., is of no consequence. The preference to an original owner or his undisputed heir in the matter of assignment of "bought in" lands being contingent on the compliance of the essential pre-requisites therefor, as eluded hereinbefore, we are of the unhesitant opinion that the High Court was wrong in decreeing the suit on the sole ground that no notice had been issued to the respondent No.1/plaintiff prior to the assignment of the "bought in" land in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar in the year 1958 and that the same was cancelled in the related revenue proceedings. The apparent huge delay on the part of respondent No.1/plaintiff in offering to clear off the arrears and in the institution of the suit are as well formidable factors weighing against him. RSO 45(4) being of binding dispensation, any assignment in departure therefrom, cannot receive judicial imprimatur.
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was "bought in" by the government, was not a willful defaulter of the land tax and that the default was due to circumstances beyond his control and that the assignment is otherwise unobjectionable to the satisfaction of the assigning authority. In the absence of the discharge of this otherwise statutorily prescribed obligation, it would be idle for him to contend that he was, even sans the same, entitled to be preferred in the matter of assignment of the "bought in" land merely on the cancellation of the previous assignment in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar.23. As the enumerated facts culled from the pleadings and the documents on record would proclaim, no evidence is forthcoming of any endeavour made by respondent No.1/plaintiff to this effect or the satisfaction of the assigning authority on these three otherwise inalienable aspects so as to render him preferable to others for the assignment of the "bought in" land. Contrary thereto, it is the specific stand of the appellants/defendants that admittedly the land was "bought in" in the year 1935 for the failure of the original owner/the respondent No.1 to pay the land tax in 1935, whereafter till 1958, he did not either object to such take over or offer to pay the arrears. It was only in 1958, when the "bought in" land was assigned in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar that he questioned the same on the ground of want of prior notice to him. This challenge, to reiterate, was focused only on the assignment of the "bought in" land to the Sanaiyars without prior notice to him and is not qua the process by which the land had been bought in by the government. Noticeably, the proceedings before the revenue authorities initiated on this challenge by the respondent No.1/plaintiff to the assignment of the "bought in" land to the Sanaiyars were also confined to the grievance of want of notice to the respondent No.1/plaintiff prior to such endowment to them. There is no shred of evidence to demonstrate that the default in the payment of land tax, which resulted in the taking over of the land by the government was not willful and that the same was due to circumstances beyond the defaulters control and further that the assignment, if to be made to the respondent No.1/plaintiff would be unobjectionable in the facts and circumstances of the case. Significantly, the respondent No.1/plaintiff admits that the land was "bought in" by the government in the year 1935 in view of the failure to pay the land tax. To reiterate, this process had not been objected to until the suit was filed in the year 2005. In any view of the matter, any demurral to this process of taking over of the land in 1935, even if made in the year 2005 in the suit, can by no means be taken of cognizance of or be entertained. As a matter of fact, PW1 (respondent No.1/plaintiff) did admit that the land was auctioned for failure to pay the land revenue and it was essentially therefore his burden to also establish that such default was not willful and was due to circumstances beyond his control and that the assignment to him was otherwise not objectionable, as obligated by RSO 45(4). The belated willingness of respondent No.1/plaintiff to clear the arrear land tax post 1958 also does not further his case in this regard. On the other hand, it would be permissible to deduce that the inactive, casual and passive disposition of the respondent No.1/plaintiff to offer payment of the arrears due immediately after 1935, till at least 30 years hence, demonstrates not only a willful default in that regard but also a persistent unwillingness to clear the outstanding dues, which in terms of RSO 45(4) disqualifies him to avail any preference in the matter of assignment of the "bought in" lands.24. It is the foundational principle of law that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all and all other methods of performance are necessarily forbidden. This pristine legal postulation is traceable to the decision in Taylor v. Taylor [1875] 1 Ch. D. 426 which was followed in Nazir Ahmed v. The King Emperor L.R. 63 Ind Ap 372 and in a plethora of pronouncements thereafter. Tested on this anvil as well, the preference in the matter of reassignment of the suit land in favour of the respondent No. 1 sans the adherence to the mandatoryengrafted in RSO 45(4) could not have been extended to him.25. That the suit was filed claiming restoration of the land relying on RSO 45(4) seven decades after the land had been bought in, is writ large on the face of the record. As the above analysis evince that in the facts of the case, the respondent No.1/plaintiff was not entitled to the preference as contemplated in RSO 45(4), the omission on the part of the revenue authorities to hold a public auction before leasing out the suit land to Sericulture Development Department and Bharat Petroleum Corporation Ltd., is of no consequence. The preference to an original owner or his undisputed heir in the matter of assignment of "bought in" lands being contingent on the compliance of the essentialtherefor, as eluded hereinbefore, we are of the unhesitant opinion that the High Court was wrong in decreeing the suit on the sole ground that no notice had been issued to the respondent No.1/plaintiff prior to the assignment of the "bought in" land in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar in the year 1958 and that the same was cancelled in the related revenue proceedings. The apparent huge delay on the part of respondent No.1/plaintiff in offering to clear off the arrears and in the institution of the suit are as well formidable factors weighing against him. RSO 45(4) being of binding dispensation, any assignment in departure therefrom, cannot receive judicial imprimatur.
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Radhe Shyam Middha Vs. State of Delhi | said bank draft was issued by the Axis Bank Limited, Rohini, New Delhi. On 24.07.2014, the successful bidder levelled an allegation against the appellant that the aforesaid bank draft was forged. Being prima facie satisfied, by order dated 24.07.2014, the High Court ordered an inquiry into the matter.5. Pursuant to the said order, a Joint Registrar of the High Court made an inquiry and on conclusion thereof submitted a report to the effect that the bank draft tendered before the Court, indeed, was forged. In the course of inquiry proceedings the appellant was also examined. In the course of such examination the appellant had submitted that the bank draft tendered by him in Court was given to him by one Gurmeet Singh Wadhalia who, however, could not be located. Subsequently, it transpired that the said person had died in a road accident on 12.10.2014 somewhere in Chamoli District of Uttrakhand.6. It is in these circumstances that the High Court had drawn up an article of charge with regard to commission of contempt by the appellant. The said charge was primarily based on the fact that the forged bank draft was placed before the Court by the appellant in order to stall the confirmation of sale in favour of the genuine bidder.7. In the proceedings before the High Court the appellant did not contest the authenticity of the bank draft and admitted that the same was forged. His principal defence appears to be that the demand draft in question was handed over to him by Gurmeet Singh Wadhalia and that he had no knowledge that the instrument was forged.8. The High Court on a very elaborate consideration of the matter took the view that the explanation offered by the appellant was not at all acceptable. In this regard the High Court came to the conclusion that the materials on record proved and established that the association of the appellant with Gurmeet Singh Wadhalia was of recent origin and having regard to the short period of time that the two had known each other it was unnatural that Gurmeet Singh Wadhalia would have handed over a demand draft of the sum of Rs. 21.5 crores to the appellant. The High Court also took the view that the appellant was primarily engaged in the real estate business and the explanation given by him before the Court was too naïve for acceptance; that the appellant was guilty of commission of contempt and, therefore, deserved to be sentenced to undergo simple imprisonment for one month. 9. We have heard learned counsels for the parties and considered the rival stands in the light of the materials on record. 10. The initial offer of Rs. 21.5 crores made by Advocate Mohit Paul was on behalf of one Manvir Singh who neither deposited 50 per cent of the amount, as directed by the High Court, nor established his credentials. The order dated 23.07.2014 of the High Court passed in this regard which noted the circumstances in which the bank draft came to be placed before the Court would need to be extracted to throw light at the circumstances in which the Bank draft came to be deposited in the High Court. "Mr. Anip Sachthey, learned counsel on behalf of Mr. Radhey Shyam, S/o Shri Diwan Chand, R/o 3046, Sector-28D, Chandigarh and House No.9, Sector-19, Chandigarh, has tendered the demand draft No. 882662, dated 22.07.2014, issued by the Axis Bank Limited, Plot No.5, Vikas Surya Plaza, Community Centre, D.C. Chowk, Sector-9, Rohini, New Delhi-110085, favouring the Chairman, Committee of Golden Forest India Limited for the sum of Rs. 21.50 Crores. It is submitted that the matter is sent back to the Committee for fresh process of bidding. The said Mr. Radhey Shyam represents one Harry Township Limited, which is interested in bidding on behalf of the said company in the said sum of Rs. 21.50 Crores. Mr. Sachthey, Advocate seeks a days time to file an affidavit disclosing the particulars of the bidder such as the name of the company, companys PAN number, Resolution authorizing the purchase of the land as well as the particulars with respect to its Board of Directors, whether they are an income tax payee, etc. The affidavit shall be tendered tomorrow, i.e., 24.07.2014. The said demand draft is hereby taken on record and shall be kept in the physical custody of the Registrar General, to be produced tomorrow. Mr. Himanshu Kapoor, Advocate appears on behalf of Mr. Nikhil Kant Syal, S/o Shri Rakesh Kant Syal. The particulars and relevant details of Mr. Nikhil Kant Syal shall be filed in the Court in the form of an affidavit within a week from today.List on 24th July, 2014.A copy of this order be given under the signatures of Courtmaster." 11. Though the appellant claimed to be representing one Harry Township Limited, pursuant to the above order of the Court dated 23.07.2014 the appellant filed an affidavit enclosing inter alia the PAN Card of one M/s. Real Pro Assets Ltd. The Bank draft was stated to have been facilitated from the Bank Account of one "Deepak Holdings" claimed to be a sister concern of M/s Real Pro Assets Ltd. It was also stated in the said affidavit that it is M/s Real Pro Assets Ltd. which desired to submit the bid. However, when the bank draft, on inquiry, was found to be forged the appellant accepted the said fact and put up a new case saying that the bank draft in question was handed over to him by one Gurmeet Singh Wadhalia. The circumstances in which the bank draft allegedly came into the possession of the appellant and was placed before the Court are replete with ambiguities and inconsistencies, as noticed above, which makes the version offered by the appellant unworthy of belief being, even prima facie, opposed to all acceptable canons of human conduct.12. The High Court has elaborately considered these circumstances and has arrived at the impugned conclusion with which we can find no fault. | 0[ds]11. Though the appellant claimed to be representing one Harry Township Limited, pursuant to the above order of the Court dated 23.07.2014 the appellant filed an affidavit enclosing inter alia the PAN Card of one M/s. Real Pro Assets Ltd. The Bank draft was stated to have been facilitated from the Bank Account of one "Deepak Holdings" claimed to be a sister concern of M/s Real Pro Assets Ltd. It was also stated in the said affidavit that it is M/s Real Pro Assets Ltd. which desired to submit the bid. However, when the bank draft, on inquiry, was found to be forged the appellant accepted the said fact and put up a new case saying that the bank draft in question was handed over to him by one Gurmeet Singh Wadhalia. The circumstances in which the bank draft allegedly came into the possession of the appellant and was placed before the Court are replete with ambiguities and inconsistencies, as noticed above, which makes the version offered by the appellant unworthy of belief being, even prima facie, opposed to all acceptable canons of human conduct.12. The High Court has elaborately considered these circumstances and has arrived at the impugned conclusion with which we can find no fault. | 0 | 1,557 | 229 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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said bank draft was issued by the Axis Bank Limited, Rohini, New Delhi. On 24.07.2014, the successful bidder levelled an allegation against the appellant that the aforesaid bank draft was forged. Being prima facie satisfied, by order dated 24.07.2014, the High Court ordered an inquiry into the matter.5. Pursuant to the said order, a Joint Registrar of the High Court made an inquiry and on conclusion thereof submitted a report to the effect that the bank draft tendered before the Court, indeed, was forged. In the course of inquiry proceedings the appellant was also examined. In the course of such examination the appellant had submitted that the bank draft tendered by him in Court was given to him by one Gurmeet Singh Wadhalia who, however, could not be located. Subsequently, it transpired that the said person had died in a road accident on 12.10.2014 somewhere in Chamoli District of Uttrakhand.6. It is in these circumstances that the High Court had drawn up an article of charge with regard to commission of contempt by the appellant. The said charge was primarily based on the fact that the forged bank draft was placed before the Court by the appellant in order to stall the confirmation of sale in favour of the genuine bidder.7. In the proceedings before the High Court the appellant did not contest the authenticity of the bank draft and admitted that the same was forged. His principal defence appears to be that the demand draft in question was handed over to him by Gurmeet Singh Wadhalia and that he had no knowledge that the instrument was forged.8. The High Court on a very elaborate consideration of the matter took the view that the explanation offered by the appellant was not at all acceptable. In this regard the High Court came to the conclusion that the materials on record proved and established that the association of the appellant with Gurmeet Singh Wadhalia was of recent origin and having regard to the short period of time that the two had known each other it was unnatural that Gurmeet Singh Wadhalia would have handed over a demand draft of the sum of Rs. 21.5 crores to the appellant. The High Court also took the view that the appellant was primarily engaged in the real estate business and the explanation given by him before the Court was too naïve for acceptance; that the appellant was guilty of commission of contempt and, therefore, deserved to be sentenced to undergo simple imprisonment for one month. 9. We have heard learned counsels for the parties and considered the rival stands in the light of the materials on record. 10. The initial offer of Rs. 21.5 crores made by Advocate Mohit Paul was on behalf of one Manvir Singh who neither deposited 50 per cent of the amount, as directed by the High Court, nor established his credentials. The order dated 23.07.2014 of the High Court passed in this regard which noted the circumstances in which the bank draft came to be placed before the Court would need to be extracted to throw light at the circumstances in which the Bank draft came to be deposited in the High Court. "Mr. Anip Sachthey, learned counsel on behalf of Mr. Radhey Shyam, S/o Shri Diwan Chand, R/o 3046, Sector-28D, Chandigarh and House No.9, Sector-19, Chandigarh, has tendered the demand draft No. 882662, dated 22.07.2014, issued by the Axis Bank Limited, Plot No.5, Vikas Surya Plaza, Community Centre, D.C. Chowk, Sector-9, Rohini, New Delhi-110085, favouring the Chairman, Committee of Golden Forest India Limited for the sum of Rs. 21.50 Crores. It is submitted that the matter is sent back to the Committee for fresh process of bidding. The said Mr. Radhey Shyam represents one Harry Township Limited, which is interested in bidding on behalf of the said company in the said sum of Rs. 21.50 Crores. Mr. Sachthey, Advocate seeks a days time to file an affidavit disclosing the particulars of the bidder such as the name of the company, companys PAN number, Resolution authorizing the purchase of the land as well as the particulars with respect to its Board of Directors, whether they are an income tax payee, etc. The affidavit shall be tendered tomorrow, i.e., 24.07.2014. The said demand draft is hereby taken on record and shall be kept in the physical custody of the Registrar General, to be produced tomorrow. Mr. Himanshu Kapoor, Advocate appears on behalf of Mr. Nikhil Kant Syal, S/o Shri Rakesh Kant Syal. The particulars and relevant details of Mr. Nikhil Kant Syal shall be filed in the Court in the form of an affidavit within a week from today.List on 24th July, 2014.A copy of this order be given under the signatures of Courtmaster." 11. Though the appellant claimed to be representing one Harry Township Limited, pursuant to the above order of the Court dated 23.07.2014 the appellant filed an affidavit enclosing inter alia the PAN Card of one M/s. Real Pro Assets Ltd. The Bank draft was stated to have been facilitated from the Bank Account of one "Deepak Holdings" claimed to be a sister concern of M/s Real Pro Assets Ltd. It was also stated in the said affidavit that it is M/s Real Pro Assets Ltd. which desired to submit the bid. However, when the bank draft, on inquiry, was found to be forged the appellant accepted the said fact and put up a new case saying that the bank draft in question was handed over to him by one Gurmeet Singh Wadhalia. The circumstances in which the bank draft allegedly came into the possession of the appellant and was placed before the Court are replete with ambiguities and inconsistencies, as noticed above, which makes the version offered by the appellant unworthy of belief being, even prima facie, opposed to all acceptable canons of human conduct.12. The High Court has elaborately considered these circumstances and has arrived at the impugned conclusion with which we can find no fault.
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11. Though the appellant claimed to be representing one Harry Township Limited, pursuant to the above order of the Court dated 23.07.2014 the appellant filed an affidavit enclosing inter alia the PAN Card of one M/s. Real Pro Assets Ltd. The Bank draft was stated to have been facilitated from the Bank Account of one "Deepak Holdings" claimed to be a sister concern of M/s Real Pro Assets Ltd. It was also stated in the said affidavit that it is M/s Real Pro Assets Ltd. which desired to submit the bid. However, when the bank draft, on inquiry, was found to be forged the appellant accepted the said fact and put up a new case saying that the bank draft in question was handed over to him by one Gurmeet Singh Wadhalia. The circumstances in which the bank draft allegedly came into the possession of the appellant and was placed before the Court are replete with ambiguities and inconsistencies, as noticed above, which makes the version offered by the appellant unworthy of belief being, even prima facie, opposed to all acceptable canons of human conduct.12. The High Court has elaborately considered these circumstances and has arrived at the impugned conclusion with which we can find no fault.
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SUNITA Vs. RAJASTHAN STATE ROAD TRANSPORT CORPORATION | the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimized by any false and invented evidence that may be tendered by the adversary party. (emphasis supplied) The High Court has not held that the respondents were successful in challenging the witnesses version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D.2) was cross examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondents case, without any proper reasoning. 30. The High Court discarded the evidence of Bhagchand (A.D. 2) also because he could not recollect the age of the pillion rider. The inability of the witness to identify the age of the pillion rider cannot, per se, be a militating factor to discard his entire version especially since the presence of the witness at the time and place of the accident has remained unshaken and including his deposition regarding the manner of occurrence of the accident and identity of the driver of the offending vehicle. The filing of FIR No.247/2011 (Exh.1) and the subsequent filing of the charge-sheet (Exh.2) corroborate the witnesses evidence. The view taken by the Tribunal therefore, on the veracity of the evidence of A.D. 2, is unexceptionable and there was no reason for the High Court to interfere with the same. 31. Similarly, the issue of non¬examination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. The approach in examining the evidence in accident claim cases is not to find fault with non examination of some best eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. This court, in Dulcina Fernandes (supra), faced a similar situation where the evidence of claimants eyewitness was discarded by the Tribunal and the respondent was acquitted in the criminal case concerning the accident. This Court, however, took the view that the material on record was prima facie sufficient to establish that the respondent was negligent. In the present case, therefore, the Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident. 32. On the issue of negligence by the deceased Sitaram in causing the accident, the Tribunal has referred to the notice issued under Section 134 of the Act (Exh. 7) to the driver of the offending vehicle, respondent No.2. It records that in the said notice, respondent No.2 failed to give any statement indicating that the accident occurred due to any mistake by the rider of the motorcycle, Sitaram. The Tribunal has further relied upon the evidence of Bhagchand (A.D.2) and also upon the site plan of the accident (Exh. 3) to reach a conclusion that respondent No.2 recklessly drove the speeding bus on the wrong side of the road, into the motorcycle being ridden by Sitaram, who was on the correct side of the road, and caused his death. Whereas, the High Court has disregarded the evidence of Bhagchand. Further, the site plan (Exh. 3) cannot be read in isolation. It will have to be examined in conjunction with the other evidence. 33. The site plan (Exh. 3) has been produced in evidence before the Tribunal by witness A.D. 1 (appellant No.1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained muchless proved through a competent witness by the respondents to substantiate their defence. Besides, the concerned police official who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence attributable to deceased Sitaram, moreso in absence of ocular evidence to prove and explain the contents of the site plan. 34. Be it noted that the evidence of witness A.D.2 (Bhagchand) unequivocally states that the respondent No.2 bus driver was negligent in driving recklessly at a high speed on the wrong side of the road, thus, resulting in the accident which caused the death of Sitaram. It was not open to the High Court to discard this evidence. Additionally, the Tribunal had justly placed reliance on the contents of FIR No.247/2011 (Exh. 1) and charge-sheet (Exh.2) which prima facie indicate the negligence of respondent No.2 in driving the bus. We once again remind ourselves of the dictum in Dulcina Fernandes (supra) and thereafter in Mangla Ram (supra), and answer the factum of negligence of the driver of the offending vehicle against the respondents. 35. Reverting to the question of adequacy of compensation amount determined by the Tribunal, the appellants have not assailed the order of the High Court rejecting their appeal. Further, in their appeal before the High Court (SBCMA No.581 of 2017), the limited grievance was about deduction of income tax from the calculated income. That ground is unsustainable in light of the decision in National Insurance Company Limited Vs. Pranay Sethi and Ors. (2017) 16 SCC 680 We cannot permit the appellants to widen the scope in the present appeal, muchless pray for enhanced compensation. We are instead inclined to restore the Award passed by the Tribunal as it has determined the just compensation amount, keeping in mind all the relevant parameters including the apportionment thereof between the family members of the deceased. Upholding that Award would be doing complete justice. | 1[ds]This is the only analysis/discussion in the entire judgment to reverse the exhaustive analysis done by the Tribunal to which we have set out in brief in paragraphs 5 to 9 above. The thrust of the reasoning given by the High Court rests on the unreliability of the witnesses presented by the appellants: first, that the evidence given by Bhagchand (A.D.2) was unreliable because he was not shown as a witness in the list of witnesses mentioned in the charge sheet filed by the police and that the said witness could not identify the age of the pillion rider, Rajulal Khateek. Second, the said pillion rider himself, Rajulal Khateek, who was the best witness in the matter, was not presented for examination by the appellants. The High Court also relies on the site map (Exh.3) to record the finding on the factum of negligence of the deceased Sitaram in causing the accident which resulted in his death20. We have no hesitation in observing that such a hyper¬ technical and trivial approach of the High Court cannot be sustained in a case for compensation under the Act, in connection with a motor vehicle accident resulting in the death of a family member.The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set asideIt is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunals role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases21. In the present case, we find that the Tribunal had followed a just approach in the matter of appreciation of the evidence/materials on record. Whereas, the High Court adopted a strict interpretation of the evidence on the touchstone of proof beyond reasonable doubt to record an adverse finding against the appellants and to reverse the well considered judgment of the Tribunal in a cryptic mannerAs regards the evidence of Bhagchand, the High Court found that the deposition of the said witness was unreliable because his name was not mentioned in the list of witnesses in the criminal proceedings and also because he was unable to tell the age of the pillion rider. Besides, the said witness lived in Pakhala village, which was 3 (three) kilometres away from the accident spot and hence, he could not have been near the said spot when the accident occurred. The Tribunal had dealt with these objections quite substantially and, in our opinion, correctly, in its judgment, wherein it records:In the present case the petitioners have got examined the eye-witness A.D.2 Bhag Chand son of Ram Dev. Admittedly the name of the witness Bhag Chand is not mentioned in the list of witnesses in exhibit¬2 charge sheet but if the interrogation with this witness is perused then the opponent in order of not considering this witness as eye-witness, has not asked about giving police statement or not having his name in the list of witnesses. The witness A.D.2 Bhag Chand Khateek, in interrogation on behalf of opponents has accepted this that he neither knows Banwari nor after the incident he has seen BanwariDuring interrogation the statement of the witness has been that I was near the place of incident itself. That time I was returning after relieving myself. The argument of the opponents has been that the witness Bhag Chand is resident of village Pakhala whereas the place of incident is at distance of 3 k.m. therefore, the statement of going to toilet is false. Therefore, he should not be considered eye-witness. But the witness A.D.2 Bhag Chand Khateek has stated in his main statement that one day from dated 28.10.2011, he had come to his brothers house at village Shivad. In such a Situation, in our humble opinion, the witness being at a distance of 3 k.m. from spot of incident, being resident of Pakhala village, this cannot be considered that this witness would not be considered eye¬witnessWhereas there is question of his name not being in the charge-sheet as witness, definitely due to this fact, each such witness cannot be considered eyewitness who gives little statement about incident. But the evidence which the witness A.D.2 Bhag Chand Khateek has given on oath, in order to prove that distrust worthy, the opponents have not done any such interrogation from which there is suspicion in the statements of witness. The witness Bhag Chand Khateek was not even this suggestion that his police statement was not taken or the police had not interrogated him. In our humble opinion, in cases like accident occurring suddenly, the persons present near the place of incident are eye-witness of the incident. But during investigation this is not necessary that the investigation agency should name all the eye¬witnesses as witness in the charge sheet. Therefore, the statement of witness A.D.2 Bhag Chand Khateek cannot be considered distrust worthy that his name in the charge sheet is not mentioned as witness28. Clearly, the evidence given by Bhagchand withstood the respondents scrutiny and the respondents were unable to shake his evidence. In turn, the High Court has failed to take note of the absence of cross examination of this witness by the respondents, leave alone the Tribunals finding on the same, and instead, deliberated on the reliability of Bhagchands (A.D.2) evidence from the viewpoint of him not being named in the list of eye witnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Courts observation [as set out in Parmeshwari (supra) and reiterated in Mangla Ram (supra)] that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross examination, for which opportunity was granted to the respondents by the TribunalThe High Court has not held that the respondents were successful in challenging the witnesses version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D.2) was cross examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondents case, without any proper reasoningThe view taken by the Tribunal therefore, on the veracity of the evidence of A.D. 2, is unexceptionable and there was no reason for the High Court to interfere with the sameIn the present case, therefore, the Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident33. The site plan (Exh. 3) has been produced in evidence before the Tribunal by witness A.D. 1 (appellant No.1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained muchless proved through a competent witness by the respondents to substantiate their defence. Besides, the concerned police official who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence attributable to deceased Sitaram, moreso in absence of ocular evidence to prove and explain the contents of the site plan34. Be it noted that the evidence of witness A.D.2 (Bhagchand) unequivocally states that the respondent No.2 bus driver was negligent in driving recklessly at a high speed on the wrong side of the road, thus, resulting in the accident which caused the death of Sitaram. It was not open to the High Court to discard this evidence. Additionally, the Tribunal had justly placed reliance on the contents of FIR No.247/2011 (Exh. 1) and charge-sheet (Exh.2) which prima facie indicate the negligence of respondent No.2 in driving the bus. We once again remind ourselves of the dictum in Dulcina Fernandes (supra) and thereafter in Mangla Ram (supra), and answer the factum of negligence of the driver of the offending vehicle against the respondents35. Reverting to the question of adequacy of compensation amount determined by the Tribunal, the appellants have not assailed the order of the High Court rejecting their appeal. Further, in their appeal before the High Court (SBCMA No.581 of 2017), the limited grievance was about deduction of income tax from the calculated income. That ground is unsustainable in light of the decision in National Insurance Company Limited Vs. Pranay Sethi and Ors.(2017) 16 SCC 680 We cannot permit the appellants to widen the scope in the present appeal, muchless pray for enhanced compensation. We are instead inclined to restore the Award passed by the Tribunal as it has determined the just compensation amount, keeping in mind all the relevant parameters including the apportionment thereof between the family members of the deceased. Upholding that Award would be doing complete justice. | 1 | 9,108 | 1,943 | ### 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 normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimized by any false and invented evidence that may be tendered by the adversary party. (emphasis supplied) The High Court has not held that the respondents were successful in challenging the witnesses version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D.2) was cross examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondents case, without any proper reasoning. 30. The High Court discarded the evidence of Bhagchand (A.D. 2) also because he could not recollect the age of the pillion rider. The inability of the witness to identify the age of the pillion rider cannot, per se, be a militating factor to discard his entire version especially since the presence of the witness at the time and place of the accident has remained unshaken and including his deposition regarding the manner of occurrence of the accident and identity of the driver of the offending vehicle. The filing of FIR No.247/2011 (Exh.1) and the subsequent filing of the charge-sheet (Exh.2) corroborate the witnesses evidence. The view taken by the Tribunal therefore, on the veracity of the evidence of A.D. 2, is unexceptionable and there was no reason for the High Court to interfere with the same. 31. Similarly, the issue of non¬examination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. The approach in examining the evidence in accident claim cases is not to find fault with non examination of some best eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. This court, in Dulcina Fernandes (supra), faced a similar situation where the evidence of claimants eyewitness was discarded by the Tribunal and the respondent was acquitted in the criminal case concerning the accident. This Court, however, took the view that the material on record was prima facie sufficient to establish that the respondent was negligent. In the present case, therefore, the Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident. 32. On the issue of negligence by the deceased Sitaram in causing the accident, the Tribunal has referred to the notice issued under Section 134 of the Act (Exh. 7) to the driver of the offending vehicle, respondent No.2. It records that in the said notice, respondent No.2 failed to give any statement indicating that the accident occurred due to any mistake by the rider of the motorcycle, Sitaram. The Tribunal has further relied upon the evidence of Bhagchand (A.D.2) and also upon the site plan of the accident (Exh. 3) to reach a conclusion that respondent No.2 recklessly drove the speeding bus on the wrong side of the road, into the motorcycle being ridden by Sitaram, who was on the correct side of the road, and caused his death. Whereas, the High Court has disregarded the evidence of Bhagchand. Further, the site plan (Exh. 3) cannot be read in isolation. It will have to be examined in conjunction with the other evidence. 33. The site plan (Exh. 3) has been produced in evidence before the Tribunal by witness A.D. 1 (appellant No.1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained muchless proved through a competent witness by the respondents to substantiate their defence. Besides, the concerned police official who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence attributable to deceased Sitaram, moreso in absence of ocular evidence to prove and explain the contents of the site plan. 34. Be it noted that the evidence of witness A.D.2 (Bhagchand) unequivocally states that the respondent No.2 bus driver was negligent in driving recklessly at a high speed on the wrong side of the road, thus, resulting in the accident which caused the death of Sitaram. It was not open to the High Court to discard this evidence. Additionally, the Tribunal had justly placed reliance on the contents of FIR No.247/2011 (Exh. 1) and charge-sheet (Exh.2) which prima facie indicate the negligence of respondent No.2 in driving the bus. We once again remind ourselves of the dictum in Dulcina Fernandes (supra) and thereafter in Mangla Ram (supra), and answer the factum of negligence of the driver of the offending vehicle against the respondents. 35. Reverting to the question of adequacy of compensation amount determined by the Tribunal, the appellants have not assailed the order of the High Court rejecting their appeal. Further, in their appeal before the High Court (SBCMA No.581 of 2017), the limited grievance was about deduction of income tax from the calculated income. That ground is unsustainable in light of the decision in National Insurance Company Limited Vs. Pranay Sethi and Ors. (2017) 16 SCC 680 We cannot permit the appellants to widen the scope in the present appeal, muchless pray for enhanced compensation. We are instead inclined to restore the Award passed by the Tribunal as it has determined the just compensation amount, keeping in mind all the relevant parameters including the apportionment thereof between the family members of the deceased. Upholding that Award would be doing complete justice.
### Response:
1
### Explanation:
village, this cannot be considered that this witness would not be considered eye¬witnessWhereas there is question of his name not being in the charge-sheet as witness, definitely due to this fact, each such witness cannot be considered eyewitness who gives little statement about incident. But the evidence which the witness A.D.2 Bhag Chand Khateek has given on oath, in order to prove that distrust worthy, the opponents have not done any such interrogation from which there is suspicion in the statements of witness. The witness Bhag Chand Khateek was not even this suggestion that his police statement was not taken or the police had not interrogated him. In our humble opinion, in cases like accident occurring suddenly, the persons present near the place of incident are eye-witness of the incident. But during investigation this is not necessary that the investigation agency should name all the eye¬witnesses as witness in the charge sheet. Therefore, the statement of witness A.D.2 Bhag Chand Khateek cannot be considered distrust worthy that his name in the charge sheet is not mentioned as witness28. Clearly, the evidence given by Bhagchand withstood the respondents scrutiny and the respondents were unable to shake his evidence. In turn, the High Court has failed to take note of the absence of cross examination of this witness by the respondents, leave alone the Tribunals finding on the same, and instead, deliberated on the reliability of Bhagchands (A.D.2) evidence from the viewpoint of him not being named in the list of eye witnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Courts observation [as set out in Parmeshwari (supra) and reiterated in Mangla Ram (supra)] that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross examination, for which opportunity was granted to the respondents by the TribunalThe High Court has not held that the respondents were successful in challenging the witnesses version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D.2) was cross examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondents case, without any proper reasoningThe view taken by the Tribunal therefore, on the veracity of the evidence of A.D. 2, is unexceptionable and there was no reason for the High Court to interfere with the sameIn the present case, therefore, the Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident33. The site plan (Exh. 3) has been produced in evidence before the Tribunal by witness A.D. 1 (appellant No.1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained muchless proved through a competent witness by the respondents to substantiate their defence. Besides, the concerned police official who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence attributable to deceased Sitaram, moreso in absence of ocular evidence to prove and explain the contents of the site plan34. Be it noted that the evidence of witness A.D.2 (Bhagchand) unequivocally states that the respondent No.2 bus driver was negligent in driving recklessly at a high speed on the wrong side of the road, thus, resulting in the accident which caused the death of Sitaram. It was not open to the High Court to discard this evidence. Additionally, the Tribunal had justly placed reliance on the contents of FIR No.247/2011 (Exh. 1) and charge-sheet (Exh.2) which prima facie indicate the negligence of respondent No.2 in driving the bus. We once again remind ourselves of the dictum in Dulcina Fernandes (supra) and thereafter in Mangla Ram (supra), and answer the factum of negligence of the driver of the offending vehicle against the respondents35. Reverting to the question of adequacy of compensation amount determined by the Tribunal, the appellants have not assailed the order of the High Court rejecting their appeal. Further, in their appeal before the High Court (SBCMA No.581 of 2017), the limited grievance was about deduction of income tax from the calculated income. That ground is unsustainable in light of the decision in National Insurance Company Limited Vs. Pranay Sethi and Ors.(2017) 16 SCC 680 We cannot permit the appellants to widen the scope in the present appeal, muchless pray for enhanced compensation. We are instead inclined to restore the Award passed by the Tribunal as it has determined the just compensation amount, keeping in mind all the relevant parameters including the apportionment thereof between the family members of the deceased. Upholding that Award would be doing complete justice.
|
Regional Provident Fund Commissioner Vs. Shibu Metal Works | which is sewing and knitting machines; item (22) which is safes, vaults and furniture made of iron or steel or steel alloys; or item (23) which is cutlery and surgical instruments. Clause (a) of the Explanation provides that these items should be included in the entry in question, "without prejudice to the ordinary meaning of the expressions used therein." If the narrow construction for which Mr. Agarwala contends is accepted, it would look unreasonable that the Legislature should have introduced these items under cl.(a) of the Explanation. Besides, this construction lays undue emphasis on the concept of products and erroneously treats engineering products as the core of the expression. What the entry really means is electrical engineering products, mechanical engineering products or general engineering products and in determining the content of the entry we have to hark back to the relevant consideration that this entry is intended to describe an industry as falling within the scope of the Act if the said industry is engaged in the manufacture of the products in question. Now, if we take the other entries which were initially included in Sch. I, the construction for which Mr. Agarwala contends cannot obviously be applied in respect of them; and so, we think it would not be possible to adopt the narrow construction which Mr. Agarwala has suggested for our acceptance.21. On the other hand, Mr. Sen for the appellant suggested that the proper way to construe this entry would be to hold that this entry would take in every industry which is engaged in the manufacture of products which are manufactured by electrical, mechanical or general engineering process. This construction treats the process of production as the crux of the entry and if this construction were accepted the scope of the content of the entry would be very wide indeed. If every product whose production can be referred to one or the other of the processes mentioned in the entry is construed to fall within its content, then several other entries in the Schedule would, prima facie, appear to be redundant, because this entry itself would be comprehensive enough to take them in. In that case, Explanation (a) which has been added in 1953 would itself appear to be without any purpose, because most, if not all, of the items introduced by the said clause would be included within the original entry itself. In our opinion, such a wide construction would not be justified, because we are inclined to hold that it is not the process which is important in construing the entry as the character of the activity with which the industry is concerned. That is why we are not prepared to accept the very broad construction of the entry suggested by Mr. Sen.22. The proper way to determine the content of this entry appears to us to be to hold that all products which are generally known as electrical engineering products, or mechanical engineering products, or general engineering products, are intended to be covered by the entry, and the object of Sch. I is to include within the scope of the Act every industry which is engaged in the manufacture of electrical engineering products, mechanical engineering products, or general engineering products. It is the character of the products that helps to determine the content of the entry; can the product in question be reasonably described as an electrical engineering product, or a mechanical engineering product, or a general engineering product? That is the question to ask in every case, and as we have already indicated, in considering the question as to whether the product falls under the category of general engineering product, general engineering should be construed in the limited sense which we have already shown. It may be that in a large majority of cases, the products included within the entry may be produced by electrical or mechanical or general engineering process; but that is not the essence of the matter. The industrial activity which manufactures the three categories of products already, enumerated by us, brings the industry within the scope of Sch. 1, and therefore, attracts the application of the Act.23. If we bear in mind the three broad categories of products, the manufacture of which brings the industry within the scope of Sch. I, it would be easy to appreciate the items enumerated in cl. (a) of the Explanation. Broadly stated, items 1 to 6 can be said to be electrical engineering products; 7 to 10 may be said to be mechanical engineering products and the rest general engineering products. We are free to confess that the inclusion of each one of these items in cl. (a) of the Explanation cannot be easily explained; but, on the whole, it appears to us that the object of the Explanation was to clarify, illustrate and expand the content of the entry in question in order that there should be no doubt as to the classes and categories of industry which were intended to be brought within the purview of the Act. This considered, we think that the manufacture of brass utensils can easily be regarded as an activity the object of which is the manufacture of general engineering products. This interpretation is not as narrow as that suggested by Mr. Agarwala, nor as broad as that suggested by Mr. Sen, and on the whole, it seems to fit in with the scheme of Sch. I considered in the light of the object intended to be achieved by the insertion of the Explanation in 1953 and the subsequent additions made to Sch. I itself. We are, therefore, satisfied that the Letters Patent Bench of the Punjab High Court was in error in holding that the respondents factory did not fall within the scope of the material provisions of the Act. Incidentally, we may add that before the present controversy arose between the respondent and the appellant, it appears that the respondent had been making deposits towards the Provident Fund as required by the Act. | 1[ds]20. There are, however, several confiderations which suggest that this narrow construction cannot be accepted. As we have already indicated, a glance at the items mentioned in cl.(a) of the Explanation and the extended meaning attributed to the respective entries covered by clauses (b), (c) and (d) of the Explanation, clearly indicates that none of the said entries can be reasonably read in that restricted manner. If this restricted interpretation is accepted, then several items included in cl. (a) of the Explanation would be so completely foreign to the original content of the entry that their inclusion would appear to be unjustified. Take for instance, item (15) in cl.(a) of the Explanation which is bicycles; item (17) which is sewing and knitting machines; item (22) which is safes, vaults and furniture made of iron or steel or steel alloys; or item (23) which is cutlery and surgical instruments. Clause (a) of the Explanation provides that these items should be included in the entry in question, "without prejudice to the ordinary meaning of the expressions usedIf the narrow construction for which Mr. Agarwala contends is accepted, it would look unreasonable that the Legislature should have introduced these items under cl.(a) of the Explanation. Besides, this construction lays undue emphasis on the concept of products and erroneously treats engineering products as the core of the expression. What the entry really means is electrical engineering products, mechanical engineering products or general engineering products and in determining the content of the entry we have to hark back to the relevant consideration that this entry is intended to describe an industry as falling within the scope of the Act if the said industry is engaged in the manufacture of the products in question. Now, if we take the other entries which were initially included in Sch. I, the construction for which Mr. Agarwala contends cannot obviously be applied in respect of them; and so, we think it would not be possible to adopt the narrow construction which Mr. Agarwala has suggested for ourour opinion, such a wide construction would not be justified, because we are inclined to hold that it is not the process which is important in construing the entry as the character of the activity with which the industry is concerned. That is why we are not prepared to accept the very broad construction of the entry suggested by Mr. Sen.22. The proper way to determine the content of this entry appears to us to be to hold that all products which are generally known as electrical engineering products, or mechanical engineering products, or general engineering products, are intended to be covered by the entry, and the object of Sch. I is to include within the scope of the Act every industry which is engaged in the manufacture of electrical engineering products, mechanical engineering products, or general engineering products. It is the character of the products that helps to determine the content of the entry; can the product in question be reasonably described as an electrical engineering product, or a mechanical engineering product, or a general engineering product? That is the question to ask in every case, and as we have already indicated, in considering the question as to whether the product falls under the category of general engineering product, general engineering should be construed in the limited sense which we have already shown. It may be that in a large majority of cases, the products included within the entry may be produced by electrical or mechanical or general engineering process; but that is not the essence of the matter. The industrial activity which manufactures the three categories of products already, enumerated by us, brings the industry within the scope of Sch. 1, and therefore, attracts the application of the Act.23. If we bear in mind the three broad categories of products, the manufacture of which brings the industry within the scope of Sch. I, it would be easy to appreciate the items enumerated in cl. (a) of the Explanation. Broadly stated, items 1 to 6 can be said to be electrical engineering products; 7 to 10 may be said to be mechanical engineering products and the rest general engineering products. We are free to confess that the inclusion of each one of these items in cl. (a) of the Explanation cannot be easily explained; but, on the whole, it appears to us that the object of the Explanation was to clarify, illustrate and expand the content of the entry in question in order that there should be no doubt as to the classes and categories of industry which were intended to be brought within the purview of the Act. This considered, we think that the manufacture of brass utensils can easily be regarded as an activity the object of which is the manufacture of general engineering products. This interpretation is not as narrow as that suggested by Mr. Agarwala, nor as broad as that suggested by Mr. Sen, and on the whole, it seems to fit in with the scheme of Sch. I considered in the light of the object intended to be achieved by the insertion of the Explanation in 1953 and the subsequent additions made to Sch. I itself. We are, therefore, satisfied that the Letters Patent Bench of the Punjab High Court was in error in holding that the respondents factory did not fall within the scope of the material provisions of the Act. Incidentally, we may add that before the present controversy arose between the respondent and the appellant, it appears that the respondent had been making deposits towards the Provident Fund as required by the Act.Reverting then to the question of construing the relevant entry in Sch. I, it is necessary to bear in mind that this entry occurs in the Act which is intended to serve a beneficent purpose. The object which the Act purports to achieve is to require that appropriate provision should be made for the employees employed in the establishments to which the Act applies; and that means that in construing the material provisions of such an Act, if two views are reasonably possible, the courts should prefer the view which helps the achievement of the object. If the words used in the entry are capable of a narrow or broad construction, each construction being reasonably possible, and it appears that the broad construction would help the furtherance of the object, then it would be necessary to prefer the said construction. This rule postulates that there is a competetion between the two constructions, each one of which is reasonably possible. This rule does not justify the straining of the words or putting an unnatural or unreasonable meaning on them just for the purpose of introducing a broaderwe are inclined to hold that the expression "general engineering" does not include electrical or mechanical engineering which are specifically mentioned in the entry, and it also does not include other branches of engineering which are known by specific or special titles. These specific branches of engineering have already been indicated by us by reference to the Encyclopaediawould mean that the products to which the entry refers are products which are useful in, or meant for, electrical engineering, mechanical engineering or general engineering. This entry may also take in machines or their parts which are similarly useful in or meant for electrical, mechanical, or general engineering.If this narrow construction is accepted, then, of course, production of brass utensils would be plainly outside the entry. | 1 | 5,360 | 1,401 | ### 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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which is sewing and knitting machines; item (22) which is safes, vaults and furniture made of iron or steel or steel alloys; or item (23) which is cutlery and surgical instruments. Clause (a) of the Explanation provides that these items should be included in the entry in question, "without prejudice to the ordinary meaning of the expressions used therein." If the narrow construction for which Mr. Agarwala contends is accepted, it would look unreasonable that the Legislature should have introduced these items under cl.(a) of the Explanation. Besides, this construction lays undue emphasis on the concept of products and erroneously treats engineering products as the core of the expression. What the entry really means is electrical engineering products, mechanical engineering products or general engineering products and in determining the content of the entry we have to hark back to the relevant consideration that this entry is intended to describe an industry as falling within the scope of the Act if the said industry is engaged in the manufacture of the products in question. Now, if we take the other entries which were initially included in Sch. I, the construction for which Mr. Agarwala contends cannot obviously be applied in respect of them; and so, we think it would not be possible to adopt the narrow construction which Mr. Agarwala has suggested for our acceptance.21. On the other hand, Mr. Sen for the appellant suggested that the proper way to construe this entry would be to hold that this entry would take in every industry which is engaged in the manufacture of products which are manufactured by electrical, mechanical or general engineering process. This construction treats the process of production as the crux of the entry and if this construction were accepted the scope of the content of the entry would be very wide indeed. If every product whose production can be referred to one or the other of the processes mentioned in the entry is construed to fall within its content, then several other entries in the Schedule would, prima facie, appear to be redundant, because this entry itself would be comprehensive enough to take them in. In that case, Explanation (a) which has been added in 1953 would itself appear to be without any purpose, because most, if not all, of the items introduced by the said clause would be included within the original entry itself. In our opinion, such a wide construction would not be justified, because we are inclined to hold that it is not the process which is important in construing the entry as the character of the activity with which the industry is concerned. That is why we are not prepared to accept the very broad construction of the entry suggested by Mr. Sen.22. The proper way to determine the content of this entry appears to us to be to hold that all products which are generally known as electrical engineering products, or mechanical engineering products, or general engineering products, are intended to be covered by the entry, and the object of Sch. I is to include within the scope of the Act every industry which is engaged in the manufacture of electrical engineering products, mechanical engineering products, or general engineering products. It is the character of the products that helps to determine the content of the entry; can the product in question be reasonably described as an electrical engineering product, or a mechanical engineering product, or a general engineering product? That is the question to ask in every case, and as we have already indicated, in considering the question as to whether the product falls under the category of general engineering product, general engineering should be construed in the limited sense which we have already shown. It may be that in a large majority of cases, the products included within the entry may be produced by electrical or mechanical or general engineering process; but that is not the essence of the matter. The industrial activity which manufactures the three categories of products already, enumerated by us, brings the industry within the scope of Sch. 1, and therefore, attracts the application of the Act.23. If we bear in mind the three broad categories of products, the manufacture of which brings the industry within the scope of Sch. I, it would be easy to appreciate the items enumerated in cl. (a) of the Explanation. Broadly stated, items 1 to 6 can be said to be electrical engineering products; 7 to 10 may be said to be mechanical engineering products and the rest general engineering products. We are free to confess that the inclusion of each one of these items in cl. (a) of the Explanation cannot be easily explained; but, on the whole, it appears to us that the object of the Explanation was to clarify, illustrate and expand the content of the entry in question in order that there should be no doubt as to the classes and categories of industry which were intended to be brought within the purview of the Act. This considered, we think that the manufacture of brass utensils can easily be regarded as an activity the object of which is the manufacture of general engineering products. This interpretation is not as narrow as that suggested by Mr. Agarwala, nor as broad as that suggested by Mr. Sen, and on the whole, it seems to fit in with the scheme of Sch. I considered in the light of the object intended to be achieved by the insertion of the Explanation in 1953 and the subsequent additions made to Sch. I itself. We are, therefore, satisfied that the Letters Patent Bench of the Punjab High Court was in error in holding that the respondents factory did not fall within the scope of the material provisions of the Act. Incidentally, we may add that before the present controversy arose between the respondent and the appellant, it appears that the respondent had been making deposits towards the Provident Fund as required by the Act.
### Response:
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### Explanation:
entry we have to hark back to the relevant consideration that this entry is intended to describe an industry as falling within the scope of the Act if the said industry is engaged in the manufacture of the products in question. Now, if we take the other entries which were initially included in Sch. I, the construction for which Mr. Agarwala contends cannot obviously be applied in respect of them; and so, we think it would not be possible to adopt the narrow construction which Mr. Agarwala has suggested for ourour opinion, such a wide construction would not be justified, because we are inclined to hold that it is not the process which is important in construing the entry as the character of the activity with which the industry is concerned. That is why we are not prepared to accept the very broad construction of the entry suggested by Mr. Sen.22. The proper way to determine the content of this entry appears to us to be to hold that all products which are generally known as electrical engineering products, or mechanical engineering products, or general engineering products, are intended to be covered by the entry, and the object of Sch. I is to include within the scope of the Act every industry which is engaged in the manufacture of electrical engineering products, mechanical engineering products, or general engineering products. It is the character of the products that helps to determine the content of the entry; can the product in question be reasonably described as an electrical engineering product, or a mechanical engineering product, or a general engineering product? That is the question to ask in every case, and as we have already indicated, in considering the question as to whether the product falls under the category of general engineering product, general engineering should be construed in the limited sense which we have already shown. It may be that in a large majority of cases, the products included within the entry may be produced by electrical or mechanical or general engineering process; but that is not the essence of the matter. The industrial activity which manufactures the three categories of products already, enumerated by us, brings the industry within the scope of Sch. 1, and therefore, attracts the application of the Act.23. If we bear in mind the three broad categories of products, the manufacture of which brings the industry within the scope of Sch. I, it would be easy to appreciate the items enumerated in cl. (a) of the Explanation. Broadly stated, items 1 to 6 can be said to be electrical engineering products; 7 to 10 may be said to be mechanical engineering products and the rest general engineering products. We are free to confess that the inclusion of each one of these items in cl. (a) of the Explanation cannot be easily explained; but, on the whole, it appears to us that the object of the Explanation was to clarify, illustrate and expand the content of the entry in question in order that there should be no doubt as to the classes and categories of industry which were intended to be brought within the purview of the Act. This considered, we think that the manufacture of brass utensils can easily be regarded as an activity the object of which is the manufacture of general engineering products. This interpretation is not as narrow as that suggested by Mr. Agarwala, nor as broad as that suggested by Mr. Sen, and on the whole, it seems to fit in with the scheme of Sch. I considered in the light of the object intended to be achieved by the insertion of the Explanation in 1953 and the subsequent additions made to Sch. I itself. We are, therefore, satisfied that the Letters Patent Bench of the Punjab High Court was in error in holding that the respondents factory did not fall within the scope of the material provisions of the Act. Incidentally, we may add that before the present controversy arose between the respondent and the appellant, it appears that the respondent had been making deposits towards the Provident Fund as required by the Act.Reverting then to the question of construing the relevant entry in Sch. I, it is necessary to bear in mind that this entry occurs in the Act which is intended to serve a beneficent purpose. The object which the Act purports to achieve is to require that appropriate provision should be made for the employees employed in the establishments to which the Act applies; and that means that in construing the material provisions of such an Act, if two views are reasonably possible, the courts should prefer the view which helps the achievement of the object. If the words used in the entry are capable of a narrow or broad construction, each construction being reasonably possible, and it appears that the broad construction would help the furtherance of the object, then it would be necessary to prefer the said construction. This rule postulates that there is a competetion between the two constructions, each one of which is reasonably possible. This rule does not justify the straining of the words or putting an unnatural or unreasonable meaning on them just for the purpose of introducing a broaderwe are inclined to hold that the expression "general engineering" does not include electrical or mechanical engineering which are specifically mentioned in the entry, and it also does not include other branches of engineering which are known by specific or special titles. These specific branches of engineering have already been indicated by us by reference to the Encyclopaediawould mean that the products to which the entry refers are products which are useful in, or meant for, electrical engineering, mechanical engineering or general engineering. This entry may also take in machines or their parts which are similarly useful in or meant for electrical, mechanical, or general engineering.If this narrow construction is accepted, then, of course, production of brass utensils would be plainly outside the entry.
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Changunabai Chanoo Palkar Vs. Khatau Makanji Mills Limited and Others | that she wanted to resume duty when the situation normalised and that she actually reported at the Mill Gate to join duty but was not allowed to resume. This is specifically pleaded and deposed and is supported by documentary evidence on record. The degree of culpability as disclosed by these facts, therefore, had necessarily to be kept in view while imposing the penalty. Besides, it has been found that all the workers who had participated in the illegal strike were not dismissed or terminated. Some of them were taken back and allowed to join duty. There was, therefore, unreasonable discrimination in the matter of dealing with employees who absented during the strike. Having regard to all these circumstances, the Labour Court as well as the Industrial Court concurrently found and, in our opinion, rightly, that the proved misconduct did not warrant or justify the extreme penalty. The Industrial Court, therefore, ordered reinstatement of the appellant in service upto the date of her superannuation and declared her entitled to retrial benefits but not back wages. The learned Single Judge affirmed the decision in toto holding that the direction regarding withholding of back wages did not suffer from any infirmity and that the decision, if fact, appeared to be "compassionate one" from the point of view of the appellant who had participated in the illegal strike.14. The respondent company acquiesced in the decision. But the appellant feeling aggrieved has come up on appeal and complains that on the facts and in the circumstances of the case, the denial of claim for back wages is unwarranted and unjustified. The only question which survives for consideration, therefore, is whether the claim for back wages has merit and whether the facts and circumstances of the case call for a departure from the normal rule that in cases of void termination the reinstatement with fullback wages ought to be granted. 15. The relevant factors to be kept in view in order to determine the question posed above need recapitulation. The dismissal order was void ab initio since no charge sheet was served and no inquiry preceded in accordance with law. The finding of misconduct - passive participation in the illegal strike - came to be recorded, for the first time, in the course of industrial adjudication. The normal relief under such circumstances is reinstatement with full back wages since predating of the award would have no legal sanction. For good and valid reasons, however, back wages or a part thereof could still be denied in the exercise of judicial discretion depending upon the combination of facts and circumstances. The appellant is a female employee who served the respondent company from 1944 to 1982, that is, almost for four decades. Her record of service is otherwise unblemished since nothing adverses has been brought on record. She absented from duty during the illegal strike as it was a mass movement directed not only against her own employer but against the entire textile industry. The strike commenced on 18th January, 1982 and it was declared illegal on 11th February, 1982. There was no individual approach to the workmen, including the appellant, nor any persuasive effort on the part of the respondent company to induce them to resume duty. Of course, the respondent company published notice twice in a newspaper calling upon the workmen to report for duty and also advising that failure to resume might result in appropriate action being taken against them. The notices were published on 28th February, 1982 and 6th April, 1982. This was a mixture of a call to resume duty and of ultimatum and threat. The appellant nevertheless reported for duty but was not taken back. This treatment was meted out to her discriminatorily since she was denied entry in the Mill premises whereas many others were permitted to resume duty and even new hands were employed. She addressed two letters to the respondent company in October & November 1984 seeking reinstatement by they evoked no response. The result was that she had to go through a protracted litigation in the Labour and Industrial Courts claiming reinstatement with full back wages from 30th October, 1984 - an awesome factor in itself - and to undergo suffering in the process. She apparently sustained herself in the ultimate hope of getting a just relief in the said forum. By the time the litigation ended and she vindicated her right, she had already reached the age of superannuation and the success was rendered illusory in a sense because actual reinstatement could not be gained. The claim for back wages was, therefore, the only relief to which she looked forward and that too for the limited period from 30th October, 1984 to 31st December, 1985, that is, for an interregnum of 14 months only. The trauma of facing enforced unemployment and prolonged litigation is itself a sort of punishment and also a form of censure. Under such circumstances, to deny back wages due to her in a sum which cannot be regarded as substantial for the employer, would be to visit her with a further penalty which is not justified. Reinstatement on setting aside of a termination which was void ab initio was not compassionate gesture; it was a legitimate right. The claim for back wages had a legal foundation; denial thereof must be based on rational and realistic grounds formulated on a consideration of the entire set of circumstances. The denial thereof on the facts and in the circumstances of the present case is not only unwarranted but would also amount to putting a premium on the litigating activity of the employer.16. For the foregoing reasons, in our opinion, the discretion to deny reinstatement with back wages was not exercised judicially in the present case. On the facts and in the circumstances of the case, the Industrial Court as also the learned Single Judge erred in law in denying the legitimate claim for full back wages for the period from 30th October, 1984 to 31st December 1985. | 1[ds]13. Turning now to the facts of the present case, nowas served nor an enquiry was held before the appellant was dismissed. Even the dismissal order was not served upon her. The action taken accordingly was illegal rendering the dismissal order non est. The respondent company, however, couldas in this case it attempted to dojustify the action and make out delinquency before the Labour Court, which had full jurisdiction to adjudge de novo both the guilt and the penalty. In the course of the said proceedings, what has been held proved against the appellant is nothing more than passive participation by not reporting for duty during an illegal strike. There is no finding that the illegal strike was unjustified. It is true that participation in an illegal strike is misconduct as per the Standing Orders. Howers, the case of the appellant is that she wanted to resume duty when the situation normalised and that she actually reported at the Mill Gate to join duty but was not allowed to resume. This is specifically pleaded and deposed and is supported by documentary evidence on record. The degree of culpability as disclosed by these facts, therefore, had necessarily to be kept in view while imposing the penalty. Besides, it has been found that all the workers who had participated in the illegal strike were not dismissed or terminated. Some of them were taken back and allowed to join duty. There was, therefore, unreasonable discrimination in the matter of dealing with employees who absented during the strike. Having regard to all these circumstances, the Labour Court as well as the Industrial Court concurrently found and, in our opinion, rightly, that the proved misconduct did not warrant or justify the extreme penalty. The Industrial Court, therefore, ordered reinstatement of the appellant in service upto the date of her superannuation and declared her entitled to retrial benefits but not back wages. The learned Single Judge affirmed the decision in toto holding that the direction regarding withholding of back wages did not suffer from any infirmity and that the decision, if fact, appeared to be "compassionate one" from the point of view of the appellant who had participated in the illegal strike.The relevant factors to be kept in view in order to determine the question posed above need recapitulation. The dismissal order was void ab initio since no charge sheet was served and no inquiry preceded in accordance with law. The finding of misconductpassive participation in the illegal strikecame to be recorded, for the first time, in the course of industrial adjudication. The normal relief under such circumstances is reinstatement with full back wages since predating of the award would have no legal sanction. For good and valid reasons, however, back wages or a part thereof could still be denied in the exercise of judicial discretion depending upon the combination of facts and circumstances. The appellant is a female employee who served the respondent company from 1944 to 1982, that is, almost for four decades. Her record of service is otherwise unblemished since nothing adverses has been brought on record. She absented from duty during the illegal strike as it was a mass movement directed not only against her own employer but against the entire textile industry. The strike commenced on 18th January, 1982 and it was declared illegal on 11th February, 1982. There was no individual approach to the workmen, including the appellant, nor any persuasive effort on the part of the respondent company to induce them to resume duty. Of course, the respondent company published notice twice in a newspaper calling upon the workmen to report for duty and also advising that failure to resume might result in appropriate action being taken against them. The notices were published on 28th February, 1982 and 6th April, 1982. This was a mixture of a call to resume duty and of ultimatum and threat. The appellant nevertheless reported for duty but was not taken back. This treatment was meted out to her discriminatorily since she was denied entry in the Mill premises whereas many others were permitted to resume duty and even new hands were employed. She addressed two letters to the respondent company in OctoberNovember 1984 seeking reinstatement by they evoked no response. The result was that she had to go through a protracted litigation in the Labour and Industrial Courts claiming reinstatement with full back wages from 30th October, 1984an awesome factor in itselfand to undergo suffering in the process. She apparently sustained herself in the ultimate hope of getting a just relief in the said forum. By the time the litigation ended and she vindicated her right, she had already reached the age of superannuation and the success was rendered illusory in a sense because actual reinstatement could not be gained. The claim for back wages was, therefore, the only relief to which she looked forward and that too for the limited period from 30th October, 1984 to 31st December, 1985, that is, for an interregnum of 14 months only. The trauma of facing enforced unemployment and prolonged litigation is itself a sort of punishment and also a form of censure. Under such circumstances, to deny back wages due to her in a sum which cannot be regarded as substantial for the employer, would be to visit her with a further penalty which is not justified. Reinstatement on setting aside of a termination which was void ab initio was not compassionate gesture; it was a legitimate right. The claim for back wages had a legal foundation; denial thereof must be based on rational and realistic grounds formulated on a consideration of the entire set of circumstances. The denial thereof on the facts and in the circumstances of the present case is not only unwarranted but would also amount to putting a premium on the litigating activity of the employer.16. For the foregoing reasons, in our opinion, the discretion to deny reinstatement with back wages was not exercised judicially in the present case. On the facts and in the circumstances of the case, the Industrial Court as also the learned Single Judge erred in law in denying the legitimate claim for full back wages for the period from 30th October, 1984 to 31st December 1985. | 1 | 4,328 | 1,138 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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that she wanted to resume duty when the situation normalised and that she actually reported at the Mill Gate to join duty but was not allowed to resume. This is specifically pleaded and deposed and is supported by documentary evidence on record. The degree of culpability as disclosed by these facts, therefore, had necessarily to be kept in view while imposing the penalty. Besides, it has been found that all the workers who had participated in the illegal strike were not dismissed or terminated. Some of them were taken back and allowed to join duty. There was, therefore, unreasonable discrimination in the matter of dealing with employees who absented during the strike. Having regard to all these circumstances, the Labour Court as well as the Industrial Court concurrently found and, in our opinion, rightly, that the proved misconduct did not warrant or justify the extreme penalty. The Industrial Court, therefore, ordered reinstatement of the appellant in service upto the date of her superannuation and declared her entitled to retrial benefits but not back wages. The learned Single Judge affirmed the decision in toto holding that the direction regarding withholding of back wages did not suffer from any infirmity and that the decision, if fact, appeared to be "compassionate one" from the point of view of the appellant who had participated in the illegal strike.14. The respondent company acquiesced in the decision. But the appellant feeling aggrieved has come up on appeal and complains that on the facts and in the circumstances of the case, the denial of claim for back wages is unwarranted and unjustified. The only question which survives for consideration, therefore, is whether the claim for back wages has merit and whether the facts and circumstances of the case call for a departure from the normal rule that in cases of void termination the reinstatement with fullback wages ought to be granted. 15. The relevant factors to be kept in view in order to determine the question posed above need recapitulation. The dismissal order was void ab initio since no charge sheet was served and no inquiry preceded in accordance with law. The finding of misconduct - passive participation in the illegal strike - came to be recorded, for the first time, in the course of industrial adjudication. The normal relief under such circumstances is reinstatement with full back wages since predating of the award would have no legal sanction. For good and valid reasons, however, back wages or a part thereof could still be denied in the exercise of judicial discretion depending upon the combination of facts and circumstances. The appellant is a female employee who served the respondent company from 1944 to 1982, that is, almost for four decades. Her record of service is otherwise unblemished since nothing adverses has been brought on record. She absented from duty during the illegal strike as it was a mass movement directed not only against her own employer but against the entire textile industry. The strike commenced on 18th January, 1982 and it was declared illegal on 11th February, 1982. There was no individual approach to the workmen, including the appellant, nor any persuasive effort on the part of the respondent company to induce them to resume duty. Of course, the respondent company published notice twice in a newspaper calling upon the workmen to report for duty and also advising that failure to resume might result in appropriate action being taken against them. The notices were published on 28th February, 1982 and 6th April, 1982. This was a mixture of a call to resume duty and of ultimatum and threat. The appellant nevertheless reported for duty but was not taken back. This treatment was meted out to her discriminatorily since she was denied entry in the Mill premises whereas many others were permitted to resume duty and even new hands were employed. She addressed two letters to the respondent company in October & November 1984 seeking reinstatement by they evoked no response. The result was that she had to go through a protracted litigation in the Labour and Industrial Courts claiming reinstatement with full back wages from 30th October, 1984 - an awesome factor in itself - and to undergo suffering in the process. She apparently sustained herself in the ultimate hope of getting a just relief in the said forum. By the time the litigation ended and she vindicated her right, she had already reached the age of superannuation and the success was rendered illusory in a sense because actual reinstatement could not be gained. The claim for back wages was, therefore, the only relief to which she looked forward and that too for the limited period from 30th October, 1984 to 31st December, 1985, that is, for an interregnum of 14 months only. The trauma of facing enforced unemployment and prolonged litigation is itself a sort of punishment and also a form of censure. Under such circumstances, to deny back wages due to her in a sum which cannot be regarded as substantial for the employer, would be to visit her with a further penalty which is not justified. Reinstatement on setting aside of a termination which was void ab initio was not compassionate gesture; it was a legitimate right. The claim for back wages had a legal foundation; denial thereof must be based on rational and realistic grounds formulated on a consideration of the entire set of circumstances. The denial thereof on the facts and in the circumstances of the present case is not only unwarranted but would also amount to putting a premium on the litigating activity of the employer.16. For the foregoing reasons, in our opinion, the discretion to deny reinstatement with back wages was not exercised judicially in the present case. On the facts and in the circumstances of the case, the Industrial Court as also the learned Single Judge erred in law in denying the legitimate claim for full back wages for the period from 30th October, 1984 to 31st December 1985.
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order non est. The respondent company, however, couldas in this case it attempted to dojustify the action and make out delinquency before the Labour Court, which had full jurisdiction to adjudge de novo both the guilt and the penalty. In the course of the said proceedings, what has been held proved against the appellant is nothing more than passive participation by not reporting for duty during an illegal strike. There is no finding that the illegal strike was unjustified. It is true that participation in an illegal strike is misconduct as per the Standing Orders. Howers, the case of the appellant is that she wanted to resume duty when the situation normalised and that she actually reported at the Mill Gate to join duty but was not allowed to resume. This is specifically pleaded and deposed and is supported by documentary evidence on record. The degree of culpability as disclosed by these facts, therefore, had necessarily to be kept in view while imposing the penalty. Besides, it has been found that all the workers who had participated in the illegal strike were not dismissed or terminated. Some of them were taken back and allowed to join duty. There was, therefore, unreasonable discrimination in the matter of dealing with employees who absented during the strike. Having regard to all these circumstances, the Labour Court as well as the Industrial Court concurrently found and, in our opinion, rightly, that the proved misconduct did not warrant or justify the extreme penalty. The Industrial Court, therefore, ordered reinstatement of the appellant in service upto the date of her superannuation and declared her entitled to retrial benefits but not back wages. The learned Single Judge affirmed the decision in toto holding that the direction regarding withholding of back wages did not suffer from any infirmity and that the decision, if fact, appeared to be "compassionate one" from the point of view of the appellant who had participated in the illegal strike.The relevant factors to be kept in view in order to determine the question posed above need recapitulation. The dismissal order was void ab initio since no charge sheet was served and no inquiry preceded in accordance with law. The finding of misconductpassive participation in the illegal strikecame to be recorded, for the first time, in the course of industrial adjudication. The normal relief under such circumstances is reinstatement with full back wages since predating of the award would have no legal sanction. For good and valid reasons, however, back wages or a part thereof could still be denied in the exercise of judicial discretion depending upon the combination of facts and circumstances. The appellant is a female employee who served the respondent company from 1944 to 1982, that is, almost for four decades. Her record of service is otherwise unblemished since nothing adverses has been brought on record. She absented from duty during the illegal strike as it was a mass movement directed not only against her own employer but against the entire textile industry. The strike commenced on 18th January, 1982 and it was declared illegal on 11th February, 1982. There was no individual approach to the workmen, including the appellant, nor any persuasive effort on the part of the respondent company to induce them to resume duty. Of course, the respondent company published notice twice in a newspaper calling upon the workmen to report for duty and also advising that failure to resume might result in appropriate action being taken against them. The notices were published on 28th February, 1982 and 6th April, 1982. This was a mixture of a call to resume duty and of ultimatum and threat. The appellant nevertheless reported for duty but was not taken back. This treatment was meted out to her discriminatorily since she was denied entry in the Mill premises whereas many others were permitted to resume duty and even new hands were employed. She addressed two letters to the respondent company in OctoberNovember 1984 seeking reinstatement by they evoked no response. The result was that she had to go through a protracted litigation in the Labour and Industrial Courts claiming reinstatement with full back wages from 30th October, 1984an awesome factor in itselfand to undergo suffering in the process. She apparently sustained herself in the ultimate hope of getting a just relief in the said forum. By the time the litigation ended and she vindicated her right, she had already reached the age of superannuation and the success was rendered illusory in a sense because actual reinstatement could not be gained. The claim for back wages was, therefore, the only relief to which she looked forward and that too for the limited period from 30th October, 1984 to 31st December, 1985, that is, for an interregnum of 14 months only. The trauma of facing enforced unemployment and prolonged litigation is itself a sort of punishment and also a form of censure. Under such circumstances, to deny back wages due to her in a sum which cannot be regarded as substantial for the employer, would be to visit her with a further penalty which is not justified. Reinstatement on setting aside of a termination which was void ab initio was not compassionate gesture; it was a legitimate right. The claim for back wages had a legal foundation; denial thereof must be based on rational and realistic grounds formulated on a consideration of the entire set of circumstances. The denial thereof on the facts and in the circumstances of the present case is not only unwarranted but would also amount to putting a premium on the litigating activity of the employer.16. For the foregoing reasons, in our opinion, the discretion to deny reinstatement with back wages was not exercised judicially in the present case. On the facts and in the circumstances of the case, the Industrial Court as also the learned Single Judge erred in law in denying the legitimate claim for full back wages for the period from 30th October, 1984 to 31st December 1985.
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Ramlal, Motilal And Chhotelal Vs. Rewa Coalfields Ltd | would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under S. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of S. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to S. 14.In the present case there is no difficulty in holding that the discretion should be exercised in favour of the appellant because apart from the general criticism made against the appellants lack of diligence during the period of limitation no other fact had been adduced against it. Indeed, as we have already pointed out, the learned Judicial Commissioner rejected the appellants application for condonation of delay only on the ground that it was appellants duty to file the appeal as soon as possible within the period prescribed, and that, in our opinion, is not a valid ground,13. It now remains to refer to two Privy Council decisions to which our attention was drawn. In Ram Narain Joshi v. Parmeswar Narain Mahta, 30 Ind App 20,the Privy Council was dealing with a case where on August 9, 1895 the High Court had made an order that the appeal in question should be transferred to the High Court under S. 25 of the Code of Civil Procedure and heard along with another appeal already pending there. In making this order the High Court had given liberty to the respondent to make his objections, if any, to the said transfer. On September 16, 1895 a petition was filed on behalf of the appellant objecting to the said transfer; and the question arose whether sufficient cause had been shown for the delay made by the party between August 9, 1895 to September 16, 1895. The decree under appeal had been passed on June 25, 1894 and the appeal against the said decree had been presented to the District judge on September 3, 1894. It would thus be seen that the question which arose was very different from the question with which we are concerned; and it is in regard to the delay made between August 9, 1895 to September 16, 1895 that the Privy Council approved of the view taken by the High Court that the said delay had not been satisfactorily explained. We do not see how this decision can assist us in interpreting the provisions of S. 5.14. The next case on which reliance has been placed by the respondent is Brij Inder Singh v. Kanshi Ram, 44 Ind App 218 ; (AIR 1917 PC 156). The principle point decided in that case had reference to S. 14 read with S. 5 of the Limitation Act, 1908; and the question which it raised was whether the time occupied by an application in good faith for review, although made upon a mistaken view of the law, should be deemed as added to the period allowed for presenting an appeal. As we have already pointed out, when the question of limitation has to be considered in the light of the combined operation of Sections 14 and 5 of the Limitation Act the conditions expressly imposed by S. 14 have to be satisfied. It would however, be unreasonable to suggest that the said conditions must to the same extent and in the same manner be taken into account in dealing with applications falling under S. 5 of the Limitation Act.15. It appears that the provisions of S. 5 in the present Limitation Act are substantialIy the same as those in S. 5 (b) and S. 5, paragraph 2, of the Limitation Acts of I871 and 1877 respectively. Section 5A which was added to the Limitation Act of 1877 by the amending Act VI of 1892 dealt with the topic covered by the explanation to S. 5 in the present Act. The explanation provides, inter alia, that the fact that the appellant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of S. 5.The effect of the explanation is that if the party who has applied for extension of period shows that the delay was due to any of the facts mentioned in the explanation that ,would be treated as sufficient cause, and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not. In the cases to which the explanation applies it may be easy for the Court to decide that the discretion should be exercised in favour of the party and delay should be condoned. Even so, the matter is still one of discretion. Under S. 5A of the Act of 1877; however, if the corresponding facts had been proved under the said section there appears to have been no discretion left in the Court because the said section provided inter alia, that whenever it was shown to the satisfaction of the Court that an appeal was presented after an expiration of the period of the limitation prescribed owing to the appellant having been misled by any order, practice or judgment of the High Court of the Presidency, Province or District, such appeal or application, if otherwise in accordance with law, shall, for all purposes be deemed to have been presented within the period of limitation prescribed therefor. That, however, is a distinction which is not relevant in the present appeal. | 1[ds]With the first question we are not concerned in the presentthe Judicial Commissioner had held that "within such period" means "the period of the delay between the last day for filing the appeal and the date on which the appeal was actually filed" he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the presentis possible that the expression "within such period" may sometimes mean during suchthe Limitation Act or any other appropriate statute prescribes different periods of limitation either for appeals or applications to which S. 5 applies that normally means that liberty is given to the party intending to make the appeal or to file an application to act within the period prescribed in that behalf. It would not be reasonable to require a party to take the necessary action on the very first day after the cause of action accrues. In view of the period of limitation prescribed the party would be entitled to take its time and to file the appeals on any day during the said period; and so prima facie it appears unreasonable that when delay has been made by the party in filing the appeal it should be called upon to explain its conduct during the whole of the period of limitation prescribed. In our opinion, it would be immaterial and even irrelevant to invoke general considerations of diligence of parties in construing the words of S. 5.The context seems to suggest that "within such period" means within the period which ends with the last day of limitation prescribed. In other wards, in all cases falling under S. 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. To hold that the expression "within such period" means during such period would, in our opinion, be repugnant in the context. We would accordingly hold that the learned Judicial Commissioner was in error in taking the view that the failure or the appellant to account for its non-diligence during the whole of the period of limitation prescribed for the appeal necessarily disqualified it from praying for the condonation of delay, even though the delay in question was only for one day; and that too was caused by the partysdecision is in favour of the appellant and is in accord with the view which we are inclined tocan be no difference of opinion on the point that litigants should act with due diligence and care; but we are disposed to think that such general consideration can have very little relevance in construing the provisions of S. 5. The decision of the judicial Commissioner shows that he based his conclusion more on this a priori consideration and did not address himself as he should have to the construction of the section itself. Apparently this view has been consistently followed inobservations are subject to the same comment that we have made about the Nagpur decision, AIR 1916 Nag 39.12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by S. 5.If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under S. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of S. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to S. 14.In the present case there is no difficulty in holding that the discretion should be exercised in favour of the appellant because apart from the general criticism made against the appellants lack of diligence during the period of limitation no other fact had been adduced against it. Indeed, as we have already pointed out, the learned Judicial Commissioner rejected the appellants application for condonation of delay only on the ground that it was appellants duty to file the appeal as soon as possible within the period prescribed, and that, in our opinion, is not a validIt appears that the provisions of S. 5 in the present Limitation Act are substantialIy the same as those in S. 5 (b) and S. 5, paragraph 2, of the Limitation Acts of I871 and 1877 respectively. Section 5A which was added to the Limitation Act of 1877 by the amending Act VI of 1892 dealt with the topic covered by the explanation to S. 5 in the present Act. The explanation provides, inter alia, that the fact that the appellant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of S. 5.The effect of the explanation is that if the party who has applied for extension of period shows that the delay was due to any of the facts mentioned in the explanation that ,would be treated as sufficient cause, and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not. In the cases to which the explanation applies it may be easy for the Court to decide that the discretion should be exercised in favour of the party and delay should be condoned. Even so, the matter is still one of discretion. Under S. 5A of the Act of 1877; however, if the corresponding facts had been proved under the said section there appears to have been no discretion left in the Court because the said section provided inter alia, that whenever it was shown to the satisfaction of the Court that an appeal was presented after an expiration of the period of the limitation prescribed owing to the appellant having been misled by any order, practice or judgment of the High Court of the Presidency, Province or District, such appeal or application, if otherwise in accordance with law, shall, for all purposes be deemed to have been presented within the period of limitation prescribed therefor. That, however, is a distinction which is not relevant in the present appeal. | 1 | 4,106 | 1,425 | ### Instruction:
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would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under S. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of S. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to S. 14.In the present case there is no difficulty in holding that the discretion should be exercised in favour of the appellant because apart from the general criticism made against the appellants lack of diligence during the period of limitation no other fact had been adduced against it. Indeed, as we have already pointed out, the learned Judicial Commissioner rejected the appellants application for condonation of delay only on the ground that it was appellants duty to file the appeal as soon as possible within the period prescribed, and that, in our opinion, is not a valid ground,13. It now remains to refer to two Privy Council decisions to which our attention was drawn. In Ram Narain Joshi v. Parmeswar Narain Mahta, 30 Ind App 20,the Privy Council was dealing with a case where on August 9, 1895 the High Court had made an order that the appeal in question should be transferred to the High Court under S. 25 of the Code of Civil Procedure and heard along with another appeal already pending there. In making this order the High Court had given liberty to the respondent to make his objections, if any, to the said transfer. On September 16, 1895 a petition was filed on behalf of the appellant objecting to the said transfer; and the question arose whether sufficient cause had been shown for the delay made by the party between August 9, 1895 to September 16, 1895. The decree under appeal had been passed on June 25, 1894 and the appeal against the said decree had been presented to the District judge on September 3, 1894. It would thus be seen that the question which arose was very different from the question with which we are concerned; and it is in regard to the delay made between August 9, 1895 to September 16, 1895 that the Privy Council approved of the view taken by the High Court that the said delay had not been satisfactorily explained. We do not see how this decision can assist us in interpreting the provisions of S. 5.14. The next case on which reliance has been placed by the respondent is Brij Inder Singh v. Kanshi Ram, 44 Ind App 218 ; (AIR 1917 PC 156). The principle point decided in that case had reference to S. 14 read with S. 5 of the Limitation Act, 1908; and the question which it raised was whether the time occupied by an application in good faith for review, although made upon a mistaken view of the law, should be deemed as added to the period allowed for presenting an appeal. As we have already pointed out, when the question of limitation has to be considered in the light of the combined operation of Sections 14 and 5 of the Limitation Act the conditions expressly imposed by S. 14 have to be satisfied. It would however, be unreasonable to suggest that the said conditions must to the same extent and in the same manner be taken into account in dealing with applications falling under S. 5 of the Limitation Act.15. It appears that the provisions of S. 5 in the present Limitation Act are substantialIy the same as those in S. 5 (b) and S. 5, paragraph 2, of the Limitation Acts of I871 and 1877 respectively. Section 5A which was added to the Limitation Act of 1877 by the amending Act VI of 1892 dealt with the topic covered by the explanation to S. 5 in the present Act. The explanation provides, inter alia, that the fact that the appellant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of S. 5.The effect of the explanation is that if the party who has applied for extension of period shows that the delay was due to any of the facts mentioned in the explanation that ,would be treated as sufficient cause, and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not. In the cases to which the explanation applies it may be easy for the Court to decide that the discretion should be exercised in favour of the party and delay should be condoned. Even so, the matter is still one of discretion. Under S. 5A of the Act of 1877; however, if the corresponding facts had been proved under the said section there appears to have been no discretion left in the Court because the said section provided inter alia, that whenever it was shown to the satisfaction of the Court that an appeal was presented after an expiration of the period of the limitation prescribed owing to the appellant having been misled by any order, practice or judgment of the High Court of the Presidency, Province or District, such appeal or application, if otherwise in accordance with law, shall, for all purposes be deemed to have been presented within the period of limitation prescribed therefor. That, however, is a distinction which is not relevant in the present appeal.
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only for not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. To hold that the expression "within such period" means during such period would, in our opinion, be repugnant in the context. We would accordingly hold that the learned Judicial Commissioner was in error in taking the view that the failure or the appellant to account for its non-diligence during the whole of the period of limitation prescribed for the appeal necessarily disqualified it from praying for the condonation of delay, even though the delay in question was only for one day; and that too was caused by the partysdecision is in favour of the appellant and is in accord with the view which we are inclined tocan be no difference of opinion on the point that litigants should act with due diligence and care; but we are disposed to think that such general consideration can have very little relevance in construing the provisions of S. 5. The decision of the judicial Commissioner shows that he based his conclusion more on this a priori consideration and did not address himself as he should have to the construction of the section itself. Apparently this view has been consistently followed inobservations are subject to the same comment that we have made about the Nagpur decision, AIR 1916 Nag 39.12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by S. 5.If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under S. 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of S. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to S. 14.In the present case there is no difficulty in holding that the discretion should be exercised in favour of the appellant because apart from the general criticism made against the appellants lack of diligence during the period of limitation no other fact had been adduced against it. Indeed, as we have already pointed out, the learned Judicial Commissioner rejected the appellants application for condonation of delay only on the ground that it was appellants duty to file the appeal as soon as possible within the period prescribed, and that, in our opinion, is not a validIt appears that the provisions of S. 5 in the present Limitation Act are substantialIy the same as those in S. 5 (b) and S. 5, paragraph 2, of the Limitation Acts of I871 and 1877 respectively. Section 5A which was added to the Limitation Act of 1877 by the amending Act VI of 1892 dealt with the topic covered by the explanation to S. 5 in the present Act. The explanation provides, inter alia, that the fact that the appellant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of S. 5.The effect of the explanation is that if the party who has applied for extension of period shows that the delay was due to any of the facts mentioned in the explanation that ,would be treated as sufficient cause, and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not. In the cases to which the explanation applies it may be easy for the Court to decide that the discretion should be exercised in favour of the party and delay should be condoned. Even so, the matter is still one of discretion. Under S. 5A of the Act of 1877; however, if the corresponding facts had been proved under the said section there appears to have been no discretion left in the Court because the said section provided inter alia, that whenever it was shown to the satisfaction of the Court that an appeal was presented after an expiration of the period of the limitation prescribed owing to the appellant having been misled by any order, practice or judgment of the High Court of the Presidency, Province or District, such appeal or application, if otherwise in accordance with law, shall, for all purposes be deemed to have been presented within the period of limitation prescribed therefor. That, however, is a distinction which is not relevant in the present appeal.
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M/s. Universal Cylinders Limited Vs. The Commercial Taxes Officer | by the dealer in respect of the goods at the time of or before the delivery thereof." 9. Reference may also be made to Section 2(44) of the Rajasthan Sales Tax Act, 1994 which defines turnover as under: "2(44) "turnover" means the aggregate amount received or receivable by a dealer for sales as referred to in clause (38) including the purchase price of the goods which are subject to purchase tax under section 11 of the Act;Explanation : Tax charged or collected and shown separately in the sale bill/cash memorandum or in the accounts shall not form part of turnover." 10. The High Court held that since the words paid, payable, amount received and or receivable have been used in the aforesaid two sections, the assessee was entitled to receive the amount of Rs.682/per cylinder and if he has given any discount, he cannot claim refund of the same and the price of the cylinder cannot be said to be Rs.645/per cylinder. The High Court also held that the goods were delivered at Rs.682/per cylinder and this amount was collected and therefore, no amount should be refunded. 11. We have heard learned counsel for the parties and a number of decisions have been cited. 12. In IFB Industries Limited v. State of Kerala (2012) 4 SCC 618 ), the issue was with regard to the definition of turnover. This court held that to take the benefit of trade discount and to make it eligible for exemption, all that the assessee is required to prove was that the purchaser had paid only the sum originally charged less the discount and that this should be a regular practice in the trade. 13. Reliance has also been placed on the judgment of the Gujarat High Court in ONGC v. State of Gujarat (2014 SCC Online Guj 15385 (Tax Appeal No. 50 of 2014), wherein in similar circumstances, it was held that the discount does not form part of the sale price. A similar view was taken by the Madhya Pradesh High Court in Gail India Ltd. v. State of M.P. (2014) 72, VST 161). The facts of this case were that the petitioner company GAIL, a Public Sector Undertaking, was doing business of supply of various petroleum products including LPG. The price of LPG and kerosene was regulated and controlled by the Public Planning and Analysis Cell (PPAC). The assessee supplied LPG to the oil companies on the basis of provisional price and final bill invoice was issued after the price was settled by the PPAC and credit note or debit note was issued. The High Court after referring to the judgment of this Court in IFB Industries Ltd. (supra), held that both the provisional price and the final price are controlled by the PPAC. The change in sale price is due to the direction by the PPAC and is not within the control of the assessee. It held that even though the credit note may have been issued on the basis of the provisional price, the price to be taken into consideration for calculating the turnover and the sale price must be the actual price received by the assessee.14. Learned counsel for the respondent has relied upon a judgment of this Court in the case of MRF Ltd. v. Collector of Central Excise, Madras (1997) 5 SCC 104). We are of the opinion that this judgment has no relevance to this case since it is a judgment arising out of the Excise Act where the tax is attracted the moment the goods are removed from the factory gate.15. In our view, a bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines "sale price" clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. The definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price. The definition of turnover means the aggregate amount received or receivable by a dealer.16. In the instant case, when the orders were placed with the assessee, the price was not finalized by the MoP & NG. There was a clear cut stipulation in the purchase order that the price of Rs.682/is only a provisional price subject to review and it was clearly understood by the parties that the final price applicable after 01.07.1999 will be the price as approved by the MoP & NG. Therefore, though the assessee may have received Rs.682/per cylinder, it was under a legal obligation only to receive that price which was fixed by the MoP & NG. This price could have been higher than Rs.682/per cylinder, in which event the assessee would have had to collect and deposit with the Rajasthan Sales Tax Department sales tax on the excess amount. However, since the price of the cylinder has been reduced, the assessee cannot charge more than the price fixed, is bound to refund the excess amount collected and is therefore legally entitled to get refund of the tax paid on the excess amount.17. We may also note that it is undisputed that the assessee had to refund the amount of Rs.37/per cylinder to the oil companies. Therefore, what it has actually received is only Rs.645/per cylinder. What was legally receivable by it was the amount to be finally fixed by the MoP & NG i.e. Rs. 645/per cylinder. In the supply order only a provisional price was fixed. We have also taken into consideration the fact that the price fixation is not in the hands of the assessee. It is not even in the hands of the oil companies. The price is fixed by the MoP & NG and in such an eventuality, the amount actually payable is the amount to be fixed by the MoP & NG and that is also the amount which the assessee is legally entitled to receive. | 1[ds]14. Learned counsel for the respondent has relied upon a judgment of this Court in the case of MRF Ltd. v. Collector of Central Excise, Madras (1997) 5 SCC 104). We are of the opinion that this judgment has no relevance to this case since it is a judgment arising out of the Excise Act where the tax is attracted the moment the goods are removed from the factory gate.15. In our view, a bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines "sale price" clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. The definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price. The definition of turnover means the aggregate amount received or receivable by a dealer.16. In the instant case, when the orders were placed with the assessee, the price was not finalized by the MoP & NG. There was a clear cut stipulation in the purchase order that the price of Rs.682/is only a provisional price subject to review and it was clearly understood by the parties that the final price applicable after 01.07.1999 will be the price as approved by the MoP & NG. Therefore, though the assessee may have received Rs.682/per cylinder, it was under a legal obligation only to receive that price which was fixed by the MoP & NG. This price could have been higher than Rs.682/per cylinder, in which event the assessee would have had to collect and deposit with the Rajasthan Sales Tax Department sales tax on the excess amount. However, since the price of the cylinder has been reduced, the assessee cannot charge more than the price fixed, is bound to refund the excess amount collected and is therefore legally entitled to get refund of the tax paid on the excess amount.17. We may also note that it is undisputed that the assessee had to refund the amount of Rs.37/per cylinder to the oil companies. Therefore, what it has actually received is only Rs.645/per cylinder. What was legally receivable by it was the amount to be finally fixed by the MoP & NG i.e. Rs. 645/per cylinder. In the supply order only a provisional price was fixed. We have also taken into consideration the fact that the price fixation is not in the hands of the assessee. It is not even in the hands of the oil companies. The price is fixed by the MoP & NG and in such an eventuality, the amount actually payable is the amount to be fixed by the MoP & NG and that is also the amount which the assessee is legally entitled to receive. | 1 | 1,820 | 520 | ### Instruction:
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by the dealer in respect of the goods at the time of or before the delivery thereof." 9. Reference may also be made to Section 2(44) of the Rajasthan Sales Tax Act, 1994 which defines turnover as under: "2(44) "turnover" means the aggregate amount received or receivable by a dealer for sales as referred to in clause (38) including the purchase price of the goods which are subject to purchase tax under section 11 of the Act;Explanation : Tax charged or collected and shown separately in the sale bill/cash memorandum or in the accounts shall not form part of turnover." 10. The High Court held that since the words paid, payable, amount received and or receivable have been used in the aforesaid two sections, the assessee was entitled to receive the amount of Rs.682/per cylinder and if he has given any discount, he cannot claim refund of the same and the price of the cylinder cannot be said to be Rs.645/per cylinder. The High Court also held that the goods were delivered at Rs.682/per cylinder and this amount was collected and therefore, no amount should be refunded. 11. We have heard learned counsel for the parties and a number of decisions have been cited. 12. In IFB Industries Limited v. State of Kerala (2012) 4 SCC 618 ), the issue was with regard to the definition of turnover. This court held that to take the benefit of trade discount and to make it eligible for exemption, all that the assessee is required to prove was that the purchaser had paid only the sum originally charged less the discount and that this should be a regular practice in the trade. 13. Reliance has also been placed on the judgment of the Gujarat High Court in ONGC v. State of Gujarat (2014 SCC Online Guj 15385 (Tax Appeal No. 50 of 2014), wherein in similar circumstances, it was held that the discount does not form part of the sale price. A similar view was taken by the Madhya Pradesh High Court in Gail India Ltd. v. State of M.P. (2014) 72, VST 161). The facts of this case were that the petitioner company GAIL, a Public Sector Undertaking, was doing business of supply of various petroleum products including LPG. The price of LPG and kerosene was regulated and controlled by the Public Planning and Analysis Cell (PPAC). The assessee supplied LPG to the oil companies on the basis of provisional price and final bill invoice was issued after the price was settled by the PPAC and credit note or debit note was issued. The High Court after referring to the judgment of this Court in IFB Industries Ltd. (supra), held that both the provisional price and the final price are controlled by the PPAC. The change in sale price is due to the direction by the PPAC and is not within the control of the assessee. It held that even though the credit note may have been issued on the basis of the provisional price, the price to be taken into consideration for calculating the turnover and the sale price must be the actual price received by the assessee.14. Learned counsel for the respondent has relied upon a judgment of this Court in the case of MRF Ltd. v. Collector of Central Excise, Madras (1997) 5 SCC 104). We are of the opinion that this judgment has no relevance to this case since it is a judgment arising out of the Excise Act where the tax is attracted the moment the goods are removed from the factory gate.15. In our view, a bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines "sale price" clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. The definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price. The definition of turnover means the aggregate amount received or receivable by a dealer.16. In the instant case, when the orders were placed with the assessee, the price was not finalized by the MoP & NG. There was a clear cut stipulation in the purchase order that the price of Rs.682/is only a provisional price subject to review and it was clearly understood by the parties that the final price applicable after 01.07.1999 will be the price as approved by the MoP & NG. Therefore, though the assessee may have received Rs.682/per cylinder, it was under a legal obligation only to receive that price which was fixed by the MoP & NG. This price could have been higher than Rs.682/per cylinder, in which event the assessee would have had to collect and deposit with the Rajasthan Sales Tax Department sales tax on the excess amount. However, since the price of the cylinder has been reduced, the assessee cannot charge more than the price fixed, is bound to refund the excess amount collected and is therefore legally entitled to get refund of the tax paid on the excess amount.17. We may also note that it is undisputed that the assessee had to refund the amount of Rs.37/per cylinder to the oil companies. Therefore, what it has actually received is only Rs.645/per cylinder. What was legally receivable by it was the amount to be finally fixed by the MoP & NG i.e. Rs. 645/per cylinder. In the supply order only a provisional price was fixed. We have also taken into consideration the fact that the price fixation is not in the hands of the assessee. It is not even in the hands of the oil companies. The price is fixed by the MoP & NG and in such an eventuality, the amount actually payable is the amount to be fixed by the MoP & NG and that is also the amount which the assessee is legally entitled to receive.
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14. Learned counsel for the respondent has relied upon a judgment of this Court in the case of MRF Ltd. v. Collector of Central Excise, Madras (1997) 5 SCC 104). We are of the opinion that this judgment has no relevance to this case since it is a judgment arising out of the Excise Act where the tax is attracted the moment the goods are removed from the factory gate.15. In our view, a bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines "sale price" clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. The definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price. The definition of turnover means the aggregate amount received or receivable by a dealer.16. In the instant case, when the orders were placed with the assessee, the price was not finalized by the MoP & NG. There was a clear cut stipulation in the purchase order that the price of Rs.682/is only a provisional price subject to review and it was clearly understood by the parties that the final price applicable after 01.07.1999 will be the price as approved by the MoP & NG. Therefore, though the assessee may have received Rs.682/per cylinder, it was under a legal obligation only to receive that price which was fixed by the MoP & NG. This price could have been higher than Rs.682/per cylinder, in which event the assessee would have had to collect and deposit with the Rajasthan Sales Tax Department sales tax on the excess amount. However, since the price of the cylinder has been reduced, the assessee cannot charge more than the price fixed, is bound to refund the excess amount collected and is therefore legally entitled to get refund of the tax paid on the excess amount.17. We may also note that it is undisputed that the assessee had to refund the amount of Rs.37/per cylinder to the oil companies. Therefore, what it has actually received is only Rs.645/per cylinder. What was legally receivable by it was the amount to be finally fixed by the MoP & NG i.e. Rs. 645/per cylinder. In the supply order only a provisional price was fixed. We have also taken into consideration the fact that the price fixation is not in the hands of the assessee. It is not even in the hands of the oil companies. The price is fixed by the MoP & NG and in such an eventuality, the amount actually payable is the amount to be fixed by the MoP & NG and that is also the amount which the assessee is legally entitled to receive.
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National Insurance Company Ltd Vs. Indira Srivastava | for the time being in force. But there is an interdict that no person shall be entitled to claim compensation for more than once in respect of the same accident. This means that the party has two alternatives, one is to avail himself of his civil remedy to claim compensation based on common law or any other statutory provision, and the other is to apply before the Claims Tribunal under Section 124 or 124-A of the Act. As he cannot avail himself of both the remedies he has to choose one between the two. The provisions in Chapter XIII of the Act are intended to provide a speedier remedy to the victims of accidents and untoward incidents. If he were to choose the latter that does not mean that he should be prepared to get a lesser amount. He is given the assurance by the legislature that the Central Government is saddled with the task of prescribing fair and just compensation in the Rules from time to time. The provisions are not intended to give a gain to the Railway Administration but they are meant to afford just and reasonable compensation to the victims as a speedier measure. If a person files a suit the amount of compensation will depend upon what the court considers just and reasonable on the date of determination. Hence when he goes before the Claims Tribunal claiming compensation the determination of the amount should be as on the date of such determination. 17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted. 18. The term income in P. Ramanatha Aiyars Advanced Law Lexicon (3rd Ed.) has been defined as under: The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture. It has also been stated: INCOME signifies what comes in (per Selborne, C., Jones v. Ogle, 42 LJ Ch.336). It is as large a word as can be used to denote a persons receipts (per Jessel, M.R. Re Huggins, 51 LJ Ch.938.) income is not confined to receipts from business only and means periodical receipts from ones work, lands, investments, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626 : 58 MLJ 337 . 19. If the dictionary meaning of the word income is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute. 20. In N. Sivammal & Ors. v. Managing Director, Pandian Roadways Corporation & Ors. [(1985) 1 SCC 18] , this Court took into consideration the pay packet of the deceased. 21. We may notice that in T.N. State Transport Corporation Ltd. v. S. Rajapriya & Ors. [(2005) 6 SCC 236] , this Court held: 8. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together. 9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years purchase. 10. Much of the calculation necessarily remains in the realm of hypothesis and in that region arithmetic is a good servant but a bad master since there are so often many imponderables. In every case it is the overall picture that matters, and the court must try to assess as best as it can the loss suffered. 22. Yet again in New India Assurance Co. Ltd. v. Charlie & Anr [(2005) 10 SCC 720] , the same view was reiterated. However, therein although the words net income has been used but the same itself would ordinarily mean gross income minus the statutory deductions. We must also notice that the said decision has been followed in New India Assurance Co. Ltd. v. Kalpana (Smt.) & Ors. [(2007) 3 SCC 538] . 23. The expression just must also be given its logical meaning. Whereas it cannot be a bonanza or a source of profit but in considering as to what would be just and equitable, all facts and circumstances must be taken into consideration. | 1[ds]12. We have, however, no doubt in mind that medical reimbursement which provides for a slab and which keeping in view the terminology used, would mean reimbursement for medical expenses on production of medical bills and, thus, the same would not come within the purview of the aforementioned category13. The question came for consideration before a learned Single Judge of the Madras High Court in The Manager, National Insurance Co. Ltd. v. Padmavathy & Ors. [CMA No.114 of 2006 decided on 29.1.2007], wherein it was held:Income tax, Professional tax which are deducted from the salaried person goes to the coffers of the government under specific head and there is no return. Whereas, the General Provident Fund, Special Provident Fund, L.I.C., Contribution are amounts paid specific heads and the contribution is always repayable to an employee at the time of voluntary retirement, death or for any other reason. Such contribution made by the salaried person are deferred payments and they are savings. The Supreme Court as well as various High Courts have held that the compensation payable under the Motor Vehicles Act is statutory and that the deferred payments made to the employee are contractual. Courts have held that there cannot be any deductions in the statutory compensation, if the Legal Representatives are entitled to lumpsum payment under the contractual liability. If the contributions made by the employee which are otherwise savings from the salary are deducted from the gross income and only the net income is taken for computing the dependancy compensation, then the Legal Representatives of the victim would lose considerable portion of the income. In view of the settled proposition of law, I am of the view, the Tribunal can make only statutory deductions such as Income tax and professional tax and any other contribution, which is not repayable by the employer, from the salary of the deceased person while determining the monthly income for computing the dependancy compensation. Any contribution made by the employee during his life time, form part of the salary and they should be included in the monthly income, while computing the dependency compensation14. Similar view was expressed by a learned Single Judge of Andhra Pradesh High Court in S. Narayanamma & Ors. V. Secretary to Government of India, Ministry of Telecommunications and Ors. [2002 ACC 582 ], holding:In this background, now we will examine the present deductions made by the tribunal from the salary of the deceased in fixing the monthly contribution of the deceased to his family. The tribunal has not even taken proper care while deducting the amounts from the salary of the deceased, at least the very nature of deductions from the salary of the deceased. My view is that the deductions made by the tribunal from the salary such as recovery of housing loan, vehicle loan, festival advance and other deductions, if any, to the benefit of the estate of the deceased cannot be deducted while computing the net monthly earnings of the deceased. These advances or loans are part of his salary. So far as House Rent Allowance is concerned, it is beneficial to the entire family of the deceased during his tenure, but for his untimely death the claimants are deprived of such benefit which they would have enjoyed if the deceased is alive. On the other hand, allowances, like Travelling Allowance, allowance for newspapers/periodicals, telephone, servant, club-fee, car maintenance etc., by virtue of his vocation need not be included in the salary while computing the net earnings of the deceased. The finding of the tribunal that the deceased was getting Rs.1,401/- as net income every month is unsustainable as the deductions made towards vehicle loan and other deductions were also taken into consideration while fixing the monthly income of the deceased. The above finding of the tribunal is contrary to the principle of just compensation enunciated by the Supreme Court in the judgment in Helens case (1 supra). The Supreme Court in Concord of India Insurance Co. v. Nirmaladevi and Ors., 1980 ACJ 55 (SC) held that determination of quantum must be liberal and not niggardly since law values life and limb in a free country in generous scales15. We may, however, notice that a Division Bench of this Court in Asha & Ors. v. United Indian Insurance Co. Ltd. & Anr. [2004 ACC 533 ], whereupon reliance has been placed by Mr. Satija, was considering a case where, like the present one, several perks were included in salary. We may reproduce the salary certificate hereto below:Net Payable Rs. 6642.00 (Rupees six thousand six hundred forty two only)In that case, this Court held:Lastly it was submitted that the salary certificate shows that the salary of the deceased was Rs.8,632/-. It was submitted that the High Court was wrong in taking the salary to be Rs.6,642/-. It was submitted that the High Court was wrong in deducting the allowances and amounts paid towards LIC, Society charges and HBA etc. We are unable to accept this submission also. The claimants are entitled to be compensated for the loss suffered by them. The loss suffered by them is the amount which they would have been receiving at the time when the deceased was alive. There can be no doubt that the dependents would only be receiving the net amount less l/3rd for his personal expenses. The High Court was therefore right in so holdingThis Court in Asha (supra) did not address itself the questions raised before us. It does not appear that any precedent was noticed nor the term just compensation was considered in the light of the changing societal condition as also the perks which are paid to the employee which may or may not attract income tax or any other tax. What would be just compensation must be determined having regard to the facts and circumstances of each case. The basis for considering the entire pay packet is what the dependents have lost due to death of the deceased. It is in the nature of compensation for future loss towards the family income16. In Rathi Menon v. Union of India [(2001) 3 SCC 714] , this Court, upon considering the dictionary meaning of compensation held:In this context a reference to Section 129 of the Act appears useful. The Central Government is empowered by the said provision to make rules by notification to carry out the purposes of this Chapter. It is evident that one of the purposes of this chapter is that the injured victims in railway accidents and untoward incidents must get compensation. Though the word compensation is not defined in the Act or in the Rules it is the giving of an equivalent or substitute of equivalent value. In Blacks Law Dictionary, compensation is shown as equivalent in money for a loss sustained; or giving back an equivalent in either money which is but the measure of value, or in actual value otherwise conferred; or recompense in value for some loss, injury or service especially when it is given by statuteIt means when you pay the compensation in terms of money it must represent, on the date of ordering such payment, the equivalent value25. In this context we may look at Section 128(1) also. It says that the right of any person to claim compensation before the Claims Tribunal as indicated in Section 124 or 124-A shall not affect the right of any such person to recover compensation payable under any other law for the time being in force. But there is an interdict that no person shall be entitled to claim compensation for more than once in respect of the same accident. This means that the party has two alternatives, one is to avail himself of his civil remedy to claim compensation based on common law or any other statutory provision, and the other is to apply before the Claims Tribunal under Section 124 or 124-A of the Act. As he cannot avail himself of both the remedies he has to choose one between the two. The provisions in Chapter XIII of the Act are intended to provide a speedier remedy to the victims of accidents and untoward incidents. If he were to choose the latter that does not mean that he should be prepared to get a lesser amount. He is given the assurance by the legislature that the Central Government is saddled with the task of prescribing fair and just compensation in the Rules from time to time. The provisions are not intended to give a gain to the Railway Administration but they are meant to afford just and reasonable compensation to the victims as a speedier measure. If a person files a suit the amount of compensation will depend upon what the court considers just and reasonable on the date of determination. Hence when he goes before the Claims Tribunal claiming compensation the determination of the amount should be as on the date of such determination17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted18. The term income in P. Ramanatha Aiyars Advanced Law Lexicon (3rd Ed.) has been defined as under:The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agricultureIt has also been stated:INCOME signifies what comes in (per Selborne, C., Jones v. Ogle, 42 LJ Ch.336). It is as large a word as can be used to denote a persons receipts (per Jessel, M.R. Re Huggins, 51 LJ Ch.938.) income is not confined to receipts from business only and means periodical receipts from ones work, lands, investments, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626 : 58 MLJ 337 19. If the dictionary meaning of the word income is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute20. In N. Sivammal & Ors. v. Managing Director, Pandian Roadways Corporation & Ors. [(1985) 1 SCC 18] , this Court took into consideration the pay packet of the deceased21. We may notice that in T.N. State Transport Corporation Ltd. v. S. Rajapriya & Ors. [(2005) 6 SCC 236] , this Court held:8. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years purchase10. Much of the calculation necessarily remains in the realm of hypothesis and in that region arithmetic is a good servant but a bad master since there are so often many imponderables. In every case it is the overall picture that matters, and the court must try to assess as best as it can the loss suffered22. Yet again in New India Assurance Co. Ltd. v. Charlie & Anr [(2005) 10 SCC 720] , the same view was reiterated. However, therein although the words net income has been used but the same itself would ordinarily mean gross income minus the statutory deductions. We must also notice that the said decision has been followed in New India Assurance Co. Ltd. v. Kalpana (Smt.) & Ors. [(2007) 3 SCC 538] 23. The expression just must also be given its logical meaning. Whereas it cannot be a bonanza or a source of profit but in considering as to what would be just and equitable, all facts and circumstances must be taken into consideration | 1 | 3,811 | 2,468 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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for the time being in force. But there is an interdict that no person shall be entitled to claim compensation for more than once in respect of the same accident. This means that the party has two alternatives, one is to avail himself of his civil remedy to claim compensation based on common law or any other statutory provision, and the other is to apply before the Claims Tribunal under Section 124 or 124-A of the Act. As he cannot avail himself of both the remedies he has to choose one between the two. The provisions in Chapter XIII of the Act are intended to provide a speedier remedy to the victims of accidents and untoward incidents. If he were to choose the latter that does not mean that he should be prepared to get a lesser amount. He is given the assurance by the legislature that the Central Government is saddled with the task of prescribing fair and just compensation in the Rules from time to time. The provisions are not intended to give a gain to the Railway Administration but they are meant to afford just and reasonable compensation to the victims as a speedier measure. If a person files a suit the amount of compensation will depend upon what the court considers just and reasonable on the date of determination. Hence when he goes before the Claims Tribunal claiming compensation the determination of the amount should be as on the date of such determination. 17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted. 18. The term income in P. Ramanatha Aiyars Advanced Law Lexicon (3rd Ed.) has been defined as under: The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture. It has also been stated: INCOME signifies what comes in (per Selborne, C., Jones v. Ogle, 42 LJ Ch.336). It is as large a word as can be used to denote a persons receipts (per Jessel, M.R. Re Huggins, 51 LJ Ch.938.) income is not confined to receipts from business only and means periodical receipts from ones work, lands, investments, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626 : 58 MLJ 337 . 19. If the dictionary meaning of the word income is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute. 20. In N. Sivammal & Ors. v. Managing Director, Pandian Roadways Corporation & Ors. [(1985) 1 SCC 18] , this Court took into consideration the pay packet of the deceased. 21. We may notice that in T.N. State Transport Corporation Ltd. v. S. Rajapriya & Ors. [(2005) 6 SCC 236] , this Court held: 8. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together. 9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years purchase. 10. Much of the calculation necessarily remains in the realm of hypothesis and in that region arithmetic is a good servant but a bad master since there are so often many imponderables. In every case it is the overall picture that matters, and the court must try to assess as best as it can the loss suffered. 22. Yet again in New India Assurance Co. Ltd. v. Charlie & Anr [(2005) 10 SCC 720] , the same view was reiterated. However, therein although the words net income has been used but the same itself would ordinarily mean gross income minus the statutory deductions. We must also notice that the said decision has been followed in New India Assurance Co. Ltd. v. Kalpana (Smt.) & Ors. [(2007) 3 SCC 538] . 23. The expression just must also be given its logical meaning. Whereas it cannot be a bonanza or a source of profit but in considering as to what would be just and equitable, all facts and circumstances must be taken into consideration.
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right of any such person to recover compensation payable under any other law for the time being in force. But there is an interdict that no person shall be entitled to claim compensation for more than once in respect of the same accident. This means that the party has two alternatives, one is to avail himself of his civil remedy to claim compensation based on common law or any other statutory provision, and the other is to apply before the Claims Tribunal under Section 124 or 124-A of the Act. As he cannot avail himself of both the remedies he has to choose one between the two. The provisions in Chapter XIII of the Act are intended to provide a speedier remedy to the victims of accidents and untoward incidents. If he were to choose the latter that does not mean that he should be prepared to get a lesser amount. He is given the assurance by the legislature that the Central Government is saddled with the task of prescribing fair and just compensation in the Rules from time to time. The provisions are not intended to give a gain to the Railway Administration but they are meant to afford just and reasonable compensation to the victims as a speedier measure. If a person files a suit the amount of compensation will depend upon what the court considers just and reasonable on the date of determination. Hence when he goes before the Claims Tribunal claiming compensation the determination of the amount should be as on the date of such determination17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted18. The term income in P. Ramanatha Aiyars Advanced Law Lexicon (3rd Ed.) has been defined as under:The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agricultureIt has also been stated:INCOME signifies what comes in (per Selborne, C., Jones v. Ogle, 42 LJ Ch.336). It is as large a word as can be used to denote a persons receipts (per Jessel, M.R. Re Huggins, 51 LJ Ch.938.) income is not confined to receipts from business only and means periodical receipts from ones work, lands, investments, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626 : 58 MLJ 337 19. If the dictionary meaning of the word income is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute20. In N. Sivammal & Ors. v. Managing Director, Pandian Roadways Corporation & Ors. [(1985) 1 SCC 18] , this Court took into consideration the pay packet of the deceased21. We may notice that in T.N. State Transport Corporation Ltd. v. S. Rajapriya & Ors. [(2005) 6 SCC 236] , this Court held:8. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years purchase10. Much of the calculation necessarily remains in the realm of hypothesis and in that region arithmetic is a good servant but a bad master since there are so often many imponderables. In every case it is the overall picture that matters, and the court must try to assess as best as it can the loss suffered22. Yet again in New India Assurance Co. Ltd. v. Charlie & Anr [(2005) 10 SCC 720] , the same view was reiterated. However, therein although the words net income has been used but the same itself would ordinarily mean gross income minus the statutory deductions. We must also notice that the said decision has been followed in New India Assurance Co. Ltd. v. Kalpana (Smt.) & Ors. [(2007) 3 SCC 538] 23. The expression just must also be given its logical meaning. Whereas it cannot be a bonanza or a source of profit but in considering as to what would be just and equitable, all facts and circumstances must be taken into consideration
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Capgemini India Private Limited Vs. Assistant Commissioner of Income Tax Circle 14(1)(2) & Others | permissible in law, then, the impugned notice cannot be sustained. It must be quashed and set aside for the failure to comply with the mandatory precondition. The reasons recorded did not reflect that there is any failure on the part of the Petitioner to disclose fully and truly all material facts necessary for the assessment. Mr. Pardiwalla sought to justify the course adopted by the Petitioner/Assessee during the course of the original assessment by relying on a Division Bench Judgment of this Court in the case of Hindustan Uniliver Limited vs. Deputy Commissioner of Income Tax reported in (2010) 325 ITR 102. 13. As far as the Respondents are concerned, they only rely upon the record, namely, the reasons, copy of which is at page 198 of the paper book and the order dismissing the objections. The affidavit in reply, as noted above, does not deal with para 12 of the Writ Petition at all. The affidavit in reply proposes to deal with the deduction and claimed by the Petitioner on merits. The affidavit admits that there was a questionnaire issued by the Assessing Officer in the original assessment but states that the same was a general one. The Petitioner has replied to this questionnaire and submitted general information. According to the Respondents, the Petitioner did not give information regarding the losses of Unit IV neither did the Petitioner adjust the losses of Unit IV with the profits of other units. The reply admits that the draft assessment order is faulty for the Assessing Officer for failing to adjust the losses of Unit IV against the profit making Units. Therefore, the Respondents, in the affidavit submit that there was no mention of the loss being adjusted against the profits of other units and this fact was not considered by the Assessing Officer in the draft assessment order. The Dispute Resolution Panel is equally faulted for having this draft assessment order accepted merely on the question of computation of deduction under section 10A of the IT Act. Then, the grounds of Appeal to the Tribunal have been referred to.14. It is thus contended that the Tribunal, in the order passed in Appeal, did not consider the issue of adjustment of the losses of Unit IV against the profits of Units II and III, which is the subject matter of issuance of notice under section 148 of the IT Act. Therefore, this notice is justified by urging that the Assessing Officer had reason to believe that income chargeable to tax has escaped assessment for failure of the Petitioner/Assessee to disclose truly and filly all material facts relevant to the assessment year.15. Upon hearing both sides and perusing the Writ Petition and all Annexures thereto so also the affidavit in reply, we fail to understand as to how the Respondents justify the issuance of the notice under section 148 of the IT Act and by referring to such details including of the claim of deduction under section 10A of the IT Act. If these details and pertaining to deduction in question were not furnished and were not available with the Assessing Officer, then, one fails to understand as to from where the data and the computation has been taken and for reference by the Respondents themselves. In the reasons recorded, it is clear that the Assessing Officer is aware that the Petitioner Assessee is engaged in the business of development and export of software. The Assessing Officer was aware of the Units set up by the Assessee/Petitioner before us. He has derived the figures of profits and losses from the relevant records and the information, some of which was supplied and furnished by the Petitioner itself. In these circumstances and when material facts relevant to the assessment year were disclosed and were on record, then, one fails to understand as to why this notice has been issued. From the reasons itself, it is apparent that it is issued to revisit this claim of deduction under section 10A of the IT Act and as put forward by the Petitioner/Assessee. If the deduction under section 10A of the IT Act is allowable on the net profit derived by the Assessee company from eligible units, after setting off lossess from other eligible units, then, it is apparent that all the particulars and profits were before the Assessing Officer at the time of the original assessment. The Petitioner has, while disputing the reasons recorded and raising objections thereto, pointed out in details as to how the relevant facts were before the Assessing Officer. We do not find any material to the contrary and which falsifies the Petitioners assertions in the letter dated 12th December, 2014 raising specific objections to the reasons recorded for reopening the assessment under section 147 of the IT Act. The affidavit in reply is completely silent with regard to furnishing of these details and by the Petitioner. From the affidavit in reply, we have taken specific paragraphs, where the Petitioners version before the Assessing Officer in the original assessment though accepted by the Assessing Officer, he is faulted for not having taken into consideration certain aspects of this deduction. If the Petitioner allegedly did not give information regarding the losses of the Unit IV and did not adjust the losses of Unit IV with the profits of other units and therefore the order in that behalf is termed as erroneous, then, this is a clear case of revisiting this claim. Now, a different opinion is held by the Respondents and for which they want to reopen the assessment. Such a course is clearly impermissible.16. Having referred to the undisputed factual materials on record and finding that there is no justification for reopening the assessment that we have no alternative but to allow this Writ Petition. Once we find that the mandatory precondition and as set out in the statute has not been abided by, then, the notice under section 148 of the IT Act and all steps in furtherance thereof cannot be sustained. | 1[ds]15. Upon hearing both sides and perusing the Writ Petition and all Annexures thereto so also the affidavit in reply, we fail to understand as to how the Respondents justify the issuance of the notice under section 148 of the IT Act and by referring to such details including of the claim of deduction under section 10A of the IT Act. If these details and pertaining to deduction in question were not furnished and were not available with the Assessing Officer, then, one fails to understand as to from where the data and the computation has been taken and for reference by the Respondents themselves. In the reasons recorded, it is clear that the Assessing Officer is aware that the Petitioner Assessee is engaged in the business of development and export of software. The Assessing Officer was aware of the Units set up by the Assessee/Petitioner before us. He has derived the figures of profits and losses from the relevant records and the information, some of which was supplied and furnished by the Petitioner itself. In these circumstances and when material facts relevant to the assessment year were disclosed and were on record, then, one fails to understand as to why this notice has been issued. From the reasons itself, it is apparent that it is issued to revisit this claim of deduction under section 10A of the IT Act and as put forward by the Petitioner/Assessee. If the deduction under section 10A of the IT Act is allowable on the net profit derived by the Assessee company from eligible units, after setting off lossess from other eligible units, then, it is apparent that all the particulars and profits were before the Assessing Officer at the time of the original assessment. The Petitioner has, while disputing the reasons recorded and raising objections thereto, pointed out in details as to how the relevant facts were before the Assessing Officer. We do not find any material to the contrary and which falsifies the Petitioners assertions in the letter dated 12th December, 2014 raising specific objections to the reasons recorded for reopening the assessment under section 147 of the IT Act. The affidavit in reply is completely silent with regard to furnishing of these details and by the Petitioner. From the affidavit in reply, we have taken specific paragraphs, where the Petitioners version before the Assessing Officer in the original assessment though accepted by the Assessing Officer, he is faulted for not having taken into consideration certain aspects of this deduction. If the Petitioner allegedly did not give information regarding the losses of the Unit IV and did not adjust the losses of Unit IV with the profits of other units and therefore the order in that behalf is termed as erroneous, then, this is a clear case of revisiting this claim. Now, a different opinion is held by the Respondents and for which they want to reopen the assessment. Such a course is clearly impermissible.16. Having referred to the undisputed factual materials on record and finding that there is no justification for reopening the assessment that we have no alternative but to allow this Writ Petition. Once we find that the mandatory precondition and as set out in the statute has not been abided by, then, the notice under section 148 of the IT Act and all steps in furtherance thereof cannot be sustained. | 1 | 4,517 | 607 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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permissible in law, then, the impugned notice cannot be sustained. It must be quashed and set aside for the failure to comply with the mandatory precondition. The reasons recorded did not reflect that there is any failure on the part of the Petitioner to disclose fully and truly all material facts necessary for the assessment. Mr. Pardiwalla sought to justify the course adopted by the Petitioner/Assessee during the course of the original assessment by relying on a Division Bench Judgment of this Court in the case of Hindustan Uniliver Limited vs. Deputy Commissioner of Income Tax reported in (2010) 325 ITR 102. 13. As far as the Respondents are concerned, they only rely upon the record, namely, the reasons, copy of which is at page 198 of the paper book and the order dismissing the objections. The affidavit in reply, as noted above, does not deal with para 12 of the Writ Petition at all. The affidavit in reply proposes to deal with the deduction and claimed by the Petitioner on merits. The affidavit admits that there was a questionnaire issued by the Assessing Officer in the original assessment but states that the same was a general one. The Petitioner has replied to this questionnaire and submitted general information. According to the Respondents, the Petitioner did not give information regarding the losses of Unit IV neither did the Petitioner adjust the losses of Unit IV with the profits of other units. The reply admits that the draft assessment order is faulty for the Assessing Officer for failing to adjust the losses of Unit IV against the profit making Units. Therefore, the Respondents, in the affidavit submit that there was no mention of the loss being adjusted against the profits of other units and this fact was not considered by the Assessing Officer in the draft assessment order. The Dispute Resolution Panel is equally faulted for having this draft assessment order accepted merely on the question of computation of deduction under section 10A of the IT Act. Then, the grounds of Appeal to the Tribunal have been referred to.14. It is thus contended that the Tribunal, in the order passed in Appeal, did not consider the issue of adjustment of the losses of Unit IV against the profits of Units II and III, which is the subject matter of issuance of notice under section 148 of the IT Act. Therefore, this notice is justified by urging that the Assessing Officer had reason to believe that income chargeable to tax has escaped assessment for failure of the Petitioner/Assessee to disclose truly and filly all material facts relevant to the assessment year.15. Upon hearing both sides and perusing the Writ Petition and all Annexures thereto so also the affidavit in reply, we fail to understand as to how the Respondents justify the issuance of the notice under section 148 of the IT Act and by referring to such details including of the claim of deduction under section 10A of the IT Act. If these details and pertaining to deduction in question were not furnished and were not available with the Assessing Officer, then, one fails to understand as to from where the data and the computation has been taken and for reference by the Respondents themselves. In the reasons recorded, it is clear that the Assessing Officer is aware that the Petitioner Assessee is engaged in the business of development and export of software. The Assessing Officer was aware of the Units set up by the Assessee/Petitioner before us. He has derived the figures of profits and losses from the relevant records and the information, some of which was supplied and furnished by the Petitioner itself. In these circumstances and when material facts relevant to the assessment year were disclosed and were on record, then, one fails to understand as to why this notice has been issued. From the reasons itself, it is apparent that it is issued to revisit this claim of deduction under section 10A of the IT Act and as put forward by the Petitioner/Assessee. If the deduction under section 10A of the IT Act is allowable on the net profit derived by the Assessee company from eligible units, after setting off lossess from other eligible units, then, it is apparent that all the particulars and profits were before the Assessing Officer at the time of the original assessment. The Petitioner has, while disputing the reasons recorded and raising objections thereto, pointed out in details as to how the relevant facts were before the Assessing Officer. We do not find any material to the contrary and which falsifies the Petitioners assertions in the letter dated 12th December, 2014 raising specific objections to the reasons recorded for reopening the assessment under section 147 of the IT Act. The affidavit in reply is completely silent with regard to furnishing of these details and by the Petitioner. From the affidavit in reply, we have taken specific paragraphs, where the Petitioners version before the Assessing Officer in the original assessment though accepted by the Assessing Officer, he is faulted for not having taken into consideration certain aspects of this deduction. If the Petitioner allegedly did not give information regarding the losses of the Unit IV and did not adjust the losses of Unit IV with the profits of other units and therefore the order in that behalf is termed as erroneous, then, this is a clear case of revisiting this claim. Now, a different opinion is held by the Respondents and for which they want to reopen the assessment. Such a course is clearly impermissible.16. Having referred to the undisputed factual materials on record and finding that there is no justification for reopening the assessment that we have no alternative but to allow this Writ Petition. Once we find that the mandatory precondition and as set out in the statute has not been abided by, then, the notice under section 148 of the IT Act and all steps in furtherance thereof cannot be sustained.
### Response:
1
### Explanation:
15. Upon hearing both sides and perusing the Writ Petition and all Annexures thereto so also the affidavit in reply, we fail to understand as to how the Respondents justify the issuance of the notice under section 148 of the IT Act and by referring to such details including of the claim of deduction under section 10A of the IT Act. If these details and pertaining to deduction in question were not furnished and were not available with the Assessing Officer, then, one fails to understand as to from where the data and the computation has been taken and for reference by the Respondents themselves. In the reasons recorded, it is clear that the Assessing Officer is aware that the Petitioner Assessee is engaged in the business of development and export of software. The Assessing Officer was aware of the Units set up by the Assessee/Petitioner before us. He has derived the figures of profits and losses from the relevant records and the information, some of which was supplied and furnished by the Petitioner itself. In these circumstances and when material facts relevant to the assessment year were disclosed and were on record, then, one fails to understand as to why this notice has been issued. From the reasons itself, it is apparent that it is issued to revisit this claim of deduction under section 10A of the IT Act and as put forward by the Petitioner/Assessee. If the deduction under section 10A of the IT Act is allowable on the net profit derived by the Assessee company from eligible units, after setting off lossess from other eligible units, then, it is apparent that all the particulars and profits were before the Assessing Officer at the time of the original assessment. The Petitioner has, while disputing the reasons recorded and raising objections thereto, pointed out in details as to how the relevant facts were before the Assessing Officer. We do not find any material to the contrary and which falsifies the Petitioners assertions in the letter dated 12th December, 2014 raising specific objections to the reasons recorded for reopening the assessment under section 147 of the IT Act. The affidavit in reply is completely silent with regard to furnishing of these details and by the Petitioner. From the affidavit in reply, we have taken specific paragraphs, where the Petitioners version before the Assessing Officer in the original assessment though accepted by the Assessing Officer, he is faulted for not having taken into consideration certain aspects of this deduction. If the Petitioner allegedly did not give information regarding the losses of the Unit IV and did not adjust the losses of Unit IV with the profits of other units and therefore the order in that behalf is termed as erroneous, then, this is a clear case of revisiting this claim. Now, a different opinion is held by the Respondents and for which they want to reopen the assessment. Such a course is clearly impermissible.16. Having referred to the undisputed factual materials on record and finding that there is no justification for reopening the assessment that we have no alternative but to allow this Writ Petition. Once we find that the mandatory precondition and as set out in the statute has not been abided by, then, the notice under section 148 of the IT Act and all steps in furtherance thereof cannot be sustained.
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PIONEER URBAN LAND AND INFRASTRUCTURE LTD Vs. GOVINDAN RAGHAVAN | time limit provided in Clause 11.5, then he shall not be entitled to terminate the Agreement thereafter, and shall be bound by the provisions of the Agreement. 6.6. Section 2 (r) of the Consumer Protection Act, 1986 defines ‘unfair trade practices? in the following words : ?‘unfair trade practice? means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice …?, and includes any of the practices enumerated therein. The provision is illustrative, and not exhaustive. In Central Inland Water Transport Corporation Limited and Ors. v. Brojo Nath Ganguly and Ors., (1986) 3 SCC 156 this Court held that :?89. … Our judges are bound by their oath to ‘uphold the Constitution and the laws?. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and equal protection of the laws. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not. apply where both parties are businessmen and the contract is a commercial transaction. … … These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.?(emphasis supplied)6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder. 7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer?s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms. 8. We also reject the submission made by the Appellant – Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was in operation. In Bangalore Development Authority v. Syndicate Bank, (2007) 6 SCC 711 a Coordinate Bench of this Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund. 8.1. In the present case, the National Commission has passed an equitable Order. The Commission has not awarded any Interest for the period during which the Order of stay of cancellation of the allotment was in operation on the request of the Respondent – Flat Purchaser. The National Commission has rightly awarded Interest @10.7% S.I. p.a. by applying Rule 15 of the Haryana Real. Estate (Regulation And Development) Rules, 2017 from the date of each installment till 05.02.2017 i.e. till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission?s final Order till the date on which the amount is refunded with Interest. 9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest. | 0[ds]7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer?s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms.We also reject the submission made by the Appellant – Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was inIn the present case, the National Commission has passed an equitable Order. The Commission has not awarded any Interest for the period during which the Order of stay of cancellation of the allotment was in operation on the request of the Respondent – FlatNational Commission has rightly awarded Interest @10.7% S.I. p.a. by applying Rule 15 of the Haryana Real. Estate (Regulation And Development) Rules, 2017 from the date of each installment till 05.02.2017 i.e. till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission?s final Order till the date on which the amount is refunded with Interest.We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest. | 0 | 4,583 | 420 | ### 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:
time limit provided in Clause 11.5, then he shall not be entitled to terminate the Agreement thereafter, and shall be bound by the provisions of the Agreement. 6.6. Section 2 (r) of the Consumer Protection Act, 1986 defines ‘unfair trade practices? in the following words : ?‘unfair trade practice? means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice …?, and includes any of the practices enumerated therein. The provision is illustrative, and not exhaustive. In Central Inland Water Transport Corporation Limited and Ors. v. Brojo Nath Ganguly and Ors., (1986) 3 SCC 156 this Court held that :?89. … Our judges are bound by their oath to ‘uphold the Constitution and the laws?. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and equal protection of the laws. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not. apply where both parties are businessmen and the contract is a commercial transaction. … … These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.?(emphasis supplied)6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder. 7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer?s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms. 8. We also reject the submission made by the Appellant – Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was in operation. In Bangalore Development Authority v. Syndicate Bank, (2007) 6 SCC 711 a Coordinate Bench of this Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund. 8.1. In the present case, the National Commission has passed an equitable Order. The Commission has not awarded any Interest for the period during which the Order of stay of cancellation of the allotment was in operation on the request of the Respondent – Flat Purchaser. The National Commission has rightly awarded Interest @10.7% S.I. p.a. by applying Rule 15 of the Haryana Real. Estate (Regulation And Development) Rules, 2017 from the date of each installment till 05.02.2017 i.e. till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission?s final Order till the date on which the amount is refunded with Interest. 9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.
### Response:
0
### Explanation:
7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer?s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms.We also reject the submission made by the Appellant – Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was inIn the present case, the National Commission has passed an equitable Order. The Commission has not awarded any Interest for the period during which the Order of stay of cancellation of the allotment was in operation on the request of the Respondent – FlatNational Commission has rightly awarded Interest @10.7% S.I. p.a. by applying Rule 15 of the Haryana Real. Estate (Regulation And Development) Rules, 2017 from the date of each installment till 05.02.2017 i.e. till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission?s final Order till the date on which the amount is refunded with Interest.We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.
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Tarapore & Co., Madras Vs. M/S. V/O Tractors Export, Moscow And Anr | Bank Ltd., 1922 (1) KB 318 the Kings Bench held that the refusal of the defendants bank to take and pay for the particular bills on presentation of the proper documents constituted a repudiation of the contract as a whole and that the plaintiffs were entitled to damages arising from such a breach. It may be noted that in that case the price quoted in the invoices was objected to by the buyer and he had notified his objection to the bank. But under the terms of the letter of credit the bank was required to make payments on the basis of the invoices tendered by the seller. The court held that if the buyers had an enforceable claim that adjustment must be made by way of refund by the seller and not by the way of retention by the buyer.20. Similar opinions have been expressed by the American Courts. The leading American case on the subject is Dulin Steel Products Inc., of Washington v. Bankers Trust Co., Federal Reporter 2nd Series, 298 p. 836. The facts of that case are as follows:The plaintiffs, Dulien Steel Products Inc., of Washington, contracted to sell steel scrap to the European Iron and Steel Company. The transaction was put through M/s. Marco Polo Group Project, Ltd. who were entitled to commission for arranging the transaction. For the payment of the commission to Marco Polo, plaintiffs procured an irrevocable letter of credit from Seattle First National Bank. As desired by Marco Polo this letter of credit was opened in favour of one Sica. The defendant bankers confirmed that letter of credit. The credit stipulated for payment against (1) a receipt of Sica for the amount of the credit and (2) a notification of Seattle Bank to the defendants that the plaintiffs had negotiated documents evidencing the shipment of the goods. Sica tendered the stipulated receipt and Seattle Bank informed the defendants that the Dulien had negotiated documentary drafts. Mean while after further negotiations between the plaintiffs and the vendees the price of the goods sold was reduced and consequently the commission payable to Marco Polo stood reduced but the defendants were not informed of this fact. Only after notifying the defendants about the negotiation of the drafts drawn under the contract of sale, the Seattle Bank informed the defendants about the changes underlying the transaction and asked them not to pay Sica the full amount of the credit. The defendants were also informed that Sica was merely a nominee of Marco Polo and has no rights of his own to the sum of the credit. Sica, however, claimed payment of the full amount of the credit. The defendants asked further instructions from Seattle Bank but despite Seattle Banks instructions decided to comply with Sicas request. After informing Seattle Bank of their intention, they paid Sica the full amount of the credit. Plaintiffs thereupon brought an action in the District Court of New York for the recovery of the moneys paid to Sica. The action was dismissed by the Trial Court and that decision was affirmed by the Court of Appeals. That decision establishes the well known principle that the letter of credit is independent of and unqualified by the contract of sale or underlying transaction. The autonomy of an irrevocable letter of credit is entitled to protection. As a rule Courts refrain from interfering with that autonomy.21. A half hearted attempt was made on behalf of the Indian Firm to persuade us not to apply the principles noticed above as in these appeals we are dealing with a complaint of fraud. The facts pleaded in the plaint do not amount to a plea of fraud despite the assertions of the Indian Firm that the Russian Firm was guilty of fraud.22. Evidently with a view to steer clear of the well established legal position Mr. Setalvad, learned Counsel for the Indian Firm urged that the letter of credit was no more enforceable as the original contract stood modified as a result of the Delhi agreement and the subsequent correspondence between the parties. It was urged that according to the modified contract the Indian Firm is only liable to pay the price that may be settled between the buyer and the seller. This contention has not been taken either in the plaint or in the arguments before the trial Judge or before the Appellate Bench. It is taken for the first time in this Court. This is not purely a legal contention. The contention in question bears on the intention of the parties who entered into the agreement. No one could have known the intention better than plaintiff who was a party to the contract. If there was such an intention, the plaintiff would have certainly pleaded the same. That apart, we are unable to accept the contention that either the Delhi agreement or the subsequent correspondence between the parties modified the original contract. The Delhi agreement merely provided that the parties will try and settle the dispute out of Court, if possible. Much was made of the letter written by the Russian Firm to the Indian Firm on 29-11-1966 wherein, as seen earlier, it was stated :"that the final amount payable will be in accordance with the settlement".23. This letter has to be read along with the other letters that passed between the parties. If so read, it is clear that the statement that the final payment will be made in accordance with the settlement is subject to the condition that the parties are able to arrive at a settlement. Otherwise the parties continue to be bound by the original contract subject to the extension of the time granted under the Delhi agreement for the payment of the price. As regards the additional payment demanded by the Russian Firm, there is no occasion for issuing any temporary injunction. If the Indian Firm does not comply with that demand the law will take its course. It is for that Firm to choose its course of action. | 1[ds]15. The main grievance of the Indian Firm is that if the Russian Firm is allowed to take away the money secured to it by the letter of credit, it cannot effectively enforce its claim arising from the breach of the contract it complains of. It was urged on its behalf that the Russian Firm has no assets in this country and therefore any decree that it may be able to obtain cannot be executed. Therefore, it was contended that the Trial Court was justified in issuing the impugned orders. The allegation that Russian Firm has no assets in this country was not made in the pleadings. That apart in the circumstances of this case that allegation has no relevance. An irrevocable letter of credit has a definite implication. It is a mechanism of great importance in international trade. Any interference with that mechanism is bound to have serious repercussions on the international trade of this country. Except under very exceptional circumstances, the Courts should not interfere with that mechanism.The main grievance of the Indian Firm is that if the Russian Firm is allowed to take away the money secured to it by the letter of credit, it cannot effectively enforce its claim arising from the breach of the contract it complains of. It was urged on its behalf that the Russian Firm has no assets in this country and therefore any decree that it may be able to obtain cannot be executed. Therefore, it was contended that the Trial Court was justified in issuing the impugned orders. The allegation that Russian Firm has no assets in this country was not made in the pleadings. That apart in the circumstances of this case that allegation has no relevance. An irrevocable letter of credit has a definite implication. It is a mechanism of great importance in international trade. Any interference with that mechanism is bound to have serious repercussions on the international trade of this country. Except under very exceptional circumstances, the Courts should not interfere with that mechanism.Evidently with a view to steer clear of the well established legal position Mr. Setalvad, learned Counsel for the Indian Firm urged that the letter of credit was no more enforceable as the original contract stood modified as a result of the Delhi agreement and the subsequent correspondence between the parties. It was urged that according to the modified contract the Indian Firm is only liable to pay the price that may be settled between the buyer and the seller. This contention has not been taken either in the plaint or in the arguments before the trial Judge or before the Appellate Bench. It is taken for the first time in this Court. This is not purely a legal contention. The contention in question bears on the intention of the parties who entered into the agreement. No one could have known the intention better than plaintiff who was a party to the contract. If there was such an intention, the plaintiff would have certainly pleaded the same. That apart, we are unable to accept the contention that either the Delhi agreement or the subsequent correspondence between the parties modified the original contract. The Delhi agreement merely provided that the parties will try and settle the dispute out of Court, if possible. Much was made of the letter written by the Russian Firm to the Indian Firm onThis letter has to be read along with the other letters that passed between the parties. If so read, it is clear that the statement that the final payment will be made in accordance with the settlement is subject to the condition that the parties are able to arrive at a settlement. Otherwise the parties continue to be bound by the original contract subject to the extension of the time granted under the Delhi agreement for the payment of the price. As regards the additional payment demanded by the Russian Firm, there is no occasion for issuing any temporary injunction. If the Indian Firm does not comply with that demand the law will take its course. It is for that Firm to choose its course of action. | 1 | 5,246 | 743 | ### 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:
Bank Ltd., 1922 (1) KB 318 the Kings Bench held that the refusal of the defendants bank to take and pay for the particular bills on presentation of the proper documents constituted a repudiation of the contract as a whole and that the plaintiffs were entitled to damages arising from such a breach. It may be noted that in that case the price quoted in the invoices was objected to by the buyer and he had notified his objection to the bank. But under the terms of the letter of credit the bank was required to make payments on the basis of the invoices tendered by the seller. The court held that if the buyers had an enforceable claim that adjustment must be made by way of refund by the seller and not by the way of retention by the buyer.20. Similar opinions have been expressed by the American Courts. The leading American case on the subject is Dulin Steel Products Inc., of Washington v. Bankers Trust Co., Federal Reporter 2nd Series, 298 p. 836. The facts of that case are as follows:The plaintiffs, Dulien Steel Products Inc., of Washington, contracted to sell steel scrap to the European Iron and Steel Company. The transaction was put through M/s. Marco Polo Group Project, Ltd. who were entitled to commission for arranging the transaction. For the payment of the commission to Marco Polo, plaintiffs procured an irrevocable letter of credit from Seattle First National Bank. As desired by Marco Polo this letter of credit was opened in favour of one Sica. The defendant bankers confirmed that letter of credit. The credit stipulated for payment against (1) a receipt of Sica for the amount of the credit and (2) a notification of Seattle Bank to the defendants that the plaintiffs had negotiated documents evidencing the shipment of the goods. Sica tendered the stipulated receipt and Seattle Bank informed the defendants that the Dulien had negotiated documentary drafts. Mean while after further negotiations between the plaintiffs and the vendees the price of the goods sold was reduced and consequently the commission payable to Marco Polo stood reduced but the defendants were not informed of this fact. Only after notifying the defendants about the negotiation of the drafts drawn under the contract of sale, the Seattle Bank informed the defendants about the changes underlying the transaction and asked them not to pay Sica the full amount of the credit. The defendants were also informed that Sica was merely a nominee of Marco Polo and has no rights of his own to the sum of the credit. Sica, however, claimed payment of the full amount of the credit. The defendants asked further instructions from Seattle Bank but despite Seattle Banks instructions decided to comply with Sicas request. After informing Seattle Bank of their intention, they paid Sica the full amount of the credit. Plaintiffs thereupon brought an action in the District Court of New York for the recovery of the moneys paid to Sica. The action was dismissed by the Trial Court and that decision was affirmed by the Court of Appeals. That decision establishes the well known principle that the letter of credit is independent of and unqualified by the contract of sale or underlying transaction. The autonomy of an irrevocable letter of credit is entitled to protection. As a rule Courts refrain from interfering with that autonomy.21. A half hearted attempt was made on behalf of the Indian Firm to persuade us not to apply the principles noticed above as in these appeals we are dealing with a complaint of fraud. The facts pleaded in the plaint do not amount to a plea of fraud despite the assertions of the Indian Firm that the Russian Firm was guilty of fraud.22. Evidently with a view to steer clear of the well established legal position Mr. Setalvad, learned Counsel for the Indian Firm urged that the letter of credit was no more enforceable as the original contract stood modified as a result of the Delhi agreement and the subsequent correspondence between the parties. It was urged that according to the modified contract the Indian Firm is only liable to pay the price that may be settled between the buyer and the seller. This contention has not been taken either in the plaint or in the arguments before the trial Judge or before the Appellate Bench. It is taken for the first time in this Court. This is not purely a legal contention. The contention in question bears on the intention of the parties who entered into the agreement. No one could have known the intention better than plaintiff who was a party to the contract. If there was such an intention, the plaintiff would have certainly pleaded the same. That apart, we are unable to accept the contention that either the Delhi agreement or the subsequent correspondence between the parties modified the original contract. The Delhi agreement merely provided that the parties will try and settle the dispute out of Court, if possible. Much was made of the letter written by the Russian Firm to the Indian Firm on 29-11-1966 wherein, as seen earlier, it was stated :"that the final amount payable will be in accordance with the settlement".23. This letter has to be read along with the other letters that passed between the parties. If so read, it is clear that the statement that the final payment will be made in accordance with the settlement is subject to the condition that the parties are able to arrive at a settlement. Otherwise the parties continue to be bound by the original contract subject to the extension of the time granted under the Delhi agreement for the payment of the price. As regards the additional payment demanded by the Russian Firm, there is no occasion for issuing any temporary injunction. If the Indian Firm does not comply with that demand the law will take its course. It is for that Firm to choose its course of action.
### Response:
1
### Explanation:
15. The main grievance of the Indian Firm is that if the Russian Firm is allowed to take away the money secured to it by the letter of credit, it cannot effectively enforce its claim arising from the breach of the contract it complains of. It was urged on its behalf that the Russian Firm has no assets in this country and therefore any decree that it may be able to obtain cannot be executed. Therefore, it was contended that the Trial Court was justified in issuing the impugned orders. The allegation that Russian Firm has no assets in this country was not made in the pleadings. That apart in the circumstances of this case that allegation has no relevance. An irrevocable letter of credit has a definite implication. It is a mechanism of great importance in international trade. Any interference with that mechanism is bound to have serious repercussions on the international trade of this country. Except under very exceptional circumstances, the Courts should not interfere with that mechanism.The main grievance of the Indian Firm is that if the Russian Firm is allowed to take away the money secured to it by the letter of credit, it cannot effectively enforce its claim arising from the breach of the contract it complains of. It was urged on its behalf that the Russian Firm has no assets in this country and therefore any decree that it may be able to obtain cannot be executed. Therefore, it was contended that the Trial Court was justified in issuing the impugned orders. The allegation that Russian Firm has no assets in this country was not made in the pleadings. That apart in the circumstances of this case that allegation has no relevance. An irrevocable letter of credit has a definite implication. It is a mechanism of great importance in international trade. Any interference with that mechanism is bound to have serious repercussions on the international trade of this country. Except under very exceptional circumstances, the Courts should not interfere with that mechanism.Evidently with a view to steer clear of the well established legal position Mr. Setalvad, learned Counsel for the Indian Firm urged that the letter of credit was no more enforceable as the original contract stood modified as a result of the Delhi agreement and the subsequent correspondence between the parties. It was urged that according to the modified contract the Indian Firm is only liable to pay the price that may be settled between the buyer and the seller. This contention has not been taken either in the plaint or in the arguments before the trial Judge or before the Appellate Bench. It is taken for the first time in this Court. This is not purely a legal contention. The contention in question bears on the intention of the parties who entered into the agreement. No one could have known the intention better than plaintiff who was a party to the contract. If there was such an intention, the plaintiff would have certainly pleaded the same. That apart, we are unable to accept the contention that either the Delhi agreement or the subsequent correspondence between the parties modified the original contract. The Delhi agreement merely provided that the parties will try and settle the dispute out of Court, if possible. Much was made of the letter written by the Russian Firm to the Indian Firm onThis letter has to be read along with the other letters that passed between the parties. If so read, it is clear that the statement that the final payment will be made in accordance with the settlement is subject to the condition that the parties are able to arrive at a settlement. Otherwise the parties continue to be bound by the original contract subject to the extension of the time granted under the Delhi agreement for the payment of the price. As regards the additional payment demanded by the Russian Firm, there is no occasion for issuing any temporary injunction. If the Indian Firm does not comply with that demand the law will take its course. It is for that Firm to choose its course of action.
|
Kabul Singh Vs. Kundan Singh & Ors | before sub-section (3) of Section 23 of the 1950 Act was incorporated into the 1950 Act. The mandate of that provision is plain and unambiguous. It prohibits inclusion of any name in the electoral roll after the prescribed date whether the application for inclusion was made before or after that date.7. The only other contention that remains to be considered is that the High Court should have held that the vote of Tarsem Singh is invalid. It is not disputed that Tarsem Singhs name finds place in the electoral roll of the constituency but the argument was that as he had taken up government service subsequent to the inclusion of his name in the electoral roll, he became disqualified to be a member of any local board and therefore he was not entitled to vote in the election. This contention cannot be upheld. Section 62 of the Act provides thus:"62 (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the Representation of the People Act, 1950.(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void.(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment of transportation or otherwise, or is in the lawful custody of the police:Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force."In view of those provisions read with Section 23 (3) of the 1950 Act every person who is for the time being entered in the electoral roll of a constituency as it stood on the last date for making nominations for an election in that constituency is entitled to vote unless it is shown that he is prohibited by any of the provisions of the Act from exercising his vote.The prohibitions contained in sub-sections (3), (4) and (5) of Section 62 of the Act do not apply to the case of Tarsem Singh. Therefore we have to see whether the prohibition contained in sub-section (2) applies to his case. That sub-section says that no person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the 1950 Act.8. This takes us to Section 16 of the 1950 Act. It read thus:"16 (1) A person shall be disqualified for registration in an electoral roll if he-(a) is not a citizen of India; or(b) is of unsound mind and stands so declared by a competent Court; or(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be re-instated in that roll if such disqualification is during the period such roll is in force, removed under any law authorizing such removal".9. It is not the case of the appellant that Tarsem Singh had incurred any of the disqualifications mentioned therein. No other provision of law in the Act or in any other law was brought to our notice disqualifying him from exercising his vote.The right to vote being purely a statutory right, the validity of any vote has to be examined on the basis of the provisions of the Act. We cannot travel outside those provisions to find out whether a particular vote was a valid vote or not. In view of Section 30 of the 1950 Act, Civil Courts have no jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll in a constituency or to question the illegality of the action taken by or under the authority of the electoral registration officer or any decision given by any authority appointed under that Act for the revision of any such roll.Part III of the 1950 Act deals with the preparation of rolls in a constituency. The provisions contained therein prescribe the qualifications for being registered as a voter (Section 19), disqualifications which disentitle a person from being registered as a voter (Section 16), revision of the rolls (Section 21), correction of entries in the electoral rolls (Section 22), inclusion of the names in the electoral rolls (Sec. 23), appeals against orders passed by the concerned authorities under Sections 22 and 23 (Section 24).Sections 14 to 24 of the 1950 Act are integrated provisions. They form a complete code by themselves in the matter of preparation and maintenance of electoral rolls. It is clear from those provisions that the entries found in the electoral roll are final and they are not open to challenge either before a Civil Court or before a Tribunal which considers the validity of any election. In B. M. Ramaswamy v. B. M. Krishnamurthy, 1963-3 SCR 479 =(AIR 1963 SC 458 ), this Court came to the conclusion that the finality of the electoral roll cannot be challenged in a proceeding challenging the validity of the election. | 0[ds]This is an untenable contention. The votes of Harjinder Singh and Balwant Singh have been rejected on the ground that their names were included in the electoral roll in defiance of the mandate given under Section 23 (3) of the 1950 Act. What applies to Hari Singh equally applies to Harjinder Singh and Balwant Singh. The fact that the 1st respondent did not challenge the validity of those votes is immaterial in the circumstances of this case. The election petition and the recriminatory petition were parts of one enquiry. As the validity of these three votes had come up for consideration and as it has been held that those votes are void votes, it necessarily follows that those votes must be excluded from consideration in determining the result of theratio of that decision has no application to the facts of the present case.That decision was rendered before sub-section (3) of Section 23 of the 1950 Act was incorporated into the 1950 Act. The mandate of that provision is plain and unambiguous. It prohibits inclusion of any name in the electoral roll after the prescribed date whether the application for inclusion was made before or after thatcontention cannot beview of those provisions read with Section 23 (3) of the 1950 Act every person who is for the time being entered in the electoral roll of a constituency as it stood on the last date for making nominations for an election in that constituency is entitled to vote unless it is shown that he is prohibited by any of the provisions of the Act from exercising his vote.The prohibitions contained in sub-sections (3), (4) and (5) of Section 62 of the Act do not apply to the case of Tarsem Singh. Therefore we have to see whether the prohibition contained in sub-section (2) applies to his case. That sub-section says that no person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the 1950view of those provisions read with Section 23 (3) of the 1950 Act every person who is for the time being entered in the electoral roll of a constituency as it stood on the last date for making nominations for an election in that constituency is entitled to vote unless it is shown that he is prohibited by any of the provisions of the Act from exercising his vote.The prohibitions contained in sub-sections (3), (4) and (5) of Section 62 of the Act do not apply to the case of Tarsem Singh. Therefore we have to see whether the prohibition contained in sub-section (2) applies to his case. That sub-section says that no person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the 1950 | 0 | 2,347 | 517 | ### 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:
before sub-section (3) of Section 23 of the 1950 Act was incorporated into the 1950 Act. The mandate of that provision is plain and unambiguous. It prohibits inclusion of any name in the electoral roll after the prescribed date whether the application for inclusion was made before or after that date.7. The only other contention that remains to be considered is that the High Court should have held that the vote of Tarsem Singh is invalid. It is not disputed that Tarsem Singhs name finds place in the electoral roll of the constituency but the argument was that as he had taken up government service subsequent to the inclusion of his name in the electoral roll, he became disqualified to be a member of any local board and therefore he was not entitled to vote in the election. This contention cannot be upheld. Section 62 of the Act provides thus:"62 (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the Representation of the People Act, 1950.(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void.(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment of transportation or otherwise, or is in the lawful custody of the police:Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force."In view of those provisions read with Section 23 (3) of the 1950 Act every person who is for the time being entered in the electoral roll of a constituency as it stood on the last date for making nominations for an election in that constituency is entitled to vote unless it is shown that he is prohibited by any of the provisions of the Act from exercising his vote.The prohibitions contained in sub-sections (3), (4) and (5) of Section 62 of the Act do not apply to the case of Tarsem Singh. Therefore we have to see whether the prohibition contained in sub-section (2) applies to his case. That sub-section says that no person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the 1950 Act.8. This takes us to Section 16 of the 1950 Act. It read thus:"16 (1) A person shall be disqualified for registration in an electoral roll if he-(a) is not a citizen of India; or(b) is of unsound mind and stands so declared by a competent Court; or(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be re-instated in that roll if such disqualification is during the period such roll is in force, removed under any law authorizing such removal".9. It is not the case of the appellant that Tarsem Singh had incurred any of the disqualifications mentioned therein. No other provision of law in the Act or in any other law was brought to our notice disqualifying him from exercising his vote.The right to vote being purely a statutory right, the validity of any vote has to be examined on the basis of the provisions of the Act. We cannot travel outside those provisions to find out whether a particular vote was a valid vote or not. In view of Section 30 of the 1950 Act, Civil Courts have no jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll in a constituency or to question the illegality of the action taken by or under the authority of the electoral registration officer or any decision given by any authority appointed under that Act for the revision of any such roll.Part III of the 1950 Act deals with the preparation of rolls in a constituency. The provisions contained therein prescribe the qualifications for being registered as a voter (Section 19), disqualifications which disentitle a person from being registered as a voter (Section 16), revision of the rolls (Section 21), correction of entries in the electoral rolls (Section 22), inclusion of the names in the electoral rolls (Sec. 23), appeals against orders passed by the concerned authorities under Sections 22 and 23 (Section 24).Sections 14 to 24 of the 1950 Act are integrated provisions. They form a complete code by themselves in the matter of preparation and maintenance of electoral rolls. It is clear from those provisions that the entries found in the electoral roll are final and they are not open to challenge either before a Civil Court or before a Tribunal which considers the validity of any election. In B. M. Ramaswamy v. B. M. Krishnamurthy, 1963-3 SCR 479 =(AIR 1963 SC 458 ), this Court came to the conclusion that the finality of the electoral roll cannot be challenged in a proceeding challenging the validity of the election.
### Response:
0
### Explanation:
This is an untenable contention. The votes of Harjinder Singh and Balwant Singh have been rejected on the ground that their names were included in the electoral roll in defiance of the mandate given under Section 23 (3) of the 1950 Act. What applies to Hari Singh equally applies to Harjinder Singh and Balwant Singh. The fact that the 1st respondent did not challenge the validity of those votes is immaterial in the circumstances of this case. The election petition and the recriminatory petition were parts of one enquiry. As the validity of these three votes had come up for consideration and as it has been held that those votes are void votes, it necessarily follows that those votes must be excluded from consideration in determining the result of theratio of that decision has no application to the facts of the present case.That decision was rendered before sub-section (3) of Section 23 of the 1950 Act was incorporated into the 1950 Act. The mandate of that provision is plain and unambiguous. It prohibits inclusion of any name in the electoral roll after the prescribed date whether the application for inclusion was made before or after thatcontention cannot beview of those provisions read with Section 23 (3) of the 1950 Act every person who is for the time being entered in the electoral roll of a constituency as it stood on the last date for making nominations for an election in that constituency is entitled to vote unless it is shown that he is prohibited by any of the provisions of the Act from exercising his vote.The prohibitions contained in sub-sections (3), (4) and (5) of Section 62 of the Act do not apply to the case of Tarsem Singh. Therefore we have to see whether the prohibition contained in sub-section (2) applies to his case. That sub-section says that no person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the 1950view of those provisions read with Section 23 (3) of the 1950 Act every person who is for the time being entered in the electoral roll of a constituency as it stood on the last date for making nominations for an election in that constituency is entitled to vote unless it is shown that he is prohibited by any of the provisions of the Act from exercising his vote.The prohibitions contained in sub-sections (3), (4) and (5) of Section 62 of the Act do not apply to the case of Tarsem Singh. Therefore we have to see whether the prohibition contained in sub-section (2) applies to his case. That sub-section says that no person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the 1950
|
United India Insurance Co Ltd Vs. Gian Chand | Report it was observed that : "The word `breach in the expression "breach of a specified condition of the policy" in Section 96(2)(b) is of great significance. `Breach means "infringement or violation of a promise or obligation". This induces an inference that the violation or infringement on the part of the promisor must be wilful infringement or violation. Sub-clause (ii) of clause (b) of Section 96(2) enjoins the insurer to establish that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is `guilty of the breach of the promise that the vehicle will be driven by a licensed driver. The insurer cannot escape from the obligation to indemnify the insured when some mishap occurs by some mischance. When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of the licensed driver, with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. In a way the question is as to whether the promise made by the insured is an absolute promise or whether he is exculpated on the basis of some legal doctrine". We fail to appreciate how the aforesaid decision can be of any avail to learned counsel for the respondents-claimants on the peculiar facts of the present case. It has been clearly held by the Tribunal as well as by the High Court that respondent No. 1 who was permitted to drive the vehicle by respondent No. 9, the insured, was admittedly not having any driving licence. It was not the case of respondent No. 9, the insured, that he did not know that respondent No. 1 whom the vehicle was being handed over was not having a valid licence. In fact, once he did not step in the witness box to prove his case, an adverse inference had necessarily to be drawn against him to the effect that the vehicle had been handed over by him for being driven by an unlicensed driver, respondent No. 1. That finding reached by the Tribunal as well as by the High Court must result in exonerating the Insurance Company of its obligation as the statutory defence became available to it. The High Court, even though agreeing with the finding of fact reached by the Tribunal, has in our view, by misconstruing the ratio of the decision of this Court in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra) erroneously held that the said defence was not available to the Insurance Company on the facts of the present case. Even that apart, a Bench of three learned Judges of this Court in 1996(5) SCC 21 (supra) while upholding the ratio of the decision of this Court in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra) has also taken the same view. 9. Even apart from these Judgments, which do not improve the case of the respondents, strong reliance was placed on two other Judgments of this Court by the learned counsel for the appellant. As noted earlier, they represent the first line of cases. In Kashiram Yadav and another v. Oriental Fire and Insurance Company and others, 1989(4) SCC 128, a bench of two learned Judges of this Court, speaking through Jagannatha Shetty, J. distinguished the decision in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra) and took the view that when the insured had handed over the vehicle to an unlicensed driver, the Insurance Company would get exonerated and the ratio of the decision in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra), would be of no assistance to the claimants in such a case. The fact situation in the present case is almost parallel to the fact situation which was examined by this Court in Kashiram Yadav and another v. Oriental Fire and Insurance Company and others, 1989(4) SCC 128 (supra). There is also a later decision of this Court in New India Assurance Company Ltd. v. Mandar Madhav Tambe and others, 1996(2) SCC 328, wherein a Bench of two learned Judges of this Court to which one of us, B.N. Kirpal, J. was a party, examined a similar fact situation and came to the conclusion that "the exclusion clause in the Insurance Policy makes it clear that the Insurance Company, in the event of an accident, would be liable only if the vehicle was being driven by a person holding a valid driving licence or a permanent driving licence "other than a learners licence". The use of the words "permanent driving licence" in the insurance policy was to emphasise that a temporary or a learners licence-holder would not be covered by the insurance policy". 10. Under the circumstances, when the insured had handed over the vehicle for being driven by an unlicensed driver, the Insurance Company would get exonerated from its liability to meet the claims of third party who might have suffered on account of vehicular accident caused by such unlicensed driver. In view of the aforesaid two sets of decisions of this Court, which deal with different fact situations, it cannot be said that the decisions rendered by this Court in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra) and the decision of the Bench of 3 learned Judges in 1996(5) SCC 21 (supra) in any way conflict with the decisions rendered by this Court in the case of New India Assurance Company Ltd. v. Mandar Madhav Tambe and others, 1996(2) SCC 328 (supra) and Kashiram Yadav and another v. Oriental Fire and Insurance Company and others, 1989(4) SCC 128. | 1[ds]We fail to appreciate how the aforesaid decision can be of any avail to learned counsel for the respondents-claimants on the peculiar facts of the present case. It has been clearly held by the Tribunal as well as by the High Court that respondent No. 1 who was permitted to drive the vehicle by respondent No. 9, the insured, was admittedly not having any driving licence. It was not the case of respondent No. 9, the insured, that he did not know that respondent No. 1 whom the vehicle was being handed over was not having a valid licence. In fact, once he did not step in the witness box to prove his case, an adverse inference had necessarily to be drawn against him to the effect that the vehicle had been handed over by him for being driven by an unlicensed driver, respondent No. 1. That finding reached by the Tribunal as well as by the High Court must result in exonerating the Insurance Company of its obligation as the statutory defence became available to it. The High Court, even though agreeing with the finding of fact reached by the Tribunal, has in our view, by misconstruing the ratio of the decision of this Court in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra) erroneously held that the said defence was not available to the Insurance Company on the facts of the present case. | 1 | 2,785 | 271 | ### 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:
Report it was observed that : "The word `breach in the expression "breach of a specified condition of the policy" in Section 96(2)(b) is of great significance. `Breach means "infringement or violation of a promise or obligation". This induces an inference that the violation or infringement on the part of the promisor must be wilful infringement or violation. Sub-clause (ii) of clause (b) of Section 96(2) enjoins the insurer to establish that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is `guilty of the breach of the promise that the vehicle will be driven by a licensed driver. The insurer cannot escape from the obligation to indemnify the insured when some mishap occurs by some mischance. When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of the licensed driver, with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. In a way the question is as to whether the promise made by the insured is an absolute promise or whether he is exculpated on the basis of some legal doctrine". We fail to appreciate how the aforesaid decision can be of any avail to learned counsel for the respondents-claimants on the peculiar facts of the present case. It has been clearly held by the Tribunal as well as by the High Court that respondent No. 1 who was permitted to drive the vehicle by respondent No. 9, the insured, was admittedly not having any driving licence. It was not the case of respondent No. 9, the insured, that he did not know that respondent No. 1 whom the vehicle was being handed over was not having a valid licence. In fact, once he did not step in the witness box to prove his case, an adverse inference had necessarily to be drawn against him to the effect that the vehicle had been handed over by him for being driven by an unlicensed driver, respondent No. 1. That finding reached by the Tribunal as well as by the High Court must result in exonerating the Insurance Company of its obligation as the statutory defence became available to it. The High Court, even though agreeing with the finding of fact reached by the Tribunal, has in our view, by misconstruing the ratio of the decision of this Court in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra) erroneously held that the said defence was not available to the Insurance Company on the facts of the present case. Even that apart, a Bench of three learned Judges of this Court in 1996(5) SCC 21 (supra) while upholding the ratio of the decision of this Court in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra) has also taken the same view. 9. Even apart from these Judgments, which do not improve the case of the respondents, strong reliance was placed on two other Judgments of this Court by the learned counsel for the appellant. As noted earlier, they represent the first line of cases. In Kashiram Yadav and another v. Oriental Fire and Insurance Company and others, 1989(4) SCC 128, a bench of two learned Judges of this Court, speaking through Jagannatha Shetty, J. distinguished the decision in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra) and took the view that when the insured had handed over the vehicle to an unlicensed driver, the Insurance Company would get exonerated and the ratio of the decision in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra), would be of no assistance to the claimants in such a case. The fact situation in the present case is almost parallel to the fact situation which was examined by this Court in Kashiram Yadav and another v. Oriental Fire and Insurance Company and others, 1989(4) SCC 128 (supra). There is also a later decision of this Court in New India Assurance Company Ltd. v. Mandar Madhav Tambe and others, 1996(2) SCC 328, wherein a Bench of two learned Judges of this Court to which one of us, B.N. Kirpal, J. was a party, examined a similar fact situation and came to the conclusion that "the exclusion clause in the Insurance Policy makes it clear that the Insurance Company, in the event of an accident, would be liable only if the vehicle was being driven by a person holding a valid driving licence or a permanent driving licence "other than a learners licence". The use of the words "permanent driving licence" in the insurance policy was to emphasise that a temporary or a learners licence-holder would not be covered by the insurance policy". 10. Under the circumstances, when the insured had handed over the vehicle for being driven by an unlicensed driver, the Insurance Company would get exonerated from its liability to meet the claims of third party who might have suffered on account of vehicular accident caused by such unlicensed driver. In view of the aforesaid two sets of decisions of this Court, which deal with different fact situations, it cannot be said that the decisions rendered by this Court in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra) and the decision of the Bench of 3 learned Judges in 1996(5) SCC 21 (supra) in any way conflict with the decisions rendered by this Court in the case of New India Assurance Company Ltd. v. Mandar Madhav Tambe and others, 1996(2) SCC 328 (supra) and Kashiram Yadav and another v. Oriental Fire and Insurance Company and others, 1989(4) SCC 128.
### Response:
1
### Explanation:
We fail to appreciate how the aforesaid decision can be of any avail to learned counsel for the respondents-claimants on the peculiar facts of the present case. It has been clearly held by the Tribunal as well as by the High Court that respondent No. 1 who was permitted to drive the vehicle by respondent No. 9, the insured, was admittedly not having any driving licence. It was not the case of respondent No. 9, the insured, that he did not know that respondent No. 1 whom the vehicle was being handed over was not having a valid licence. In fact, once he did not step in the witness box to prove his case, an adverse inference had necessarily to be drawn against him to the effect that the vehicle had been handed over by him for being driven by an unlicensed driver, respondent No. 1. That finding reached by the Tribunal as well as by the High Court must result in exonerating the Insurance Company of its obligation as the statutory defence became available to it. The High Court, even though agreeing with the finding of fact reached by the Tribunal, has in our view, by misconstruing the ratio of the decision of this Court in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan and others, 1987(2) SCC 654 (supra) erroneously held that the said defence was not available to the Insurance Company on the facts of the present case.
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Canara Bank Vs. Nuclear Power Corporation of India Limited and Others | 48 of the Bihar and Orissa Co-operative Societies Act. It was held that the jurisdiction of the ordinary civil and revenue courts of the land was ousted in the case of disputes that fell under Section 48. A registrar exercising powers under Section 48, therefore, discharged the duties which would otherwise have fallen on the ordinary civil and revenue courts. He had not merely the trappings of a court but in many respects he was given the same powers as were given to the ordinary civil courts of the land by the Code of Civil Procedure, including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and to exercise the inherent jurisdiction of courts mentioned in Section 151. In adjudicating a dispute under Section 48 of the Bihar Act, the Registrar was held to be, "to all intents and purposes a Court discharging the same functions and duties in the same manner as a Court of law is expected to do."31.Now, under Section 111 of the Companies Act as amended with effect from 31st May, 1991, the CLB performs the functions that were therefore performed by courts of civil judicature under Section 15 5. It is empowered to make orders directing rectification of the company register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the companys register; and any question which it is necessary or expedient to decide. It may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all the se matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLR must, and does, act judicially. Its orders are appealable. The CLR, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a court, particularly for the purposes of Section 9A of the Special Act.32.We shall assume that a shareholder who se name the company has refused to enter in its register would be put to some difficulty in deciding whether he should approach the Special Court or the CLB, but that is no reason to interpret the provisions of Section 9A in a manner that would defeat its intendment and adversely affect the public interest. In any event, the time taken in approaching the CLB in a matter that should have been filed before the Special Court would not be of any consequence for there is no time limit within which the Special Court has to be approached; and it is most unlikely that the Special Court would be approached unless the shareholder were sure that his claim fell within Section 9A(1).33.It will be remembered that Mr. Nariman had drawn attention to the provisions of Section 4 of the Special Court Act and argued that even if the CIB, under the provisions of Section III of the Companies Act, made any order with regard to any securities, that order would stand at naught if an order relating to the same securities was made under Section 4 of the Special Court Act by reason of the fact that, under Section 13 of the Special Court Act, order of the Special Court had effect notwithstanding anything inconsistent therewith contained in any decree or order of any court, tribunal or other authority. Section 3(2) of the Special Court Act empowers the Custodian, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities entered into between the stated dates to notify the name of such person in the Official Gazette. On such notification, by reason of Section 3(3), the property of the person notified stands attached. That property, by reason of Section 3(4), is to be dealt with by the Custodian in such manner is the Special Court may direct, Section 4 states that if the Custodian is satisfied after such inquiry as he may think fit that any contract or agreement entered into fraudulently or to defeat the provisions of the Special Court Act, he may cancel such contract or agreement whereupon such property stands attached. The scope, there-fore, of Section 4 is limited. It applied only in regard to property that belongs to a person notified. Section 9A(1) is much wider and it invests the Special Court with. jurisdiction to entertain matters or claims arising out of transactions in securities entered into between the stated dates in which a person notified is involved not only as a party but also as a broker, intermediary or in any other manner. The argument based on Section 4 must, therefore, fail.34. As has been pointed out, sub-sections(2) and (3) of Section 111 of the Companies Act term the pleading that the person aggrieved has to file before the CLE an appeal, sub-section (4) requires the person aggrieved to apply, sub-section (5) speaks of it as an appeal or an application, subsection (7) as an application and sub-section (10) as an appeal or application which shall be made by a "petition in writing". The words "appeal" and "application" in the context of the provisions of Section 111 have, therefore the same meaning and it is, plainly, an original application that is made. The shareholder does not resort to a superior court to review the decision of an inferior court or tribunal. The fact, therefore, that Section 9A(2) of the Special Court Act speaks of the transfer of every suit, claim or other legal proceeding (other than an appeal)" does not exclude the "application or "appeal" made under the provisions of Section 111 of the Companies Act from the purview of Section 9A(1) of the Special Court Act. Conclusion. | 1[ds]16.It will be seen that the CLB now exercises the powers that were exercisable by the court under Section 155. It is entitled to direct rectification of the register and the payment of damages by the company. It is entitled to decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CLB on a question of law is available to any person aggrieved, thereby under the provisions of Section 105.While on Section 9A. it must also be noted that(2) thereof mandates transfer to the Special Court of "every suit, claim or other legal proceedings (other than an appeal)" which is pending before any court on the commencement of the Amendment Ordinance in which the cause of action, inter alia, arises out of a transaction in securities entered into between the stated dates in which a notified person is involved. It is, therefore, the proceeding in the court of first instance that stands transferred. If the court of first instance has finally disposed of the proceeding and its order thereon is the subject of an appeal, the appeal does not stand transferred.A "court" other than the Special Court is debarred, by reason ofsubsection (3) ofSection 9A, from exercising any jurisdiction, powers or authority, after the commencement of the Amendment Ordinance, in relation to any matter or claim arising out of transactions in securities entered into between the stated dates in which a notified person is involved.(2) of Section 9A also speaks of a court; a proceeding before a court, the cause of action of which arises out of a transaction in securities entered into between the stated dates in which a notified person is involved, stands transferred to the Special Court.The question, in these circumstances, is whether t he use of the words civil court in subsection (1) excludes the application of Section 9 A to theour view, the word ", court" must be read in the context in which it is used in a statute. It is permissible, given the context, to read it as comprehending the courts of civil judicature and courts or some tribunals exercising curial, or judicial, powers. In the context in which the word "court" is used in Section 9A of the Special Court Act, it is intended to encompass all curial or judicial bodies which have the jurisdiction to decide matters or claims, inter alia, arising out of transactions in securities entered into between the stated dates in which a person notified isis to be noted t hat the CLB performs functions which are administrative, as under Sections 224 and 269, and curial, as under Section 111.31.Now, under Section 111 of the Companies Act as amended with effect from 31st May, 1991, the CLB performs the functions that were therefore performed by courts of civil judicature under Section 15 5. It is empowered to make orders directing rectification of the company register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the companys register; and any question which it is necessary or expedient to decide. It may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all the se matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLR must, and does, act judicially. Its orders are appealable. The CLR, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a court, particularly for the purposes of Section 9A of the Special Act.32.We shall assume that a shareholder who se name the company has refused to enter in its register would be put to some difficulty in deciding whether he should approach the Special Court or the CLB, but that is no reason to interpret the provisions of Section 9A in a manner that would defeat its intendment and adversely affect the public interest. In any event, the time taken in approaching the CLB in a matter that should have been filed before the Special Court would not be of any consequence for there is no time limit within which the Special Court has to be approached; and it is most unlikely that the Special Court would be approached unless the shareholder were sure that his claim fell within Section 9A(1).33.It will be remembered that Mr. Nariman had drawn attention to the provisions of Section 4 of the Special Court Act and argued that even if the CIB, under the provisions of Section III of the Companies Act, made any order with regard to any securities, that order would stand at naught if an order relating to the same securities was made under Section 4 of the Special Court Act by reason of the fact that, under Section 13 of the Special Court Act, order of the Special Court had effect notwithstanding anything inconsistent therewith contained in any decree or order of any court, tribunal or other authority. Section 3(2) of the Special Court Act empowers the Custodian, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities entered into between the stated dates to notify the name of such person in the Official Gazette. On such notification, by reason of Section 3(3), the property of the person notified stands attached. That property, by reason of Section 3(4), is to be dealt with by the Custodian in such manner is the Special Court may direct, Section 4 states that if the Custodian is satisfied after such inquiry as he may think fit that any contract or agreement entered into fraudulently or to defeat the provisions of the Special Court Act, he may cancel such contract or agreement whereupon such property stands attached. The scope, there-fore, of Section 4 is limited. It applied only in regard to property that belongs to a person notified. Section 9A(1) is much wider and it invests the Special Court with. jurisdiction to entertain matters or claims arising out of transactions in securities entered into between the stated dates in which a person notified is involved not only as a party but also as a broker, intermediary or in any other manner. The argument based on Section 4 must, therefore, fail.34. As has been pointed out, sub-sections(2) and (3) of Section 111 of the Companies Act term the pleading that the person aggrieved has to file before the CLE an appeal, sub-section (4) requires the person aggrieved to apply, sub-section (5) speaks of it as an appeal or an application, subsection (7) as an application and sub-section (10) as an appeal or application which shall be made by a "petition in writing". The words "appeal" and "application" in the context of the provisions of Section 111 have, therefore the same meaning and it is, plainly, an original application that is made. The shareholder does not resort to a superior court to review the decision of an inferior court or tribunal. The fact, therefore, that Section 9A(2) of the Special Court Act speaks of the transfer of every suit, claim or other legal proceeding (other than an appeal)" does not exclude the "application or "appeal" made under the provisions of Section 111 of the Companies Act from the purview of Section 9A(1) of the Special Court Act. Conclusion. | 1 | 11,746 | 1,476 | ### Instruction:
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48 of the Bihar and Orissa Co-operative Societies Act. It was held that the jurisdiction of the ordinary civil and revenue courts of the land was ousted in the case of disputes that fell under Section 48. A registrar exercising powers under Section 48, therefore, discharged the duties which would otherwise have fallen on the ordinary civil and revenue courts. He had not merely the trappings of a court but in many respects he was given the same powers as were given to the ordinary civil courts of the land by the Code of Civil Procedure, including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and to exercise the inherent jurisdiction of courts mentioned in Section 151. In adjudicating a dispute under Section 48 of the Bihar Act, the Registrar was held to be, "to all intents and purposes a Court discharging the same functions and duties in the same manner as a Court of law is expected to do."31.Now, under Section 111 of the Companies Act as amended with effect from 31st May, 1991, the CLB performs the functions that were therefore performed by courts of civil judicature under Section 15 5. It is empowered to make orders directing rectification of the company register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the companys register; and any question which it is necessary or expedient to decide. It may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all the se matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLR must, and does, act judicially. Its orders are appealable. The CLR, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a court, particularly for the purposes of Section 9A of the Special Act.32.We shall assume that a shareholder who se name the company has refused to enter in its register would be put to some difficulty in deciding whether he should approach the Special Court or the CLB, but that is no reason to interpret the provisions of Section 9A in a manner that would defeat its intendment and adversely affect the public interest. In any event, the time taken in approaching the CLB in a matter that should have been filed before the Special Court would not be of any consequence for there is no time limit within which the Special Court has to be approached; and it is most unlikely that the Special Court would be approached unless the shareholder were sure that his claim fell within Section 9A(1).33.It will be remembered that Mr. Nariman had drawn attention to the provisions of Section 4 of the Special Court Act and argued that even if the CIB, under the provisions of Section III of the Companies Act, made any order with regard to any securities, that order would stand at naught if an order relating to the same securities was made under Section 4 of the Special Court Act by reason of the fact that, under Section 13 of the Special Court Act, order of the Special Court had effect notwithstanding anything inconsistent therewith contained in any decree or order of any court, tribunal or other authority. Section 3(2) of the Special Court Act empowers the Custodian, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities entered into between the stated dates to notify the name of such person in the Official Gazette. On such notification, by reason of Section 3(3), the property of the person notified stands attached. That property, by reason of Section 3(4), is to be dealt with by the Custodian in such manner is the Special Court may direct, Section 4 states that if the Custodian is satisfied after such inquiry as he may think fit that any contract or agreement entered into fraudulently or to defeat the provisions of the Special Court Act, he may cancel such contract or agreement whereupon such property stands attached. The scope, there-fore, of Section 4 is limited. It applied only in regard to property that belongs to a person notified. Section 9A(1) is much wider and it invests the Special Court with. jurisdiction to entertain matters or claims arising out of transactions in securities entered into between the stated dates in which a person notified is involved not only as a party but also as a broker, intermediary or in any other manner. The argument based on Section 4 must, therefore, fail.34. As has been pointed out, sub-sections(2) and (3) of Section 111 of the Companies Act term the pleading that the person aggrieved has to file before the CLE an appeal, sub-section (4) requires the person aggrieved to apply, sub-section (5) speaks of it as an appeal or an application, subsection (7) as an application and sub-section (10) as an appeal or application which shall be made by a "petition in writing". The words "appeal" and "application" in the context of the provisions of Section 111 have, therefore the same meaning and it is, plainly, an original application that is made. The shareholder does not resort to a superior court to review the decision of an inferior court or tribunal. The fact, therefore, that Section 9A(2) of the Special Court Act speaks of the transfer of every suit, claim or other legal proceeding (other than an appeal)" does not exclude the "application or "appeal" made under the provisions of Section 111 of the Companies Act from the purview of Section 9A(1) of the Special Court Act. Conclusion.
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of which arises out of a transaction in securities entered into between the stated dates in which a notified person is involved, stands transferred to the Special Court.The question, in these circumstances, is whether t he use of the words civil court in subsection (1) excludes the application of Section 9 A to theour view, the word ", court" must be read in the context in which it is used in a statute. It is permissible, given the context, to read it as comprehending the courts of civil judicature and courts or some tribunals exercising curial, or judicial, powers. In the context in which the word "court" is used in Section 9A of the Special Court Act, it is intended to encompass all curial or judicial bodies which have the jurisdiction to decide matters or claims, inter alia, arising out of transactions in securities entered into between the stated dates in which a person notified isis to be noted t hat the CLB performs functions which are administrative, as under Sections 224 and 269, and curial, as under Section 111.31.Now, under Section 111 of the Companies Act as amended with effect from 31st May, 1991, the CLB performs the functions that were therefore performed by courts of civil judicature under Section 15 5. It is empowered to make orders directing rectification of the company register, as to damages, costs and incidental and consequential orders. It may decide any question relating to the title of any person who is a party before it to have his name entered upon the companys register; and any question which it is necessary or expedient to decide. It may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all the se matters it has exclusive jurisdiction (except under the provisions of the Special Court Act, which is the issue before us). In exercising its function under Section 111 the CLR must, and does, act judicially. Its orders are appealable. The CLR, further, is a permanent body constituted under a statute. It is difficult to see how it can be said to be anything other than a court, particularly for the purposes of Section 9A of the Special Act.32.We shall assume that a shareholder who se name the company has refused to enter in its register would be put to some difficulty in deciding whether he should approach the Special Court or the CLB, but that is no reason to interpret the provisions of Section 9A in a manner that would defeat its intendment and adversely affect the public interest. In any event, the time taken in approaching the CLB in a matter that should have been filed before the Special Court would not be of any consequence for there is no time limit within which the Special Court has to be approached; and it is most unlikely that the Special Court would be approached unless the shareholder were sure that his claim fell within Section 9A(1).33.It will be remembered that Mr. Nariman had drawn attention to the provisions of Section 4 of the Special Court Act and argued that even if the CIB, under the provisions of Section III of the Companies Act, made any order with regard to any securities, that order would stand at naught if an order relating to the same securities was made under Section 4 of the Special Court Act by reason of the fact that, under Section 13 of the Special Court Act, order of the Special Court had effect notwithstanding anything inconsistent therewith contained in any decree or order of any court, tribunal or other authority. Section 3(2) of the Special Court Act empowers the Custodian, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities entered into between the stated dates to notify the name of such person in the Official Gazette. On such notification, by reason of Section 3(3), the property of the person notified stands attached. That property, by reason of Section 3(4), is to be dealt with by the Custodian in such manner is the Special Court may direct, Section 4 states that if the Custodian is satisfied after such inquiry as he may think fit that any contract or agreement entered into fraudulently or to defeat the provisions of the Special Court Act, he may cancel such contract or agreement whereupon such property stands attached. The scope, there-fore, of Section 4 is limited. It applied only in regard to property that belongs to a person notified. Section 9A(1) is much wider and it invests the Special Court with. jurisdiction to entertain matters or claims arising out of transactions in securities entered into between the stated dates in which a person notified is involved not only as a party but also as a broker, intermediary or in any other manner. The argument based on Section 4 must, therefore, fail.34. As has been pointed out, sub-sections(2) and (3) of Section 111 of the Companies Act term the pleading that the person aggrieved has to file before the CLE an appeal, sub-section (4) requires the person aggrieved to apply, sub-section (5) speaks of it as an appeal or an application, subsection (7) as an application and sub-section (10) as an appeal or application which shall be made by a "petition in writing". The words "appeal" and "application" in the context of the provisions of Section 111 have, therefore the same meaning and it is, plainly, an original application that is made. The shareholder does not resort to a superior court to review the decision of an inferior court or tribunal. The fact, therefore, that Section 9A(2) of the Special Court Act speaks of the transfer of every suit, claim or other legal proceeding (other than an appeal)" does not exclude the "application or "appeal" made under the provisions of Section 111 of the Companies Act from the purview of Section 9A(1) of the Special Court Act. Conclusion.
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Viveka Nand Giri Vs. Nawal Kishore Sahi | constituency. S. 19 of the Act lays down that subject to the earlier provisions contained in Part 3 of the Act every person who is not less than 21 years of age on the qualifying date and is ordinarily resident in a constituency shall be entitled to be registered in the electoral roll for that constituency. Therefore, a person to be entitled to be registered in the electoral roll for the constituency should ordinarily be a resident in that constituency and should not be less than 21 years of age on the qualifying date. Article 173 of the Constitution prescribing the qualification for membership of a State Legislature lays down that a person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule, and, is, in the case of a seat in the Legislative Assembly, not less than 25 years of age and, in the case of a seat in the Legislative Council, not less than 30 years of age, and possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. Therefore, a person to be entitled to be chosen to fill a seat in the Legislative Assembly of a State should be not less than 25 years of age. In the present case Ram Kumar Jha is noted in the electoral roll, Ex. 4 prepared in 1980 as being 37 years old while he has declared in the nomination paper No. 42 marked as Ex.2-c that he had completed 33 years of age. As stated earlier the nomination paper had been rejected by the Returning officer, RW-7 on the ground that there is difference in the age of the candidate between what has been mentioned in the electoral roll and the nomination paper and it is not based on any other ground. It is nobodys case that the Returning Officer found any difficulty regarding the identity of the candidate, Ram Kumar Jha on account of this difference in the age mentioned in an electoral roll and the nomination paper. The point for consideration therefore is whether the rejection of this nomination paper by the Returning officer on the ground of difference in the age in the electoral roll and the nomination paper is improper. S. 33(4) of the Act lays down that on the presentation of a nomination paper, t he Returning officer shall satisfy himself that the names and electoral roll numbers of the candidate, and his proposer as entered in the nomination paper are the same as entered in the electoral rolls. The proviso to that sub- section reads thus:"Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case whether the description in regard to the name of the person or place is such as to be commonly understood; an d the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked."4. We are of the opinion that the difference in the age of the candidate, Ram Kumar Jha as entered in the electoral roll and the nomination paper would fall under the category of `inaccurate description mentioned in the above proviso and that it was obligatory on the part of the Returning Officer to have it corrected or to overlook it having regard to the language of the proviso.5. S. 36(4) of the Act lays down that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. As stated earlier, a person to be entitled to be registered in the electoral roll for a constituency should be 21 years of age on the qualifying date and a person to be chosen to fill a seat in the Legislature of a State should not be less than 25 years of age. Ram Kumar Jha had declared in the nomination paper No. 42 that he had completed 33 years of age. Therefore, the substantial requirement as regards the question of age of the candidate, Ram Kumar Jha was that at the time of scrutiny of nomination paper he should have completed 25 years of age and should have been registered in the electoral roll for that constituency and not whether there was a difference of 4 years in the age of the candidate as mentioned in the electoral roll and the nomination paper. The difference in our opinion is not an error of substantial character. As the rejection of the nomination paper No. 42 was not on the ground that there was any difficulty as regards identity on account of the difference in the age mentioned in the electoral roll and the nomination paper we are clearly of the opinion that the rejection of the nomination paper on the ground of difference in the age was improper, for having regard to provisions of s. 36(4) of the Act the defect is not of substantial character and we hold that the appellants election is consequently void under s. 100 (1)(c) of the Act on the ground of improper rejection of the nomination paper. I | 0[ds]We are of the opinion that the difference in the age of the candidate, Ram Kumar Jha as entered in the electoral roll and the nomination paper would fall under the category of `inaccurate description mentioned in the above proviso and that it was obligatory on the part of the Returning Officer to have it corrected or to overlook it having regard to the language of the proviso.36(4) of the Act lays down that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. As stated earlier, a person to be entitled to be registered in the electoral roll for a constituency should be 21 years of age on the qualifying date and a person to be chosen to fill a seat in the Legislature of a State should not be less than 25 years of age. Ram Kumar Jha had declared in the nomination paper No. 42 that he had completed 33 years of age. Therefore, the substantial requirement as regards the question of age of the candidate, Ram Kumar Jha was that at the time of scrutiny of nomination paper he should have completed 25 years of age and should have been registered in the electoral roll for that constituency and not whether there was a difference of 4 years in the age of the candidate as mentioned in the electoral roll and the nomination paper. The difference in our opinion is not an error of substantial character. As the rejection of the nomination paper No. 42 was not on the ground that there was any difficulty as regards identity on account of the difference in the age mentioned in the electoral roll and the nomination paper we are clearly of the opinion that the rejection of the nomination paper on the ground of difference in the age was improper, for having regard to provisions of s. 36(4) of the Act the defect is not of substantial character and we hold that the appellants election is consequently void under s. 100 (1)(c) of the Act on the ground of improper rejection of the nomination paper. | 0 | 2,178 | 388 | ### Instruction:
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constituency. S. 19 of the Act lays down that subject to the earlier provisions contained in Part 3 of the Act every person who is not less than 21 years of age on the qualifying date and is ordinarily resident in a constituency shall be entitled to be registered in the electoral roll for that constituency. Therefore, a person to be entitled to be registered in the electoral roll for the constituency should ordinarily be a resident in that constituency and should not be less than 21 years of age on the qualifying date. Article 173 of the Constitution prescribing the qualification for membership of a State Legislature lays down that a person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule, and, is, in the case of a seat in the Legislative Assembly, not less than 25 years of age and, in the case of a seat in the Legislative Council, not less than 30 years of age, and possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. Therefore, a person to be entitled to be chosen to fill a seat in the Legislative Assembly of a State should be not less than 25 years of age. In the present case Ram Kumar Jha is noted in the electoral roll, Ex. 4 prepared in 1980 as being 37 years old while he has declared in the nomination paper No. 42 marked as Ex.2-c that he had completed 33 years of age. As stated earlier the nomination paper had been rejected by the Returning officer, RW-7 on the ground that there is difference in the age of the candidate between what has been mentioned in the electoral roll and the nomination paper and it is not based on any other ground. It is nobodys case that the Returning Officer found any difficulty regarding the identity of the candidate, Ram Kumar Jha on account of this difference in the age mentioned in an electoral roll and the nomination paper. The point for consideration therefore is whether the rejection of this nomination paper by the Returning officer on the ground of difference in the age in the electoral roll and the nomination paper is improper. S. 33(4) of the Act lays down that on the presentation of a nomination paper, t he Returning officer shall satisfy himself that the names and electoral roll numbers of the candidate, and his proposer as entered in the nomination paper are the same as entered in the electoral rolls. The proviso to that sub- section reads thus:"Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case whether the description in regard to the name of the person or place is such as to be commonly understood; an d the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked."4. We are of the opinion that the difference in the age of the candidate, Ram Kumar Jha as entered in the electoral roll and the nomination paper would fall under the category of `inaccurate description mentioned in the above proviso and that it was obligatory on the part of the Returning Officer to have it corrected or to overlook it having regard to the language of the proviso.5. S. 36(4) of the Act lays down that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. As stated earlier, a person to be entitled to be registered in the electoral roll for a constituency should be 21 years of age on the qualifying date and a person to be chosen to fill a seat in the Legislature of a State should not be less than 25 years of age. Ram Kumar Jha had declared in the nomination paper No. 42 that he had completed 33 years of age. Therefore, the substantial requirement as regards the question of age of the candidate, Ram Kumar Jha was that at the time of scrutiny of nomination paper he should have completed 25 years of age and should have been registered in the electoral roll for that constituency and not whether there was a difference of 4 years in the age of the candidate as mentioned in the electoral roll and the nomination paper. The difference in our opinion is not an error of substantial character. As the rejection of the nomination paper No. 42 was not on the ground that there was any difficulty as regards identity on account of the difference in the age mentioned in the electoral roll and the nomination paper we are clearly of the opinion that the rejection of the nomination paper on the ground of difference in the age was improper, for having regard to provisions of s. 36(4) of the Act the defect is not of substantial character and we hold that the appellants election is consequently void under s. 100 (1)(c) of the Act on the ground of improper rejection of the nomination paper. I
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We are of the opinion that the difference in the age of the candidate, Ram Kumar Jha as entered in the electoral roll and the nomination paper would fall under the category of `inaccurate description mentioned in the above proviso and that it was obligatory on the part of the Returning Officer to have it corrected or to overlook it having regard to the language of the proviso.36(4) of the Act lays down that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. As stated earlier, a person to be entitled to be registered in the electoral roll for a constituency should be 21 years of age on the qualifying date and a person to be chosen to fill a seat in the Legislature of a State should not be less than 25 years of age. Ram Kumar Jha had declared in the nomination paper No. 42 that he had completed 33 years of age. Therefore, the substantial requirement as regards the question of age of the candidate, Ram Kumar Jha was that at the time of scrutiny of nomination paper he should have completed 25 years of age and should have been registered in the electoral roll for that constituency and not whether there was a difference of 4 years in the age of the candidate as mentioned in the electoral roll and the nomination paper. The difference in our opinion is not an error of substantial character. As the rejection of the nomination paper No. 42 was not on the ground that there was any difficulty as regards identity on account of the difference in the age mentioned in the electoral roll and the nomination paper we are clearly of the opinion that the rejection of the nomination paper on the ground of difference in the age was improper, for having regard to provisions of s. 36(4) of the Act the defect is not of substantial character and we hold that the appellants election is consequently void under s. 100 (1)(c) of the Act on the ground of improper rejection of the nomination paper.
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M/s. Hyderabad Vanaspathi Limited Vs. Andhra Pradesh State Electricity Board and Others | of the view that the provisions of Section 26 would apply only when the dispute related to the correctness of the meter. That ruling also supports the contention of the Board in this case. VII. Article 14, Constitution of India. 41. What remains to be considered is whether Clause 3 is violative of Article 14 of the Constitution of India. Under this head, the argument of learned counsel for consumers is that the provisions in the clause are wholly unreasonable and against the principles of Natural Justice. According to them, the clause enables the officers to disconnect the service on a suspicion of malpractice and the consumer has to pay 50% of the provisional assessment amount before getting it restored. It is also contended that the officials of the Board are enabled to judge its own cause and the doctrine of bias will apply. In support of these contentions, our attention is drawn to:1. J. Mohapatra and Co. and Another versus State of Orissa and Anot her. 2. State of Karnataka versus Shree Rameshwara Rice Mills, Thirthahalli. 3. Krishna Bus Service Pvt. Ltd. versus State of Haryana and Others. 4. Rattan Lal Sharma versus Managing Committee, Dr. Hari Ram (CO-education) Higher Secondary School and Others. 5. LIC of India and Another versus Consumer Education &Research Centre and Others. None of the ruling will apply in this case. We have already referred to the judgment of this court in M.P. Electricity Board, Jabalpur and others versus Harshwood Products Case wherein it was held that when power theft was found by the officials, immediate disconnection of the supply was not violative of Article 14 of the Constitution and principles of Natural Justice would not apply. 42. In Petal Parshottamdas Vanmalidas, versus Gujarat Electricity Board and another, 1987 AIR(Gujarat) 188, a Division Bench of Gujarat High Court considered similar conditions and upheld their validity. The Bench said: "Thus, it is clear that the Board has formulated such a condition in order to safeguard its interest. Such a condition is there for the purpose of checking, apart from other things, the theft of electricity. It is not a case of any defective meter, but it is a case of theft of electricity by the consumer concerned. As a matter of fact, in this case it is alleged that the petitioner, by inserting a plastic strip, was able to stop the running of the meter and thereby, committed theft of electricity. The condition clearly states as to the procedure that has to be adopted for the purpose of questioning the departmental action in levying penal charges. It has also been made clear in the condition as tot he limit to which the Department can go for the purpose of assessing the theft of electricity. In no case the Department can go beyond a period of six months, according to this condition. In Condition No. 34, we are able to see that manner of assessment also has been specified. It all these steps are taken by the Department, the condition itself states that the consumer has a remedy by filing an appeal to the appropriate authority within a specified time. Thus, a conjoint reading of this Condition and the purpose for which it is intended, clearly makes out that such a condition is not arbitrary or unreasonable, but within the powers of the Board and, in our opinion, it does not offend any of the Articles of the Constitution. The argument as if the imposition of penal assessment before filing an appeal is harsh and makes the appeal illusory cannot be appreciated. The penal assessment, as we have stated already, is restricted to a limited period. Such an assessment was made after the Department itself was satisfied with regard to the theft or electricity committed by the consumer concerned. Hence, it cannot be said that the appeal provided under Condition No. 34 is an illusory one".We agree with the above opinion. 43. The principle `Nemo Judex in Cause Sua will not apply in this case as the officers have no personal its with the consumers. A s pointed out by learned senior counsel for the Board, they are similar to Income Tax or Sales Tax Officials. There is nothing wrong in their adjudicating the matter especially when the consumers many be represented by an advocate and the formula for making provisional assessment is fixed in the clause itself. As argument has been advanced that the Board has recently deleted the provision enabling the consumer to be represented by a power of attorney agent. it is contended that the consumer is thereby deprived of the assistance of an expect which may be required in technical matters. We do not agree. When the consumer is represented by a lawyer, he can certainly get such assistance as may be needed from a technical expert. It is stated by the Boards learned counsel that the provision was deleted as there was frequent misuse of the same. Whatever may be the reason for deleting the provision, the existing part of the clause enables the consumer to be represented by an advocate. That is sufficient safeguard for the consumer.44. Learned counsel for the consumer contends that the agreement with the Board is in the standard form and signing of the same by the consumer will not prevent him from questioning it. He places reliance on certain observations in Pawan Alloys &Casting Pvt. Ltd., Meerut versus U.P. State Electricity Board and Others. The question in that case arose on the withdrawal of development rebate to the new industries for a period of three years. The court held that the principle of promissory estoppel applied on the facts and circumstances of the case and by entering into the standard agreement containing provision for revision of "rate schedule" from time to time, the consumer had not given up his claim for the rebate for a period of three years as per the promise held out by the Board. That case has no bearing here.VIII. CONCLUSION | 0[ds]23. Learned counsel for the consumers has referred to Shri Vidya Ram Misra Versus Managing Committee, Shri Jai Narain College. In that case Statute 151 framed under the Lucknow University Act, 1920 provided that the terms and conditions of service of a teacher must be incorporated in the contract to be entered into between the teacher concerned and t he college. Hence the court held that the terms and conditions mentioned in Statute 151 had proprio vigore no force of law. That decision has no relevance here.24. The ruling in Executive Committee of Vaish Degree College. Shamli and others Versus Lakshmi Narain and others cited by learned counsel has no applicability as the court found on the facts that the Executive Committee was not a statutory body.25. We are unable to uphold the view expressed by the Full Bench in the judgment under appeal that the terms and conditions of supply are purely contractual. In our opinion the Terms and Conditions of Supply are statutory in character.It is contended that Clause 39 of the Terms and Conditions of Supply falls outside the power confer red on the Board in Sec. 49 of the Supply Act. According to learned counsel the power of the Board to impose such terms and conditions as it thinks fit, is expressly made subject to the other provisions of the Act which means that the Board can impose only such conditions as may be found in an agreement between other ordinary licensees and consumers. The contention is that the Board can neither define `malpractices nor prescribe an adjudicatory machinery for assessing and le vying penal damages. Such matters are, according to counsel, essential legislative functions. Which cannot be delegated to the Board.27. We are unable to accept the contention. Section 49 empowers the Board to supply electricity on `such terms and conditions as it thinks fit. It may also frame uniform tariffs. We have found that the terms and conditions of supply are statutory in character. They can be invalidated only if they are in conflict with any provision of the Act or the Constitution. Learned counsel have not shown to us any provision in the Supply Act with which Clause 39 is in conflict. In so far as the Supply Act is concerned, argument hovers around Section 49 only. The only limitation in that Section is that the terms and conditions of supply should b e subject to the provisions of the Act. Clause 39 does not violate any provision in the Supply Act. It is the statutory duty of the Board to arrange for the supply of electricity throughout the State and for transmission and distribution of the same in the most efficient and economical manner. For that purpose it has necessarily got to prevent unauthorised user, pilferage or malpractices by the consumers. Hence the necessary safeguards have to be provided as part of the conditions of supply so that the consumers will be bound by them. While on the one hand, the Board has to recoup the loss suffered by such pilferage or other malpractices., it has also on the other got to stop immediately the continuation thereof. Hence the terms and conditions of supply have to provide for compensation as well as immediate disconnection. For ascertaining the loss and fixing the compensation, uniform procedure has to be framed and a machinery constituted. Clause 39 is only doing that. Every consumer is made fully aware of the said terms and he signs the contract only on that basis. He gives an undertaking in that contract that if he is found indulging in any malpractice etc. he shall pay additional charges as may be levied by the Board and that t he Board have the right to disconnect supply of electricity to his premises for such period as may be decided by the Board.It is vehemently argued that provisions in Clause 39 run counter to the relevant pro visions of the Electricity Act. In particular, it is said that Clause 39.1 covers the same field as that of ss.21 (4) and 26 (6)(b) and Clause VI(3) of the Schedule in the said Act. According to learned counsel malpractice and pilferage defined in CI.39 would be covered by the aforesaid provisions of that Act and the authority to decide the same is the Electrical Inspector appointed by the Government and not he officers of the Board. It is also argued that Clause 39.2 and 39.3 are contrary to Sec.20 of the Act and Clause 39.4 is contrary to Sec. 36 of the Act read with Rules 4 to 6 of the Indian Electricity Rules. According to learned counsel, the entire clause 39 is violative of the provisions of Clause VI(I) in the Schedule to the Electricity Act as the latter enjoins on the Board to continue the supply of electricity `save in so far as prevented by cyclone, floods, storms and other occurrences beyond its control. In short, the contention of the learned counsel for the consumers is that the procedure prescribed in the Electricity Act and the Rules would apply to all situations arising between he Board and the consumer and the same should be followed. According to him Clause 39 is invalid and unenforceable in as much as it deviated from the provisions of the Electricity Act and the Rules.35. We are unable to accept any of the aforesaid contentions. We have carefully perused the provisions of the Electricity Act and we find that those provisions pro vide for a different situation. Clause 39 will come into play whenever there is malpractice or pilferage on the part of the consumer or a fraud played by the consumer. The Electrical Inspector has no jurisdiction to deal with those matters. He can be approached only w hen there is a defective meter or any defect in wries, fittings, works or apparatus. As regards, CI. (VI) of the Schedule to the Electricity Act, it is not applicable unless distribution mains have bee n laid down under the provisions of Clause (IV) or Clause (V) and the supply of energy through those mains of any of them has commenced. The provisions of Section 26 of the Supply Act exclude the applicability of Clauses (1) to (V) of the schedule tot he Board. Hence CI. (VI) of the schedule cannot by itself apply and that is why the second proviso to Section 26 clarifies the position that the provisions of Clause (VI) of the Schedule shall apply to the Board in respect of that area on ly where distribution mains have been laid by the Board and the supply of energy through any of them has commenced. The records before us do not disclose any pleading on the part of the consumers that the requirement of the second proviso to Section 26 have been satisfied. No question has been raised in that regard before the trial court. No doubt, the Full Bench of the High Court has placed reliance on Clause (VI) of the Schedule and the grounds raised in the Special Leave Petition filed by th e Board do not refer to the same. But in the absence of a specific pleading to t hat effect it cannot be presumed that Clause (VI) of the Schedule would apply. Even assuming that clause applied, it will not alter the situation. The difference or dispute referred to in sub-cl.(3) of CI.(VI) will not cover fraudulent malpractice or pilferage. A perusal of the said sub/clause makes it evident that the matter shall be referred to an Electrical Inspector only in cases of defects mentioned therein and not otherwise. We have no hesitation to reject the contention of learned counsel for the consumers and hold t hat he provisions in clause 39 do not contravene the provisions of the Electricity Act.The principle `Nemo Judex in Cause Sua will not apply in this case as the officers have no personal its with the consumers. A s pointed out by learned senior counsel for the Board, they are similar to Income Tax or Sales Tax Officials. There is nothing wrong in their adjudicating the matter especially when the consumers many be represented by an advocate and the formula for making provisional assessment is fixed in the clause itself. As argument has been advanced that the Board has recently deleted the provision enabling the consumer to be represented by a power of attorney agent. it is contended that the consumer is thereby deprived of the assistance of an expect which may be required in technical matters. We do not agree. When the consumer is represented by a lawyer, he can certainly get such assistance as may be needed from a technical expert. It is stated by the Boards learned counsel that the provision was deleted as there was frequent misuse of the same. Whatever may be the reason for deleting the provision, the existing part of the clause enables the consumer to be represented by an advocate. That is sufficient safeguard for the consumer.44. Learned counsel for the consumer contends that the agreement with the Board is in the standard form and signing of the same by the consumer will not prevent him from questioning it. He places reliance on certain observations in Pawan Alloys &Casting Pvt. Ltd., Meerut versus U.P. State Electricity Board and Others. The question in that case arose on the withdrawal of development rebate to the new industries for a period of three years. The court held that the principle of promissory estoppel applied on the facts and circumstances of the case and by entering into the standard agreement containing provision for revision of "rate schedule" from time to time, the consumer had not given up his claim for the rebate for a period of three years as per the promise held out by the Board. That case has no bearing here. | 0 | 9,631 | 1,795 | ### Instruction:
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of the view that the provisions of Section 26 would apply only when the dispute related to the correctness of the meter. That ruling also supports the contention of the Board in this case. VII. Article 14, Constitution of India. 41. What remains to be considered is whether Clause 3 is violative of Article 14 of the Constitution of India. Under this head, the argument of learned counsel for consumers is that the provisions in the clause are wholly unreasonable and against the principles of Natural Justice. According to them, the clause enables the officers to disconnect the service on a suspicion of malpractice and the consumer has to pay 50% of the provisional assessment amount before getting it restored. It is also contended that the officials of the Board are enabled to judge its own cause and the doctrine of bias will apply. In support of these contentions, our attention is drawn to:1. J. Mohapatra and Co. and Another versus State of Orissa and Anot her. 2. State of Karnataka versus Shree Rameshwara Rice Mills, Thirthahalli. 3. Krishna Bus Service Pvt. Ltd. versus State of Haryana and Others. 4. Rattan Lal Sharma versus Managing Committee, Dr. Hari Ram (CO-education) Higher Secondary School and Others. 5. LIC of India and Another versus Consumer Education &Research Centre and Others. None of the ruling will apply in this case. We have already referred to the judgment of this court in M.P. Electricity Board, Jabalpur and others versus Harshwood Products Case wherein it was held that when power theft was found by the officials, immediate disconnection of the supply was not violative of Article 14 of the Constitution and principles of Natural Justice would not apply. 42. In Petal Parshottamdas Vanmalidas, versus Gujarat Electricity Board and another, 1987 AIR(Gujarat) 188, a Division Bench of Gujarat High Court considered similar conditions and upheld their validity. The Bench said: "Thus, it is clear that the Board has formulated such a condition in order to safeguard its interest. Such a condition is there for the purpose of checking, apart from other things, the theft of electricity. It is not a case of any defective meter, but it is a case of theft of electricity by the consumer concerned. As a matter of fact, in this case it is alleged that the petitioner, by inserting a plastic strip, was able to stop the running of the meter and thereby, committed theft of electricity. The condition clearly states as to the procedure that has to be adopted for the purpose of questioning the departmental action in levying penal charges. It has also been made clear in the condition as tot he limit to which the Department can go for the purpose of assessing the theft of electricity. In no case the Department can go beyond a period of six months, according to this condition. In Condition No. 34, we are able to see that manner of assessment also has been specified. It all these steps are taken by the Department, the condition itself states that the consumer has a remedy by filing an appeal to the appropriate authority within a specified time. Thus, a conjoint reading of this Condition and the purpose for which it is intended, clearly makes out that such a condition is not arbitrary or unreasonable, but within the powers of the Board and, in our opinion, it does not offend any of the Articles of the Constitution. The argument as if the imposition of penal assessment before filing an appeal is harsh and makes the appeal illusory cannot be appreciated. The penal assessment, as we have stated already, is restricted to a limited period. Such an assessment was made after the Department itself was satisfied with regard to the theft or electricity committed by the consumer concerned. Hence, it cannot be said that the appeal provided under Condition No. 34 is an illusory one".We agree with the above opinion. 43. The principle `Nemo Judex in Cause Sua will not apply in this case as the officers have no personal its with the consumers. A s pointed out by learned senior counsel for the Board, they are similar to Income Tax or Sales Tax Officials. There is nothing wrong in their adjudicating the matter especially when the consumers many be represented by an advocate and the formula for making provisional assessment is fixed in the clause itself. As argument has been advanced that the Board has recently deleted the provision enabling the consumer to be represented by a power of attorney agent. it is contended that the consumer is thereby deprived of the assistance of an expect which may be required in technical matters. We do not agree. When the consumer is represented by a lawyer, he can certainly get such assistance as may be needed from a technical expert. It is stated by the Boards learned counsel that the provision was deleted as there was frequent misuse of the same. Whatever may be the reason for deleting the provision, the existing part of the clause enables the consumer to be represented by an advocate. That is sufficient safeguard for the consumer.44. Learned counsel for the consumer contends that the agreement with the Board is in the standard form and signing of the same by the consumer will not prevent him from questioning it. He places reliance on certain observations in Pawan Alloys &Casting Pvt. Ltd., Meerut versus U.P. State Electricity Board and Others. The question in that case arose on the withdrawal of development rebate to the new industries for a period of three years. The court held that the principle of promissory estoppel applied on the facts and circumstances of the case and by entering into the standard agreement containing provision for revision of "rate schedule" from time to time, the consumer had not given up his claim for the rebate for a period of three years as per the promise held out by the Board. That case has no bearing here.VIII. CONCLUSION
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argued that provisions in Clause 39 run counter to the relevant pro visions of the Electricity Act. In particular, it is said that Clause 39.1 covers the same field as that of ss.21 (4) and 26 (6)(b) and Clause VI(3) of the Schedule in the said Act. According to learned counsel malpractice and pilferage defined in CI.39 would be covered by the aforesaid provisions of that Act and the authority to decide the same is the Electrical Inspector appointed by the Government and not he officers of the Board. It is also argued that Clause 39.2 and 39.3 are contrary to Sec.20 of the Act and Clause 39.4 is contrary to Sec. 36 of the Act read with Rules 4 to 6 of the Indian Electricity Rules. According to learned counsel, the entire clause 39 is violative of the provisions of Clause VI(I) in the Schedule to the Electricity Act as the latter enjoins on the Board to continue the supply of electricity `save in so far as prevented by cyclone, floods, storms and other occurrences beyond its control. In short, the contention of the learned counsel for the consumers is that the procedure prescribed in the Electricity Act and the Rules would apply to all situations arising between he Board and the consumer and the same should be followed. According to him Clause 39 is invalid and unenforceable in as much as it deviated from the provisions of the Electricity Act and the Rules.35. We are unable to accept any of the aforesaid contentions. We have carefully perused the provisions of the Electricity Act and we find that those provisions pro vide for a different situation. Clause 39 will come into play whenever there is malpractice or pilferage on the part of the consumer or a fraud played by the consumer. The Electrical Inspector has no jurisdiction to deal with those matters. He can be approached only w hen there is a defective meter or any defect in wries, fittings, works or apparatus. As regards, CI. (VI) of the Schedule to the Electricity Act, it is not applicable unless distribution mains have bee n laid down under the provisions of Clause (IV) or Clause (V) and the supply of energy through those mains of any of them has commenced. The provisions of Section 26 of the Supply Act exclude the applicability of Clauses (1) to (V) of the schedule tot he Board. Hence CI. (VI) of the schedule cannot by itself apply and that is why the second proviso to Section 26 clarifies the position that the provisions of Clause (VI) of the Schedule shall apply to the Board in respect of that area on ly where distribution mains have been laid by the Board and the supply of energy through any of them has commenced. The records before us do not disclose any pleading on the part of the consumers that the requirement of the second proviso to Section 26 have been satisfied. No question has been raised in that regard before the trial court. No doubt, the Full Bench of the High Court has placed reliance on Clause (VI) of the Schedule and the grounds raised in the Special Leave Petition filed by th e Board do not refer to the same. But in the absence of a specific pleading to t hat effect it cannot be presumed that Clause (VI) of the Schedule would apply. Even assuming that clause applied, it will not alter the situation. The difference or dispute referred to in sub-cl.(3) of CI.(VI) will not cover fraudulent malpractice or pilferage. A perusal of the said sub/clause makes it evident that the matter shall be referred to an Electrical Inspector only in cases of defects mentioned therein and not otherwise. We have no hesitation to reject the contention of learned counsel for the consumers and hold t hat he provisions in clause 39 do not contravene the provisions of the Electricity Act.The principle `Nemo Judex in Cause Sua will not apply in this case as the officers have no personal its with the consumers. A s pointed out by learned senior counsel for the Board, they are similar to Income Tax or Sales Tax Officials. There is nothing wrong in their adjudicating the matter especially when the consumers many be represented by an advocate and the formula for making provisional assessment is fixed in the clause itself. As argument has been advanced that the Board has recently deleted the provision enabling the consumer to be represented by a power of attorney agent. it is contended that the consumer is thereby deprived of the assistance of an expect which may be required in technical matters. We do not agree. When the consumer is represented by a lawyer, he can certainly get such assistance as may be needed from a technical expert. It is stated by the Boards learned counsel that the provision was deleted as there was frequent misuse of the same. Whatever may be the reason for deleting the provision, the existing part of the clause enables the consumer to be represented by an advocate. That is sufficient safeguard for the consumer.44. Learned counsel for the consumer contends that the agreement with the Board is in the standard form and signing of the same by the consumer will not prevent him from questioning it. He places reliance on certain observations in Pawan Alloys &Casting Pvt. Ltd., Meerut versus U.P. State Electricity Board and Others. The question in that case arose on the withdrawal of development rebate to the new industries for a period of three years. The court held that the principle of promissory estoppel applied on the facts and circumstances of the case and by entering into the standard agreement containing provision for revision of "rate schedule" from time to time, the consumer had not given up his claim for the rebate for a period of three years as per the promise held out by the Board. That case has no bearing here.
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State Of Gujarat & Anr Vs. Patel Chaturbhai Narsibhai & Ors | at any time after the publication of the notification under Section 4 of the Act. Therefore, the enquiry under Section 5-A may not be held.16. There is another reason why the enquiry under Rule 4 should be in the presence of the owners of the land. Reference may be made to the Rules for the guidance of officers in dealing with objections under Section 5-A of the Act. These rules are made in exercise of the powers conferred by Section 55 of the Act. Under these Rules it is stated that the objections are of the following nature :(i) the notified purpose is not genuinely or properly a public purpose; (ii) the land notified is not suitable for the purpose for which it is notified; (iii) the land is not so well suited as other land; (iv) the area proposed is excessive; (v) the objectors land has been selected maliciously or vexatiously; (vi) the acquisition will destroy or impair the amenity of historical or artistic monuments and places of public resort; will take away important public right of way or other conveniences or will desecrate religious buildings, graveyard and the like. The nature of objections under these rules shows that the matters which are to be enquired into under Rule 4, and in particular, that the Company made all efforts to get such land by negotiation with the persons interested therein on payment of price and such efforts failed is not one of the objections which can be preferred in an enquiry under Section 5-A.It is true that in the present case there was an enquiry under Section 5-A of the Act but the enquiry was also before the agreement between the State and the Company under Section 41 of the Act and without any enquiry under Section 40 of the Act to enable the Government to give its consent.17. The respondent put in the forefront the contention that the agreement between the Company and the State under Section 41 of the Act in the present ease dated 13 January, 1969 and published on 18th January, 1969 was subsequent to, the notification under Section 4 of the Act, dated 28 September, 1965 and therefore the said notification was in violation of the provisions contained in Section 39 of the Act and therefore invalid.18. The Land Acquisition (Gujarat Unification and Amendment) Act, 1963 which amended Section 39 of the Central Act enacted that the provisions of Sections 4 to 37 inclusive of the Act shall not be put in force in order to acquire land for any Company, unless there is previous consent of the State Government or the Company shall have executed the agreement. On behalf of the State it was said that the agreement in the year 1961 would suffice. This is only to be stated to be rejected because the notification under Section 4 of the Act was cancelled by the State on 28 September, 1965. Thereafter fresh proceedings started. Further, the agreement in the year 1961 did not survive because a fresh agreement was made on 13 January, 1969, which was published on 18 January, 1969.19. The provisions Sections 38 to 41 of the Act indicate that the provisions of Sections 4 to 37 of the Act cannot be applied to acquire land for any company unless the State Government gives previous consent thereto and the Company executes an agreement with the State as mentioned in Section 41 of the Act. Second, Section 40 of the Act indicates that the State Government cannot give consent unless there is au enquiry as provided in that section. It is noticeable that any enquiry under Section 5-A of the Act is not an enquiry with in the meaning of Section 40 of the Act. The reason is that the Gujarat Amendment Act 1963 being Gujarat Act No. 20 of 1965 deleted the words "either on the report of the Collector under Section,5-A sub-section (2) or" from Section 40 of the principal Act. Similarly, in Section 41 of the Act as a result of the Gujarat Amendment Act the words "either on the report of the Collector under Section 5-A sub-section (2) or" were deleted. The effect of the deletion of those words by the Gujarat Amendment Act is that the enquiry under Section 5-A is not an enquiry with in the meaning of Section 40 of the Act.20. In the present case, the enquiry under Rule 4 of the Land Acquisition (Companies) Rules was held before the notifications under Sections 4 and of the Act were issued in the year 1965 The enquiry pursuant to the notifications in the year 1961 and previous to the fresh notifications in 1965 is of no effect in law for two principal reasons. First, the 1961 notification was cancelled, and, therefore, all steps taken thereunder became ineffective. Second, the enquiry under Rule 4 in l96l was held without giving opportunity to the landowner respondent and, therefore, the enquiry is invalid in law.21. The affidavit evidence on behalf of the Government was that an enquiry was held under Section 40 of the Act in the month of July, 1965 and there was a report on 25 August, 1985. The enquiry under Section 40 of the Act is equally of no avail for similar reasons why the enquiry under Rule 4 in 1961 is of no effect in law.22. For these reasons, we hold that the acquisition proceedings are vitiated. There was no compliance with the provisions of Section 39 of the Act. There was no prior agreement between the State and the Company before provisions contained in Sections 4 to 37 were put into force. The enquiry under Section 5-A of the Act in the present case does not satisfy the provisions contained in Rule 4 of the Companies Acquisition Rules. The owners of the land are entitled to opportunity of being heard in an enquiry under Rule 4 and enquiry under Section 40 of the Act. No such opportunity was given to the owners. | 0[ds]15. The contention of the State that the enquiry under Rule 4 is administrative and that the owner of the land is not entitled to be given an opportunity to be heard at the enquiry cannot be accepted for these reasons. The enquiry under Rule 4 shows that the Collector is to submit a report among other matters that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed. The persons interested therein are the owners of the land which is proposed to be acquired. The Company at such an enquiry has to show that the company made negotiations with the owners of the land. The owners of the land are, therefore, entitled to be heard at such an enquiry for the purpose of proving or disproving the reasonable efforts of the company to get such land by negotiation. The contention on behalf of the State that the owners of the land will get an opportunity when an enquiry is made under Section 5-A of the Act is equally unsound. Section 17 of the Act provides that the appropriate Government may direct that the provisions of Section 5-A shall not apply, and if it does so direct a declaration may be made under Section 4 at any time after the publication of the notification under Section 4 of the Act. Therefore, the enquiry under Section 5-A may not be held.16. There is another reason why the enquiry under Rule 4 should be in the presence of the owners of the land. Reference may be made to the Rules for the guidance of officers in dealing with objections under Section 5-A of the Act. These rules are made in exercise of the powers conferred by Section 55 of the Act. Under these Rules it is stated that the objections are of the following nature :(i) the notified purpose is not genuinely or properly a public purpose; (ii) the land notified is not suitable for the purpose for which it is notified; (iii) the land is not so well suited as other land; (iv) the area proposed is excessive; (v) the objectors land has been selected maliciously or vexatiously; (vi) the acquisition will destroy or impair the amenity of historical or artistic monuments and places of public resort; will take away important public right of way or other conveniences or will desecrate religious buildings, graveyard and the like. The nature of objections under these rules shows that the matters which are to be enquired into under Rule 4, and in particular, that the Company made all efforts to get such land by negotiation with the persons interested therein on payment of price and such efforts failed is not one of the objections which can be preferred in an enquiry under Section 5-A.It is true that in the present case there was an enquiry under Section 5-A of the Act but the enquiry was also before the agreement between the State and the Company under Section 41 of the Act and without any enquiry under Section 40 of the Act to enable the Government to give its consent.17. The respondent put in the forefront the contention that the agreement between the Company and the State under Section 41 of the Act in the present ease dated 13 January, 1969 and published on 18th January, 1969 was subsequent to, the notification under Section 4 of the Act, dated 28 September, 1965 and therefore the said notification was in violation of the provisions contained in Section 39 of the Act and therefore invalid.In the present case, the enquiry under Rule 4 of the Land Acquisition (Companies) Rules was held before the notifications under Sections 4 and of the Act were issued in the year 1965 The enquiry pursuant to the notifications in the year 1961 and previous to the fresh notifications in 1965 is of no effect in law for two principal reasons. First, the 1961 notification was cancelled, and, therefore, all steps taken thereunder became ineffective. Second, the enquiry under Rule 4 in l96l was held without giving opportunity to the landowner respondent and, therefore, the enquiry is invalid in law.21. The affidavit evidence on behalf of the Government was that an enquiry was held under Section 40 of the Act in the month of July, 1965 and there was a report on 25 August, 1985. The enquiry under Section 40 of the Act is equally of no avail for similar reasons why the enquiry under Rule 4 in 1961 is of no effect in law.22. For these reasons, we hold that the acquisition proceedings are vitiated. There was no compliance with the provisions of Section 39 of the Act. There was no prior agreement between the State and the Company before provisions contained in Sections 4 to 37 were put into force. The enquiry under Section 5-A of the Act in the present case does not satisfy the provisions contained in Rule 4 of the Companies Acquisition Rules. The owners of the land are entitled to opportunity of being heard in an enquiry under Rule 4 and enquiry under Section 40 of the Act. No such opportunity was given to the owners. | 0 | 2,722 | 951 | ### 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:
at any time after the publication of the notification under Section 4 of the Act. Therefore, the enquiry under Section 5-A may not be held.16. There is another reason why the enquiry under Rule 4 should be in the presence of the owners of the land. Reference may be made to the Rules for the guidance of officers in dealing with objections under Section 5-A of the Act. These rules are made in exercise of the powers conferred by Section 55 of the Act. Under these Rules it is stated that the objections are of the following nature :(i) the notified purpose is not genuinely or properly a public purpose; (ii) the land notified is not suitable for the purpose for which it is notified; (iii) the land is not so well suited as other land; (iv) the area proposed is excessive; (v) the objectors land has been selected maliciously or vexatiously; (vi) the acquisition will destroy or impair the amenity of historical or artistic monuments and places of public resort; will take away important public right of way or other conveniences or will desecrate religious buildings, graveyard and the like. The nature of objections under these rules shows that the matters which are to be enquired into under Rule 4, and in particular, that the Company made all efforts to get such land by negotiation with the persons interested therein on payment of price and such efforts failed is not one of the objections which can be preferred in an enquiry under Section 5-A.It is true that in the present case there was an enquiry under Section 5-A of the Act but the enquiry was also before the agreement between the State and the Company under Section 41 of the Act and without any enquiry under Section 40 of the Act to enable the Government to give its consent.17. The respondent put in the forefront the contention that the agreement between the Company and the State under Section 41 of the Act in the present ease dated 13 January, 1969 and published on 18th January, 1969 was subsequent to, the notification under Section 4 of the Act, dated 28 September, 1965 and therefore the said notification was in violation of the provisions contained in Section 39 of the Act and therefore invalid.18. The Land Acquisition (Gujarat Unification and Amendment) Act, 1963 which amended Section 39 of the Central Act enacted that the provisions of Sections 4 to 37 inclusive of the Act shall not be put in force in order to acquire land for any Company, unless there is previous consent of the State Government or the Company shall have executed the agreement. On behalf of the State it was said that the agreement in the year 1961 would suffice. This is only to be stated to be rejected because the notification under Section 4 of the Act was cancelled by the State on 28 September, 1965. Thereafter fresh proceedings started. Further, the agreement in the year 1961 did not survive because a fresh agreement was made on 13 January, 1969, which was published on 18 January, 1969.19. The provisions Sections 38 to 41 of the Act indicate that the provisions of Sections 4 to 37 of the Act cannot be applied to acquire land for any company unless the State Government gives previous consent thereto and the Company executes an agreement with the State as mentioned in Section 41 of the Act. Second, Section 40 of the Act indicates that the State Government cannot give consent unless there is au enquiry as provided in that section. It is noticeable that any enquiry under Section 5-A of the Act is not an enquiry with in the meaning of Section 40 of the Act. The reason is that the Gujarat Amendment Act 1963 being Gujarat Act No. 20 of 1965 deleted the words "either on the report of the Collector under Section,5-A sub-section (2) or" from Section 40 of the principal Act. Similarly, in Section 41 of the Act as a result of the Gujarat Amendment Act the words "either on the report of the Collector under Section 5-A sub-section (2) or" were deleted. The effect of the deletion of those words by the Gujarat Amendment Act is that the enquiry under Section 5-A is not an enquiry with in the meaning of Section 40 of the Act.20. In the present case, the enquiry under Rule 4 of the Land Acquisition (Companies) Rules was held before the notifications under Sections 4 and of the Act were issued in the year 1965 The enquiry pursuant to the notifications in the year 1961 and previous to the fresh notifications in 1965 is of no effect in law for two principal reasons. First, the 1961 notification was cancelled, and, therefore, all steps taken thereunder became ineffective. Second, the enquiry under Rule 4 in l96l was held without giving opportunity to the landowner respondent and, therefore, the enquiry is invalid in law.21. The affidavit evidence on behalf of the Government was that an enquiry was held under Section 40 of the Act in the month of July, 1965 and there was a report on 25 August, 1985. The enquiry under Section 40 of the Act is equally of no avail for similar reasons why the enquiry under Rule 4 in 1961 is of no effect in law.22. For these reasons, we hold that the acquisition proceedings are vitiated. There was no compliance with the provisions of Section 39 of the Act. There was no prior agreement between the State and the Company before provisions contained in Sections 4 to 37 were put into force. The enquiry under Section 5-A of the Act in the present case does not satisfy the provisions contained in Rule 4 of the Companies Acquisition Rules. The owners of the land are entitled to opportunity of being heard in an enquiry under Rule 4 and enquiry under Section 40 of the Act. No such opportunity was given to the owners.
### Response:
0
### Explanation:
15. The contention of the State that the enquiry under Rule 4 is administrative and that the owner of the land is not entitled to be given an opportunity to be heard at the enquiry cannot be accepted for these reasons. The enquiry under Rule 4 shows that the Collector is to submit a report among other matters that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed. The persons interested therein are the owners of the land which is proposed to be acquired. The Company at such an enquiry has to show that the company made negotiations with the owners of the land. The owners of the land are, therefore, entitled to be heard at such an enquiry for the purpose of proving or disproving the reasonable efforts of the company to get such land by negotiation. The contention on behalf of the State that the owners of the land will get an opportunity when an enquiry is made under Section 5-A of the Act is equally unsound. Section 17 of the Act provides that the appropriate Government may direct that the provisions of Section 5-A shall not apply, and if it does so direct a declaration may be made under Section 4 at any time after the publication of the notification under Section 4 of the Act. Therefore, the enquiry under Section 5-A may not be held.16. There is another reason why the enquiry under Rule 4 should be in the presence of the owners of the land. Reference may be made to the Rules for the guidance of officers in dealing with objections under Section 5-A of the Act. These rules are made in exercise of the powers conferred by Section 55 of the Act. Under these Rules it is stated that the objections are of the following nature :(i) the notified purpose is not genuinely or properly a public purpose; (ii) the land notified is not suitable for the purpose for which it is notified; (iii) the land is not so well suited as other land; (iv) the area proposed is excessive; (v) the objectors land has been selected maliciously or vexatiously; (vi) the acquisition will destroy or impair the amenity of historical or artistic monuments and places of public resort; will take away important public right of way or other conveniences or will desecrate religious buildings, graveyard and the like. The nature of objections under these rules shows that the matters which are to be enquired into under Rule 4, and in particular, that the Company made all efforts to get such land by negotiation with the persons interested therein on payment of price and such efforts failed is not one of the objections which can be preferred in an enquiry under Section 5-A.It is true that in the present case there was an enquiry under Section 5-A of the Act but the enquiry was also before the agreement between the State and the Company under Section 41 of the Act and without any enquiry under Section 40 of the Act to enable the Government to give its consent.17. The respondent put in the forefront the contention that the agreement between the Company and the State under Section 41 of the Act in the present ease dated 13 January, 1969 and published on 18th January, 1969 was subsequent to, the notification under Section 4 of the Act, dated 28 September, 1965 and therefore the said notification was in violation of the provisions contained in Section 39 of the Act and therefore invalid.In the present case, the enquiry under Rule 4 of the Land Acquisition (Companies) Rules was held before the notifications under Sections 4 and of the Act were issued in the year 1965 The enquiry pursuant to the notifications in the year 1961 and previous to the fresh notifications in 1965 is of no effect in law for two principal reasons. First, the 1961 notification was cancelled, and, therefore, all steps taken thereunder became ineffective. Second, the enquiry under Rule 4 in l96l was held without giving opportunity to the landowner respondent and, therefore, the enquiry is invalid in law.21. The affidavit evidence on behalf of the Government was that an enquiry was held under Section 40 of the Act in the month of July, 1965 and there was a report on 25 August, 1985. The enquiry under Section 40 of the Act is equally of no avail for similar reasons why the enquiry under Rule 4 in 1961 is of no effect in law.22. For these reasons, we hold that the acquisition proceedings are vitiated. There was no compliance with the provisions of Section 39 of the Act. There was no prior agreement between the State and the Company before provisions contained in Sections 4 to 37 were put into force. The enquiry under Section 5-A of the Act in the present case does not satisfy the provisions contained in Rule 4 of the Companies Acquisition Rules. The owners of the land are entitled to opportunity of being heard in an enquiry under Rule 4 and enquiry under Section 40 of the Act. No such opportunity was given to the owners.
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Gulabbai Vs. Nalin Narsi Vohra And Ors | is perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding or there is any misdirection in law or a view of fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material evidence or it has resulted in manifest injustice. Except to that limited extent the High Court has no jurisdiction." * 22. In Pasupuleti Venkateswarlu v. Motor & General Traders ( 1975 (1) SCC 770 : 1975 (3) SCR 958 ) it has been observed by this Court that : (SCR headnote : SCC pp. 772-73, para 4) "For making the right or remedy, claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into Section 10(3)(iii) itself. The High Court was right in taking into consideration the facts which came into being subsequent to the commencement of the proceedings." * 23. Similar observation has been made in Hasmat Rai v. Raghunath Prasad ( 1981 (3) SCC 103 : 1981 (3) SCR 605 ) : (SCC p. 119, para 29) "It is immaterial that the amendment was sought more than three years after possession of the portion had passed to the respondent. The High Court was bound to take the fact into consideration because, as is well settled now, in a proceeding for the ejectment of a tenant on the ground of personal requirement under a statute controlling the eviction of tenants, unless the statute prescribes to the contrary the requirement must continue to exist on the date when the proceeding is finally disposed of, either in appeal or revision, by the relevant authority. That position, to my mind, is indisputable. The High Court should have allowed the amendment." * 24. In Amarjit Singh v. Smt. Khatoon Quamarain ( 1986 (4) SCC 736 : 1987 (1) SCR 275 ) it has been observed by this Court that : (SCR headnote : SCC p. 743, paras 12, 13) "Administration of justice demands that any changes either in fact or in law must be taken cognizance of by the court but that must be done in a cautious manner of relevant facts. Therefore, subsequent events can be taken cognizance of if they are relevant and material." * 25. On a conspectus of all these decisions rendered by this Court, it is now beyond the pale of any doubt that in appropriate cases events subsequent to the filing of the suit can be taken notice of and can be duly considered provided the same is relevant in determining the question of bona fide requirement. Therefore, the High Court was right in duly considering the new facts and circumstances that have been brought to the notice of the court by the application for additional evidence filed under Order XLI Rule 27 of the Code of Civil Procedure and in coming to a firm finding that the plaintiff-appellant having constructed a spacious bungalow where she with the members of her family had been residing, there is no reasonable and bona fide requirement for the plaintiff to get a decree of ejectment of the defendants from the suit premises inasmuch as the first floor of the suit premises as well as the second floor could be conveniently used for opening the office of Tax Consultancy of plaintiffs husband who previously worked with one Mr. Gandhi in a partnership firm which partnership had been dissolved after Mr. Gandhis son came to practice with his father 26. It is also relevant to consider in this connection the observations of this Court in Bega Begum v. Abdul Ahad Khan ( 1979 (1) SCC 273 : 1979 (2) SCR 1 ) as regards the meaning of the words reasonable requirement and own occupation as used in Section 11(h) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. It has been held that the words reasonable requirement undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire 27. In the instant appeal it has been rightly held by the High Court after considering the subsequent facts and materials brought out by the application for additional evidence that the plaintiff failed to prove reasonable and bona fide need for her occupation of the suit premises for the purpose of opening the Tax Consultancy office of her husband, Amritlal Mutha. Considering the facts and circumstances as well as the subsequent materials brought out by the application for additional evidence, we have no hesitation in our mind to hold that the aforesaid findings arrived at by the High Court is totally unexceptionable and so the same cannot be interfered with in this appeal. It will not be out of place to mention in this connection that Amritlal Mutha, husband of the appellant has stated in the additional affidavit filed in this Court that Dr. Abhey A. Mutha, son of the appellant had purchased a flat on ownership basis in Co-partnership Society, named Amrita Kunj Cooperative Housing Society Ltd. situated at 324/5 Shivaji Nagar, Pune 410 005. This, if taken notice of, will affirm the finding of the High Court that the appellant failed to prove her bona fide and reasonable need for the suit premises for opening the Tax Consultancy office for her husband | 0[ds]15. On this point, both the trial court as well the lower appellate court have concurrently found that the suit premises being part of Survey No. 3576 which was previously owned by one Imarat Company Private Limited from whom the plaintiffs husband Amritlal Mutha purchased for a sum of Rs. 34, 000 was properly described in the plaint and the respondents-defendants have been occupying an area admittedly 20 ft. x 15 ft. being Shop Nos. 81 to 83 on the eastern side of the said premises. This finding of the courts below has neither been challenged before the High Court nor before this Court in the instantIn the instant appeal it has been rightly held by the High Court after considering the subsequent facts and materials brought out by the application for additional evidence that the plaintiff failed to prove reasonable and bona fide need for her occupation of the suit premises for the purpose of opening the Tax Consultancy office of her husband, Amritlal Mutha. Considering the facts and circumstances as well as the subsequent materials brought out by the application for additional evidence, we have no hesitation in our mind to hold that the aforesaid findings arrived at by the High Court is totally unexceptionable and so the same cannot be interfered with in this appeal. It will not be out of place to mention in this connection that Amritlal Mutha, husband of the appellant has stated in the additional affidavit filed in this Court that Dr. Abhey A. Mutha, son of the appellant had purchased a flat on ownership basis in Co-partnership Society, named Amrita Kunj Cooperative Housing Society Ltd. situated at 324/5 Shivaji Nagar, Pune 410 005. This, if taken notice of, will affirm the finding of the High Court that the appellant failed to prove her bona fide and reasonable need for the suit premises for opening the Tax Consultancy office for her husband | 0 | 7,133 | 342 | ### 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:
is perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding or there is any misdirection in law or a view of fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material evidence or it has resulted in manifest injustice. Except to that limited extent the High Court has no jurisdiction." * 22. In Pasupuleti Venkateswarlu v. Motor & General Traders ( 1975 (1) SCC 770 : 1975 (3) SCR 958 ) it has been observed by this Court that : (SCR headnote : SCC pp. 772-73, para 4) "For making the right or remedy, claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into Section 10(3)(iii) itself. The High Court was right in taking into consideration the facts which came into being subsequent to the commencement of the proceedings." * 23. Similar observation has been made in Hasmat Rai v. Raghunath Prasad ( 1981 (3) SCC 103 : 1981 (3) SCR 605 ) : (SCC p. 119, para 29) "It is immaterial that the amendment was sought more than three years after possession of the portion had passed to the respondent. The High Court was bound to take the fact into consideration because, as is well settled now, in a proceeding for the ejectment of a tenant on the ground of personal requirement under a statute controlling the eviction of tenants, unless the statute prescribes to the contrary the requirement must continue to exist on the date when the proceeding is finally disposed of, either in appeal or revision, by the relevant authority. That position, to my mind, is indisputable. The High Court should have allowed the amendment." * 24. In Amarjit Singh v. Smt. Khatoon Quamarain ( 1986 (4) SCC 736 : 1987 (1) SCR 275 ) it has been observed by this Court that : (SCR headnote : SCC p. 743, paras 12, 13) "Administration of justice demands that any changes either in fact or in law must be taken cognizance of by the court but that must be done in a cautious manner of relevant facts. Therefore, subsequent events can be taken cognizance of if they are relevant and material." * 25. On a conspectus of all these decisions rendered by this Court, it is now beyond the pale of any doubt that in appropriate cases events subsequent to the filing of the suit can be taken notice of and can be duly considered provided the same is relevant in determining the question of bona fide requirement. Therefore, the High Court was right in duly considering the new facts and circumstances that have been brought to the notice of the court by the application for additional evidence filed under Order XLI Rule 27 of the Code of Civil Procedure and in coming to a firm finding that the plaintiff-appellant having constructed a spacious bungalow where she with the members of her family had been residing, there is no reasonable and bona fide requirement for the plaintiff to get a decree of ejectment of the defendants from the suit premises inasmuch as the first floor of the suit premises as well as the second floor could be conveniently used for opening the office of Tax Consultancy of plaintiffs husband who previously worked with one Mr. Gandhi in a partnership firm which partnership had been dissolved after Mr. Gandhis son came to practice with his father 26. It is also relevant to consider in this connection the observations of this Court in Bega Begum v. Abdul Ahad Khan ( 1979 (1) SCC 273 : 1979 (2) SCR 1 ) as regards the meaning of the words reasonable requirement and own occupation as used in Section 11(h) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. It has been held that the words reasonable requirement undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire 27. In the instant appeal it has been rightly held by the High Court after considering the subsequent facts and materials brought out by the application for additional evidence that the plaintiff failed to prove reasonable and bona fide need for her occupation of the suit premises for the purpose of opening the Tax Consultancy office of her husband, Amritlal Mutha. Considering the facts and circumstances as well as the subsequent materials brought out by the application for additional evidence, we have no hesitation in our mind to hold that the aforesaid findings arrived at by the High Court is totally unexceptionable and so the same cannot be interfered with in this appeal. It will not be out of place to mention in this connection that Amritlal Mutha, husband of the appellant has stated in the additional affidavit filed in this Court that Dr. Abhey A. Mutha, son of the appellant had purchased a flat on ownership basis in Co-partnership Society, named Amrita Kunj Cooperative Housing Society Ltd. situated at 324/5 Shivaji Nagar, Pune 410 005. This, if taken notice of, will affirm the finding of the High Court that the appellant failed to prove her bona fide and reasonable need for the suit premises for opening the Tax Consultancy office for her husband
### Response:
0
### Explanation:
15. On this point, both the trial court as well the lower appellate court have concurrently found that the suit premises being part of Survey No. 3576 which was previously owned by one Imarat Company Private Limited from whom the plaintiffs husband Amritlal Mutha purchased for a sum of Rs. 34, 000 was properly described in the plaint and the respondents-defendants have been occupying an area admittedly 20 ft. x 15 ft. being Shop Nos. 81 to 83 on the eastern side of the said premises. This finding of the courts below has neither been challenged before the High Court nor before this Court in the instantIn the instant appeal it has been rightly held by the High Court after considering the subsequent facts and materials brought out by the application for additional evidence that the plaintiff failed to prove reasonable and bona fide need for her occupation of the suit premises for the purpose of opening the Tax Consultancy office of her husband, Amritlal Mutha. Considering the facts and circumstances as well as the subsequent materials brought out by the application for additional evidence, we have no hesitation in our mind to hold that the aforesaid findings arrived at by the High Court is totally unexceptionable and so the same cannot be interfered with in this appeal. It will not be out of place to mention in this connection that Amritlal Mutha, husband of the appellant has stated in the additional affidavit filed in this Court that Dr. Abhey A. Mutha, son of the appellant had purchased a flat on ownership basis in Co-partnership Society, named Amrita Kunj Cooperative Housing Society Ltd. situated at 324/5 Shivaji Nagar, Pune 410 005. This, if taken notice of, will affirm the finding of the High Court that the appellant failed to prove her bona fide and reasonable need for the suit premises for opening the Tax Consultancy office for her husband
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Asa Ram And Another Vs. Mst. Ram Kali And Another | shall be entitled to all the rights of hereditary tenants under the Act. Some classes of tenants are excepted from the operation of this provision, and one of them is tenants of Sir lands S. 30 (6) enacts that,"Notwithstanding anything in section 29, hereditary rights shall not accrue in -land transferred by a mortgage to which the provisions of the second paragraph of sub-section (5) of S. 15 of the Agra Tenancy Act, 1926 apply during the period specified in that paragraph."The provision in the Agra Tenancy Act, 1926, referred to above, runs as follows:"Notwithstanding anything in this section, where the property transferred by means of a mortgage of the kind specified in sub-section (5) of S. 14 consists wholly of a specified area or sir, the mortgagor may by simultaneous agreement in writing waive his exproprietary rights, and in that case the mortgaged land shall, if the mortgagor regains within twelve years of the date of the transfer possession thereof on redemption of the mortgage, resume the character of Sir. In such land, statutory rights shall not accrue for twelve years from the date of transfer."One other provision to which reference was made is the second proviso to S. 11 of the U. P. Tenancy Act, 1939, which is as follows:"Provided further that if on redemption of a mortgage the mortgagor regains possession of land which under the provisions of the Agra Tenancy Act, 1926, ceased to be Sir and to which the provisions of the second paragraph of sub-section (5) of section 15 of that Act applied, such land shall again become his Sir."12. Now, the argument of the respondents is that though the suit lands were originally held in Sir, they ceased to be such when the mortgage was executed on July 8, 1930, that S. 29 (a) of the Act therefore applied, that S. 30 (6) and S. 11 of the Act and S. 15 of the Agra Tenancy Act, 1926, had no application, as the mortgage comprised also lands which were not Sir, and as further, possession had not been regained within twelve years of the mortgage. It is accordingly contended that the respondents who were in possession as tenants on January 1, 1940, when the Act came into force, had acquired the status of hereditary tenants under S. 29 (a) of the Act, and the decision in Jai Singh v. Munshi Singh, 1955 All LJ 834 (B) is relied on, in support of this contention.13. The error in this argument lies in the assumption that Govind Sahai and Bhagwan Sahai became by virtue of the Kabuliat dated May 26, 1936, tenants for purposes of S. 29 (a) of the Act.The true scope of sub-s. (a) of S. 29 is that it posits that there is on the date of the commencement of the Act a person who is lawfully a tenant and proceeds to confer on him certain rights. It is therefore a condition precedent to the application of this provision that the person must have been admitted as tenant by a person who had the right to do so. Where, however, the person who purports to grant the lease has no authority to do so, whatever the rights inter se between the lessor and the lessee, as against the true owner the latter does not, in law, acquired the status of a tenant, and S. 29 (a) has no application to him.Thus, if A is the owner of certain lands and B trespasses on them and grants a lease to C, sub-s. (a) of S. 29 does not operate to confer any rights on C as against A. The crucial question for determination, therefore, is whether the person who claims rights as a hereditary tenant under S. 29 (a) was admitted as tenant by a person who had the right to do so.An owner will of course be entitled to admit a tenant, and a mortgagee in possession would have a right to do so, either if he is authorised in that behalf by the deed of mortgage, or if the transaction is one, which is protected by S. 76 (a) of the Transfer of Property Act. But where the transaction is not one which could be upheld under S. 76 (a), then there is no admission of tenant by any person having authority to do so, and such a transaction though valid as between the mortgagee and the lessee, cannot form the foundation on which any rights under S. 29, sub-s. (a) of the Act could be based.14. In Mahabir Gope v. Harbans Narain Singh (A) (supra), it was held that when a usufructuary mortgagee created a lease in spite of the prohibition against letting, contained in the mortgage deed, the tenant acquired no occupancy rights under the provisions of the Bihar Tenancy Act, even though he had been in possession for over 30 years, and that the same consequences would follow if the lease was not binding on the mortgagor under S. 76 (a) of the Transfer of Property Act, or if it was not bona fide. On the same principle, and on our finding that the Kabuliat dated May 26, 1936, is not binding on the appellants, we must hold that Govind Sahai and Bhagwan Sahai acquired no rights as hereditary tenants under S. 29 (a) of the U. P. Tenancy Act. In Jai Singh v. Munshi Singh (B) (supra), relied on for the respondents, it was held that "the agricultural lease granted by the mortgagee in favour of Jai Singh was a lease granted in the ordinary course of management", and that, accordingly, the tenant acquired the rights of a hereditary tenant. That decision has no application when the lease is, as held by us, not a prudent transaction binding on the mortgagors. In this view, the questions raised by Mr. Sinha on the construction of S. 30 (6) and S. 11 of the Act and S. 15 of the Agra Tenancy Act, 1926, do no arise for decision. | 1[ds]But the mortgagees have given evidence that they accepted the Kabuliat and received rent as provided therein. There is, therefore, no substance in this objection, which must beowner will of course be entitled to admit a tenant, and a mortgagee in possession would have a right to do so, either if he is authorised in that behalf by the deed of mortgage, or if the transaction is one, which is protected by S. 76 (a) of the Transfer of Property Act. But where the transaction is not one which could be upheld under S. 76 (a), then there is no admission of tenant by any person having authority to do so, and such a transaction though valid as between the mortgagee and the lessee, cannot form the foundation on which any rights under S. 29, sub-s. (a) of the Act could be based.14. In Mahabir Gope v. Harbans Narain Singh (A) (supra), it was held that when a usufructuary mortgagee created a lease in spite of the prohibition against letting, contained in the mortgage deed, the tenant acquired no occupancy rights under the provisions of the Bihar Tenancy Act, even though he had been in possession for over 30 years, and that the same consequences would follow if the lease was not binding on the mortgagor under S. 76 (a) of the Transfer of Property Act, or if it was not bona fide. On the same principle, and on our finding that the Kabuliat dated May 26, 1936, is not binding on the appellants, we must hold that Govind Sahai and Bhagwan Sahai acquired no rights as hereditary tenants under S. 29 (a) of the U. P. Tenancy Act. In Jai Singh v. Munshi Singh (B) (supra), relied on for the respondents, it was held that "the agricultural lease granted by the mortgagee in favour of Jai Singh was a lease granted in the ordinary course of management", and that, accordingly, the tenant acquired the rights of a hereditary tenant. That decision has no application when the lease is, as held by us, not a prudent transaction binding on the mortgagors. In this view, the questions raised by Mr. Sinha on the construction of S. 30 (6) and S. 11 of the Act and S. 15 of the Agra Tenancy Act, 1926, do no arise for decision. | 1 | 3,634 | 453 | ### 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:
shall be entitled to all the rights of hereditary tenants under the Act. Some classes of tenants are excepted from the operation of this provision, and one of them is tenants of Sir lands S. 30 (6) enacts that,"Notwithstanding anything in section 29, hereditary rights shall not accrue in -land transferred by a mortgage to which the provisions of the second paragraph of sub-section (5) of S. 15 of the Agra Tenancy Act, 1926 apply during the period specified in that paragraph."The provision in the Agra Tenancy Act, 1926, referred to above, runs as follows:"Notwithstanding anything in this section, where the property transferred by means of a mortgage of the kind specified in sub-section (5) of S. 14 consists wholly of a specified area or sir, the mortgagor may by simultaneous agreement in writing waive his exproprietary rights, and in that case the mortgaged land shall, if the mortgagor regains within twelve years of the date of the transfer possession thereof on redemption of the mortgage, resume the character of Sir. In such land, statutory rights shall not accrue for twelve years from the date of transfer."One other provision to which reference was made is the second proviso to S. 11 of the U. P. Tenancy Act, 1939, which is as follows:"Provided further that if on redemption of a mortgage the mortgagor regains possession of land which under the provisions of the Agra Tenancy Act, 1926, ceased to be Sir and to which the provisions of the second paragraph of sub-section (5) of section 15 of that Act applied, such land shall again become his Sir."12. Now, the argument of the respondents is that though the suit lands were originally held in Sir, they ceased to be such when the mortgage was executed on July 8, 1930, that S. 29 (a) of the Act therefore applied, that S. 30 (6) and S. 11 of the Act and S. 15 of the Agra Tenancy Act, 1926, had no application, as the mortgage comprised also lands which were not Sir, and as further, possession had not been regained within twelve years of the mortgage. It is accordingly contended that the respondents who were in possession as tenants on January 1, 1940, when the Act came into force, had acquired the status of hereditary tenants under S. 29 (a) of the Act, and the decision in Jai Singh v. Munshi Singh, 1955 All LJ 834 (B) is relied on, in support of this contention.13. The error in this argument lies in the assumption that Govind Sahai and Bhagwan Sahai became by virtue of the Kabuliat dated May 26, 1936, tenants for purposes of S. 29 (a) of the Act.The true scope of sub-s. (a) of S. 29 is that it posits that there is on the date of the commencement of the Act a person who is lawfully a tenant and proceeds to confer on him certain rights. It is therefore a condition precedent to the application of this provision that the person must have been admitted as tenant by a person who had the right to do so. Where, however, the person who purports to grant the lease has no authority to do so, whatever the rights inter se between the lessor and the lessee, as against the true owner the latter does not, in law, acquired the status of a tenant, and S. 29 (a) has no application to him.Thus, if A is the owner of certain lands and B trespasses on them and grants a lease to C, sub-s. (a) of S. 29 does not operate to confer any rights on C as against A. The crucial question for determination, therefore, is whether the person who claims rights as a hereditary tenant under S. 29 (a) was admitted as tenant by a person who had the right to do so.An owner will of course be entitled to admit a tenant, and a mortgagee in possession would have a right to do so, either if he is authorised in that behalf by the deed of mortgage, or if the transaction is one, which is protected by S. 76 (a) of the Transfer of Property Act. But where the transaction is not one which could be upheld under S. 76 (a), then there is no admission of tenant by any person having authority to do so, and such a transaction though valid as between the mortgagee and the lessee, cannot form the foundation on which any rights under S. 29, sub-s. (a) of the Act could be based.14. In Mahabir Gope v. Harbans Narain Singh (A) (supra), it was held that when a usufructuary mortgagee created a lease in spite of the prohibition against letting, contained in the mortgage deed, the tenant acquired no occupancy rights under the provisions of the Bihar Tenancy Act, even though he had been in possession for over 30 years, and that the same consequences would follow if the lease was not binding on the mortgagor under S. 76 (a) of the Transfer of Property Act, or if it was not bona fide. On the same principle, and on our finding that the Kabuliat dated May 26, 1936, is not binding on the appellants, we must hold that Govind Sahai and Bhagwan Sahai acquired no rights as hereditary tenants under S. 29 (a) of the U. P. Tenancy Act. In Jai Singh v. Munshi Singh (B) (supra), relied on for the respondents, it was held that "the agricultural lease granted by the mortgagee in favour of Jai Singh was a lease granted in the ordinary course of management", and that, accordingly, the tenant acquired the rights of a hereditary tenant. That decision has no application when the lease is, as held by us, not a prudent transaction binding on the mortgagors. In this view, the questions raised by Mr. Sinha on the construction of S. 30 (6) and S. 11 of the Act and S. 15 of the Agra Tenancy Act, 1926, do no arise for decision.
### Response:
1
### Explanation:
But the mortgagees have given evidence that they accepted the Kabuliat and received rent as provided therein. There is, therefore, no substance in this objection, which must beowner will of course be entitled to admit a tenant, and a mortgagee in possession would have a right to do so, either if he is authorised in that behalf by the deed of mortgage, or if the transaction is one, which is protected by S. 76 (a) of the Transfer of Property Act. But where the transaction is not one which could be upheld under S. 76 (a), then there is no admission of tenant by any person having authority to do so, and such a transaction though valid as between the mortgagee and the lessee, cannot form the foundation on which any rights under S. 29, sub-s. (a) of the Act could be based.14. In Mahabir Gope v. Harbans Narain Singh (A) (supra), it was held that when a usufructuary mortgagee created a lease in spite of the prohibition against letting, contained in the mortgage deed, the tenant acquired no occupancy rights under the provisions of the Bihar Tenancy Act, even though he had been in possession for over 30 years, and that the same consequences would follow if the lease was not binding on the mortgagor under S. 76 (a) of the Transfer of Property Act, or if it was not bona fide. On the same principle, and on our finding that the Kabuliat dated May 26, 1936, is not binding on the appellants, we must hold that Govind Sahai and Bhagwan Sahai acquired no rights as hereditary tenants under S. 29 (a) of the U. P. Tenancy Act. In Jai Singh v. Munshi Singh (B) (supra), relied on for the respondents, it was held that "the agricultural lease granted by the mortgagee in favour of Jai Singh was a lease granted in the ordinary course of management", and that, accordingly, the tenant acquired the rights of a hereditary tenant. That decision has no application when the lease is, as held by us, not a prudent transaction binding on the mortgagors. In this view, the questions raised by Mr. Sinha on the construction of S. 30 (6) and S. 11 of the Act and S. 15 of the Agra Tenancy Act, 1926, do no arise for decision.
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State Of Maharashtra Vs. National Constrn.Co Bombay | and Rule 2 of Order 2 are based on the rule of law that a man shall not be twice vexed for one and the same cause. In the case of Mohd. Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC 78 , the Privy Council laid down the tests for determining whether Order 2 Rule 2 of the Code would apply in a particular situation. The first of these is, "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which the foundation for the former suit". If the answer is in the affirmative, the rule will not apply. This decision has been subsequently affirmed by two decisions of this Court in Kewal Singh v. Lajwanti, 1980(1) SCC 290 and in Inacio Martinss case (1993 AIR SCW 2163) (supra).10. It is well settled that the cause of action for a suit comprises of all those facts which the plaintiff must aver, and if traversed, prove to support his right to the judgment. 11. It is the contention of the appellants that the two suits are in respect of two separate causes of action. The first suit was filed to enforce the bank guarantee, while the second suit was filed to claim damages for breach of the contract relating to the work.12. In the plaint of the Short Cause Suit, the foundation of the appellants claim rested upon the performance guarantee No.57/22. The basis of the appellants claim was that under the terms of the bank guarantee, the Bank was liable to make good to the appellants all losses that became due by reason of any default on the part of the contractor in the proper performance of the terms of the contract. The appellants annexed particulars and laid out facts to show that the contractor had, by allegedly abandoning the work, failed to observe the terms of the contract. The appellants further alleged that these actions of the contractor had caused them to incur losses of Rs.76,37,557.76. However, in view of the limitation prescribed in the bank guarantee, the appellants had limited their claim to Rs.14,12,836/-. 13. At this juncture it seems necessary to analyse the law relating to bank guarantee. The rule is well established that a bank issuing a guarantee is not concerned with the underlying contract between the parties to the contract. The duty of the bank under a performance guarantee is created by the document itself. Once the documents are in order, the bank giving the guarantee must honour the same and make payment. Ordinarily, unless there is an allegation of fraud or the like the Courts will not interfere, directly or indirectly, to withhold payment, otherwise trust in commerce, internal and international, would be irreparably damaged. But that does not mean that the parties to the underlying contract cannot settle their disputes with respect to allegations of breach by resorting to litigation or arbitration as stipulated in the contract. The remedy arising excontract is not barred and the cause of action for the same is independent of enforcement of the guarantee. See UCO Bank v. Bank of India, 1981(3) SCR 300; Centax (India) Ltd. v. Vinmar Impex Inc., 1986(4) SCC 136 and U.P. Co-operative Federation Ltd. v. Singh Consultants & Engineering (P) Ltd., 1988(1) SCC 174. 14. The legal position, therefore, is that a bank guarantee is ordinarily a contract quite distinct and independent of the underlying contract, the performance of which it seeks to secure. To that extent it can be said to give rise to a cause of action separate from that the underlying contract. However, in the present case we are handicapped because the High Court (both the learned single Judge and Division Bench) had no occasion to analyse the nature of the bank guarantee. We, therefore, refrain from making any observation regarding the true nature of the bank guarantee except pointing out that the two causes of action may not be identical. That would be a matter for the trial Court to consider on a true analysis of the bank guarantee at the appropriate stage.15. In the plaint of the Spl. Suit, the main relief sought by the appellants was on the basis of the contract entered into between the appellants and the contractor. The appellants alleged and laid out facts and particulars to the effect that the abandonment of work by the contractor was in breach of the contract and this had caused the appellants to suffer losses worth Rs.1,13,27,298.16. This amount was inclusive of the claim of Rs.14,12,836/- based on the performance guarantee No.57/22 for which the contractor and the Bank were jointly and severally liable. 16. The relief sought in the Short Cause Suit was therefore based on a different cause of action from that upon which the primary relief in the Spl. Suit was founded. 17. In Sidramppa v. Rajashetty, 1970(1) SCC 186, this Court held that where the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit, and in the earlier suit, the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiffs subsequent suit is not barred on Order 2, Rule 2. Applying this ruling to the facts of the present case, it is clear that, in the first suit, the appellants could not claim reliefs in respect of Rs.14,12,836/- which was the maximum amount stipulated in the performance guarantee. They could not have claimed reliefs of Rs.1,13,27,298.16 which they did in the second suit on the basis of the contract relating to the work to be performed by the contractor. 18. It is, therefore, clear that when the appellants, by way of Short Cause Suit No. 491/72, sought to enforce the performance guarantee No.57/22, they were seeking reliefs on the basis of a cause of action which was distinct from the one upon which they subsequently based their claim in Spl. Civil Suit No. 29/83. | 1[ds]7. In its impugned order, the High Court of Bombay has taken note of the fact that the Short Cause Suit was dismissed on the technical ground of non-joinder of a necessary party i.e. the contractor. It has, however, stressed the fact that in the appeal against the order of the lower Court, the appellants had made the contractor a party and yet the appeal was dismissed. The High Court has relied on this fact to come to the conclusion that the second suit was barred by res judicata. However, the High Court did not take note of the fact that in rejecting the appeal, the appellate Court had held that the suit was bad since there was no adjudication or legal determination of the plaintiffs dues and, for this reason, the suit was not maintainable against the 2nd Defendant only. the High Court, therefore, failed to take note of the fact that the appellate Court did not consider the merits of the case, but confirmed the dismissal of the suit by the lower Court on a technicalthe principle of res judicata and Rule 2 of Order 2 are based on the rule of law that a man shall not be twice vexed for one and the same cause.10. It is well settled that the cause of action for a suit comprises of all those facts which the plaintiff must aver, and if traversed, prove to support his right to the judgment.The legal position, therefore, is that a bank guarantee is ordinarily a contract quite distinct and independent of the underlying contract, the performance of which it seeks to secure. To that extent it can be said to give rise to a cause of action separate from that the underlying contract. However, in the present case we are handicapped because the High Court (both the learned single Judge and Division Bench) had no occasion to analyse the nature of the bank guarantee. We, therefore, refrain from making any observation regarding the true nature of the bank guarantee except pointing out that the two causes of action may not be identical. That would be a matter for the trial Court to consider on a true analysis of the bank guarantee at the appropriate stage.15. In the plaint of the Spl. Suit, the main relief sought by the appellants was on the basis of the contract entered into between the appellants and the contractor. The appellants alleged and laid out facts and particulars to the effect that the abandonment of work by the contractor was in breach of the contract and this had caused the appellants to suffer losses worth Rs.1,13,27,298.16. This amount was inclusive of the claim of Rs.14,12,836/- based on the performance guarantee No.57/22 for which the contractor and the Bank were jointly and severally liable.In Sidramppa v. Rajashetty, 1970(1) SCC 186, this Court held that where the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit, and in the earlier suit, the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiffs subsequent suit is not barred on Order 2, Rule 2. Applying this ruling to the facts of the present case, it is clear that, in the first suit, the appellants could not claim reliefs in respect of Rs.14,12,836/- which was the maximum amount stipulated in the performance guarantee. They could not have claimed reliefs of Rs.1,13,27,298.16 which they did in the second suit on the basis of the contract relating to the work to be performed by the contractor.It is, therefore, clear that when the appellants, by way of Short Cause Suit No. 491/72, sought to enforce the performance guarantee No.57/22, they were seeking reliefs on the basis of a cause of action which was distinct from the one upon which they subsequently based their claim in Spl. Civil Suit No. 29/83. | 1 | 2,715 | 719 | ### 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:
and Rule 2 of Order 2 are based on the rule of law that a man shall not be twice vexed for one and the same cause. In the case of Mohd. Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC 78 , the Privy Council laid down the tests for determining whether Order 2 Rule 2 of the Code would apply in a particular situation. The first of these is, "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which the foundation for the former suit". If the answer is in the affirmative, the rule will not apply. This decision has been subsequently affirmed by two decisions of this Court in Kewal Singh v. Lajwanti, 1980(1) SCC 290 and in Inacio Martinss case (1993 AIR SCW 2163) (supra).10. It is well settled that the cause of action for a suit comprises of all those facts which the plaintiff must aver, and if traversed, prove to support his right to the judgment. 11. It is the contention of the appellants that the two suits are in respect of two separate causes of action. The first suit was filed to enforce the bank guarantee, while the second suit was filed to claim damages for breach of the contract relating to the work.12. In the plaint of the Short Cause Suit, the foundation of the appellants claim rested upon the performance guarantee No.57/22. The basis of the appellants claim was that under the terms of the bank guarantee, the Bank was liable to make good to the appellants all losses that became due by reason of any default on the part of the contractor in the proper performance of the terms of the contract. The appellants annexed particulars and laid out facts to show that the contractor had, by allegedly abandoning the work, failed to observe the terms of the contract. The appellants further alleged that these actions of the contractor had caused them to incur losses of Rs.76,37,557.76. However, in view of the limitation prescribed in the bank guarantee, the appellants had limited their claim to Rs.14,12,836/-. 13. At this juncture it seems necessary to analyse the law relating to bank guarantee. The rule is well established that a bank issuing a guarantee is not concerned with the underlying contract between the parties to the contract. The duty of the bank under a performance guarantee is created by the document itself. Once the documents are in order, the bank giving the guarantee must honour the same and make payment. Ordinarily, unless there is an allegation of fraud or the like the Courts will not interfere, directly or indirectly, to withhold payment, otherwise trust in commerce, internal and international, would be irreparably damaged. But that does not mean that the parties to the underlying contract cannot settle their disputes with respect to allegations of breach by resorting to litigation or arbitration as stipulated in the contract. The remedy arising excontract is not barred and the cause of action for the same is independent of enforcement of the guarantee. See UCO Bank v. Bank of India, 1981(3) SCR 300; Centax (India) Ltd. v. Vinmar Impex Inc., 1986(4) SCC 136 and U.P. Co-operative Federation Ltd. v. Singh Consultants & Engineering (P) Ltd., 1988(1) SCC 174. 14. The legal position, therefore, is that a bank guarantee is ordinarily a contract quite distinct and independent of the underlying contract, the performance of which it seeks to secure. To that extent it can be said to give rise to a cause of action separate from that the underlying contract. However, in the present case we are handicapped because the High Court (both the learned single Judge and Division Bench) had no occasion to analyse the nature of the bank guarantee. We, therefore, refrain from making any observation regarding the true nature of the bank guarantee except pointing out that the two causes of action may not be identical. That would be a matter for the trial Court to consider on a true analysis of the bank guarantee at the appropriate stage.15. In the plaint of the Spl. Suit, the main relief sought by the appellants was on the basis of the contract entered into between the appellants and the contractor. The appellants alleged and laid out facts and particulars to the effect that the abandonment of work by the contractor was in breach of the contract and this had caused the appellants to suffer losses worth Rs.1,13,27,298.16. This amount was inclusive of the claim of Rs.14,12,836/- based on the performance guarantee No.57/22 for which the contractor and the Bank were jointly and severally liable. 16. The relief sought in the Short Cause Suit was therefore based on a different cause of action from that upon which the primary relief in the Spl. Suit was founded. 17. In Sidramppa v. Rajashetty, 1970(1) SCC 186, this Court held that where the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit, and in the earlier suit, the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiffs subsequent suit is not barred on Order 2, Rule 2. Applying this ruling to the facts of the present case, it is clear that, in the first suit, the appellants could not claim reliefs in respect of Rs.14,12,836/- which was the maximum amount stipulated in the performance guarantee. They could not have claimed reliefs of Rs.1,13,27,298.16 which they did in the second suit on the basis of the contract relating to the work to be performed by the contractor. 18. It is, therefore, clear that when the appellants, by way of Short Cause Suit No. 491/72, sought to enforce the performance guarantee No.57/22, they were seeking reliefs on the basis of a cause of action which was distinct from the one upon which they subsequently based their claim in Spl. Civil Suit No. 29/83.
### Response:
1
### Explanation:
7. In its impugned order, the High Court of Bombay has taken note of the fact that the Short Cause Suit was dismissed on the technical ground of non-joinder of a necessary party i.e. the contractor. It has, however, stressed the fact that in the appeal against the order of the lower Court, the appellants had made the contractor a party and yet the appeal was dismissed. The High Court has relied on this fact to come to the conclusion that the second suit was barred by res judicata. However, the High Court did not take note of the fact that in rejecting the appeal, the appellate Court had held that the suit was bad since there was no adjudication or legal determination of the plaintiffs dues and, for this reason, the suit was not maintainable against the 2nd Defendant only. the High Court, therefore, failed to take note of the fact that the appellate Court did not consider the merits of the case, but confirmed the dismissal of the suit by the lower Court on a technicalthe principle of res judicata and Rule 2 of Order 2 are based on the rule of law that a man shall not be twice vexed for one and the same cause.10. It is well settled that the cause of action for a suit comprises of all those facts which the plaintiff must aver, and if traversed, prove to support his right to the judgment.The legal position, therefore, is that a bank guarantee is ordinarily a contract quite distinct and independent of the underlying contract, the performance of which it seeks to secure. To that extent it can be said to give rise to a cause of action separate from that the underlying contract. However, in the present case we are handicapped because the High Court (both the learned single Judge and Division Bench) had no occasion to analyse the nature of the bank guarantee. We, therefore, refrain from making any observation regarding the true nature of the bank guarantee except pointing out that the two causes of action may not be identical. That would be a matter for the trial Court to consider on a true analysis of the bank guarantee at the appropriate stage.15. In the plaint of the Spl. Suit, the main relief sought by the appellants was on the basis of the contract entered into between the appellants and the contractor. The appellants alleged and laid out facts and particulars to the effect that the abandonment of work by the contractor was in breach of the contract and this had caused the appellants to suffer losses worth Rs.1,13,27,298.16. This amount was inclusive of the claim of Rs.14,12,836/- based on the performance guarantee No.57/22 for which the contractor and the Bank were jointly and severally liable.In Sidramppa v. Rajashetty, 1970(1) SCC 186, this Court held that where the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit, and in the earlier suit, the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiffs subsequent suit is not barred on Order 2, Rule 2. Applying this ruling to the facts of the present case, it is clear that, in the first suit, the appellants could not claim reliefs in respect of Rs.14,12,836/- which was the maximum amount stipulated in the performance guarantee. They could not have claimed reliefs of Rs.1,13,27,298.16 which they did in the second suit on the basis of the contract relating to the work to be performed by the contractor.It is, therefore, clear that when the appellants, by way of Short Cause Suit No. 491/72, sought to enforce the performance guarantee No.57/22, they were seeking reliefs on the basis of a cause of action which was distinct from the one upon which they subsequently based their claim in Spl. Civil Suit No. 29/83.
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