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Assessing Authority, Patiala District Patiala Andors Vs. M/S. Patiala Biscuits Mfg. Co. Now As Dalmiabiscuit Pvt. Lt | gross turnover the amount in respect of a sale on the ground that he is entitled to make such deduction under the provisions of sub-clause (ii) of clause (a) of sub-section (2) of Section 5 of the Act, shall, on demand, produce in respect of such a sale the copy of the relevant cash memo or bill, according as the sale is a cash or a sale on credit, and declaration in writing in Form S.T. XXII by the purchasing dealer or by his agent, that the goods in question are intended for re-sale in the State of Punjab or such goods are specified in his certificate of registration for use by him in the manufacture in the State of Punjab of any goods for sale." 11. Rule 26 was also amended later. The amended Rule is, in substance, the same, excepting that it was clarified that the dealer claiming deduction has to produce the declaration of the purchasing dealer, in the prescribed form, at the time of assessment. 12. The main contention of Shri K. S. Suri, learned for the appellant is that the declaration form prescribed under the old Rule 26, as it stood at the material time, required the purchasing dealer to specify at the time of the sale, in the prescribed Form S.T. XXII, the number of the registration certificate. Stress has also been placed on the words "registered and possesses" used in sub-section (1) of Section 7, which according to Counsel, indicate that a dealer having a taxable turnover, cannot validity carry on his business, unless he is actually registered and is in physical possession of the registration certificate issued under Section 7. A compliance with the aforesaid mandatory requirement of Section 7 (1) and Rule 26, Form XXII - proceeds the argument-could be possible only if at the time of the sales in question, the purchasing dealer as well as the selling dealer, both, were in actual possession of the requisite registration certificates. Shri Suri has adopted the reasoning of the Sales-Tax Tribunal in M/s. Darshan Soap Mills, Batala Road, Amritsar vs. The State. 13. It is contended that Rule 5, as it stood at the material time, did not empower the registering Authority to grant the registration Certificate retrospectively, with effect from the date of the application. It is maintained that such a power was conferred on the Authority, only by the Punjab Government Notification No. GSR-237/PA 46/48/S-27/Amd. (5)/16 with prospective effect from October 10, 1966. 14. Taking the last point first we are of opinion that the amendment of Rule 5 by the Punjab Government Notification, dated October 10, 1966, did not confer any new or additional power on the registering Authority. The power to grant the registration Certificate with effect from the date of the application was already there. The amendment was only clarificatory of the law as it stood prior to it. It only made explicit which was formerly implicit. A definite indication is available in the language of sub-section (5) read with sub-sections (2) and (3) of Section 7, itself, that the registering Authority had the power to give effect to the registration from the date of making the application. 15. Be that as it may, the words "has been registered and possesses a registration certificate used in sub-section (1) of Section 7 have to be construed in accord with the general tenor of the Section as a whole, and in a manner which would avoid oppressive, unreasonable and anomalous results. As rightly pointed out in Chandra Industries vs. The Punjab State and Ors., it could never be the intention of the Legislature that a dealer liable to pay tax who has in compliance with the requirements of sub-sections (2) and (3) of Section 7, "done all which lay in his power to obtain the registration certificate, should pull down his shutters and keep his business closed under pain of being punished under Section 23(1) and await indefinitely the pleasure and leisure of the prescribed authority in issued the registration certificate. Adoption of such a constitution would be to make the applicant liable to punishment for the laches and delays of the authority and its office." 15. As regards the requirement enjoined by the Forms prescribed under Rule 26, to enter the number of the registration certificate in the declaration of the purchasing dealer at the time of sale, the same has to be viewed with reasonable flexibility and reconciled with Rule 5 as clarified by the Notification, dated October 10, 1966. Thus construed harmoniously with the related statutory provisions, the requirement of Rule 26 will be substantially, satisfied, if the number of the registration certificate, granted subsequently, but covering retrospectively the period of the sales in respect of which deduction is claimed is supplied by the claimant along with the declaration of the purchasing dealer at the time of assessment to the Assessing Authority. 17. It is thus clear as daylight that at the relevant time, also, the registering Authority was fully competent to issue the registration certificate to the dealer with retrospective effect from the date of filing the application. A perusal of the registration certificate would show that it was, in terms, made effective from January 1, 1966. This is manifest from the words "the dealer is liable to pay tax w.e.f. January 1, 1966" used by the Authority, prominently, in the heading of the Certificate. 18. It necessarily follows therefore, that during the period from January 1, 1966 to March 27, 1966, also the purchasing dealer was a registered dealer possessing a registration Certificate within the contemplation of Section 7(1) of the Act. This being the correct position, the assessees were entitled to the deduction under Section 5(2) (a) (ii) of the Act in respect of the sales made by them to the purchasing dealer during the whole of the quarter ending March 31, 1966. The High Court was therefore, right in determining the question posed, in favour of the assessees and against the Revenue. | 0[ds]14. Taking the last point first we are of opinion that the amendment of Rule 5 by the Punjab Government Notification, dated October 10, 1966, did not confer any new or additional power on the registering Authority. The power to grant the registration Certificate with effect from the date of the application was already there. The amendment was only clarificatory of the law as it stood prior to it. It only made explicit which was formerly implicit. A definite indication is available in the language of sub-section (5) read with sub-sections (2) and (3) of Section 7, itself, that the registering Authority had the power to give effect to the registration from the date of making the application15. As regards the requirement enjoined by the Forms prescribed under Rule 26, to enter the number of the registration certificate in the declaration of the purchasing dealer at the time of sale, the same has to be viewed with reasonable flexibility and reconciled with Rule 5 as clarified by the Notification, dated October 10, 1966. Thus construed harmoniously with the related statutory provisions, the requirement of Rule 26 will be substantially, satisfied, if the number of the registration certificate, granted subsequently, but covering retrospectively the period of the sales in respect of which deduction is claimed is supplied by the claimant along with the declaration of the purchasing dealer at the time of assessment to the Assessing Authority17. It is thus clear as daylight that at the relevant time, also, the registering Authority was fully competent to issue the registration certificate to the dealer with retrospective effect from the date of filing the application. A perusal of the registration certificate would show that it was, in terms, made effective from January 1, 1966. This is manifest from the words "the dealer is liable to pay tax w.e.f. January 1, 1966" used by the Authority, prominently, in the heading of the Certificate18. It necessarily follows therefore, that during the period from January 1, 1966 to March 27, 1966, also the purchasing dealer was a registered dealer possessing a registration Certificate within the contemplation of Section 7(1) of the Act. This being the correct position, the assessees were entitled to the deduction under Section 5(2) (a) (ii) of the Act in respect of the sales made by them to the purchasing dealer during the whole of the quarter ending March 31, 1966. The High Court was therefore, right in determining the question posed, in favour of the assessees and against the Revenue. | 0 | 2,548 | 485 | ### Instruction:
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gross turnover the amount in respect of a sale on the ground that he is entitled to make such deduction under the provisions of sub-clause (ii) of clause (a) of sub-section (2) of Section 5 of the Act, shall, on demand, produce in respect of such a sale the copy of the relevant cash memo or bill, according as the sale is a cash or a sale on credit, and declaration in writing in Form S.T. XXII by the purchasing dealer or by his agent, that the goods in question are intended for re-sale in the State of Punjab or such goods are specified in his certificate of registration for use by him in the manufacture in the State of Punjab of any goods for sale." 11. Rule 26 was also amended later. The amended Rule is, in substance, the same, excepting that it was clarified that the dealer claiming deduction has to produce the declaration of the purchasing dealer, in the prescribed form, at the time of assessment. 12. The main contention of Shri K. S. Suri, learned for the appellant is that the declaration form prescribed under the old Rule 26, as it stood at the material time, required the purchasing dealer to specify at the time of the sale, in the prescribed Form S.T. XXII, the number of the registration certificate. Stress has also been placed on the words "registered and possesses" used in sub-section (1) of Section 7, which according to Counsel, indicate that a dealer having a taxable turnover, cannot validity carry on his business, unless he is actually registered and is in physical possession of the registration certificate issued under Section 7. A compliance with the aforesaid mandatory requirement of Section 7 (1) and Rule 26, Form XXII - proceeds the argument-could be possible only if at the time of the sales in question, the purchasing dealer as well as the selling dealer, both, were in actual possession of the requisite registration certificates. Shri Suri has adopted the reasoning of the Sales-Tax Tribunal in M/s. Darshan Soap Mills, Batala Road, Amritsar vs. The State. 13. It is contended that Rule 5, as it stood at the material time, did not empower the registering Authority to grant the registration Certificate retrospectively, with effect from the date of the application. It is maintained that such a power was conferred on the Authority, only by the Punjab Government Notification No. GSR-237/PA 46/48/S-27/Amd. (5)/16 with prospective effect from October 10, 1966. 14. Taking the last point first we are of opinion that the amendment of Rule 5 by the Punjab Government Notification, dated October 10, 1966, did not confer any new or additional power on the registering Authority. The power to grant the registration Certificate with effect from the date of the application was already there. The amendment was only clarificatory of the law as it stood prior to it. It only made explicit which was formerly implicit. A definite indication is available in the language of sub-section (5) read with sub-sections (2) and (3) of Section 7, itself, that the registering Authority had the power to give effect to the registration from the date of making the application. 15. Be that as it may, the words "has been registered and possesses a registration certificate used in sub-section (1) of Section 7 have to be construed in accord with the general tenor of the Section as a whole, and in a manner which would avoid oppressive, unreasonable and anomalous results. As rightly pointed out in Chandra Industries vs. The Punjab State and Ors., it could never be the intention of the Legislature that a dealer liable to pay tax who has in compliance with the requirements of sub-sections (2) and (3) of Section 7, "done all which lay in his power to obtain the registration certificate, should pull down his shutters and keep his business closed under pain of being punished under Section 23(1) and await indefinitely the pleasure and leisure of the prescribed authority in issued the registration certificate. Adoption of such a constitution would be to make the applicant liable to punishment for the laches and delays of the authority and its office." 15. As regards the requirement enjoined by the Forms prescribed under Rule 26, to enter the number of the registration certificate in the declaration of the purchasing dealer at the time of sale, the same has to be viewed with reasonable flexibility and reconciled with Rule 5 as clarified by the Notification, dated October 10, 1966. Thus construed harmoniously with the related statutory provisions, the requirement of Rule 26 will be substantially, satisfied, if the number of the registration certificate, granted subsequently, but covering retrospectively the period of the sales in respect of which deduction is claimed is supplied by the claimant along with the declaration of the purchasing dealer at the time of assessment to the Assessing Authority. 17. It is thus clear as daylight that at the relevant time, also, the registering Authority was fully competent to issue the registration certificate to the dealer with retrospective effect from the date of filing the application. A perusal of the registration certificate would show that it was, in terms, made effective from January 1, 1966. This is manifest from the words "the dealer is liable to pay tax w.e.f. January 1, 1966" used by the Authority, prominently, in the heading of the Certificate. 18. It necessarily follows therefore, that during the period from January 1, 1966 to March 27, 1966, also the purchasing dealer was a registered dealer possessing a registration Certificate within the contemplation of Section 7(1) of the Act. This being the correct position, the assessees were entitled to the deduction under Section 5(2) (a) (ii) of the Act in respect of the sales made by them to the purchasing dealer during the whole of the quarter ending March 31, 1966. The High Court was therefore, right in determining the question posed, in favour of the assessees and against the Revenue.
### Response:
0
### Explanation:
14. Taking the last point first we are of opinion that the amendment of Rule 5 by the Punjab Government Notification, dated October 10, 1966, did not confer any new or additional power on the registering Authority. The power to grant the registration Certificate with effect from the date of the application was already there. The amendment was only clarificatory of the law as it stood prior to it. It only made explicit which was formerly implicit. A definite indication is available in the language of sub-section (5) read with sub-sections (2) and (3) of Section 7, itself, that the registering Authority had the power to give effect to the registration from the date of making the application15. As regards the requirement enjoined by the Forms prescribed under Rule 26, to enter the number of the registration certificate in the declaration of the purchasing dealer at the time of sale, the same has to be viewed with reasonable flexibility and reconciled with Rule 5 as clarified by the Notification, dated October 10, 1966. Thus construed harmoniously with the related statutory provisions, the requirement of Rule 26 will be substantially, satisfied, if the number of the registration certificate, granted subsequently, but covering retrospectively the period of the sales in respect of which deduction is claimed is supplied by the claimant along with the declaration of the purchasing dealer at the time of assessment to the Assessing Authority17. It is thus clear as daylight that at the relevant time, also, the registering Authority was fully competent to issue the registration certificate to the dealer with retrospective effect from the date of filing the application. A perusal of the registration certificate would show that it was, in terms, made effective from January 1, 1966. This is manifest from the words "the dealer is liable to pay tax w.e.f. January 1, 1966" used by the Authority, prominently, in the heading of the Certificate18. It necessarily follows therefore, that during the period from January 1, 1966 to March 27, 1966, also the purchasing dealer was a registered dealer possessing a registration Certificate within the contemplation of Section 7(1) of the Act. This being the correct position, the assessees were entitled to the deduction under Section 5(2) (a) (ii) of the Act in respect of the sales made by them to the purchasing dealer during the whole of the quarter ending March 31, 1966. The High Court was therefore, right in determining the question posed, in favour of the assessees and against the Revenue.
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Ravindra Reddy Vs. Shaik Masthan | factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".13. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.14. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 ), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 15. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or ‘should and not ‘may be established;(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 16. These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180 ), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261 ) and Kusuma Ankama Rao v. State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008)17. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114 ] it was noted as follows: "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2." 18. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172 ] it was noted as follows: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration". (See also Bodhraj v. State of J & K (2002 (8) SCC 45 ).)"19. A similar view was also taken in Jaswant Gir v. State of Punjab [2005 (12) SCC 438 ] and Kusuma Ankama Raos case (supra).20. It is to be noted that PW-5 stated that A-1 had purchased two knives which were seized by PW-24 covered under M.Os.7 and 8. The High Court took exception to the fact that when PW-5 produced a duplicate bill to the police, the investigating officer did not produce the original in the Court. It is not understood as to how that the duplicate becomes irrelevant. The High Court has not indicated any reason whatsoever as to why he found the evidence of PW-9 to be not acceptable or as to why the chain of circumstances highlighted by the prosecution did not unerringly point at the accused persons to be guilty as the authors of the crime. PW-9 identified A-1 and A-2 at the Test Identification Parade. His evidence regarding identification has remained unshaken. | 1[ds]9. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193 , wherein it has been observeda case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79 ), it was laid down that when a case rests uponcircumstantial evidence, such evidence must satisfy the followingthe circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.12. Sir Alfred Wills in his admirable book "Wills Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".13. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.14. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 ), wherein it was observedis well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. Theythe circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or ‘should and not ‘may be established;(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180 ), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261 ) and Kusuma Ankama Rao v. State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008)17. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114 ] it was noted asIn Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172 ] it was noted asThe last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for somealso Bodhraj v. State of J & K (2002 (8) SCC 45 ).)"19. A similar view was also taken in Jaswant Gir v. State of Punjab [2005 (12) SCC 438 ] and Kusuma Ankama Raos case (supra).20. It is to be noted that PW-5 stated that A-1 had purchased two knives which were seized by PW-24 covered under M.Os.7 and 8. The High Court took exception to the fact that when PW-5 produced a duplicate bill to the police, the investigating officer did not produce the original in the Court. It is not understood as to how that the duplicate becomes irrelevant. The High Court has not indicated any reason whatsoever as to why he found the evidence of PW-9 to be not acceptable or as to why the chain of circumstances highlighted by the prosecution did not unerringly point at the accused persons to be guilty as the authors of the crime. PW-9 identified A-1 and A-2 at the Test Identification Parade. His evidence regarding identification has remained unshaken. | 1 | 3,768 | 1,375 | ### Instruction:
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factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".13. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.14. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 ), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 15. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or ‘should and not ‘may be established;(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 16. These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180 ), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261 ) and Kusuma Ankama Rao v. State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008)17. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114 ] it was noted as follows: "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2." 18. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172 ] it was noted as follows: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration". (See also Bodhraj v. State of J & K (2002 (8) SCC 45 ).)"19. A similar view was also taken in Jaswant Gir v. State of Punjab [2005 (12) SCC 438 ] and Kusuma Ankama Raos case (supra).20. It is to be noted that PW-5 stated that A-1 had purchased two knives which were seized by PW-24 covered under M.Os.7 and 8. The High Court took exception to the fact that when PW-5 produced a duplicate bill to the police, the investigating officer did not produce the original in the Court. It is not understood as to how that the duplicate becomes irrelevant. The High Court has not indicated any reason whatsoever as to why he found the evidence of PW-9 to be not acceptable or as to why the chain of circumstances highlighted by the prosecution did not unerringly point at the accused persons to be guilty as the authors of the crime. PW-9 identified A-1 and A-2 at the Test Identification Parade. His evidence regarding identification has remained unshaken.
### Response:
1
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and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.12. Sir Alfred Wills in his admirable book "Wills Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".13. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.14. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 ), wherein it was observedis well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. Theythe circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or ‘should and not ‘may be established;(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180 ), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261 ) and Kusuma Ankama Rao v. State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008)17. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114 ] it was noted asIn Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172 ] it was noted asThe last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for somealso Bodhraj v. State of J & K (2002 (8) SCC 45 ).)"19. A similar view was also taken in Jaswant Gir v. State of Punjab [2005 (12) SCC 438 ] and Kusuma Ankama Raos case (supra).20. It is to be noted that PW-5 stated that A-1 had purchased two knives which were seized by PW-24 covered under M.Os.7 and 8. The High Court took exception to the fact that when PW-5 produced a duplicate bill to the police, the investigating officer did not produce the original in the Court. It is not understood as to how that the duplicate becomes irrelevant. The High Court has not indicated any reason whatsoever as to why he found the evidence of PW-9 to be not acceptable or as to why the chain of circumstances highlighted by the prosecution did not unerringly point at the accused persons to be guilty as the authors of the crime. PW-9 identified A-1 and A-2 at the Test Identification Parade. His evidence regarding identification has remained unshaken.
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Gaya Sugar Mill Limited Vs. Nand Kishore Bajoria & Another | two respondents were acting in their own right, and not as agents of the company in respect of this property. It was further held that the purpose for which the money was held was unlawful and therefore no relationship of principal and agent could be created in respect of an unlawful purpose.10.In our judgment the view taken by the Appeal Bench cannot be sustained and the decision has to be reversed on the short ground that till the scheme was formally approved by the share-holders and creditors and was sanctioned by the court and the share capital was thus reduced, the preference share-holders could not acquire any rights under the scheme and become beneficiaries regarding the amount realized by sale of the shares of the Ryam Sugar Company Ltd. Till that event happened, it is obvious that the ownership of the shares remained in the Gaya Sugar Mills Ltd., and the amount realized by the sale of those shares remained the property of the Mills.It is clearly provided in the agreement that a fresh meeting of the share-holders will be called in Calcutta for considering the scheme and that steps will be taken for sanction of the Court and of the share-holders according as necessary for implementing the scheme.In this situation the covenants and directions contained in the agreement were mere proposals, and till implemented, neither the preference share-holders acquired any right under these proposals, nor did the so-called preference trustees become vested with the ownership of Ryam Sugar Company Ltd.s shares or the immoveable properties that were proposed to be transferred to them and which they were authorised to sell.In other words, the agreement of 1-1-1950 remained in an inchoate shape and never became operative. The two respondents Messrs. Nand Kishore Bajoria and Mahadeolal thus never became trustees for the preference shareholders as contemplated in the proposed scheme. The Gaya Sugar Mills Ltd., thus remained, as it was, the legal owner of the shares and of the sale-proceeds as well as of the immovable properties.11. The next question that arises for consideration is what was the true relationship between the company and these two respondents before the proposed scheme was sanctioned. The company, pending the sanction of the court, passed a Resolution that the shares be sold, and the sale-proceeds be put in the possession of the, two respondents, for distribution amongst preference share-holders in the event of reduction of capital being sanctioned by the court.In our judgment there can be no manner of doubt that in the situation that arose these two persons were the agents of the company for selling the shares and keeping the sale-proceeds with them till the scheme was sanctioned, and if the scheme was not sanctioned, they remained agents of the company in custody of the sale-proceeds. They could not be trustees under an inchoate document, and therefore the only possible relationship that could be constituted between them and the company would be that of principal and agent appointed for a particular purpose and to meet a particular eventuality. The relationship of principal and agent need not be expressly constituted and can be brought about by implication of law on a particular situation arising or from the necessity of a case.In the present case this relationship was clearly brought about by the situation that arose by the scheme not being implemented. By the exigencies of this particular case that relationship has to be necessarily implied. It is also clear that the shares were sold under the Resolution passed by the Board of Directors of the Company and it is the Board that fixed the price for which the shares were to be sold. The transfer deeds were also got executed by the company from the persons in whose names the shares were nominally standing. The two respondents were merely in custody of the amount till the expected event happened. As that event did not happen, the property never became vested in them as trustees for distribution amongst the preference shareholders. On the other hand, they remained as mere agents of the company and held this money for the company pending the sanction of the scheme.The money belonged to the company and was thus in the hands of the agents of the company, and the official liquidator was entitled to its return under the provisions of S. 185, Indian Companies Act.As no obligation was annexed to the ownership of this money till the scheme was sanctioned, no trust was created and the courts were, therefore, in error in deciding this case on the basis either of an express trust or on the basis of a constructive trust. The Appeal Bench of the High Court thought that no relationship of principal and agent was constituted between the company and the two respondents by the agreement of 1-1-1950, because the two respondents in effecting the sale of the shares were acting in there own right. This construction of the agreement, in our opinion, is clearly erroneous.The two respondents had no right of their own in the shares or in the money and whatever right they had they acquired as would-be trustees under the agreement which never matured. That being so, they could not act in their own right in selling the shares of the Ryam Sugar Coy. Ltd. and in keeping the sale proceeds in their custody. We have also not been able to follow how the Appeal Bench of the High Court arrived at the conclusion that the scheme propounded in the agreement was unlawful.We are constrained to observe that both the learned Single Judge and the Appeal Bench of the High Court completely lost sight of the fact that no right could be vested either in the preference shareholder or the so-called trustees on the basis of a document which merely contained proposals and which was of an inchoate character and which was never completed or became operative and it is this opinion which led to an error in the decision of the case.12. | 1[ds]e principal question that falls for decision in this appeal is whether the High Court had jurisdiction, in the circumstances of this case, to require the two respondents to pay the sum of Rs. 11,39,400 to the official liquidator under the provisions of S.Indian Companies Act. The determination of this question depends on the construction of the agreement above cited and the relationship created by that agreement between the company and these two respondents taken with the resolution of the directors till the stage that the scheme was sanctioned by the court and the proposal to reduce the capital was accepted after the formalities provided for in the Indian Companies Act had been goneour judgment the view taken by the Appeal Bench cannot be sustained and the decision has to be reversed on the short ground that till the scheme was formally approved by theand creditors and was sanctioned by the court and the share capital was thus reduced, the preferencecould not acquire any rights under the scheme and become beneficiaries regarding the amount realized by sale of the shares of the Ryam Sugar Company Ltd. Till that event happened, it is obvious that the ownership of the shares remained in the Gaya Sugar Mills Ltd., and the amount realized by the sale of those shares remained the property of the Mills.It is clearly provided in the agreement that a fresh meeting of theshareholders will becalled in Calcutta for considering the scheme and that steps will be taken for sanction of the Court and of theaccording as necessary for implementing the scheme.In this situation the covenants and directions contained in the agreement were mere proposals, and till implemented, neither the preferenceacquired any right under these proposals, nor did thepreference trustees become vested with the ownership of Ryam Sugar Company Ltd.s shares or the immoveable properties that were proposed to be transferred to them and which they were authorised to sell.In other words, the agreement ofremained in an inchoate shape and never became operative. The two respondents Messrs. Nand Kishore Bajoria and Mahadeolal thus never became trustees for the preference shareholders as contemplated in the proposed scheme. The Gaya Sugar Mills Ltd., thus remained, as it was, the legal owner of the shares and of theas well as of the immovable properties.e next question that arises for consideration is what was the true relationship between the company and these two respondents before the proposed scheme was sanctioned.The company, pending the sanction of the court, passed a Resolution that the shares be sold, and thebe put in the possession of the, two respondents, for distribution amongst preferencein the event of reduction of capital being sanctioned by the court.In our judgment there can be no manner of doubt that in the situation that arose these two persons were the agents of the company for selling the shares and keeping thewith them till the scheme was sanctioned, and if the scheme was not sanctioned, they remained agents of the company in custody of theThey could not be trustees under an inchoate document, and therefore the only possible relationship that could be constituted between them and the company would be that of principal and agent appointed for a particular purpose and to meet a particular eventuality. The relationship of principal and agent need not be expressly constituted and can be brought about by implication of law on a particular situation arising or from the necessity of a case.In the present case this relationship was clearly brought about by the situation that arose by the scheme not being implemented. By the exigencies of this particular case that relationship has to be necessarily implied. It is also clear that the shares were sold under the Resolution passed by the Board of Directors of the Company and it is the Board that fixed the price for which the shares were to be sold. The transfer deeds were also got executed by the company from the persons in whose names the shares were nominally standing. The two respondents were merely in custody of the amount till the expected event happened. As that event did not happen, the property never became vested in them as trustees for distribution amongst the preference shareholders. On the other hand, they remained as mere agents of the company and held this money for the company pending the sanction of the scheme.The money belonged to the company and was thus in the hands of the agents of the company, and the official liquidator was entitled to its return under the provisions of S. 185, Indian Companies Act.As no obligation was annexed to the ownership of this money till the scheme was sanctioned, no trust was created and the courts were, therefore, in error in deciding this case on the basis either of an express trust or on the basis of a constructive trust. The Appeal Bench of the High Court thought that no relationship of principal and agent was constituted between the company and the two respondents by the agreement ofbecause the two respondents in effecting the sale of the shares were acting in there own right. This construction of the agreement, in our opinion, is clearly erroneous.The two respondents had no right of their own in the shares or in the money and whatever right they had they acquired astrustees under the agreement which never matured. That being so, they could not act in their own right in selling the shares of the Ryam Sugar Coy. Ltd. and in keeping the sale proceeds in their custody. We have also not been able to follow how the Appeal Bench of the High Court arrived at the conclusion that the scheme propounded in the agreement was unlawful.We are constrained to observe that both the learned Single Judge and the Appeal Bench of the High Court completely lost sight of the fact that no right could be vested either in the preference shareholder or thetrustees on the basis of a document which merely contained proposals and which was of an inchoate character and which was never completed or became operative and it is this opinion which led to an error in the decision of the case. | 1 | 3,244 | 1,081 | ### Instruction:
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two respondents were acting in their own right, and not as agents of the company in respect of this property. It was further held that the purpose for which the money was held was unlawful and therefore no relationship of principal and agent could be created in respect of an unlawful purpose.10.In our judgment the view taken by the Appeal Bench cannot be sustained and the decision has to be reversed on the short ground that till the scheme was formally approved by the share-holders and creditors and was sanctioned by the court and the share capital was thus reduced, the preference share-holders could not acquire any rights under the scheme and become beneficiaries regarding the amount realized by sale of the shares of the Ryam Sugar Company Ltd. Till that event happened, it is obvious that the ownership of the shares remained in the Gaya Sugar Mills Ltd., and the amount realized by the sale of those shares remained the property of the Mills.It is clearly provided in the agreement that a fresh meeting of the share-holders will be called in Calcutta for considering the scheme and that steps will be taken for sanction of the Court and of the share-holders according as necessary for implementing the scheme.In this situation the covenants and directions contained in the agreement were mere proposals, and till implemented, neither the preference share-holders acquired any right under these proposals, nor did the so-called preference trustees become vested with the ownership of Ryam Sugar Company Ltd.s shares or the immoveable properties that were proposed to be transferred to them and which they were authorised to sell.In other words, the agreement of 1-1-1950 remained in an inchoate shape and never became operative. The two respondents Messrs. Nand Kishore Bajoria and Mahadeolal thus never became trustees for the preference shareholders as contemplated in the proposed scheme. The Gaya Sugar Mills Ltd., thus remained, as it was, the legal owner of the shares and of the sale-proceeds as well as of the immovable properties.11. The next question that arises for consideration is what was the true relationship between the company and these two respondents before the proposed scheme was sanctioned. The company, pending the sanction of the court, passed a Resolution that the shares be sold, and the sale-proceeds be put in the possession of the, two respondents, for distribution amongst preference share-holders in the event of reduction of capital being sanctioned by the court.In our judgment there can be no manner of doubt that in the situation that arose these two persons were the agents of the company for selling the shares and keeping the sale-proceeds with them till the scheme was sanctioned, and if the scheme was not sanctioned, they remained agents of the company in custody of the sale-proceeds. They could not be trustees under an inchoate document, and therefore the only possible relationship that could be constituted between them and the company would be that of principal and agent appointed for a particular purpose and to meet a particular eventuality. The relationship of principal and agent need not be expressly constituted and can be brought about by implication of law on a particular situation arising or from the necessity of a case.In the present case this relationship was clearly brought about by the situation that arose by the scheme not being implemented. By the exigencies of this particular case that relationship has to be necessarily implied. It is also clear that the shares were sold under the Resolution passed by the Board of Directors of the Company and it is the Board that fixed the price for which the shares were to be sold. The transfer deeds were also got executed by the company from the persons in whose names the shares were nominally standing. The two respondents were merely in custody of the amount till the expected event happened. As that event did not happen, the property never became vested in them as trustees for distribution amongst the preference shareholders. On the other hand, they remained as mere agents of the company and held this money for the company pending the sanction of the scheme.The money belonged to the company and was thus in the hands of the agents of the company, and the official liquidator was entitled to its return under the provisions of S. 185, Indian Companies Act.As no obligation was annexed to the ownership of this money till the scheme was sanctioned, no trust was created and the courts were, therefore, in error in deciding this case on the basis either of an express trust or on the basis of a constructive trust. The Appeal Bench of the High Court thought that no relationship of principal and agent was constituted between the company and the two respondents by the agreement of 1-1-1950, because the two respondents in effecting the sale of the shares were acting in there own right. This construction of the agreement, in our opinion, is clearly erroneous.The two respondents had no right of their own in the shares or in the money and whatever right they had they acquired as would-be trustees under the agreement which never matured. That being so, they could not act in their own right in selling the shares of the Ryam Sugar Coy. Ltd. and in keeping the sale proceeds in their custody. We have also not been able to follow how the Appeal Bench of the High Court arrived at the conclusion that the scheme propounded in the agreement was unlawful.We are constrained to observe that both the learned Single Judge and the Appeal Bench of the High Court completely lost sight of the fact that no right could be vested either in the preference shareholder or the so-called trustees on the basis of a document which merely contained proposals and which was of an inchoate character and which was never completed or became operative and it is this opinion which led to an error in the decision of the case.12.
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pay the sum of Rs. 11,39,400 to the official liquidator under the provisions of S.Indian Companies Act. The determination of this question depends on the construction of the agreement above cited and the relationship created by that agreement between the company and these two respondents taken with the resolution of the directors till the stage that the scheme was sanctioned by the court and the proposal to reduce the capital was accepted after the formalities provided for in the Indian Companies Act had been goneour judgment the view taken by the Appeal Bench cannot be sustained and the decision has to be reversed on the short ground that till the scheme was formally approved by theand creditors and was sanctioned by the court and the share capital was thus reduced, the preferencecould not acquire any rights under the scheme and become beneficiaries regarding the amount realized by sale of the shares of the Ryam Sugar Company Ltd. Till that event happened, it is obvious that the ownership of the shares remained in the Gaya Sugar Mills Ltd., and the amount realized by the sale of those shares remained the property of the Mills.It is clearly provided in the agreement that a fresh meeting of theshareholders will becalled in Calcutta for considering the scheme and that steps will be taken for sanction of the Court and of theaccording as necessary for implementing the scheme.In this situation the covenants and directions contained in the agreement were mere proposals, and till implemented, neither the preferenceacquired any right under these proposals, nor did thepreference trustees become vested with the ownership of Ryam Sugar Company Ltd.s shares or the immoveable properties that were proposed to be transferred to them and which they were authorised to sell.In other words, the agreement ofremained in an inchoate shape and never became operative. The two respondents Messrs. Nand Kishore Bajoria and Mahadeolal thus never became trustees for the preference shareholders as contemplated in the proposed scheme. The Gaya Sugar Mills Ltd., thus remained, as it was, the legal owner of the shares and of theas well as of the immovable properties.e next question that arises for consideration is what was the true relationship between the company and these two respondents before the proposed scheme was sanctioned.The company, pending the sanction of the court, passed a Resolution that the shares be sold, and thebe put in the possession of the, two respondents, for distribution amongst preferencein the event of reduction of capital being sanctioned by the court.In our judgment there can be no manner of doubt that in the situation that arose these two persons were the agents of the company for selling the shares and keeping thewith them till the scheme was sanctioned, and if the scheme was not sanctioned, they remained agents of the company in custody of theThey could not be trustees under an inchoate document, and therefore the only possible relationship that could be constituted between them and the company would be that of principal and agent appointed for a particular purpose and to meet a particular eventuality. The relationship of principal and agent need not be expressly constituted and can be brought about by implication of law on a particular situation arising or from the necessity of a case.In the present case this relationship was clearly brought about by the situation that arose by the scheme not being implemented. By the exigencies of this particular case that relationship has to be necessarily implied. It is also clear that the shares were sold under the Resolution passed by the Board of Directors of the Company and it is the Board that fixed the price for which the shares were to be sold. The transfer deeds were also got executed by the company from the persons in whose names the shares were nominally standing. The two respondents were merely in custody of the amount till the expected event happened. As that event did not happen, the property never became vested in them as trustees for distribution amongst the preference shareholders. On the other hand, they remained as mere agents of the company and held this money for the company pending the sanction of the scheme.The money belonged to the company and was thus in the hands of the agents of the company, and the official liquidator was entitled to its return under the provisions of S. 185, Indian Companies Act.As no obligation was annexed to the ownership of this money till the scheme was sanctioned, no trust was created and the courts were, therefore, in error in deciding this case on the basis either of an express trust or on the basis of a constructive trust. The Appeal Bench of the High Court thought that no relationship of principal and agent was constituted between the company and the two respondents by the agreement ofbecause the two respondents in effecting the sale of the shares were acting in there own right. This construction of the agreement, in our opinion, is clearly erroneous.The two respondents had no right of their own in the shares or in the money and whatever right they had they acquired astrustees under the agreement which never matured. That being so, they could not act in their own right in selling the shares of the Ryam Sugar Coy. Ltd. and in keeping the sale proceeds in their custody. We have also not been able to follow how the Appeal Bench of the High Court arrived at the conclusion that the scheme propounded in the agreement was unlawful.We are constrained to observe that both the learned Single Judge and the Appeal Bench of the High Court completely lost sight of the fact that no right could be vested either in the preference shareholder or thetrustees on the basis of a document which merely contained proposals and which was of an inchoate character and which was never completed or became operative and it is this opinion which led to an error in the decision of the case.
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M/S. Meera Company,Ludhiana Vs. The Commissioner Of Income Tax,Punjab, J&K And Chandigarh,P | the tax shall, subject to the other provisions contained in this Chapter, be levied upon and recovered from him in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him. (1a) Notwithstanding anything contained in sub-section (1), where any income in respect of which the person mentioned in clause (iv) of sub-section (1) of section 160 is liable as representative assessee consists of, or includes, profits and gains of business, tax shall be charged on the whole of the income in respect of which such person is so liable at the maximum marginal rate:Provided that the provisions of this sub-section shall not apply where such profits and gains are receivable under a trust declared by any person by will exclusively for the benefit of any relative dependent on him for support and maintenance, and such trust is the only trust so declared by him.Explanation-For the purposes of this sub-section, "maximum marginal rate" shall have the meaning assigned to it in Explanation 2 below sub-section (3) of Section 1 64.(2) Where any person is, in respect of any income, assessable under this Chapter in the capacity of a representative assessee, he shall not, in respect of that of that income, be assessed under any other provision of this Act". "166. Direct Assessment or recovery not barred. Nothing in the foregoing sections in this Chapter shall prevent either the direct assessment of the person on whose behalf or for whose benefit income therein referred to is receivable, or the recovery from such person of the tax payable in respect of such income." *It was contended on behalf of the appellant that the minors income had to be assessee. It could not be clubbed with any other income of the mother. Mother was the legal guardian and her personal income must be assessed separately altogether. In view of the provisions of Section 161 it was not open to the Income Tax Officer to tax the income of the minors as well as the mother in the status of "body of individuals". 30. We are unable to uphold this argument. Section 161 is an enabling provision. The charge that is imposed by Section 4 may be computed and recovered in the manner laid do wn in the Act including Section 160, 161 and 166. When the minors along with their mother form a body to generate income, levy of tax under section 4 is on that body. The mother cannot insist that the income of the joint venture must be assessed separately on the minors and her even when a joint business is carried on.The underlying idea behind these sections was explained by Addison, J. in the case of Hotz Trust of Simla v. The Commissioner of Income Tax, Punjab and N 1 Frontier Provinces, 5 ITC 8 at 16. Dealing with the corresponding provisions of the 1922 Act, it was held that where trustees carried on a business under a testamentary trust, the assessment in respect of the business profits should be made not on the beneficiaries in respect of their individual not shares of the profits but on the trustees as an "association of persons". It was observed: "Section 40 is merely a machinery section, making the trustee liable for beneficiaries are difficult or impossible to get at, and where the trustee acts as a conduit-pipe for the conveyance of the income to the beneficiaries. It does not affect the charging sections 3 and 10 of the Indian Act under which the trustees as an association of individuals, carrying on a business, are liable to be assessed in respect of the gains of the business carried on by them. In fact it is clear that this is the only way t hat the profits and gains of the business, carried on by the trustees, can be taxed. For it is obvious that, if what goes to each beneficiary every year only can be taxed, much of the income acquired by the business w ill altogether escape taxation, and that the income received by the beneficiaries is not the true assessable income as many of the expenses incurred by the trustees, which would be paid out before the distribution takes place, would not be admissible under the Act. The profits and gains of this business carried on by the trustees, can only be calculated in the hands of the trustees as such and the assessment in the hands of the beneficiaries would be in reality inconsistent with the intention of the Income-tax Act. The trustees both carry on the business and are in receipt of the profits and it is they who must be taxed under the charging sections." * 31. The full Bench of Madras High Court in the case of J.V. Saldhana v. The Commissioner of Income-tax, Madras 6 ITC 114, reiterated the same principle in a case where a widow with her six minor children succeeded to the estate of her deceased husband consisting of coffee plantations, house properties and a third share in a firm of coffee curers and settlers. The widow continued to carry on the business in the same manner as was done by the deceased. It was held by the Full Bench that when properties of a number of individuals were put together and one business was carried on with the combined resources, it was open to the Income Tax Officer to regard it as one business carried on by an "association of individuals" within the meaning of section 3 of the Act. A single assessment should be made under Section 10(1) of the Income Tax Act on the entire income from the business. It was also held that Section 40 and the following sections were machinery and enabling sections and not charging sections. 32. In our view, these two decisions correctly stated the law under the Act of 1922. These principles will also apply to the corresponding provisions of the Income Tax Act, 1961. | 0[ds]In this definition, in clause (v), both `association of persons and `body of individuals have been included with the added words "whether incorporated or not". Another thing to note is that clause (v) speaks of "an association of persons or a body of individuals". This implies that an "association of persons " is not something distinct and separate from "body of individuals". It has been added to obviate any controversy as to whether only combinations of human beings are to be treated as a unit of assessment. The intention clearly is to hit combinations individuals and individuals, combinations of individuals and non-individuals and also combinations of non-individuals with other non- individuals who are engaged together in some joint enterprise when such joint enterprise does not fall within any of the other categories enumerated in sub-section (31) of Section 2 of theis of interest to note that the phrase "body of individuals" has been used by the Parliament in a revenue Act even before the Income Tax Act, 1961 was passed. Under the Gift Tax Act, tax was imposed on gifts made in course of every assessment year commencing on and from the first day of April, 1987 at the prescribed rate by athe Indian Income Tax, 1922 `person has been defined to include a Hindu undivided family and a local authority. The object of giving the expanded definition was to cover all entities taxable under the Indian Income Tax Act, 1922 as well as the entities falling within the definition of `person under the General Clauses Act. In other words, the intention of the Legislature was not to limit the charge to certain specified entitiesthe background of these definitions, when several individuals are found to have joined together for the purpose of making profit, the group of individuals may be conveniently described as "a body of individuals". We have seen how the controversy arose under the Indian Income Tax Act as to the meaning of "association of individuals". There was a conflict of opinion on whether `individuals include artificial or non-juridical persons. But there can be no scope of any controversy now. "An association of person" or "a body of individuals", whether incorporated or not, has been brought within the net of taxation. The intention of the legislature is clearly to hit combination of individuals or other persons who were engaged together in some joint enterprise. The combinations of or may not be incorporated. A profit-yielding joint venture has to be taxed as a singlethe case before us, we have a window and her minor sons who are engaged in the business activity which sons who are engaged in the business activity which generates income. It does not make any difference that the window and the minor sons did not start the business. The business was inherited. But the fact that the business has been continued by the widow on her own behalf as well as on behalf of the minor sons after buying the interest of the mother goes to show that there is an organised activity jointly carried on to produce income. It is a clear case of joint business venture of a few individuals. The income of this business has been rightly assessed in the status of a "body of individuals".We are of the view that the High Court has come to a correct decision. It is not necessary to refer to the large number of cases that have been cited before us but it is well settled by this Court under the Act of 1922, by a series of judgments that `association of persons must be an association is also well settled by a number of decision right from the case of Commissioner of Income Tax, Bombay Laxmidas and anotherare unable to uphold this argument. Section 161 is an enabling provision. The charge that is imposed by Section 4 may be computed and recovered in the manner laid do wn in the Act including Section 160, 161 and 166. When the minors along with their mother form a body to generate income, levy of tax under section 4 is on that body. The mother cannot insist that the income of the joint venture must be assessed separately on the minors and her even when a joint business is carried on.The underlying idea behind these sections was explained by Addison, J. in the case of Hotz Trust of Simla v. The Commissioner of Income Tax, Punjab and N 1 Frontier Provinces, 5 ITC 8 at 16. Dealing with the corresponding provisions of the 1922 Act, it was held that where trustees carried on a business under a testamentary trust, the assessment in respect of the business profits should be made not on the beneficiaries in respect of their individual not shares of the profits but on the trustees as an "association of persons". It was40 is merely a machinery section, making the trustee liable for beneficiaries are difficult or impossible to get at, and where the trustee acts as a conduit-pipe for the conveyance of the income to the beneficiaries. It does not affect the charging sections 3 and 10 of the Indian Act under which the trustees as an association of individuals, carrying on a business, are liable to be assessed in respect of the gains of the business carried on by them. In fact it is clear that this is the only way t hat the profits and gains of the business, carried on by the trustees, can be taxed. For it is obvious that, if what goes to each beneficiary every year only can be taxed, much of the income acquired by the business w ill altogether escape taxation, and that the income received by the beneficiaries is not the true assessable income as many of the expenses incurred by the trustees, which would be paid out before the distribution takes place, would not be admissible under the Act. The profits and gains of this business carried on by the trustees, can only be calculated in the hands of the trustees as such and the assessment in the hands of the beneficiaries would be in reality inconsistent with the intention of the Income-tax Act. The trustees both carry on the business and are in receipt of the profits and it is they who must be taxed under the charging sections."full Bench of Madras High Court in the case of J.V. Saldhana v. The Commissioner of Income-tax, Madras 6 ITC 114, reiterated the same principle in a case where a widow with her six minor children succeeded to the estate of her deceased husband consisting of coffee plantations, house properties and a third share in a firm of coffee curers and settlers. The widow continued to carry on the business in the same manner as was done by the deceased. It was held by the Full Bench that when properties of a number of individuals were put together and one business was carried on with the combined resources, it was open to the Income Tax Officer to regard it as one business carried on by an "association of individuals" within the meaning of section 3 of the Act. A single assessment should be made under Section 10(1) of the Income Tax Act on the entire income from the business. It was also held that Section 40 and the following sections were machinery and enabling sections and not chargingour view, these two decisions correctly stated the law under the Act of 1922. These principles will also apply to the corresponding provisions of the Income Tax Act, 1961. | 0 | 7,617 | 1,387 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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the tax shall, subject to the other provisions contained in this Chapter, be levied upon and recovered from him in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him. (1a) Notwithstanding anything contained in sub-section (1), where any income in respect of which the person mentioned in clause (iv) of sub-section (1) of section 160 is liable as representative assessee consists of, or includes, profits and gains of business, tax shall be charged on the whole of the income in respect of which such person is so liable at the maximum marginal rate:Provided that the provisions of this sub-section shall not apply where such profits and gains are receivable under a trust declared by any person by will exclusively for the benefit of any relative dependent on him for support and maintenance, and such trust is the only trust so declared by him.Explanation-For the purposes of this sub-section, "maximum marginal rate" shall have the meaning assigned to it in Explanation 2 below sub-section (3) of Section 1 64.(2) Where any person is, in respect of any income, assessable under this Chapter in the capacity of a representative assessee, he shall not, in respect of that of that income, be assessed under any other provision of this Act". "166. Direct Assessment or recovery not barred. Nothing in the foregoing sections in this Chapter shall prevent either the direct assessment of the person on whose behalf or for whose benefit income therein referred to is receivable, or the recovery from such person of the tax payable in respect of such income." *It was contended on behalf of the appellant that the minors income had to be assessee. It could not be clubbed with any other income of the mother. Mother was the legal guardian and her personal income must be assessed separately altogether. In view of the provisions of Section 161 it was not open to the Income Tax Officer to tax the income of the minors as well as the mother in the status of "body of individuals". 30. We are unable to uphold this argument. Section 161 is an enabling provision. The charge that is imposed by Section 4 may be computed and recovered in the manner laid do wn in the Act including Section 160, 161 and 166. When the minors along with their mother form a body to generate income, levy of tax under section 4 is on that body. The mother cannot insist that the income of the joint venture must be assessed separately on the minors and her even when a joint business is carried on.The underlying idea behind these sections was explained by Addison, J. in the case of Hotz Trust of Simla v. The Commissioner of Income Tax, Punjab and N 1 Frontier Provinces, 5 ITC 8 at 16. Dealing with the corresponding provisions of the 1922 Act, it was held that where trustees carried on a business under a testamentary trust, the assessment in respect of the business profits should be made not on the beneficiaries in respect of their individual not shares of the profits but on the trustees as an "association of persons". It was observed: "Section 40 is merely a machinery section, making the trustee liable for beneficiaries are difficult or impossible to get at, and where the trustee acts as a conduit-pipe for the conveyance of the income to the beneficiaries. It does not affect the charging sections 3 and 10 of the Indian Act under which the trustees as an association of individuals, carrying on a business, are liable to be assessed in respect of the gains of the business carried on by them. In fact it is clear that this is the only way t hat the profits and gains of the business, carried on by the trustees, can be taxed. For it is obvious that, if what goes to each beneficiary every year only can be taxed, much of the income acquired by the business w ill altogether escape taxation, and that the income received by the beneficiaries is not the true assessable income as many of the expenses incurred by the trustees, which would be paid out before the distribution takes place, would not be admissible under the Act. The profits and gains of this business carried on by the trustees, can only be calculated in the hands of the trustees as such and the assessment in the hands of the beneficiaries would be in reality inconsistent with the intention of the Income-tax Act. The trustees both carry on the business and are in receipt of the profits and it is they who must be taxed under the charging sections." * 31. The full Bench of Madras High Court in the case of J.V. Saldhana v. The Commissioner of Income-tax, Madras 6 ITC 114, reiterated the same principle in a case where a widow with her six minor children succeeded to the estate of her deceased husband consisting of coffee plantations, house properties and a third share in a firm of coffee curers and settlers. The widow continued to carry on the business in the same manner as was done by the deceased. It was held by the Full Bench that when properties of a number of individuals were put together and one business was carried on with the combined resources, it was open to the Income Tax Officer to regard it as one business carried on by an "association of individuals" within the meaning of section 3 of the Act. A single assessment should be made under Section 10(1) of the Income Tax Act on the entire income from the business. It was also held that Section 40 and the following sections were machinery and enabling sections and not charging sections. 32. In our view, these two decisions correctly stated the law under the Act of 1922. These principles will also apply to the corresponding provisions of the Income Tax Act, 1961.
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intention of the Legislature was not to limit the charge to certain specified entitiesthe background of these definitions, when several individuals are found to have joined together for the purpose of making profit, the group of individuals may be conveniently described as "a body of individuals". We have seen how the controversy arose under the Indian Income Tax Act as to the meaning of "association of individuals". There was a conflict of opinion on whether `individuals include artificial or non-juridical persons. But there can be no scope of any controversy now. "An association of person" or "a body of individuals", whether incorporated or not, has been brought within the net of taxation. The intention of the legislature is clearly to hit combination of individuals or other persons who were engaged together in some joint enterprise. The combinations of or may not be incorporated. A profit-yielding joint venture has to be taxed as a singlethe case before us, we have a window and her minor sons who are engaged in the business activity which sons who are engaged in the business activity which generates income. It does not make any difference that the window and the minor sons did not start the business. The business was inherited. But the fact that the business has been continued by the widow on her own behalf as well as on behalf of the minor sons after buying the interest of the mother goes to show that there is an organised activity jointly carried on to produce income. It is a clear case of joint business venture of a few individuals. The income of this business has been rightly assessed in the status of a "body of individuals".We are of the view that the High Court has come to a correct decision. It is not necessary to refer to the large number of cases that have been cited before us but it is well settled by this Court under the Act of 1922, by a series of judgments that `association of persons must be an association is also well settled by a number of decision right from the case of Commissioner of Income Tax, Bombay Laxmidas and anotherare unable to uphold this argument. Section 161 is an enabling provision. The charge that is imposed by Section 4 may be computed and recovered in the manner laid do wn in the Act including Section 160, 161 and 166. When the minors along with their mother form a body to generate income, levy of tax under section 4 is on that body. The mother cannot insist that the income of the joint venture must be assessed separately on the minors and her even when a joint business is carried on.The underlying idea behind these sections was explained by Addison, J. in the case of Hotz Trust of Simla v. The Commissioner of Income Tax, Punjab and N 1 Frontier Provinces, 5 ITC 8 at 16. Dealing with the corresponding provisions of the 1922 Act, it was held that where trustees carried on a business under a testamentary trust, the assessment in respect of the business profits should be made not on the beneficiaries in respect of their individual not shares of the profits but on the trustees as an "association of persons". It was40 is merely a machinery section, making the trustee liable for beneficiaries are difficult or impossible to get at, and where the trustee acts as a conduit-pipe for the conveyance of the income to the beneficiaries. It does not affect the charging sections 3 and 10 of the Indian Act under which the trustees as an association of individuals, carrying on a business, are liable to be assessed in respect of the gains of the business carried on by them. In fact it is clear that this is the only way t hat the profits and gains of the business, carried on by the trustees, can be taxed. For it is obvious that, if what goes to each beneficiary every year only can be taxed, much of the income acquired by the business w ill altogether escape taxation, and that the income received by the beneficiaries is not the true assessable income as many of the expenses incurred by the trustees, which would be paid out before the distribution takes place, would not be admissible under the Act. The profits and gains of this business carried on by the trustees, can only be calculated in the hands of the trustees as such and the assessment in the hands of the beneficiaries would be in reality inconsistent with the intention of the Income-tax Act. The trustees both carry on the business and are in receipt of the profits and it is they who must be taxed under the charging sections."full Bench of Madras High Court in the case of J.V. Saldhana v. The Commissioner of Income-tax, Madras 6 ITC 114, reiterated the same principle in a case where a widow with her six minor children succeeded to the estate of her deceased husband consisting of coffee plantations, house properties and a third share in a firm of coffee curers and settlers. The widow continued to carry on the business in the same manner as was done by the deceased. It was held by the Full Bench that when properties of a number of individuals were put together and one business was carried on with the combined resources, it was open to the Income Tax Officer to regard it as one business carried on by an "association of individuals" within the meaning of section 3 of the Act. A single assessment should be made under Section 10(1) of the Income Tax Act on the entire income from the business. It was also held that Section 40 and the following sections were machinery and enabling sections and not chargingour view, these two decisions correctly stated the law under the Act of 1922. These principles will also apply to the corresponding provisions of the Income Tax Act, 1961.
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S. Dhanalakshmi Ammal & Another Vs. T. Tharani Singh Gramani & Another | Hegde, J.1. This is a plaintiffs appeal, by special leave. The plaintiff as one of the executors of her fathers will dated February 25, 1922 sued for a declaration that the properties described in the plaint-schedule A were improperly sold by Mr. Y. M. Ranganatha Sastri, the Commissioner appointed in the mortgage decree in O. S. 623 of 1931 on the file of the High Court of Madras. She further asked for a decree for possession of that property free of the alienation. The suit was filed nearly 12 years after the impugned sale. The suit was instituted on the original side of the High Court of Madras. The trial Judge decreed the suit as prayed for. But in appeal, the decree of the trial Court was reversed and the suit dismissed with costs. The appellate bench inter alia held that the suit property was included in the mortgage which resulted in the decree in O. S. 623 of 1931.2. In our opinion there is no merit in this appeal. There are good grounds to support the conclusion of the appellate Court, as we shall presently see, that the decree in O.S. 623 of 1931 covered the suit property as well. That apart, the contention that Mr. Ranganatha Sastri had no authority to sell the suit property is unavailable to the plaintiff in view of the mortgage executed by the executors appointed under the will of Munuswamy, the father of the plaintiff as well as by the legatees thereunder in favour of V. L. Varadaraj, on April 27, 1937.3. The suit property belonged to Munuswamy, the father of the plaintiff, Munuswamy mortgaged some of his properties in favour of Vasa Varadiah Chetty. Thereafter the same properties were mortgaged by the executors under his will to some other persons. Finally on April 27, 1937, the executors as well as the legatees under the will mortgaged several items of the properties which originally belonged to Munuswamy in favour of V. L. Varadaraj. That mortgage proceeded on the basis that the properties included therein had previously been mortgaged to Vasa Vardiah Chetty and to some others. It was executed for the purpose of discharging some of the earlier mortgage debts. If the suit property is held to be mortgaged under that deed in favour of V. L. Vardaraj then it follows that the mortgagors therein were of the opinion that property had been earlier mortgaged to Vasa Varadiah Chetty and others. One of the items of the property mortgaged under the deed of 1937 is that described in Schedule A to that deed. It reads thus:"Stable and Garden situated in the village of Mylapore, Vellala Teynampet, Mount Road bearing Municipal Nos. 113 and 114 within the registration district of Madras-Chingleput and in the Sub-registration district Mylapore bounded on the north by Survey Nos. 1412 and 11/1B, on the east by Survey Nos. 12/2, 11/1B and 12, on the west by Survey No. 1412 bearing old Survey No. 3027, Re-survey No. 11/1 and Collectors certificate No. 2722 and containing 1 Cawnie 14 grounds 1,537 square feet (an extent of cawnies nil, grounds 8 and square feet 1,298) was acquired under Notification in the Fort St. George Gazette, dated 25-7-1911. Part I, Pages 738 and 739 for a public purpose".The suit property is described in the plaint as follows:"House, ground and premises bearing Old Door No. 190, new Door No. 114, now numbered as 113 and 114, Mount Road, Vellala Teynampet, Madras bearing Resurvey No. 11/1 O. S. No. 3027 C. C. No. 1891 bounded on the North by R. S./10, South by R. S. No. 11/1-A, East by R. S. No. 12/2, West by R. S. 11/1A, situate in the registration district of Madras-Chingleput and the registration sub-district of Mambalam, measuring 2 grounds 2169 sq. ft. out of the total extend as per Quit Rent Extract of 1 cawnie 14 ground 1537 sq. ft."A comparison of these two Schedules goes to show that the suit property is a portion of the property mortgaged in favour of V. L. Vardaraj in 1937. The learned Counsel for the appellants could not dispute this conclusion.4. Under the mortgage deed of 1937, mortgagee was empowered to appoint Mr. Ranganatha Sastri as the Receiver of the property mortgaged to him on the happening of certain conditions. It is not disputed that Mr. Ranganatha Sastri had been appointed as the Receiver of the properties mortgaged under the deed of 1937. He was in possession of those properties as Receiver. In particular he was in possession of the suit property.5. Mortgage in favour of V. L. Varadaraj empowered the mortgagee to sell the mortgage property without the intervention of the Court for discharging all the debts under the mortgage. When the decree-holder in O,.S. 623 of 1931 sought to execute his decree, V. L. Varadaraj applied to the court to appoint Mr. Ranganatha Sastri as the Commissioner for selling the properties mortgaged to him in accordance with the terms of the mortgage in his favour, to discharge the mortgage debts. The Court accepted that prayer and appointed Mr. Ranganatha Sastri as the Commissioner to sell mortgaged properties by private treaties. Mr. Ranganatha Sastri sold the properties in accordance with the power conferred on the mortgagee under the mortgage deed of 1937. That power included the power to sell the suit properties without the intervention of the court. (It may be noted that the mortgage in favour of V. L. Varadaraj was an equitable mortgage). Hence it is immaterial whether the suit property was included in the mortgage which resulted in a decree in O. S. 623 of 1931 or not.6. In view of the above conclusion of ours, it is not necessary to go into the other contentions arising for decision in this appeal. | 0[ds]2. In our opinion there is no merit in this appeal. There are good grounds to support the conclusion of the appellate Court, as we shall presently see, that the decree in O.S. 623 of 1931 covered the suit property as well. That apart, the contention that Mr. Ranganatha Sastri had no authority to sell the suit property is unavailable to the plaintiff in view of the mortgage executed by the executors appointed under the will of Munuswamy, the father of the plaintiff as well as by the legatees thereunder in favour of V. L. Varadaraj, on April 27, 1937.Under the mortgage deed of 1937, mortgagee was empowered to appoint Mr. Ranganatha Sastri as the Receiver of the property mortgaged to him on the happening of certain conditions. It is not disputed that Mr. Ranganatha Sastri had been appointed as the Receiver of the properties mortgaged under the deed of 1937. He was in possession of those properties as Receiver. In particular he was in possession of the suit property.5. Mortgage in favour of V. L. Varadaraj empowered the mortgagee to sell the mortgage property without the intervention of the Court for discharging all the debts under the mortgage. When thein O,.S. 623 of 1931 sought to execute his decree, V. L. Varadaraj applied to the court to appoint Mr. Ranganatha Sastri as the Commissioner for selling the properties mortgaged to him in accordance with the terms of the mortgage in his favour, to discharge the mortgage debts. The Court accepted that prayer and appointed Mr. Ranganatha Sastri as the Commissioner to sell mortgaged properties by private treaties. Mr. Ranganatha Sastri sold the properties in accordance with the power conferred on the mortgagee under the mortgage deed of 1937. That power included the power to sell the suit properties without the intervention of the court. (It may be noted that the mortgage in favour of V. L. Varadaraj was an equitable mortgage). Hence it is immaterial whether the suit property was included in the mortgage which resulted in a decree in O. S. 623 of 1931 or not.6. In view of the above conclusion of ours, it is not necessary to go into the other contentions arising for decision in this appeal. | 0 | 1,070 | 407 | ### 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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Hegde, J.1. This is a plaintiffs appeal, by special leave. The plaintiff as one of the executors of her fathers will dated February 25, 1922 sued for a declaration that the properties described in the plaint-schedule A were improperly sold by Mr. Y. M. Ranganatha Sastri, the Commissioner appointed in the mortgage decree in O. S. 623 of 1931 on the file of the High Court of Madras. She further asked for a decree for possession of that property free of the alienation. The suit was filed nearly 12 years after the impugned sale. The suit was instituted on the original side of the High Court of Madras. The trial Judge decreed the suit as prayed for. But in appeal, the decree of the trial Court was reversed and the suit dismissed with costs. The appellate bench inter alia held that the suit property was included in the mortgage which resulted in the decree in O. S. 623 of 1931.2. In our opinion there is no merit in this appeal. There are good grounds to support the conclusion of the appellate Court, as we shall presently see, that the decree in O.S. 623 of 1931 covered the suit property as well. That apart, the contention that Mr. Ranganatha Sastri had no authority to sell the suit property is unavailable to the plaintiff in view of the mortgage executed by the executors appointed under the will of Munuswamy, the father of the plaintiff as well as by the legatees thereunder in favour of V. L. Varadaraj, on April 27, 1937.3. The suit property belonged to Munuswamy, the father of the plaintiff, Munuswamy mortgaged some of his properties in favour of Vasa Varadiah Chetty. Thereafter the same properties were mortgaged by the executors under his will to some other persons. Finally on April 27, 1937, the executors as well as the legatees under the will mortgaged several items of the properties which originally belonged to Munuswamy in favour of V. L. Varadaraj. That mortgage proceeded on the basis that the properties included therein had previously been mortgaged to Vasa Vardiah Chetty and to some others. It was executed for the purpose of discharging some of the earlier mortgage debts. If the suit property is held to be mortgaged under that deed in favour of V. L. Vardaraj then it follows that the mortgagors therein were of the opinion that property had been earlier mortgaged to Vasa Varadiah Chetty and others. One of the items of the property mortgaged under the deed of 1937 is that described in Schedule A to that deed. It reads thus:"Stable and Garden situated in the village of Mylapore, Vellala Teynampet, Mount Road bearing Municipal Nos. 113 and 114 within the registration district of Madras-Chingleput and in the Sub-registration district Mylapore bounded on the north by Survey Nos. 1412 and 11/1B, on the east by Survey Nos. 12/2, 11/1B and 12, on the west by Survey No. 1412 bearing old Survey No. 3027, Re-survey No. 11/1 and Collectors certificate No. 2722 and containing 1 Cawnie 14 grounds 1,537 square feet (an extent of cawnies nil, grounds 8 and square feet 1,298) was acquired under Notification in the Fort St. George Gazette, dated 25-7-1911. Part I, Pages 738 and 739 for a public purpose".The suit property is described in the plaint as follows:"House, ground and premises bearing Old Door No. 190, new Door No. 114, now numbered as 113 and 114, Mount Road, Vellala Teynampet, Madras bearing Resurvey No. 11/1 O. S. No. 3027 C. C. No. 1891 bounded on the North by R. S./10, South by R. S. No. 11/1-A, East by R. S. No. 12/2, West by R. S. 11/1A, situate in the registration district of Madras-Chingleput and the registration sub-district of Mambalam, measuring 2 grounds 2169 sq. ft. out of the total extend as per Quit Rent Extract of 1 cawnie 14 ground 1537 sq. ft."A comparison of these two Schedules goes to show that the suit property is a portion of the property mortgaged in favour of V. L. Vardaraj in 1937. The learned Counsel for the appellants could not dispute this conclusion.4. Under the mortgage deed of 1937, mortgagee was empowered to appoint Mr. Ranganatha Sastri as the Receiver of the property mortgaged to him on the happening of certain conditions. It is not disputed that Mr. Ranganatha Sastri had been appointed as the Receiver of the properties mortgaged under the deed of 1937. He was in possession of those properties as Receiver. In particular he was in possession of the suit property.5. Mortgage in favour of V. L. Varadaraj empowered the mortgagee to sell the mortgage property without the intervention of the Court for discharging all the debts under the mortgage. When the decree-holder in O,.S. 623 of 1931 sought to execute his decree, V. L. Varadaraj applied to the court to appoint Mr. Ranganatha Sastri as the Commissioner for selling the properties mortgaged to him in accordance with the terms of the mortgage in his favour, to discharge the mortgage debts. The Court accepted that prayer and appointed Mr. Ranganatha Sastri as the Commissioner to sell mortgaged properties by private treaties. Mr. Ranganatha Sastri sold the properties in accordance with the power conferred on the mortgagee under the mortgage deed of 1937. That power included the power to sell the suit properties without the intervention of the court. (It may be noted that the mortgage in favour of V. L. Varadaraj was an equitable mortgage). Hence it is immaterial whether the suit property was included in the mortgage which resulted in a decree in O. S. 623 of 1931 or not.6. In view of the above conclusion of ours, it is not necessary to go into the other contentions arising for decision in this appeal.
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2. In our opinion there is no merit in this appeal. There are good grounds to support the conclusion of the appellate Court, as we shall presently see, that the decree in O.S. 623 of 1931 covered the suit property as well. That apart, the contention that Mr. Ranganatha Sastri had no authority to sell the suit property is unavailable to the plaintiff in view of the mortgage executed by the executors appointed under the will of Munuswamy, the father of the plaintiff as well as by the legatees thereunder in favour of V. L. Varadaraj, on April 27, 1937.Under the mortgage deed of 1937, mortgagee was empowered to appoint Mr. Ranganatha Sastri as the Receiver of the property mortgaged to him on the happening of certain conditions. It is not disputed that Mr. Ranganatha Sastri had been appointed as the Receiver of the properties mortgaged under the deed of 1937. He was in possession of those properties as Receiver. In particular he was in possession of the suit property.5. Mortgage in favour of V. L. Varadaraj empowered the mortgagee to sell the mortgage property without the intervention of the Court for discharging all the debts under the mortgage. When thein O,.S. 623 of 1931 sought to execute his decree, V. L. Varadaraj applied to the court to appoint Mr. Ranganatha Sastri as the Commissioner for selling the properties mortgaged to him in accordance with the terms of the mortgage in his favour, to discharge the mortgage debts. The Court accepted that prayer and appointed Mr. Ranganatha Sastri as the Commissioner to sell mortgaged properties by private treaties. Mr. Ranganatha Sastri sold the properties in accordance with the power conferred on the mortgagee under the mortgage deed of 1937. That power included the power to sell the suit properties without the intervention of the court. (It may be noted that the mortgage in favour of V. L. Varadaraj was an equitable mortgage). Hence it is immaterial whether the suit property was included in the mortgage which resulted in a decree in O. S. 623 of 1931 or not.6. In view of the above conclusion of ours, it is not necessary to go into the other contentions arising for decision in this appeal.
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Mohd. Usman Military Contractor, Jhansi Vs. Union of India, Ministry of Defence | follows:"Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed, shall, unless a different intention appears, be construed as references to the provision so re-enacted."The section embodies the rule of construction that where the provision of an Act is repealed and re-enacted with or without modification, a reference to the repealed provision in any other enactment should be regarded as a reference to the provision re-enacted in the new form unless it appears that the legislature had a different intention.6. The Arbitration Act, 1940 was passed with a view to consolidate and amend the law relating to arbitration. Formerly the general law relating to arbitration was to be found in the Indian Arbitration Act, 1899 and the Code of Civil Procedure 1908. Paragraphs 1 to 16 of the second schedule to the Code applied to all arbitrations in suits. As to arbitrations otherwise than in suits, the Indian Arbitration Act 1899 applied to cases where, if the subject-matter submitted to arbitration were the subject of a suit, the suit could be instituted in a Presidency town: in other cases, the Code of Civil Procedure 1908 applied. The Arbitration Act, 1940 repealed both the enactments. It extends to the whole of India except the State of Jammu and Kashmir, and save as provided in Section 47 applies to all arbitrations. As to the provisions of the new Act under which applications can be made to Court, Ss. 8, 14, 16, 28 and 30 correspond to provisions which are found in both the repealed enactments, Ss. 5 and 9 correspond to similar provisions in the Indian Arbitration Act,1899, and Ss. 15 and 20 correspond to similar provisions in the second schedule to the Code and some sections such as Section 11, are entirely new. In the circumstances, a question may arise whether the provisions of the new Act can be regarded as reenactments of the repealed provisions of the Indian Arbitration Act, 1899 or of the Code. But for the purpose of this case we shall assume that S. 20 of the new Act is a re-enactment with modification of paragraph 17 of the second schedule to the Code.We shall also assume that Art. 181 of the Limitation Act as construed by the Courts should be regarded as containing a reference to the Code of Civil Procedure including paragraph 17 of the second schedule thereof. Even after making those two assumptions it appears to us that the implied reference in Art. 181 to the Code of Civil Procedure cannot be construed as a reference to the Arbitration Act,1940.7. Before their amendment by the Indian Arbitration Act, 1940, Art. 158 of the Limitation Act applied to applications "under the Code of Civil Procedure, 1908 to set aside an award" and Art. 178 applied to applications "under the same Code for the filing in Court of an award . . . . " The Arbitration Act, 1940 amended Arts, 158 and 178. The amended Art. 158 applies to applications "under the Arbitration Act, 1940 to set aside an award or to get an award remitted for consideration", that is to say, to applications under Ss. l6 and 30 of the Act.The amended Art. 178 applies to applications "under the Arbitration Act, 1940 for the filing in Court of an award", that is to say to application under S. 14 of the Act. In amending Arts. 158 and 178 the legislature acted upon the view that the references to the Code of Civil Procedure, 1908 in the second schedule to the Limitation Act could not in the absence of the amendment be construed as references to the Arbitration Act, 1940. At the same time the legislature refrained from amending Art. 181 and providing that the article will apply to other applications under the Arbitration Act, 1940. It is manifest that the legislature intended that save as provided in articles 158 and178 there would not be any limitation for other applications under the Act. Take the case of an application under S. 28 of the Act for enlargement of the time for making the award. A similar application under paragraph 8 of the second schedule to the Code was governed by Art. 181 but a like application under S. 12 of the Indian Arbitration Act, 1899 was not subject to any period of limitation. There is nothing to indicate that for the purpose of limitation S. 20 of the new Act should be regarded as a re-enactment of the corresponding provision of the Code and not of the Indian Arbitration Act, 1899. An application under S. 8 of the new Act corresponding to paragraph 5 of the second schedule to the Code and S. 8 of the Indian Arbitration Act, 1899 stand on the same footing. In the circumstances, it is not possible to construe the implied reference in Art. 181 to the Code of Civil Procedure as a reference to the Arbitration Act, 1940, or to hold that Art. 181 applies to applications under that Act. The rule of construction given in S. 8 (1) of the General Clauses Act cannot be applied, as it appears that the-legislature had a different intention.It follows that an application under Ss. 8 and 20 of the Arbitration Act, 1940 is not governed by Art. 181. The Limitation Act does not prescribe any period of limitation for such an application. It follows that the present application under Ss. 8 and 20 is not barred by limitation.8. In conclusion we must observe that the appellants claim relates to supplies during the period between April 1, 1945 and March 31, 1946. There is a serious contention whether the claim is barred by limitation. It will be the duty of the arbitrator to consider this matter carefully and to decide whether or not the claim is so barred. | 1[ds]6. The Arbitration Act, 1940 was passed with a view to consolidate and amend the law relating to arbitration. Formerly the general law relating to arbitration was to be found in the Indian Arbitration Act, 1899 and theCode of Civil Procedure 1908. Paragraphs 1 to 16 of the second schedule to the Code applied to all arbitrations in suits. As to arbitrations otherwise than in suits, the Indian Arbitration Act 1899 applied to cases where, if the subject-matter submitted to arbitration were the subject of a suit, the suit could be instituted in a Presidency town: in other cases, theCode of Civil Procedure 1908 applied. The Arbitration Act, 1940 repealed both the enactments. It extends to the whole of India except the State of Jammu and Kashmir, and save as provided in Section 47 applies to all arbitrations. As to the provisions of the new Act under which applications can be made to Court, Ss. 8, 14, 16, 28 and 30 correspond to provisions which are found in both the repealed enactments, Ss. 5 and 9 correspond to similar provisions in the Indian Arbitration Act,1899, and Ss. 15 and 20 correspond to similar provisions in the second schedule to the Code and some sections such as Section 11, are entirely new. In the circumstances, a question may arise whether the provisions of the new Act can be regarded as reenactments of the repealed provisions of the Indian Arbitration Act, 1899 or of the Code. But for the purpose of this case we shall assume that S. 20 of the new Act is a re-enactment with modification of paragraph 17 of the second schedule to the Code.We shall also assume that Art. 181 of the Limitation Act as construed by the Courts should be regarded as containing a reference to theCode of Civil Procedure including paragraph 17 of the second schedule thereof. Even after making those two assumptions it appears to us that the implied reference in Art. 181 to theCode of Civil Procedure cannot be construed as a reference to the Arbitrationis manifest that the legislature intended that save as provided in articles 158 and178 there would not be any limitation for other applications under the Act. Take the case of an application under S. 28 of the Act for enlargement of the time for making the award. A similar application under paragraph 8 of the second schedule to the Code was governed by Art. 181 but a like application under S. 12 of the Indian Arbitration Act, 1899 was not subject to any period of limitation. There is nothing to indicate that for the purpose of limitation S. 20 of the new Act should be regarded as a re-enactment of the corresponding provision of the Code and not of the Indian Arbitration Act, 1899. An application under S. 8 of the new Act corresponding to paragraph 5 of the second schedule to the Code and S. 8 of the Indian Arbitration Act, 1899 stand on the same footing. In the circumstances, it is not possible to construe the implied reference in Art. 181 to theCode of Civil Procedure as a reference tothe Arbitration Act, 1940, or to hold that Art. 181 applies to applications under that Act. The rule of construction given in S. 8 (1) of the General Clauses Act cannot be applied, as it appears that the-legislature had a different intention.It follows that an application under Ss. 8 and 20 ofthe Arbitration Act, 1940 is not governed by Art. 181. The Limitation Act does not prescribe any period of limitation for such an application. It follows that the present application under Ss. 8 and 20 is not barred by limitation.8. In conclusion we must observe that the appellants claim relates to supplies during the period between April 1, 1945 and March 31, 1946. There is a serious contention whether the claim is barred by limitation. It will be the duty of the arbitrator to consider this matter carefully and to decide whether or not the claim is so barred. | 1 | 2,119 | 741 | ### 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:
follows:"Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed, shall, unless a different intention appears, be construed as references to the provision so re-enacted."The section embodies the rule of construction that where the provision of an Act is repealed and re-enacted with or without modification, a reference to the repealed provision in any other enactment should be regarded as a reference to the provision re-enacted in the new form unless it appears that the legislature had a different intention.6. The Arbitration Act, 1940 was passed with a view to consolidate and amend the law relating to arbitration. Formerly the general law relating to arbitration was to be found in the Indian Arbitration Act, 1899 and the Code of Civil Procedure 1908. Paragraphs 1 to 16 of the second schedule to the Code applied to all arbitrations in suits. As to arbitrations otherwise than in suits, the Indian Arbitration Act 1899 applied to cases where, if the subject-matter submitted to arbitration were the subject of a suit, the suit could be instituted in a Presidency town: in other cases, the Code of Civil Procedure 1908 applied. The Arbitration Act, 1940 repealed both the enactments. It extends to the whole of India except the State of Jammu and Kashmir, and save as provided in Section 47 applies to all arbitrations. As to the provisions of the new Act under which applications can be made to Court, Ss. 8, 14, 16, 28 and 30 correspond to provisions which are found in both the repealed enactments, Ss. 5 and 9 correspond to similar provisions in the Indian Arbitration Act,1899, and Ss. 15 and 20 correspond to similar provisions in the second schedule to the Code and some sections such as Section 11, are entirely new. In the circumstances, a question may arise whether the provisions of the new Act can be regarded as reenactments of the repealed provisions of the Indian Arbitration Act, 1899 or of the Code. But for the purpose of this case we shall assume that S. 20 of the new Act is a re-enactment with modification of paragraph 17 of the second schedule to the Code.We shall also assume that Art. 181 of the Limitation Act as construed by the Courts should be regarded as containing a reference to the Code of Civil Procedure including paragraph 17 of the second schedule thereof. Even after making those two assumptions it appears to us that the implied reference in Art. 181 to the Code of Civil Procedure cannot be construed as a reference to the Arbitration Act,1940.7. Before their amendment by the Indian Arbitration Act, 1940, Art. 158 of the Limitation Act applied to applications "under the Code of Civil Procedure, 1908 to set aside an award" and Art. 178 applied to applications "under the same Code for the filing in Court of an award . . . . " The Arbitration Act, 1940 amended Arts, 158 and 178. The amended Art. 158 applies to applications "under the Arbitration Act, 1940 to set aside an award or to get an award remitted for consideration", that is to say, to applications under Ss. l6 and 30 of the Act.The amended Art. 178 applies to applications "under the Arbitration Act, 1940 for the filing in Court of an award", that is to say to application under S. 14 of the Act. In amending Arts. 158 and 178 the legislature acted upon the view that the references to the Code of Civil Procedure, 1908 in the second schedule to the Limitation Act could not in the absence of the amendment be construed as references to the Arbitration Act, 1940. At the same time the legislature refrained from amending Art. 181 and providing that the article will apply to other applications under the Arbitration Act, 1940. It is manifest that the legislature intended that save as provided in articles 158 and178 there would not be any limitation for other applications under the Act. Take the case of an application under S. 28 of the Act for enlargement of the time for making the award. A similar application under paragraph 8 of the second schedule to the Code was governed by Art. 181 but a like application under S. 12 of the Indian Arbitration Act, 1899 was not subject to any period of limitation. There is nothing to indicate that for the purpose of limitation S. 20 of the new Act should be regarded as a re-enactment of the corresponding provision of the Code and not of the Indian Arbitration Act, 1899. An application under S. 8 of the new Act corresponding to paragraph 5 of the second schedule to the Code and S. 8 of the Indian Arbitration Act, 1899 stand on the same footing. In the circumstances, it is not possible to construe the implied reference in Art. 181 to the Code of Civil Procedure as a reference to the Arbitration Act, 1940, or to hold that Art. 181 applies to applications under that Act. The rule of construction given in S. 8 (1) of the General Clauses Act cannot be applied, as it appears that the-legislature had a different intention.It follows that an application under Ss. 8 and 20 of the Arbitration Act, 1940 is not governed by Art. 181. The Limitation Act does not prescribe any period of limitation for such an application. It follows that the present application under Ss. 8 and 20 is not barred by limitation.8. In conclusion we must observe that the appellants claim relates to supplies during the period between April 1, 1945 and March 31, 1946. There is a serious contention whether the claim is barred by limitation. It will be the duty of the arbitrator to consider this matter carefully and to decide whether or not the claim is so barred.
### Response:
1
### Explanation:
6. The Arbitration Act, 1940 was passed with a view to consolidate and amend the law relating to arbitration. Formerly the general law relating to arbitration was to be found in the Indian Arbitration Act, 1899 and theCode of Civil Procedure 1908. Paragraphs 1 to 16 of the second schedule to the Code applied to all arbitrations in suits. As to arbitrations otherwise than in suits, the Indian Arbitration Act 1899 applied to cases where, if the subject-matter submitted to arbitration were the subject of a suit, the suit could be instituted in a Presidency town: in other cases, theCode of Civil Procedure 1908 applied. The Arbitration Act, 1940 repealed both the enactments. It extends to the whole of India except the State of Jammu and Kashmir, and save as provided in Section 47 applies to all arbitrations. As to the provisions of the new Act under which applications can be made to Court, Ss. 8, 14, 16, 28 and 30 correspond to provisions which are found in both the repealed enactments, Ss. 5 and 9 correspond to similar provisions in the Indian Arbitration Act,1899, and Ss. 15 and 20 correspond to similar provisions in the second schedule to the Code and some sections such as Section 11, are entirely new. In the circumstances, a question may arise whether the provisions of the new Act can be regarded as reenactments of the repealed provisions of the Indian Arbitration Act, 1899 or of the Code. But for the purpose of this case we shall assume that S. 20 of the new Act is a re-enactment with modification of paragraph 17 of the second schedule to the Code.We shall also assume that Art. 181 of the Limitation Act as construed by the Courts should be regarded as containing a reference to theCode of Civil Procedure including paragraph 17 of the second schedule thereof. Even after making those two assumptions it appears to us that the implied reference in Art. 181 to theCode of Civil Procedure cannot be construed as a reference to the Arbitrationis manifest that the legislature intended that save as provided in articles 158 and178 there would not be any limitation for other applications under the Act. Take the case of an application under S. 28 of the Act for enlargement of the time for making the award. A similar application under paragraph 8 of the second schedule to the Code was governed by Art. 181 but a like application under S. 12 of the Indian Arbitration Act, 1899 was not subject to any period of limitation. There is nothing to indicate that for the purpose of limitation S. 20 of the new Act should be regarded as a re-enactment of the corresponding provision of the Code and not of the Indian Arbitration Act, 1899. An application under S. 8 of the new Act corresponding to paragraph 5 of the second schedule to the Code and S. 8 of the Indian Arbitration Act, 1899 stand on the same footing. In the circumstances, it is not possible to construe the implied reference in Art. 181 to theCode of Civil Procedure as a reference tothe Arbitration Act, 1940, or to hold that Art. 181 applies to applications under that Act. The rule of construction given in S. 8 (1) of the General Clauses Act cannot be applied, as it appears that the-legislature had a different intention.It follows that an application under Ss. 8 and 20 ofthe Arbitration Act, 1940 is not governed by Art. 181. The Limitation Act does not prescribe any period of limitation for such an application. It follows that the present application under Ss. 8 and 20 is not barred by limitation.8. In conclusion we must observe that the appellants claim relates to supplies during the period between April 1, 1945 and March 31, 1946. There is a serious contention whether the claim is barred by limitation. It will be the duty of the arbitrator to consider this matter carefully and to decide whether or not the claim is so barred.
|
Beharilal Shyamsunder Vs. Sales Tax Officer, Cui Circle, Cuttack, and Another | SUBBA RAO J.1. These are appeals by special leave against the orders of the High Court of Orissa dismissing the petitions filed by the appellant under article 226 of the Constitution of India to quash the notification issued by the Government of Orissa on the ground that the petitioner has "not exhausted the internal remedies under the Orissa Sales Tax Act." Learned Attorney-General appearing for the Sales Tax Officer raised a preliminary objection on the ground that the special leave petitions were filed out of time. Mr. A. V. Viswanatha Sastri appearing for the appellant contended that they were not barred. Without deciding whether they were barred or not, on that there is some dispute, we think, having regard to the circumstances of the case, that this is a fit case for excusing the delay, if any. We accordingly excuse the delay in filing the special leave petitions The appellant filed petitions under article 226 of the Constitution of India for issuance of a writ of mandamus or any other appropriate writ quashing the assessment orders on the ground that the imposition of tax was without authority of law or ultra vires the Sales Tax Act and the rules2. This court in K. S. Venkataraman & Co. (P.) Ltd. v. State of Madras (Civil Appeal No. 618 of 1963 decided on October 18, 1965) held that the Sales Tax Tribunal could only decide disputes between the assessee and the Commissioner in terms of the provisions of the Madras General Sales Tax Act, 1939, and the question of ultra vires was foreign to its jurisdiction. For the same reason, we must hold that the question raised by the appellant before the High Court could not be decided by the sales tax authorities under the Orissa Sales Tax Act, 1947. The High Court, therefore, went wrong in dismissing the applications on the ground that the appellant should exhaust his internal remedies under the said Act. The order of the High Court is set aside, the appeals are allowed and the matter is remanded to the High Court for disposal in accordance with law. Costs will abide the result | 1[ds]Without deciding whether they were barred or not, on that there is some dispute, we think, having regard to the circumstances of the case, that this is a fit case for excusing the delay, if any.We accordingly excuse the delay in filing the special leave petitions The appellant filed petitions under article 226 of the Constitution of India for issuance of a writ of mandamus or any other appropriate writ quashing the assessment orders on the ground that the imposition of tax was without authority of law or ultra vires the Sales Tax Act and thecourt in K. S. Venkataraman & Co. (P.) Ltd. v. State of Madras (Civil Appeal No. 618 of 1963 decided on October 18, 1965) held that the Sales Tax Tribunal could only decide disputes between the assessee and the Commissioner in terms of the provisions of the Madras General Sales Tax Act, 1939, and the question of ultra vires was foreign to its jurisdiction. For the same reason, we must hold that the question raised by the appellant before the High Court could not be decided by the sales tax authorities under the Orissa Sales Tax Act, 1947. The High Court, therefore, went wrong in dismissing the applications on the ground that the appellant should exhaust his internal remedies under the said Act. The order of the High Court is set aside, the appeals are allowed and the matter is remanded to the High Court for disposal in accordance with law. Costs will abide the result | 1 | 386 | 277 | ### 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:
SUBBA RAO J.1. These are appeals by special leave against the orders of the High Court of Orissa dismissing the petitions filed by the appellant under article 226 of the Constitution of India to quash the notification issued by the Government of Orissa on the ground that the petitioner has "not exhausted the internal remedies under the Orissa Sales Tax Act." Learned Attorney-General appearing for the Sales Tax Officer raised a preliminary objection on the ground that the special leave petitions were filed out of time. Mr. A. V. Viswanatha Sastri appearing for the appellant contended that they were not barred. Without deciding whether they were barred or not, on that there is some dispute, we think, having regard to the circumstances of the case, that this is a fit case for excusing the delay, if any. We accordingly excuse the delay in filing the special leave petitions The appellant filed petitions under article 226 of the Constitution of India for issuance of a writ of mandamus or any other appropriate writ quashing the assessment orders on the ground that the imposition of tax was without authority of law or ultra vires the Sales Tax Act and the rules2. This court in K. S. Venkataraman & Co. (P.) Ltd. v. State of Madras (Civil Appeal No. 618 of 1963 decided on October 18, 1965) held that the Sales Tax Tribunal could only decide disputes between the assessee and the Commissioner in terms of the provisions of the Madras General Sales Tax Act, 1939, and the question of ultra vires was foreign to its jurisdiction. For the same reason, we must hold that the question raised by the appellant before the High Court could not be decided by the sales tax authorities under the Orissa Sales Tax Act, 1947. The High Court, therefore, went wrong in dismissing the applications on the ground that the appellant should exhaust his internal remedies under the said Act. The order of the High Court is set aside, the appeals are allowed and the matter is remanded to the High Court for disposal in accordance with law. Costs will abide the result
### Response:
1
### Explanation:
Without deciding whether they were barred or not, on that there is some dispute, we think, having regard to the circumstances of the case, that this is a fit case for excusing the delay, if any.We accordingly excuse the delay in filing the special leave petitions The appellant filed petitions under article 226 of the Constitution of India for issuance of a writ of mandamus or any other appropriate writ quashing the assessment orders on the ground that the imposition of tax was without authority of law or ultra vires the Sales Tax Act and thecourt in K. S. Venkataraman & Co. (P.) Ltd. v. State of Madras (Civil Appeal No. 618 of 1963 decided on October 18, 1965) held that the Sales Tax Tribunal could only decide disputes between the assessee and the Commissioner in terms of the provisions of the Madras General Sales Tax Act, 1939, and the question of ultra vires was foreign to its jurisdiction. For the same reason, we must hold that the question raised by the appellant before the High Court could not be decided by the sales tax authorities under the Orissa Sales Tax Act, 1947. The High Court, therefore, went wrong in dismissing the applications on the ground that the appellant should exhaust his internal remedies under the said Act. The order of the High Court is set aside, the appeals are allowed and the matter is remanded to the High Court for disposal in accordance with law. Costs will abide the result
|
Anuj Garg Vs. Hotel Association Of India | the Alabama prison system is the eradication of inmates antisocial behavior patterns so that prisoners will be able to live one day in free society. Sex offenders can begin this process by learning to relate to women guards in a socially acceptable manner. To deprive women of job opportunities because of the threatened behavior of convicted criminals is to turn our social priorities upside down." The Standard of Judicial Scrutiny 44. It is to be borne in mind that legislations with pronounced "protective discrimination" aims, such as this one, potentially serve as double edged swords. Strict scrutiny test should be employed while assessing the implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means. 45. No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which can not be compromised in the name of expediency until unless there is a compelling state purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases. 46. Professor Christine A. Littleton in her widely quoted article RECONSTRUCTING SEXUAL EQUALITY, 75 CALR 1279, July 1987 makes a useful observation in this regard: "The difference between human beings, whether perceived or real, and whether biologically or socially based, should not be permitted to make a difference in the lived-out equality of those persons. I call this the model of equality as acceptance. To achieve this form of sexual equality, male and female differences must be costless relative to each other." 47. Having regard to the scope of Section 30 of the Act and the impugned legislation generally the Court has to reach to a finding as to whether the legislative interference to the autonomy in employment opportunities for women is justified as a legitimate aim and proportionate to the aim pursued. In this behalf it would be relevant to understand the approach of European Court of Human Rights which has very often dealt with matters of competing public interests and tuned new legal devices for the same. Doctrine of Proportionality and Incompatibility would definitely find mention in such a discussion. 48. The test to review such a Protective Discrimination statute would entail a two pronged scrutiny: (a) the legislative interference (induced by sex discriminatory legalisation in the instant case) should be justified in principle, (b) the same should be proportionate in measure. 49. The Courts task is to determine whether the measures furthered by the State in form of legislative mandate, to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy et al. The bottom-line in this behalf would a functioning modern democratic society which ensures freedom to pursue varied opportunities and options without discriminating on the basis of sex, race, caste or any other like basis. In fine, there should be a reasonable relationship of proportionality between the means used and the aim pursued. 50. In United States v. Virginia (518 U.S. 515, 532-33 (1996)) Justice Ginsburg notes with particular emphasis the need for an intrusive multi-stage review in sex discrimination statutes. The court observed: "The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed "inherent differences" are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring. "Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individuals opportunity. Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered," to "promote equal employment opportunity," to advance full development of the talent and capacities of our Nations people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women." (internal citations omitted) Changing Stand of the Government of NCT Delhi 51. The Government of NCT Delhi, although did not challenge the impugned judgment of the Delhi High Court, seeks to enter into the fray through a side door. It, on the one hand, challenges the locus of the appellant which objection, if upheld, would make the appeal liable to be dismissed at the threshold, on the other, seeks to justify the validity of Section 30 of the Act. It cites examples of Jessica Lal and BMW to highlight dangerous consequences of allowing sale and consumption of liquor by young men below the age of 25 years and vulnerability of women while working in bars. When the restrictions were in force, they could not prevent such occurrences. If the restriction goes, some such incidents may again happen. But only on a pre-supposition that there is a possibility of some incident happening, we cannot declare a law intra vires which is ex facie ultra vires.52. We, furthermore, deprecate this practice of the Government of NCT to raise a contention of the aforementioned nature which not only had not been raised before the High Court but in an appeal filed by a few citizens maintainability whereof is in question. It, having allowed the judgment of High Court to attain finality, is estopped by records to question the correctness of the impugned judgment.Conclusion53. In the instant case the end result is an invidious discrimination perpetrating sexual differences.54. Young men who take a degree or diploma in Hotel Management enter into service at the age of 22 years or 23 years. It, thus, cannot prohibit employment of men below 25 years. Such a restriction keeping in view a citizens right to be considered for employment, which is a facet of the right to livelihood do not stand judicial scrutiny. | 0[ds]51. The Government of NCT Delhi, although did not challenge the impugned judgment of the Delhi High Court, seeks to enter into the fray through a side door. It, on the one hand, challenges the locus of the appellant which objection, if upheld, would make the appeal liable to be dismissed at the threshold, on the other, seeks to justify the validity of Section 30 of the Act. It cites examples of Jessica Lal and BMW to highlight dangerous consequences of allowing sale and consumption of liquor by young men below the age of 25 years and vulnerability of women while working in bars. When the restrictions were in force, they could not prevent such occurrences. If the restriction goes, some such incidents may again happen. But only on a pre-supposition that there is a possibility of some incident happening, we cannot declare a law intra vires which is ex facie ultra vires.52. We, furthermore, deprecate this practice of the Government of NCT to raise a contention of the aforementioned nature which not only had not been raised before the High Court but in an appeal filed by a few citizens maintainability whereof is in question. It, having allowed the judgment of High Court to attain finality, is estopped by records to question the correctness of the impugned judgment.Conclusion53. In the instant case the end result is an invidious discrimination perpetrating sexual differences.54. Young men who take a degree or diploma in Hotel Management enter into service at the age of 22 years or 23 years. It, thus, cannot prohibit employment of men below 25 years. Such a restriction keeping in view a citizens right to be considered for employment, which is a facet of the right to livelihood do not stand judicial scrutiny. | 0 | 6,860 | 331 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the Alabama prison system is the eradication of inmates antisocial behavior patterns so that prisoners will be able to live one day in free society. Sex offenders can begin this process by learning to relate to women guards in a socially acceptable manner. To deprive women of job opportunities because of the threatened behavior of convicted criminals is to turn our social priorities upside down." The Standard of Judicial Scrutiny 44. It is to be borne in mind that legislations with pronounced "protective discrimination" aims, such as this one, potentially serve as double edged swords. Strict scrutiny test should be employed while assessing the implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means. 45. No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which can not be compromised in the name of expediency until unless there is a compelling state purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases. 46. Professor Christine A. Littleton in her widely quoted article RECONSTRUCTING SEXUAL EQUALITY, 75 CALR 1279, July 1987 makes a useful observation in this regard: "The difference between human beings, whether perceived or real, and whether biologically or socially based, should not be permitted to make a difference in the lived-out equality of those persons. I call this the model of equality as acceptance. To achieve this form of sexual equality, male and female differences must be costless relative to each other." 47. Having regard to the scope of Section 30 of the Act and the impugned legislation generally the Court has to reach to a finding as to whether the legislative interference to the autonomy in employment opportunities for women is justified as a legitimate aim and proportionate to the aim pursued. In this behalf it would be relevant to understand the approach of European Court of Human Rights which has very often dealt with matters of competing public interests and tuned new legal devices for the same. Doctrine of Proportionality and Incompatibility would definitely find mention in such a discussion. 48. The test to review such a Protective Discrimination statute would entail a two pronged scrutiny: (a) the legislative interference (induced by sex discriminatory legalisation in the instant case) should be justified in principle, (b) the same should be proportionate in measure. 49. The Courts task is to determine whether the measures furthered by the State in form of legislative mandate, to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy et al. The bottom-line in this behalf would a functioning modern democratic society which ensures freedom to pursue varied opportunities and options without discriminating on the basis of sex, race, caste or any other like basis. In fine, there should be a reasonable relationship of proportionality between the means used and the aim pursued. 50. In United States v. Virginia (518 U.S. 515, 532-33 (1996)) Justice Ginsburg notes with particular emphasis the need for an intrusive multi-stage review in sex discrimination statutes. The court observed: "The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed "inherent differences" are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring. "Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individuals opportunity. Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered," to "promote equal employment opportunity," to advance full development of the talent and capacities of our Nations people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women." (internal citations omitted) Changing Stand of the Government of NCT Delhi 51. The Government of NCT Delhi, although did not challenge the impugned judgment of the Delhi High Court, seeks to enter into the fray through a side door. It, on the one hand, challenges the locus of the appellant which objection, if upheld, would make the appeal liable to be dismissed at the threshold, on the other, seeks to justify the validity of Section 30 of the Act. It cites examples of Jessica Lal and BMW to highlight dangerous consequences of allowing sale and consumption of liquor by young men below the age of 25 years and vulnerability of women while working in bars. When the restrictions were in force, they could not prevent such occurrences. If the restriction goes, some such incidents may again happen. But only on a pre-supposition that there is a possibility of some incident happening, we cannot declare a law intra vires which is ex facie ultra vires.52. We, furthermore, deprecate this practice of the Government of NCT to raise a contention of the aforementioned nature which not only had not been raised before the High Court but in an appeal filed by a few citizens maintainability whereof is in question. It, having allowed the judgment of High Court to attain finality, is estopped by records to question the correctness of the impugned judgment.Conclusion53. In the instant case the end result is an invidious discrimination perpetrating sexual differences.54. Young men who take a degree or diploma in Hotel Management enter into service at the age of 22 years or 23 years. It, thus, cannot prohibit employment of men below 25 years. Such a restriction keeping in view a citizens right to be considered for employment, which is a facet of the right to livelihood do not stand judicial scrutiny.
### Response:
0
### Explanation:
51. The Government of NCT Delhi, although did not challenge the impugned judgment of the Delhi High Court, seeks to enter into the fray through a side door. It, on the one hand, challenges the locus of the appellant which objection, if upheld, would make the appeal liable to be dismissed at the threshold, on the other, seeks to justify the validity of Section 30 of the Act. It cites examples of Jessica Lal and BMW to highlight dangerous consequences of allowing sale and consumption of liquor by young men below the age of 25 years and vulnerability of women while working in bars. When the restrictions were in force, they could not prevent such occurrences. If the restriction goes, some such incidents may again happen. But only on a pre-supposition that there is a possibility of some incident happening, we cannot declare a law intra vires which is ex facie ultra vires.52. We, furthermore, deprecate this practice of the Government of NCT to raise a contention of the aforementioned nature which not only had not been raised before the High Court but in an appeal filed by a few citizens maintainability whereof is in question. It, having allowed the judgment of High Court to attain finality, is estopped by records to question the correctness of the impugned judgment.Conclusion53. In the instant case the end result is an invidious discrimination perpetrating sexual differences.54. Young men who take a degree or diploma in Hotel Management enter into service at the age of 22 years or 23 years. It, thus, cannot prohibit employment of men below 25 years. Such a restriction keeping in view a citizens right to be considered for employment, which is a facet of the right to livelihood do not stand judicial scrutiny.
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LANCE NAYAK PNO NO. 980510777 RAJ BAHADUR Vs. THE STATE OF UTTAR PRADESH | raised in Writ Petition (Service Single) No.3918 of 2011 (Aarakshi Vimal Kumar Singh and others v. State of U.P. and others) before the High Court of Judicature at Allahabad, Lucknow Bench. The Single Judge by his order dated 03.08.2011 directed the authorities to award full marks to every candidate in respect of those 18 questions. The order passed by the Single Judge was stayed by the Division Bench in Special Appeal arising therefrom. The matter finally reached this Court and by an order dated 18.07.2014 following directions were issued by this Court in Civil Appeal No.6547 of 2014:?Having heard learned counsel for the parties, we are of the convinced opinion, the controversy should be put to rest from all spectrums and accordingly we issue the following directions:-(a) The posts that have been filled up by successful candidates, as has been apprised to us at the Bar, are 3358 and the candidates who have joined in the said posts and presently working shall not be disturbed.(b) The U.P. Police Recruitment & Promotion Board, Lucknow shall scrutinise the papers of all the candidates, namely, the persons who had approached the writ court and the candidates who had not approached the writ court and if they have attempted and answered the 18 questions, which were wrongly set out, they will be awarded full marks for said 18 questions.(c) If a candidate has not answered any erroneous question, the same shall be proportionately reduced. To clarify, the candidate shall only get full marks for the questions answered.(d) A fresh select list shall be drawn up taking into account the aforesaid marks in respect of 2031 posts which are available in present pertaining to the year 2008. (e) The aforesaid exercise shall complete within a period of three months hence and the successful candidates shall be duly intimated and subsequent action shall be taken by the State.By virtue of our order, any matter pending in the Writ Court or before the Division Bench shall be deemed to have been disposed of.?6. The select list was thereafter published on 27.11.2014.7. In SLP(C) No.25377-78 of 2014 (Qamar Hasan Khan & others v. State of U.P. & Ors.) an order was passed on 10.08.2015 by this Court as under:?It is hereby made clear that no court shall entertain any grievance relating to this particular selection. Our present order would not dislodge, if any candidate, who has already been selected or sent for training. Needless to emphasize, the present order has been passed regard being had to the special features of the case.?8. In April 2018 a writ petition being Writ A-No.10308 of 2018 was preferred by the appellants submitting inter alia that the selection process was undertaken without applying Reservation Policy and that while considering 50 per cent cut off marks criteria must be ?paper? wise and not ?subject? wise.9. In view of the order passed by this Court on 10.08.2015 in (Qamar Hasan Khan & others v. State of U.P. & Ors.) the High Court refused to entertain the writ petition and dismissed the same by its order dated 20.04.2018, which order is now under challenge.10. When the matters were taken up on 15.04.2019 Mr. Pallav Shishodia, learned Senior Advocate appearing for the appellants relied upon Order dated 30.01.2017 passed by this Court in Writ Petition (C) No.45 of 2016 whereunder the concerned petitioners having secured more than cut off marks were directed to be sent for training. It was submitted that similar benefits be given to the appellants. Submissions advanced by Mr. Pallav Shishodia, learned Senior Advocate were noted in the order dated 15.04.2019 as under:?According to the Rule, the eligible candidates are to appear in the written examination which is to carry 300 marks and the details of the subjects are given in Rule 16(A). The subjects so specified are 1 to 4 (subjects 3 & 4 carry 50 marks each).According to the petition, the requirement to secure 50% marks is not to be reckoned subject-wise but ought to reckon paper-wise. And since there is common paper for subjects 3&4, the minimum marks which ought to be insisted upon must be in terms of the entire paper and not per subject i.e., subjects 3&4. Mr. Shishodia submits that his clients have secured 54% in the paper though the clients may not have secured 50% minimum in subjects 3&4.According to Mr. Shishodia, if this submission is accepted, the petitioners would be entitled to the benefit of Order dated 30.01.2017 passed by this Court as the aggregate marks secured by them are more than 50%.?11. The stand of the State Government is:(a) That the candidates were awarded full marks in the manner prescribed by this Court;(b) That even then, none of the appellants in all these matters were fulfilling the criteria of having obtained 50 per cent marks in all the subjects;12. The fact that the appellants had not obtained 50 per cent marks in each of the subjects is accepted and what is submitted by the appellants is that Subject Nos.3 and 4, namely, ?Numerical and Mental Ability Test? and ?Mental Aptitude Test/I.Q, Test/Reasoning? carrying 50 marks each, were part of the same paper. The further submission is that on the strength of the aggregate from all the subjects, the appellants would be entitled to be promoted.13. We have given anxious consideration to the submissions as advanced. We are concerned in these matters with limited Departmental examination where the idea is, regardless of seniority levels, a meritorious candidate be given chance to reach higher levels. Merit is therefore the key element and there can be no compromise and dilution of the criteria. What is required in terms of the Rules is minimum of 50 per cent marks ?in each subject?. The subjects are delineated in the Rules and there are four subjects. Irrespective whether subjects 3 and 4 form part of the same paper, the express language of the Rules does not permit any such interpretation and the construction suggested by Mr. Shishodia cannot be accepted. | 0[ds]13. We have given anxious consideration to the submissions as advanced. We are concerned in these matters with limited Departmental examination where the idea is, regardless of seniority levels, a meritorious candidate be given chance to reach higher levels. Merit is therefore the key element and there can be no compromise and dilution of the criteria. What is required in terms of the Rules is minimum of 50 per cent marks ?in each subject?. The subjects are delineated in the Rules and there are four subjects. Irrespective whether subjects 3 and 4 form part of the same paper, the express language of the Rules does not permit any such interpretation and the construction suggested by Mr. Shishodia cannot be accepted. | 0 | 2,321 | 137 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
raised in Writ Petition (Service Single) No.3918 of 2011 (Aarakshi Vimal Kumar Singh and others v. State of U.P. and others) before the High Court of Judicature at Allahabad, Lucknow Bench. The Single Judge by his order dated 03.08.2011 directed the authorities to award full marks to every candidate in respect of those 18 questions. The order passed by the Single Judge was stayed by the Division Bench in Special Appeal arising therefrom. The matter finally reached this Court and by an order dated 18.07.2014 following directions were issued by this Court in Civil Appeal No.6547 of 2014:?Having heard learned counsel for the parties, we are of the convinced opinion, the controversy should be put to rest from all spectrums and accordingly we issue the following directions:-(a) The posts that have been filled up by successful candidates, as has been apprised to us at the Bar, are 3358 and the candidates who have joined in the said posts and presently working shall not be disturbed.(b) The U.P. Police Recruitment & Promotion Board, Lucknow shall scrutinise the papers of all the candidates, namely, the persons who had approached the writ court and the candidates who had not approached the writ court and if they have attempted and answered the 18 questions, which were wrongly set out, they will be awarded full marks for said 18 questions.(c) If a candidate has not answered any erroneous question, the same shall be proportionately reduced. To clarify, the candidate shall only get full marks for the questions answered.(d) A fresh select list shall be drawn up taking into account the aforesaid marks in respect of 2031 posts which are available in present pertaining to the year 2008. (e) The aforesaid exercise shall complete within a period of three months hence and the successful candidates shall be duly intimated and subsequent action shall be taken by the State.By virtue of our order, any matter pending in the Writ Court or before the Division Bench shall be deemed to have been disposed of.?6. The select list was thereafter published on 27.11.2014.7. In SLP(C) No.25377-78 of 2014 (Qamar Hasan Khan & others v. State of U.P. & Ors.) an order was passed on 10.08.2015 by this Court as under:?It is hereby made clear that no court shall entertain any grievance relating to this particular selection. Our present order would not dislodge, if any candidate, who has already been selected or sent for training. Needless to emphasize, the present order has been passed regard being had to the special features of the case.?8. In April 2018 a writ petition being Writ A-No.10308 of 2018 was preferred by the appellants submitting inter alia that the selection process was undertaken without applying Reservation Policy and that while considering 50 per cent cut off marks criteria must be ?paper? wise and not ?subject? wise.9. In view of the order passed by this Court on 10.08.2015 in (Qamar Hasan Khan & others v. State of U.P. & Ors.) the High Court refused to entertain the writ petition and dismissed the same by its order dated 20.04.2018, which order is now under challenge.10. When the matters were taken up on 15.04.2019 Mr. Pallav Shishodia, learned Senior Advocate appearing for the appellants relied upon Order dated 30.01.2017 passed by this Court in Writ Petition (C) No.45 of 2016 whereunder the concerned petitioners having secured more than cut off marks were directed to be sent for training. It was submitted that similar benefits be given to the appellants. Submissions advanced by Mr. Pallav Shishodia, learned Senior Advocate were noted in the order dated 15.04.2019 as under:?According to the Rule, the eligible candidates are to appear in the written examination which is to carry 300 marks and the details of the subjects are given in Rule 16(A). The subjects so specified are 1 to 4 (subjects 3 & 4 carry 50 marks each).According to the petition, the requirement to secure 50% marks is not to be reckoned subject-wise but ought to reckon paper-wise. And since there is common paper for subjects 3&4, the minimum marks which ought to be insisted upon must be in terms of the entire paper and not per subject i.e., subjects 3&4. Mr. Shishodia submits that his clients have secured 54% in the paper though the clients may not have secured 50% minimum in subjects 3&4.According to Mr. Shishodia, if this submission is accepted, the petitioners would be entitled to the benefit of Order dated 30.01.2017 passed by this Court as the aggregate marks secured by them are more than 50%.?11. The stand of the State Government is:(a) That the candidates were awarded full marks in the manner prescribed by this Court;(b) That even then, none of the appellants in all these matters were fulfilling the criteria of having obtained 50 per cent marks in all the subjects;12. The fact that the appellants had not obtained 50 per cent marks in each of the subjects is accepted and what is submitted by the appellants is that Subject Nos.3 and 4, namely, ?Numerical and Mental Ability Test? and ?Mental Aptitude Test/I.Q, Test/Reasoning? carrying 50 marks each, were part of the same paper. The further submission is that on the strength of the aggregate from all the subjects, the appellants would be entitled to be promoted.13. We have given anxious consideration to the submissions as advanced. We are concerned in these matters with limited Departmental examination where the idea is, regardless of seniority levels, a meritorious candidate be given chance to reach higher levels. Merit is therefore the key element and there can be no compromise and dilution of the criteria. What is required in terms of the Rules is minimum of 50 per cent marks ?in each subject?. The subjects are delineated in the Rules and there are four subjects. Irrespective whether subjects 3 and 4 form part of the same paper, the express language of the Rules does not permit any such interpretation and the construction suggested by Mr. Shishodia cannot be accepted.
### Response:
0
### Explanation:
13. We have given anxious consideration to the submissions as advanced. We are concerned in these matters with limited Departmental examination where the idea is, regardless of seniority levels, a meritorious candidate be given chance to reach higher levels. Merit is therefore the key element and there can be no compromise and dilution of the criteria. What is required in terms of the Rules is minimum of 50 per cent marks ?in each subject?. The subjects are delineated in the Rules and there are four subjects. Irrespective whether subjects 3 and 4 form part of the same paper, the express language of the Rules does not permit any such interpretation and the construction suggested by Mr. Shishodia cannot be accepted.
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Commissioner Of Income-Tax,Hyderabad Vs. Sri Rajareddy Mallaram | was whether penalty for concealing the particulars of income or for deliberately furnishing inaccurate particulars of income in the return could lawfully be imposed after discontinuance of the business. It is true that the validity of the order assessing the firm was not expressly challenged, though at the date of the order of assessment the firm stood dissolved, and its business was discontinued, but the Court could not adjudicate upon the validity of the order imposing penalty without deciding whether there was a valid assessment, for an order imposing penalty postulates a valid assessment.4. Counsel for the respondent contended that even if the assessment after dissolution of the Group be regarded as valid, it is binding upon only those persons who were served with the notice calling for a return, and in support of this plea relied upon the clause "every person who was at the time of such X X dissolution, a member of such association shall in respect of the income X X of the association be jointly and severally liable to assessment". He urged that the expression "every person" in S. 44 means all persons, and that by enacting that such persons, shall be liable to assessment "jointly and severally" it was intended that after the association is dissolved only the members at the date of dissolution can be assessed in respect of the income of the association. As a corollary to the argument it was submitted that all members who are sought to be assessed must be individually served with notice of assessment, and those not served will not be bound by the assessment. The argument is plainly inconsistent with what was observed by this Court in Abrahams case, (1961) 2 SCR 765 : (AIR 1961) SC 609). If by S. 44 the continuity of the firm or association is for the purpose of assessment ensured no question of assessing the individual members of the association can arise. Under Ch. IV of the Income-tax Act an association of persons may be assessed as a unit of assessment, or the individual members may be assessed separately in respect of their respective shares of the income, but the Act contains no machinery for assessing the income received by an association, in the hands of its members collectively. The unit of assessment in respect of the income earned by the association is either the association or each individual member in respect of his share in the income. This is so when the association is exiting, and after it is dissolved as well. There can be no partial assessment of the income of an association, limited to the share of the member who is served with notice of assessment. For the purpose of assessment the Income-tax Act invests an association with a personality apart from the members constituting it and if that personality is for the purposes of Ch. IV, insofar as it relates to assessment, continued, the theory of assessment binding only upon members who were served with the notice of assessment can have no validity. This view is supported by the use of the expression "tax payable" in Section 44 which in the context in which it occurs can only mean tax which the association but for dissolution, or discontinuance of its business would have been assessed to pay. Since the primary purpose of S. 44 is to bring to tax the income of the association after it is dissolved or its business is discontinued, assessment of an aliquot share of that income is not contemplated by S. 44 of the Income-tax Act.5. The effect of S. 44 is, as we have stated, merely to ensure continuity in the application of the machinery provided in Ch. IV of the Act for assessment and for imposition of tax liability notwithstanding discontinuance of the business of the association or its dissolution. By virtue of S. 44 the personality of the association is continued for the purpose of assessment and Ch. IV applies thereto. What can be assessed is the income of the association received prior to its dissolution and the members of the association would be jointly and severally assessed thereto in their capacity as members of the association. For the purpose of such assessment, the procedure is that applicable for assessment of the income of the association as if it had continued. A notice to the appropriate person under S. 63(2) would, therefore, be sufficient to enable the authority to assess to tax the association. The plea that the respondent not having been served personally with the notice of assessment is not liable to pay the tax assessed cannot therefore be sustained.6. Counsel for the respondent then contended that the original assessment made under S. 23(4) was invalid, because notice of assessment was not served upon the Group in the manner provided by S. 63(2) of the Indian Income-tax Act, Baba Gowd who was served with the notice not being the principal officer who could be served with notice on behalf of the Group. But no such contention was raised before the Tribunal. It does not arise out of the order of the Tribunal, and the question referred by the Tribunal to the High Court does not justify consideration of that plea. The respondent cannot be permitted to raise a question which did not arise out of the order of the Tribunal, and has not been referred. The case must be decided on the footing that notice of assessment was properly served on Baba Gowd and that the assessment was properly made by the Income-tax Officer under S. 23(4).7. We hold that answer to the first question will be in the negative. If the order of assessment is held to be valid, the application made by the respondent for setting aside the assessment on the ground that he was not served with the notice of assessment must fail. The second question will be answered as follows:"The applicant was liable for the amount of tax payable under the order assessment". | 1[ds]5. The effect of S. 44 is, as we have stated, merely to ensure continuity in the application of the machinery provided in Ch. IV of the Act for assessment and for imposition of tax liability notwithstanding discontinuance of the business of the association or its dissolution. By virtue of S. 44 the personality of the association is continued for the purpose of assessment and Ch. IV applies thereto. What can be assessed is the income of the association received prior to its dissolution and the members of the association would be jointly and severally assessed thereto in their capacity as members of the association. For the purpose of such assessment, the procedure is that applicable for assessment of the income of the association as if it had continued. A notice to the appropriate person under S. 63(2) would, therefore, be sufficient to enable the authority to assess to tax the association. The plea that the respondent not having been served personally with the notice of assessment is not liable to pay the tax assessed cannot therefore berespondent cannot be permitted to raise a question which did not arise out of the order of the Tribunal, and has not been referred. The case must be decided on the footing that notice of assessment was properly served on Baba Gowd and that the assessment was properly made by the Income-tax Officer under S. 23(4).7. We hold that answer to the first question will be in the negative. If the order of assessment is held to be valid, the application made by the respondent for setting aside the assessment on the ground that he was not served with the notice of assessment must fail. The second question will be answered asapplicant was liable for the amount of tax payable under the order assessment". | 1 | 2,397 | 335 | ### 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:
was whether penalty for concealing the particulars of income or for deliberately furnishing inaccurate particulars of income in the return could lawfully be imposed after discontinuance of the business. It is true that the validity of the order assessing the firm was not expressly challenged, though at the date of the order of assessment the firm stood dissolved, and its business was discontinued, but the Court could not adjudicate upon the validity of the order imposing penalty without deciding whether there was a valid assessment, for an order imposing penalty postulates a valid assessment.4. Counsel for the respondent contended that even if the assessment after dissolution of the Group be regarded as valid, it is binding upon only those persons who were served with the notice calling for a return, and in support of this plea relied upon the clause "every person who was at the time of such X X dissolution, a member of such association shall in respect of the income X X of the association be jointly and severally liable to assessment". He urged that the expression "every person" in S. 44 means all persons, and that by enacting that such persons, shall be liable to assessment "jointly and severally" it was intended that after the association is dissolved only the members at the date of dissolution can be assessed in respect of the income of the association. As a corollary to the argument it was submitted that all members who are sought to be assessed must be individually served with notice of assessment, and those not served will not be bound by the assessment. The argument is plainly inconsistent with what was observed by this Court in Abrahams case, (1961) 2 SCR 765 : (AIR 1961) SC 609). If by S. 44 the continuity of the firm or association is for the purpose of assessment ensured no question of assessing the individual members of the association can arise. Under Ch. IV of the Income-tax Act an association of persons may be assessed as a unit of assessment, or the individual members may be assessed separately in respect of their respective shares of the income, but the Act contains no machinery for assessing the income received by an association, in the hands of its members collectively. The unit of assessment in respect of the income earned by the association is either the association or each individual member in respect of his share in the income. This is so when the association is exiting, and after it is dissolved as well. There can be no partial assessment of the income of an association, limited to the share of the member who is served with notice of assessment. For the purpose of assessment the Income-tax Act invests an association with a personality apart from the members constituting it and if that personality is for the purposes of Ch. IV, insofar as it relates to assessment, continued, the theory of assessment binding only upon members who were served with the notice of assessment can have no validity. This view is supported by the use of the expression "tax payable" in Section 44 which in the context in which it occurs can only mean tax which the association but for dissolution, or discontinuance of its business would have been assessed to pay. Since the primary purpose of S. 44 is to bring to tax the income of the association after it is dissolved or its business is discontinued, assessment of an aliquot share of that income is not contemplated by S. 44 of the Income-tax Act.5. The effect of S. 44 is, as we have stated, merely to ensure continuity in the application of the machinery provided in Ch. IV of the Act for assessment and for imposition of tax liability notwithstanding discontinuance of the business of the association or its dissolution. By virtue of S. 44 the personality of the association is continued for the purpose of assessment and Ch. IV applies thereto. What can be assessed is the income of the association received prior to its dissolution and the members of the association would be jointly and severally assessed thereto in their capacity as members of the association. For the purpose of such assessment, the procedure is that applicable for assessment of the income of the association as if it had continued. A notice to the appropriate person under S. 63(2) would, therefore, be sufficient to enable the authority to assess to tax the association. The plea that the respondent not having been served personally with the notice of assessment is not liable to pay the tax assessed cannot therefore be sustained.6. Counsel for the respondent then contended that the original assessment made under S. 23(4) was invalid, because notice of assessment was not served upon the Group in the manner provided by S. 63(2) of the Indian Income-tax Act, Baba Gowd who was served with the notice not being the principal officer who could be served with notice on behalf of the Group. But no such contention was raised before the Tribunal. It does not arise out of the order of the Tribunal, and the question referred by the Tribunal to the High Court does not justify consideration of that plea. The respondent cannot be permitted to raise a question which did not arise out of the order of the Tribunal, and has not been referred. The case must be decided on the footing that notice of assessment was properly served on Baba Gowd and that the assessment was properly made by the Income-tax Officer under S. 23(4).7. We hold that answer to the first question will be in the negative. If the order of assessment is held to be valid, the application made by the respondent for setting aside the assessment on the ground that he was not served with the notice of assessment must fail. The second question will be answered as follows:"The applicant was liable for the amount of tax payable under the order assessment".
### Response:
1
### Explanation:
5. The effect of S. 44 is, as we have stated, merely to ensure continuity in the application of the machinery provided in Ch. IV of the Act for assessment and for imposition of tax liability notwithstanding discontinuance of the business of the association or its dissolution. By virtue of S. 44 the personality of the association is continued for the purpose of assessment and Ch. IV applies thereto. What can be assessed is the income of the association received prior to its dissolution and the members of the association would be jointly and severally assessed thereto in their capacity as members of the association. For the purpose of such assessment, the procedure is that applicable for assessment of the income of the association as if it had continued. A notice to the appropriate person under S. 63(2) would, therefore, be sufficient to enable the authority to assess to tax the association. The plea that the respondent not having been served personally with the notice of assessment is not liable to pay the tax assessed cannot therefore berespondent cannot be permitted to raise a question which did not arise out of the order of the Tribunal, and has not been referred. The case must be decided on the footing that notice of assessment was properly served on Baba Gowd and that the assessment was properly made by the Income-tax Officer under S. 23(4).7. We hold that answer to the first question will be in the negative. If the order of assessment is held to be valid, the application made by the respondent for setting aside the assessment on the ground that he was not served with the notice of assessment must fail. The second question will be answered asapplicant was liable for the amount of tax payable under the order assessment".
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District Development Officer & Another Vs. Satish Kantilal Amrelia | Appeal before the Division Bench of the High Court but it was dismissed in default. The appellant applied for restoration of the Letters Patent Appeal but it was dismissed and hence this appeal by special leave was filed by the State before this Court against the order of the Division Bench as also against the order of the Single Judge.11. Heard Ms. Jesal Wahi, learned counsel for the appellants and Mr. Purvish Jitendra Malkan, learned counsel for the respondent.12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and while setting aside the impugned orders (Single Judge and Division Bench), modify the Award of the Labour Court as indicated below.13. Having gone through the entire record of the case and further keeping in view the nature of factual controversy, findings of the Labour Court, the manner in which the respondent fought this litigation on two fronts simultaneously, namely, one in Civil Court and the other in Labour Court in challenging his termination order and seeking regularization in service, which resulted in passing the two conflicting orders - one in respondents favour (Labour Court) and the other against him (Civil Court) and lastly, it being an admitted fact that the respondent was a daily wager during his short tenure, which lasted hardly two and half years approximately and coupled with the fact that 25 years has since been passed from the date of his alleged termination, we are of the considered opinion that the law laid down by this Court in the case of Bharat Sanchar Nigam Limited v. Bhurumal [(2014) 7 SCC 177] would aptly apply to the facts of this case and we prefer to apply the same for disposal of these appeals.14. It is apposite to reproduce what this Court has held in the case of Bharat Sanchar Nigam Limited (supra):"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)17]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose."35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."15. We have taken note of one fact here that the Labour Court has also found that the termination is bad due to violation of Section 25-G of the Act. In our opinion, taking note of overall factual scenario emerging from the record of the case and having regard to the nature of the findings rendered and further the averments made in the SLP justifying the need to pass the termination order, this case does not fall in exceptional cases as observed by this Court in Para 35 of Bharat Sanchar Nigam Limited case (supra) due to finding of Section 25-G of the Act recorded against the appellant. In other words, there are reasons to take out the case from exceptional cases contained in Para 35 because we find that the appellant did not resort to any kind of unfair practice while terminating the services of the respondent.16. In view of forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of re-instatement and other consequential benefits by taking recourse to the powers under Section 11-A of the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited case (supra). | 0[ds]12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and while setting aside the impugned orders (Single Judge and Division Bench), modify the Award of the Labour Court as indicated below.13. Having gone through the entire record of the case and further keeping in view the nature of factual controversy, findings of the Labour Court, the manner in which the respondent fought this litigation on two fronts simultaneously, namely, one in Civil Court and the other in Labour Court in challenging his termination order and seeking regularization in service, which resulted in passing the two conflicting ordersone in respondents favour (Labour Court) and the other against him (Civil Court) and lastly, it being an admitted fact that the respondent was a daily wager during his short tenure, which lasted hardly two and half years approximately and coupled with the fact that 25 years has since been passed from the date of his alleged termination, we are of the considered opinion that the law laid down by this Court in the case of Bharat Sanchar Nigam Limited v. Bhurumal [(2014) 7 SCC 177] would aptly apply to the facts of this case and we prefer to apply the same for disposal of these appeals.We have taken note of one fact here that the Labour Court has also found that the termination is bad due to violation of Sectionof the Act. In our opinion, taking note of overall factual scenario emerging from the record of the case and having regard to the nature of the findings rendered and further the averments made in the SLP justifying the need to pass the termination order, this case does not fall in exceptional cases as observed by this Court in Para 35 of Bharat Sanchar Nigam Limited case (supra) due to finding of Sectionof the Act recorded against the appellant. In other words, there are reasons to take out the case from exceptional cases contained in Para 35 because we find that the appellant did not resort to any kind of unfair practice while terminating the services of the respondent.16. In view of forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim ofand other consequential benefits by taking recourse to the powers under Sectionof the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited case (supra). | 0 | 1,791 | 467 | ### 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:
Appeal before the Division Bench of the High Court but it was dismissed in default. The appellant applied for restoration of the Letters Patent Appeal but it was dismissed and hence this appeal by special leave was filed by the State before this Court against the order of the Division Bench as also against the order of the Single Judge.11. Heard Ms. Jesal Wahi, learned counsel for the appellants and Mr. Purvish Jitendra Malkan, learned counsel for the respondent.12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and while setting aside the impugned orders (Single Judge and Division Bench), modify the Award of the Labour Court as indicated below.13. Having gone through the entire record of the case and further keeping in view the nature of factual controversy, findings of the Labour Court, the manner in which the respondent fought this litigation on two fronts simultaneously, namely, one in Civil Court and the other in Labour Court in challenging his termination order and seeking regularization in service, which resulted in passing the two conflicting orders - one in respondents favour (Labour Court) and the other against him (Civil Court) and lastly, it being an admitted fact that the respondent was a daily wager during his short tenure, which lasted hardly two and half years approximately and coupled with the fact that 25 years has since been passed from the date of his alleged termination, we are of the considered opinion that the law laid down by this Court in the case of Bharat Sanchar Nigam Limited v. Bhurumal [(2014) 7 SCC 177] would aptly apply to the facts of this case and we prefer to apply the same for disposal of these appeals.14. It is apposite to reproduce what this Court has held in the case of Bharat Sanchar Nigam Limited (supra):"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)17]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose."35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."15. We have taken note of one fact here that the Labour Court has also found that the termination is bad due to violation of Section 25-G of the Act. In our opinion, taking note of overall factual scenario emerging from the record of the case and having regard to the nature of the findings rendered and further the averments made in the SLP justifying the need to pass the termination order, this case does not fall in exceptional cases as observed by this Court in Para 35 of Bharat Sanchar Nigam Limited case (supra) due to finding of Section 25-G of the Act recorded against the appellant. In other words, there are reasons to take out the case from exceptional cases contained in Para 35 because we find that the appellant did not resort to any kind of unfair practice while terminating the services of the respondent.16. In view of forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of re-instatement and other consequential benefits by taking recourse to the powers under Section 11-A of the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited case (supra).
### Response:
0
### Explanation:
12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and while setting aside the impugned orders (Single Judge and Division Bench), modify the Award of the Labour Court as indicated below.13. Having gone through the entire record of the case and further keeping in view the nature of factual controversy, findings of the Labour Court, the manner in which the respondent fought this litigation on two fronts simultaneously, namely, one in Civil Court and the other in Labour Court in challenging his termination order and seeking regularization in service, which resulted in passing the two conflicting ordersone in respondents favour (Labour Court) and the other against him (Civil Court) and lastly, it being an admitted fact that the respondent was a daily wager during his short tenure, which lasted hardly two and half years approximately and coupled with the fact that 25 years has since been passed from the date of his alleged termination, we are of the considered opinion that the law laid down by this Court in the case of Bharat Sanchar Nigam Limited v. Bhurumal [(2014) 7 SCC 177] would aptly apply to the facts of this case and we prefer to apply the same for disposal of these appeals.We have taken note of one fact here that the Labour Court has also found that the termination is bad due to violation of Sectionof the Act. In our opinion, taking note of overall factual scenario emerging from the record of the case and having regard to the nature of the findings rendered and further the averments made in the SLP justifying the need to pass the termination order, this case does not fall in exceptional cases as observed by this Court in Para 35 of Bharat Sanchar Nigam Limited case (supra) due to finding of Sectionof the Act recorded against the appellant. In other words, there are reasons to take out the case from exceptional cases contained in Para 35 because we find that the appellant did not resort to any kind of unfair practice while terminating the services of the respondent.16. In view of forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim ofand other consequential benefits by taking recourse to the powers under Sectionof the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited case (supra).
|
Coffee Board, Bangalore Vs. Joint Commercial Tax Officer, Madras & Another | resulted was with the Director-General of Supplies.43. The heart of the matter lies in answering one question. Can two sales occasion an export? I find no difficulty in answering this question in the affirmative. Two sales can take place in the course of export if they are effected by a transfer of documents of title to the goods after the goods have crossed the customs frontier of India, and they both will be protected under Section 5 (1) of the Act. Therefore, it cannot be assumed that it is the intention of Section 5 (1) that only one sale can enjoy the protection of Section 5 (1). Accordingly, apart from any assumption, can two sales occasion the export. As I have said occasion does not necessarily mean to cause or to immediately cause; it also means to "bring about especially in an incidental or subsidiary manner". If the sale by the appellant brings about the export in an incidental or subsidiary manner it can be said to occasion the export. It was in view of these considerations that Shah J., speaking for the Court, had observed in Ben Gorm Nilgiri Plantations Co. v. Sales Tax Officer, (l964) 15 STC 753 at p. 759 = (AIR 1964 SC 1762 at p. 1755)."A sale in the course of export predicates a connection between the sale and export, the two activities being so integrated that the connection between the two cannot be voluntarily interrupted, without a breach of the contract or the compulsion arising from the nature of the transaction. In this sense to constitute a sale in the course of export it may be said that there must be an intention on the part of both the buyer and the seller to export, there must be an obligation to export, and there must be an actual export. The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export. A transaction of sale, which is a preliminary to export of the commodity sold may be regarded as a sale for export, but is not necessarily to be regarded as one in the course of export, unless the sale occasions export".44. In this passage Shah, J., clearly visualised that a transaction of sale which is preliminary to export may be regarded as in the course of export if the sale occasions the export. The test postulated may be that there must be ah integral relation or bond between the sale and export. Why Shah, J., held that the sales were not in the course of export was, to use his words :"that the tea chests are sold together with export rights imputes knowledge to the seller that the goods are purchased with the intention of exporting. But there is nothing in the transaction from which springs a bond between the sale and the intended export linking them up as part of the same transaction. ......There is no statutory obligation upon the purchaser to export the chests of tea purchased by him with the export rights. The export quota merely enables the purchaser to obtain export licence, which he may or may not obtain. There is nothing in law or in the contract between the parties or even in the nature of the transaction which prohibits diversion of the goods for internal consumption. The sellers have no concern with the actual export of the goods, once the goods are sold. They have no control over the goods. There is therefore no direct connection between the sale and export of the goods which would make them parts of an integrated transaction of sale in the course of export."45. The case, with respect, points out clearly what was lacking in the transaction. It is one way of laying down tests. If these incidents had not been missing the Court would have surely held the sale to be in course of export.46. It seems to me that this judgment is in effect overruling earlier decisions of this Court without saying so. The Calcutta High Court (Ray and Basu JJ.) reviewed the Supreme Court cases exhaustively in S. K Roy v. Addl. Member, Board of Revenue, 18 STC 379 = (AIR 1967 Cal 338 ) and came to the conclusion that the mere fact that there is no contract between the seller and the foreign buyer does not conclusively establish that a transaction cannot be one in the course of export. It may still be held to be such a transaction provided it is established that the contract between the seller and the third party occasions the export. Basu J., followed this decision in Serajuddin and Co. v. Commercial Tax Officer, (1969) 23 STC 258 (Cal).47. On the facts of this case the Coffee Board, the Sellers, have concern with the actual export of goods. They have made various provisions to see that the purchasers must export. Condition 26, quoted by the learned Chief Justice, clearly provides that the coffee shall be exported to stipulated or approved destinations and it shall not under any circumstances be diverted to another destination, sold or be disposed of or otherwise released in India. If the purchaser commits a default, apart from penalty, it is provided that unexported coffee may be seized. Thus the Coffee Board retains control over the goods. These conditions create a bond between the sale and eventual export. The possibility that in a particular case a purchaser might commit a breach of contract or law end not export does not change the nature of the transaction.48. I would accordingly allow the petition and declare that the sales held by the Coffee Board at the export auctions were in the course of export and exempt under Article 286 (1) (b) of the Constitution, read with Sec. 5 of the Central Sales Tax Act, 1956, and quash the impugned assessments in so far as they assess such sales.ORDER49. | 0[ds]The phrase sale in the course of export comprises in itself three essentials : (i) that there must be a sale (ii) that goods must actually, be exported and (iii) the sale must be a part and parcel of the export. Therefore either the sale must take place when the goods are already in the process of being exported which is established by their having already crossed the Customs frontiers, or the sale must occasion the export. The word occasion is used as a verb and means to cause or to be the immediate cause of . Read in this way the sale which is to be regarded as exempt is a sale which causes the export to take place or is the immediate cause of the export. The export results from the sale and is bound up with it. The word cause in the expression in the course of means progress or process of or shortly during. The phrase expanded with this meaning reads in the progress or process of export or during export. Therefore the export from India to a foreign destination must be established and the sale must be a link in the same export for which the sale is held. To establish export a person exporting and a person importing are necessary elements and the course of export is between them. Introduction of a third party dealing independently with the seller on the one hand and with the importer on the other breaks the link between the two for then there are two sales one to the intermediary and the other to the importer. The first sale is not in the course of export for the export begins from the intermediary and ends with the importer.Therefore the tests are that there must be a single sale which itself causes the export or is in the progress or process of export. There is no room for two or more sales in the course of export. The only sale which can be said to cause the export is the sale which itself results in the movement of the goods from the exporter to theobservations were not intended to give exemption to sales for export but to sales in the course of export. One of the indicia of a sale in the course of export is the compulsion to export because the sale which is protected must be itself inextricably bound up with the export. If this were not so a chain of sales each making a mere condition for terminal export, will be exempted and the distinction between a sale for export and a sale in the course of export will completely disappear. In the Ben Gorm Nilgiri Plantations case, (1964) 7 SCR 706 = (AIR 1964 SC 1752 ), even the purchases by agents of foreign importers were described as sales for export. No doubt it was said that the sale to the agents did not contain a compulsion to export to the principal but that was said so that the causal connection between the sale and the export could be established. The compulsion to export here is of a different character. It only compels persons who buy on their own to export in their own turn by entering into another agreement for sale. The first sale is, therefore, an independent sale. It is a sale for export. Even with the compulsion the sale may not result for Clauses 26, 30 and 31 visualize such happenings. It follows, therefore, that unless the sale is inextricably bound up with a particular export it cannot be said to be in its course. If no particular export is in sight the sale by the Coffee Board cannot go beyond the description on sale for export.For these reasons we are of opinion that the decision of the Madras High Court in the case cited above is correct. For the same reasons we are of opinion that this case does not fall within the ruling in Ben Gorm Nilgiri Plantations case. The petitioner cannot claim exemption from the tax and the department was right in demanding the tax. The petitions fail and will be dismissed with costs. | 0 | 10,331 | 747 | ### 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:
resulted was with the Director-General of Supplies.43. The heart of the matter lies in answering one question. Can two sales occasion an export? I find no difficulty in answering this question in the affirmative. Two sales can take place in the course of export if they are effected by a transfer of documents of title to the goods after the goods have crossed the customs frontier of India, and they both will be protected under Section 5 (1) of the Act. Therefore, it cannot be assumed that it is the intention of Section 5 (1) that only one sale can enjoy the protection of Section 5 (1). Accordingly, apart from any assumption, can two sales occasion the export. As I have said occasion does not necessarily mean to cause or to immediately cause; it also means to "bring about especially in an incidental or subsidiary manner". If the sale by the appellant brings about the export in an incidental or subsidiary manner it can be said to occasion the export. It was in view of these considerations that Shah J., speaking for the Court, had observed in Ben Gorm Nilgiri Plantations Co. v. Sales Tax Officer, (l964) 15 STC 753 at p. 759 = (AIR 1964 SC 1762 at p. 1755)."A sale in the course of export predicates a connection between the sale and export, the two activities being so integrated that the connection between the two cannot be voluntarily interrupted, without a breach of the contract or the compulsion arising from the nature of the transaction. In this sense to constitute a sale in the course of export it may be said that there must be an intention on the part of both the buyer and the seller to export, there must be an obligation to export, and there must be an actual export. The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export. A transaction of sale, which is a preliminary to export of the commodity sold may be regarded as a sale for export, but is not necessarily to be regarded as one in the course of export, unless the sale occasions export".44. In this passage Shah, J., clearly visualised that a transaction of sale which is preliminary to export may be regarded as in the course of export if the sale occasions the export. The test postulated may be that there must be ah integral relation or bond between the sale and export. Why Shah, J., held that the sales were not in the course of export was, to use his words :"that the tea chests are sold together with export rights imputes knowledge to the seller that the goods are purchased with the intention of exporting. But there is nothing in the transaction from which springs a bond between the sale and the intended export linking them up as part of the same transaction. ......There is no statutory obligation upon the purchaser to export the chests of tea purchased by him with the export rights. The export quota merely enables the purchaser to obtain export licence, which he may or may not obtain. There is nothing in law or in the contract between the parties or even in the nature of the transaction which prohibits diversion of the goods for internal consumption. The sellers have no concern with the actual export of the goods, once the goods are sold. They have no control over the goods. There is therefore no direct connection between the sale and export of the goods which would make them parts of an integrated transaction of sale in the course of export."45. The case, with respect, points out clearly what was lacking in the transaction. It is one way of laying down tests. If these incidents had not been missing the Court would have surely held the sale to be in course of export.46. It seems to me that this judgment is in effect overruling earlier decisions of this Court without saying so. The Calcutta High Court (Ray and Basu JJ.) reviewed the Supreme Court cases exhaustively in S. K Roy v. Addl. Member, Board of Revenue, 18 STC 379 = (AIR 1967 Cal 338 ) and came to the conclusion that the mere fact that there is no contract between the seller and the foreign buyer does not conclusively establish that a transaction cannot be one in the course of export. It may still be held to be such a transaction provided it is established that the contract between the seller and the third party occasions the export. Basu J., followed this decision in Serajuddin and Co. v. Commercial Tax Officer, (1969) 23 STC 258 (Cal).47. On the facts of this case the Coffee Board, the Sellers, have concern with the actual export of goods. They have made various provisions to see that the purchasers must export. Condition 26, quoted by the learned Chief Justice, clearly provides that the coffee shall be exported to stipulated or approved destinations and it shall not under any circumstances be diverted to another destination, sold or be disposed of or otherwise released in India. If the purchaser commits a default, apart from penalty, it is provided that unexported coffee may be seized. Thus the Coffee Board retains control over the goods. These conditions create a bond between the sale and eventual export. The possibility that in a particular case a purchaser might commit a breach of contract or law end not export does not change the nature of the transaction.48. I would accordingly allow the petition and declare that the sales held by the Coffee Board at the export auctions were in the course of export and exempt under Article 286 (1) (b) of the Constitution, read with Sec. 5 of the Central Sales Tax Act, 1956, and quash the impugned assessments in so far as they assess such sales.ORDER49.
### Response:
0
### Explanation:
The phrase sale in the course of export comprises in itself three essentials : (i) that there must be a sale (ii) that goods must actually, be exported and (iii) the sale must be a part and parcel of the export. Therefore either the sale must take place when the goods are already in the process of being exported which is established by their having already crossed the Customs frontiers, or the sale must occasion the export. The word occasion is used as a verb and means to cause or to be the immediate cause of . Read in this way the sale which is to be regarded as exempt is a sale which causes the export to take place or is the immediate cause of the export. The export results from the sale and is bound up with it. The word cause in the expression in the course of means progress or process of or shortly during. The phrase expanded with this meaning reads in the progress or process of export or during export. Therefore the export from India to a foreign destination must be established and the sale must be a link in the same export for which the sale is held. To establish export a person exporting and a person importing are necessary elements and the course of export is between them. Introduction of a third party dealing independently with the seller on the one hand and with the importer on the other breaks the link between the two for then there are two sales one to the intermediary and the other to the importer. The first sale is not in the course of export for the export begins from the intermediary and ends with the importer.Therefore the tests are that there must be a single sale which itself causes the export or is in the progress or process of export. There is no room for two or more sales in the course of export. The only sale which can be said to cause the export is the sale which itself results in the movement of the goods from the exporter to theobservations were not intended to give exemption to sales for export but to sales in the course of export. One of the indicia of a sale in the course of export is the compulsion to export because the sale which is protected must be itself inextricably bound up with the export. If this were not so a chain of sales each making a mere condition for terminal export, will be exempted and the distinction between a sale for export and a sale in the course of export will completely disappear. In the Ben Gorm Nilgiri Plantations case, (1964) 7 SCR 706 = (AIR 1964 SC 1752 ), even the purchases by agents of foreign importers were described as sales for export. No doubt it was said that the sale to the agents did not contain a compulsion to export to the principal but that was said so that the causal connection between the sale and the export could be established. The compulsion to export here is of a different character. It only compels persons who buy on their own to export in their own turn by entering into another agreement for sale. The first sale is, therefore, an independent sale. It is a sale for export. Even with the compulsion the sale may not result for Clauses 26, 30 and 31 visualize such happenings. It follows, therefore, that unless the sale is inextricably bound up with a particular export it cannot be said to be in its course. If no particular export is in sight the sale by the Coffee Board cannot go beyond the description on sale for export.For these reasons we are of opinion that the decision of the Madras High Court in the case cited above is correct. For the same reasons we are of opinion that this case does not fall within the ruling in Ben Gorm Nilgiri Plantations case. The petitioner cannot claim exemption from the tax and the department was right in demanding the tax. The petitions fail and will be dismissed with costs.
|
Amiya Prosad Sanyal Vs. Bank of Commerce Limited (in liquidation) | the name of the judgment debtor who was then dead. The Division Bench has therefore rightly held that no proper notice had been served on the legal representatives of the judgment debtor and the sale transactions between the parties could not be held invalid.13. The learned counsel for the respondents has also submitted that the Division Bench has also held that the Official Liquidator had also not taken any step to set aside the sale in respect of the said nine properties in favour of the said respondents. Accordingly, there was no occasion for the Court to interfere with such sale made in favour of the respondents Nos. 2 to 13.14. The learned counsel has submitted that after noticing the said fact, the Division Bench has held that unless the sale is set aside in appropriate proceedings by any party aggrieved by such sale, the Court cannot at that stage interfere with the said sale.15. The learned counsel has also submitted that in the said suit instituted by the Bank prayer for sale of certain shares stated to have been hypothecated with the plaintiff Bank was made. There was no allegation that the said nine properties had been mortgaged with the Bank. No mortgage decree in respect of the said nine properties had also been sought for in the suit. The said suit was decreed in 1954. The sale of the said nine properties in favour of the respondents Nos. 2 to 13 had taken place after about sixteen years from the date of decree between 6th May and 8th May, 1970. Even after another sixteen years namely in 1986, an attempt was made for the first time by the Official Liquidator to sell the said properties. Such sale, however, in respect of the said nine properties cannot be held because the respondents Nos. 2 to 13 had already obtained valid title to the said properties on the strength of registered conveyances executed between 6th and 8th May, 1970.16. The learned counsel for the respondents has also submitted that although the said respondents had validly obtained title in respect of the said nine properties even then, pursuant to the directions of the Court, the said respondents made additional payment of Rupees 84,000/- in favour of the decree holder. The learned counsel has also submitted that the total price of the properties had been fixed at Rupees 5,51,000/- but as the nine properties had already been transferred to the said respondents, the value of the remaining ten properties was fixed at Rs. 3,17,900/-.Such deduction in the value of the properties after excluding the value of the said nine properties clearly indicates that the appellants as auction purchasers had not paid anything for the said nine properties and there was no occasion for them to suffer any prejudice by the exclusion of the said nine properties. The learned counsel has, therefore, submitted that no interference against the impugned judgment is called for and the appeals should be dismissed. 17. After giving careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that the decree holder Bank did not claim any mortgage right in respect of the said nine properties. A simple money decree was obtained by the Bank in 1954. Initially, the attempt was made to sell certain shares which had been hypothecated with the Bank for realisation of the decretal amount but such shares were issued by defunct companies and therefore they had no marketable title. It was only after a long lapse namely after thirty two years from the date of decree an attempt was made by the Official Liquidator in 1986 to sell the nineteen properties which were owned by the Judgment debtor after ascertaining the title to such properties. On the prayer of the Official Liquidator that the decretal amount would be satisfied by the sale of the said properties belonging to the Judgment debtor, the Court appointed a Receiver on May 20, 1970, in respect of the nineteen properties which were owned by the Judgment debtor. It, however, appears that between 6th and 8th May, 1970, the said properties had been sold by the heirs and legal representatives of the deceased Judgment debtor. On the dates of sale of the said nine properties, there was no legal bar for the said heirs of the Judgment debtor to execute sale deeds in respect of the said properties. Such properties had not been attached on the dates between 6th May and 8th May, 1970. The Receiver was appointed only on May 20, 1970. The Division Bench has also clearly come to the finding that no notice about the proposed auction sale had been served on the legal representatives of the deceased Judgment debtor between 6th May and 8th May 1970. As a matter of fact initially a notice was issued in the name of the deceased judgment debtor. There is also no material warranting a finding that the respondent Nos. 2 to 13 were aware about the steps taken to effect the sale of the immovable properties of the Judgment debtor in execution of the money decree on the dates when the nine properties had been sold. 18. The Division Bench has also not found as a fact that there had been any collusion between the purchaser of the said nine properties and the heirs and legal representatives of the deceased judgment debtor. In the aforesaid circumstances, auction sale of the said nine properties in execution of the said decree can not be held valid. The Division Bench of the High court has also indicated that although the said nine properties had been sold between May 6 and 8, 1970, the Official Liquidator had not taken any step to get the sale transactions set aside in any appropriate proceedings. In the aforesaid facts and circumstances of the case, we do not find any reason to interfere with the impugned decision of the High Court. | 0[ds]17. After giving careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that the decree holder Bank did not claim any mortgage right in respect of the said nine properties. A simple money decree was obtained by the Bank in 1954. Initially, the attempt was made to sell certain shares which had been hypothecated with the Bank for realisation of the decretal amount but such shares were issued by defunct companies and therefore they had no marketable title. It was only after a long lapse namely after thirty two years from the date of decree an attempt was made by the Official Liquidator in 1986 to sell the nineteen properties which were owned by the Judgment debtor after ascertaining the title to such properties. On the prayer of the Official Liquidator that the decretal amount would be satisfied by the sale of the said properties belonging to the Judgment debtor, the Court appointed a Receiver on May 20, 1970, in respect of the nineteen properties which were owned by the Judgment debtor. It, however, appears that between 6th and 8th May, 1970, the said properties had been sold by the heirs and legal representatives of the deceased Judgment debtor. On the dates of sale of the said nine properties, there was no legal bar for the said heirs of the Judgment debtor to execute sale deeds in respect of the said properties. Such properties had not been attached on the dates between 6th May and 8th May, 1970. The Receiver was appointed only on May 20, 1970. The Division Bench has also clearly come to the finding that no notice about the proposed auction sale had been served on the legal representatives of the deceased Judgment debtor between 6th May and 8th May 1970. As a matter of fact initially a notice was issued in the name of the deceased judgment debtor. There is also no material warranting a finding that the respondent Nos. 2 to 13 were aware about the steps taken to effect the sale of the immovable properties of the Judgment debtor in execution of the money decree on the dates when the nine properties had beenthe aforesaid facts and circumstances of the case, we do not find any reason to interfere with the impugned decision of the High Court. | 0 | 2,948 | 430 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the name of the judgment debtor who was then dead. The Division Bench has therefore rightly held that no proper notice had been served on the legal representatives of the judgment debtor and the sale transactions between the parties could not be held invalid.13. The learned counsel for the respondents has also submitted that the Division Bench has also held that the Official Liquidator had also not taken any step to set aside the sale in respect of the said nine properties in favour of the said respondents. Accordingly, there was no occasion for the Court to interfere with such sale made in favour of the respondents Nos. 2 to 13.14. The learned counsel has submitted that after noticing the said fact, the Division Bench has held that unless the sale is set aside in appropriate proceedings by any party aggrieved by such sale, the Court cannot at that stage interfere with the said sale.15. The learned counsel has also submitted that in the said suit instituted by the Bank prayer for sale of certain shares stated to have been hypothecated with the plaintiff Bank was made. There was no allegation that the said nine properties had been mortgaged with the Bank. No mortgage decree in respect of the said nine properties had also been sought for in the suit. The said suit was decreed in 1954. The sale of the said nine properties in favour of the respondents Nos. 2 to 13 had taken place after about sixteen years from the date of decree between 6th May and 8th May, 1970. Even after another sixteen years namely in 1986, an attempt was made for the first time by the Official Liquidator to sell the said properties. Such sale, however, in respect of the said nine properties cannot be held because the respondents Nos. 2 to 13 had already obtained valid title to the said properties on the strength of registered conveyances executed between 6th and 8th May, 1970.16. The learned counsel for the respondents has also submitted that although the said respondents had validly obtained title in respect of the said nine properties even then, pursuant to the directions of the Court, the said respondents made additional payment of Rupees 84,000/- in favour of the decree holder. The learned counsel has also submitted that the total price of the properties had been fixed at Rupees 5,51,000/- but as the nine properties had already been transferred to the said respondents, the value of the remaining ten properties was fixed at Rs. 3,17,900/-.Such deduction in the value of the properties after excluding the value of the said nine properties clearly indicates that the appellants as auction purchasers had not paid anything for the said nine properties and there was no occasion for them to suffer any prejudice by the exclusion of the said nine properties. The learned counsel has, therefore, submitted that no interference against the impugned judgment is called for and the appeals should be dismissed. 17. After giving careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that the decree holder Bank did not claim any mortgage right in respect of the said nine properties. A simple money decree was obtained by the Bank in 1954. Initially, the attempt was made to sell certain shares which had been hypothecated with the Bank for realisation of the decretal amount but such shares were issued by defunct companies and therefore they had no marketable title. It was only after a long lapse namely after thirty two years from the date of decree an attempt was made by the Official Liquidator in 1986 to sell the nineteen properties which were owned by the Judgment debtor after ascertaining the title to such properties. On the prayer of the Official Liquidator that the decretal amount would be satisfied by the sale of the said properties belonging to the Judgment debtor, the Court appointed a Receiver on May 20, 1970, in respect of the nineteen properties which were owned by the Judgment debtor. It, however, appears that between 6th and 8th May, 1970, the said properties had been sold by the heirs and legal representatives of the deceased Judgment debtor. On the dates of sale of the said nine properties, there was no legal bar for the said heirs of the Judgment debtor to execute sale deeds in respect of the said properties. Such properties had not been attached on the dates between 6th May and 8th May, 1970. The Receiver was appointed only on May 20, 1970. The Division Bench has also clearly come to the finding that no notice about the proposed auction sale had been served on the legal representatives of the deceased Judgment debtor between 6th May and 8th May 1970. As a matter of fact initially a notice was issued in the name of the deceased judgment debtor. There is also no material warranting a finding that the respondent Nos. 2 to 13 were aware about the steps taken to effect the sale of the immovable properties of the Judgment debtor in execution of the money decree on the dates when the nine properties had been sold. 18. The Division Bench has also not found as a fact that there had been any collusion between the purchaser of the said nine properties and the heirs and legal representatives of the deceased judgment debtor. In the aforesaid circumstances, auction sale of the said nine properties in execution of the said decree can not be held valid. The Division Bench of the High court has also indicated that although the said nine properties had been sold between May 6 and 8, 1970, the Official Liquidator had not taken any step to get the sale transactions set aside in any appropriate proceedings. In the aforesaid facts and circumstances of the case, we do not find any reason to interfere with the impugned decision of the High Court.
### Response:
0
### Explanation:
17. After giving careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that the decree holder Bank did not claim any mortgage right in respect of the said nine properties. A simple money decree was obtained by the Bank in 1954. Initially, the attempt was made to sell certain shares which had been hypothecated with the Bank for realisation of the decretal amount but such shares were issued by defunct companies and therefore they had no marketable title. It was only after a long lapse namely after thirty two years from the date of decree an attempt was made by the Official Liquidator in 1986 to sell the nineteen properties which were owned by the Judgment debtor after ascertaining the title to such properties. On the prayer of the Official Liquidator that the decretal amount would be satisfied by the sale of the said properties belonging to the Judgment debtor, the Court appointed a Receiver on May 20, 1970, in respect of the nineteen properties which were owned by the Judgment debtor. It, however, appears that between 6th and 8th May, 1970, the said properties had been sold by the heirs and legal representatives of the deceased Judgment debtor. On the dates of sale of the said nine properties, there was no legal bar for the said heirs of the Judgment debtor to execute sale deeds in respect of the said properties. Such properties had not been attached on the dates between 6th May and 8th May, 1970. The Receiver was appointed only on May 20, 1970. The Division Bench has also clearly come to the finding that no notice about the proposed auction sale had been served on the legal representatives of the deceased Judgment debtor between 6th May and 8th May 1970. As a matter of fact initially a notice was issued in the name of the deceased judgment debtor. There is also no material warranting a finding that the respondent Nos. 2 to 13 were aware about the steps taken to effect the sale of the immovable properties of the Judgment debtor in execution of the money decree on the dates when the nine properties had beenthe aforesaid facts and circumstances of the case, we do not find any reason to interfere with the impugned decision of the High Court.
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Unit Trust Of India Vs. Ravinder Kumar Shukla | statutory corporation established under Section 3 of the UTI Act, 1963. As part of its activities the Appellants float various schemes. Under the various schemes from time to time, the Appellant issue cheques towards maturity amount of the units purchased and / or towards repurchase value. It appears that the Appellant normally draw Account Payee, Non-transferable and not Negotiable cheques and send them to the payee by registered post. 3. The Appellant started receiving a large number of complaints from unit holders alleging non-receipt of the cheques. In all 1600 unit holders had not received cheques of the value of the app. Rs. 3 Crores 35 lakhs. All these cheques were intercepted, new accounts opened in Banks/Post Offices in the names of payees of the cheques and thereafter the monies were withdrawn leaving a minimum balance in the accounts. In respect of this colossal fraud, F.I.Rs. have been lodged, investigations and prosecution are in progress. 4. As the unit holders had not received the money, they filed complaints in various District Forums. The District Forums have held that the Appellants are bound to pay the amounts to the unit holders. Most of the Appeals and/ or Revision Petitions have been dismissed. Against the dismissal of the Appeals / Revisions by the National Consumer Disputes Redressal Commission, these Appeals have been filed. 5. The Consumer Forums have held that there was negligence on the part of the Appellant. It has been held that the post offices were agents of the Appellant and, therefore, the loss, if any, has to be borne by the Appellant. It has been held that as the Appellant had not paid the unit holders, the unit holders are entitled to receive the money from the Appellant. 6. The question before this Court is whether the loss is to be borne by the unit holder payee and / or by the Appellant. The answer to this question would depend on whether the post office was acting as an agent of the unit holder and / or the Appellant. 7. In the case of The Commissioner of Income-Tax, Bombay South, Bombay vs. Messrs, Ogale Glass Works Ltd., Ogale Wadi, reported in 1955(1) SCR 185, the question was whether the Respondent therein, which was a non-resident company, could be said to have received payment in India for the purposes of Indian Income Tax Act. On the request of the assessee, the amounts of the bills were sent to them by means of cheques which were drawn in Delhi. It was held that as the assessee had requested that the amounts be sent by post, the post office became the agent of the assessee. It was held that as the post office was in Delhi the assessee had received the amounts in Delhi. 8. In the case of H.P. Gupta vs. Hiralal, reported in (1970) 1 SCC 437 , the Appellant was a Director of a company. The Respondent had filed a complaint under Section 207 of the Companies Act on the ground that the dividends declared by the company had not been paid within the prescribed time. This complaint was filed at Meerut where the complainant resided. The question was whether the Magistrate at Meerut had jurisdiction to try the complaint. This Court held that Section 207 of the Companies Act casts an obligation on the company to pay the dividend, which is declared, to the shareholders within 42 days from its declaration. It was held that the offence under Section 207 is the failure to pay dividend. It was held that the failure to pay will arise when the warrant is not posted. It was held that the offence was failure to post and not the non-receipt of the warrant by the shareholders. It was held that the obligation to pay, therefore, arises at the place where it is to be performed, i.e. at the post office where the cheque is to be posted and not at the address at which the the cheque is to be delivered. It was, therefore, held that the Magistrate at Meerut did not have jurisdiction as the post office was in Delhi. It was held that it is only the Magistrate at Delhi who would have jurisdiction. It must be mentioned that in coming to this decision this Court implied an agreement / request from the dividend holder to send the dividents by post. 9. Thus the law is that in the absence of any contract or request from the payee, mere posting would not amount to payment. In cases where there is no contract or request, either express or implied, the post office would continue to act as the agent of the drawer. In that case the loss is of the drawer. 10. We, therefore, asked Mr. Bhat whether in any of the matters there was any proof of any contract that the amounts could be sent by post or any proof that any request had been made by any of the payees that the amount be sent by post. Mr. Bhat was also asked whether there was any proof of any practice from which it can be implied that the payee had requested / consented to have the cheques sent by post. Time was taken from this Court on two occasions in order to ascertain whether in any of the matters any such proof had been filed. After making inquiries and taking inspections of the papers from the lower Forums, Mr. Bhat very fairly stated that there was no proof in any of these matters. 11. Mr. Bhat next argued that these are not the matters in which the Consumers Forum had jurisdiction to adjudicate. He submitted that there was no deficiency of service as there was no negligence on the part of the Appellant. All the Forums have on facts held that there was an obligation to send the amounts and that there was negligence. These are questions of facts. We see no reason to interfere on questions of facts. | 0[ds]9. Thus the law is that in the absence of any contract or request from the payee, mere posting would not amount to payment. In cases where there is no contract or request, either express or implied, the post office would continue to act as the agent of the drawer. In that case the loss is of the drawer10. We, therefore, asked Mr. Bhat whether in any of the matters there was any proof of any contract that the amounts could be sent by post or any proof that any request had been made by any of the payees that the amount be sent by post. Mr. Bhat was also asked whether there was any proof of any practice from which it can be implied that the payee had requested / consented to have the cheques sent by post. Time was taken from this Court on two occasions in order to ascertain whether in any of the matters any such proof had been filed. After making inquiries and taking inspections of the papers from the lower, Mr. Bhat very fairly stated that there was no proof in any of these matters11. Mr. Bhat next argued that these are not the matters in which the Consumers Forum had jurisdiction to adjudicate. He submitted that there was no deficiency of service as there was no negligence on the part of the Appellant. All the Forums have on facts held that there was an obligation to send the amounts and that there was negligence. These are questions of facts. We see no reason to interfere on questions of facts | 0 | 1,143 | 288 | ### 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:
statutory corporation established under Section 3 of the UTI Act, 1963. As part of its activities the Appellants float various schemes. Under the various schemes from time to time, the Appellant issue cheques towards maturity amount of the units purchased and / or towards repurchase value. It appears that the Appellant normally draw Account Payee, Non-transferable and not Negotiable cheques and send them to the payee by registered post. 3. The Appellant started receiving a large number of complaints from unit holders alleging non-receipt of the cheques. In all 1600 unit holders had not received cheques of the value of the app. Rs. 3 Crores 35 lakhs. All these cheques were intercepted, new accounts opened in Banks/Post Offices in the names of payees of the cheques and thereafter the monies were withdrawn leaving a minimum balance in the accounts. In respect of this colossal fraud, F.I.Rs. have been lodged, investigations and prosecution are in progress. 4. As the unit holders had not received the money, they filed complaints in various District Forums. The District Forums have held that the Appellants are bound to pay the amounts to the unit holders. Most of the Appeals and/ or Revision Petitions have been dismissed. Against the dismissal of the Appeals / Revisions by the National Consumer Disputes Redressal Commission, these Appeals have been filed. 5. The Consumer Forums have held that there was negligence on the part of the Appellant. It has been held that the post offices were agents of the Appellant and, therefore, the loss, if any, has to be borne by the Appellant. It has been held that as the Appellant had not paid the unit holders, the unit holders are entitled to receive the money from the Appellant. 6. The question before this Court is whether the loss is to be borne by the unit holder payee and / or by the Appellant. The answer to this question would depend on whether the post office was acting as an agent of the unit holder and / or the Appellant. 7. In the case of The Commissioner of Income-Tax, Bombay South, Bombay vs. Messrs, Ogale Glass Works Ltd., Ogale Wadi, reported in 1955(1) SCR 185, the question was whether the Respondent therein, which was a non-resident company, could be said to have received payment in India for the purposes of Indian Income Tax Act. On the request of the assessee, the amounts of the bills were sent to them by means of cheques which were drawn in Delhi. It was held that as the assessee had requested that the amounts be sent by post, the post office became the agent of the assessee. It was held that as the post office was in Delhi the assessee had received the amounts in Delhi. 8. In the case of H.P. Gupta vs. Hiralal, reported in (1970) 1 SCC 437 , the Appellant was a Director of a company. The Respondent had filed a complaint under Section 207 of the Companies Act on the ground that the dividends declared by the company had not been paid within the prescribed time. This complaint was filed at Meerut where the complainant resided. The question was whether the Magistrate at Meerut had jurisdiction to try the complaint. This Court held that Section 207 of the Companies Act casts an obligation on the company to pay the dividend, which is declared, to the shareholders within 42 days from its declaration. It was held that the offence under Section 207 is the failure to pay dividend. It was held that the failure to pay will arise when the warrant is not posted. It was held that the offence was failure to post and not the non-receipt of the warrant by the shareholders. It was held that the obligation to pay, therefore, arises at the place where it is to be performed, i.e. at the post office where the cheque is to be posted and not at the address at which the the cheque is to be delivered. It was, therefore, held that the Magistrate at Meerut did not have jurisdiction as the post office was in Delhi. It was held that it is only the Magistrate at Delhi who would have jurisdiction. It must be mentioned that in coming to this decision this Court implied an agreement / request from the dividend holder to send the dividents by post. 9. Thus the law is that in the absence of any contract or request from the payee, mere posting would not amount to payment. In cases where there is no contract or request, either express or implied, the post office would continue to act as the agent of the drawer. In that case the loss is of the drawer. 10. We, therefore, asked Mr. Bhat whether in any of the matters there was any proof of any contract that the amounts could be sent by post or any proof that any request had been made by any of the payees that the amount be sent by post. Mr. Bhat was also asked whether there was any proof of any practice from which it can be implied that the payee had requested / consented to have the cheques sent by post. Time was taken from this Court on two occasions in order to ascertain whether in any of the matters any such proof had been filed. After making inquiries and taking inspections of the papers from the lower Forums, Mr. Bhat very fairly stated that there was no proof in any of these matters. 11. Mr. Bhat next argued that these are not the matters in which the Consumers Forum had jurisdiction to adjudicate. He submitted that there was no deficiency of service as there was no negligence on the part of the Appellant. All the Forums have on facts held that there was an obligation to send the amounts and that there was negligence. These are questions of facts. We see no reason to interfere on questions of facts.
### Response:
0
### Explanation:
9. Thus the law is that in the absence of any contract or request from the payee, mere posting would not amount to payment. In cases where there is no contract or request, either express or implied, the post office would continue to act as the agent of the drawer. In that case the loss is of the drawer10. We, therefore, asked Mr. Bhat whether in any of the matters there was any proof of any contract that the amounts could be sent by post or any proof that any request had been made by any of the payees that the amount be sent by post. Mr. Bhat was also asked whether there was any proof of any practice from which it can be implied that the payee had requested / consented to have the cheques sent by post. Time was taken from this Court on two occasions in order to ascertain whether in any of the matters any such proof had been filed. After making inquiries and taking inspections of the papers from the lower, Mr. Bhat very fairly stated that there was no proof in any of these matters11. Mr. Bhat next argued that these are not the matters in which the Consumers Forum had jurisdiction to adjudicate. He submitted that there was no deficiency of service as there was no negligence on the part of the Appellant. All the Forums have on facts held that there was an obligation to send the amounts and that there was negligence. These are questions of facts. We see no reason to interfere on questions of facts
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Oriental Insurance Co.Ltd Vs. Angad Kol | The accident, as noticed hereinbefore, took place on 31.10.2004.15. Licence having been granted for a period of 20 years, a presumption, therefore, arises that it was meant for the purpose of a vehicle other than a transport vehicle.16. Had the driving licence had been granted for transport vehicle, the tenure thereof could not have exceeded to three years. In National Insurance Company Ltd. v. Annappa Irappa Nesaria & Ors., IV (2008) ACC 169 (SC)=(2008) 3 SCC 464 , this Court noticed the aforementioned development in the matter of grant of licence to a transport vehicle stating that the same became effective from 28.3.2001 in the following terms : “20. From what has been noticed hereinbefore, it is evident that ‘transport vehicle’ has now been substituted for ‘medium goods vehicle’ and ‘heavy goods vehicle’. The light motor vehicle continued, at the relevant point of time to cover both ‘light passenger carriage vehicle’ and ‘light goods carriage vehicle’. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well.21. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law.” 17. The effect of the different terms of licences granted in terms of the provisions of Sections 2(14) and 2(47) has also been noticed by this Court in New India Assurance Co. Ltd. v. Prabhu Lal, I (2008) ACC 54 (SC)=IX (2007) SLT 841=I (2008) CPJ 1 (SC)=(2008) 1 SCC 696 , stated: “30. Now, it is the case of the Insurance Company that the vehicle of the complainant which met with an accident was a ‘transport vehicle’. It was submitted that the insured vehicle was a ‘goods carriage’ and was thus a ‘transport vehicle’. The vehicle was driven by Ram Narain, who was authorised to drive light motor vehicle and not a transport vehicle. Since the driver had no licence to drive transport vehicle in absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an accident, the Insurance Company could not be made liable to pay compensation.xxxxxxxxxxxxxxxxxx37. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. The learned Counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is ‘light motor vehicle’, but falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and the Insurance Company could not be held liable.38. We find considerable force in the submission of the learned Counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question." 18. The Court distinguished its earlier judgment in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., II (1999) ACC 463 (SC)=VII (1999) SLT 317=III (1999) CPJ 5 (SC)=(1999) 6 SCC 620 , stating: “41. In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a light motor vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable.” 19. However, in this case, the finding of fact arrived at that the vehicle in question was not proved to be a goods vehicle is not correct. The Regional Transport Officer, in his deposition, stated that the vehicle in question was a goods vehicle. 20. From the discussions made hereinbefore, it is, thus, evident that it is proved that respondent No. 6 did not hold a valid and effective driving licence for driving a goods vehicle. Breach of conditions of the insurance is, therefore, apparent on the face of the records. 21. By an order dated 10.7.2008, the Insurance Company was directed to deposit 50% of the awarded amount. In this view of the matter, we are of the opinion that interest of justice would be subserved if we, in exercise of our jurisdiction under Article 142 of the Constitution while directing the Insurance Company to deposit the balance amount before the Tribunal with liberty to the claimants to withdraw the same give right to the appellant to recover the said amount from the owner and the driver of the vehicle being Respondent Nos. 6 and 7. 22. | 1[ds]13. The Central Government had framed Rules known as `Central Motor Vehicle Rules. Form 4 prescribed therein provides for different columns for grant of a licence of light motor vehicle, medium goods vehicle or heavy goods vehicle. Rule 14 prescribes for filing of an application in Form 4 for a licence to drive a motor vehicle. An amendment was carried out on or about 28.3.2001 being JSR Rs. 221(E) in terms whereof, inter alia, licence which is to be granted in Form 6 requires a specific authorization to drive a ‘transport vehicle.14. The licence was granted to Respondent No. 6, Umesh, in 2003, i.e. after the said amendment came into force. The accident, as noticed hereinbefore, took place on 31.10.2004.15. Licence having been granted for a period of 20 years, a presumption, therefore, arises that it was meant for the purpose of a vehicle other than a transport vehicle.16. Had the driving licence had been granted for transport vehicle, the tenure thereof could not have exceeded to three years.The effect of the different terms of licences granted in terms of the provisions of Sections 2(14) and 2(47) has also been noticed by this Court in New India Assurance Co. Ltd. v. Prabhu Lal, I (2008) ACC 54 (SC)=IX (2007) SLT 841=I (2008) CPJ 1 (SC)=(2008) 1 SCC 696 ,Now, it is the case of the Insurance Company that the vehicle of the complainant which met with an accident was a ‘transportIt was submitted that the insured vehicle was a ‘goodsand was thus a ‘transportThe vehicle was driven by Ram Narain, who was authorised to drive light motor vehicle and not a transport vehicle. Since the driver had no licence to drive transport vehicle in absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an accident, the Insurance Company could not be made liable to pay compensation.The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. The learned Counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is ‘light motorbut falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and the Insurance Company could not be held liable.38. We find considerable force in the submission of the learned Counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle inCourt distinguished its earlier judgment in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., II (1999) ACC 463 (SC)=VII (1999) SLT 317=III (1999) CPJ 5 (SC)=(1999) 6 SCC 620 ,In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a light motor vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was heldin this case, the finding of fact arrived at that the vehicle in question was not proved to be a goods vehicle is not correct. The Regional Transport Officer, in his deposition, stated that the vehicle in question was a goods vehicle.From the discussions made hereinbefore, it is, thus, evident that it is proved that respondent No. 6 did not hold a valid and effective driving licence for driving a goods vehicle. Breach of conditions of the insurance is, therefore, apparent on the face of the records.By an order dated 10.7.2008, the Insurance Company was directed to deposit 50% of the awarded amount. In this view of the matter, we are of the opinion that interest of justice would be subserved if we, in exercise of our jurisdiction under Article 142 of the Constitution while directing the Insurance Company to deposit the balance amount before the Tribunal with liberty to the claimants to withdraw the same give right to the appellant to recover the said amount from the owner and the driver of the vehicle being Respondent Nos. 6 and 7. | 1 | 2,885 | 1,073 | ### 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 accident, as noticed hereinbefore, took place on 31.10.2004.15. Licence having been granted for a period of 20 years, a presumption, therefore, arises that it was meant for the purpose of a vehicle other than a transport vehicle.16. Had the driving licence had been granted for transport vehicle, the tenure thereof could not have exceeded to three years. In National Insurance Company Ltd. v. Annappa Irappa Nesaria & Ors., IV (2008) ACC 169 (SC)=(2008) 3 SCC 464 , this Court noticed the aforementioned development in the matter of grant of licence to a transport vehicle stating that the same became effective from 28.3.2001 in the following terms : “20. From what has been noticed hereinbefore, it is evident that ‘transport vehicle’ has now been substituted for ‘medium goods vehicle’ and ‘heavy goods vehicle’. The light motor vehicle continued, at the relevant point of time to cover both ‘light passenger carriage vehicle’ and ‘light goods carriage vehicle’. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well.21. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law.” 17. The effect of the different terms of licences granted in terms of the provisions of Sections 2(14) and 2(47) has also been noticed by this Court in New India Assurance Co. Ltd. v. Prabhu Lal, I (2008) ACC 54 (SC)=IX (2007) SLT 841=I (2008) CPJ 1 (SC)=(2008) 1 SCC 696 , stated: “30. Now, it is the case of the Insurance Company that the vehicle of the complainant which met with an accident was a ‘transport vehicle’. It was submitted that the insured vehicle was a ‘goods carriage’ and was thus a ‘transport vehicle’. The vehicle was driven by Ram Narain, who was authorised to drive light motor vehicle and not a transport vehicle. Since the driver had no licence to drive transport vehicle in absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an accident, the Insurance Company could not be made liable to pay compensation.xxxxxxxxxxxxxxxxxx37. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. The learned Counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is ‘light motor vehicle’, but falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and the Insurance Company could not be held liable.38. We find considerable force in the submission of the learned Counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question." 18. The Court distinguished its earlier judgment in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., II (1999) ACC 463 (SC)=VII (1999) SLT 317=III (1999) CPJ 5 (SC)=(1999) 6 SCC 620 , stating: “41. In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a light motor vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable.” 19. However, in this case, the finding of fact arrived at that the vehicle in question was not proved to be a goods vehicle is not correct. The Regional Transport Officer, in his deposition, stated that the vehicle in question was a goods vehicle. 20. From the discussions made hereinbefore, it is, thus, evident that it is proved that respondent No. 6 did not hold a valid and effective driving licence for driving a goods vehicle. Breach of conditions of the insurance is, therefore, apparent on the face of the records. 21. By an order dated 10.7.2008, the Insurance Company was directed to deposit 50% of the awarded amount. In this view of the matter, we are of the opinion that interest of justice would be subserved if we, in exercise of our jurisdiction under Article 142 of the Constitution while directing the Insurance Company to deposit the balance amount before the Tribunal with liberty to the claimants to withdraw the same give right to the appellant to recover the said amount from the owner and the driver of the vehicle being Respondent Nos. 6 and 7. 22.
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### Explanation:
13. The Central Government had framed Rules known as `Central Motor Vehicle Rules. Form 4 prescribed therein provides for different columns for grant of a licence of light motor vehicle, medium goods vehicle or heavy goods vehicle. Rule 14 prescribes for filing of an application in Form 4 for a licence to drive a motor vehicle. An amendment was carried out on or about 28.3.2001 being JSR Rs. 221(E) in terms whereof, inter alia, licence which is to be granted in Form 6 requires a specific authorization to drive a ‘transport vehicle.14. The licence was granted to Respondent No. 6, Umesh, in 2003, i.e. after the said amendment came into force. The accident, as noticed hereinbefore, took place on 31.10.2004.15. Licence having been granted for a period of 20 years, a presumption, therefore, arises that it was meant for the purpose of a vehicle other than a transport vehicle.16. Had the driving licence had been granted for transport vehicle, the tenure thereof could not have exceeded to three years.The effect of the different terms of licences granted in terms of the provisions of Sections 2(14) and 2(47) has also been noticed by this Court in New India Assurance Co. Ltd. v. Prabhu Lal, I (2008) ACC 54 (SC)=IX (2007) SLT 841=I (2008) CPJ 1 (SC)=(2008) 1 SCC 696 ,Now, it is the case of the Insurance Company that the vehicle of the complainant which met with an accident was a ‘transportIt was submitted that the insured vehicle was a ‘goodsand was thus a ‘transportThe vehicle was driven by Ram Narain, who was authorised to drive light motor vehicle and not a transport vehicle. Since the driver had no licence to drive transport vehicle in absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an accident, the Insurance Company could not be made liable to pay compensation.The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. The learned Counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is ‘light motorbut falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and the Insurance Company could not be held liable.38. We find considerable force in the submission of the learned Counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle inCourt distinguished its earlier judgment in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., II (1999) ACC 463 (SC)=VII (1999) SLT 317=III (1999) CPJ 5 (SC)=(1999) 6 SCC 620 ,In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a light motor vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was heldin this case, the finding of fact arrived at that the vehicle in question was not proved to be a goods vehicle is not correct. The Regional Transport Officer, in his deposition, stated that the vehicle in question was a goods vehicle.From the discussions made hereinbefore, it is, thus, evident that it is proved that respondent No. 6 did not hold a valid and effective driving licence for driving a goods vehicle. Breach of conditions of the insurance is, therefore, apparent on the face of the records.By an order dated 10.7.2008, the Insurance Company was directed to deposit 50% of the awarded amount. In this view of the matter, we are of the opinion that interest of justice would be subserved if we, in exercise of our jurisdiction under Article 142 of the Constitution while directing the Insurance Company to deposit the balance amount before the Tribunal with liberty to the claimants to withdraw the same give right to the appellant to recover the said amount from the owner and the driver of the vehicle being Respondent Nos. 6 and 7.
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B.R. Rao Vs. N.G. Ranga | that expenditure incurred by persons other than candidate for election purposes will not be taken into account (unless it is incurred by such third person as the candidates agent) in determining whether a corrupt practice was committed by the candidate: see also Ram Dayal v. Brijraj Singh AIR 1970 SC 110 and Mahgraj Patodia v. R.K. Birla, C. A. No. 1069 (1094) of 1969 decided on September (1970) 2 SCC 888 It is true that Latchanna had from time to time withdrawn from the Andhra Bank various amounts of money. Those amounts, he says, were utilised for satisfying the debts of the party incurred in the general elections There is no evidence to the contrary led by the appellant. Nor is there any evidence to show that the respondent had received any amount in excess of Rs. 19,000/- out of which he claimed he had spent Rs. 15,834-92. 33. A considerable body of evidence was tendered by the appellant to prove that a large number of vehicles were used for the election campaign of the respondent. Many witnesses were examined to support that case. The High Court made a detailed analysis of the evidence and held that only four vehicles Nos. APK-9486 jeep, (2) APU 7414 Ambassador-car, (3) APY-7719 Ambassador-car and (4) APG-4329 Fiat-car, were retained and used for "election purposes" and expenses for purchase of motor-spirit and oil for those vehicles during the election days were shown in the account. Besides this, in the view of the High Court two more vehicles Nos. APG-2123 and APP-97 were used for some time for the purpose of the election. These two vehicles were taken by Balaram and Chitti Babu once to Kanchili petrol bunk, and to that extent they may be held to have been used for the errand of the respondent. Taking into account this amount, the total amount in relation to the motor-spirit used for Kanchili was Rupees 1,141-13. The High Court held that on the evidence, the cash bills which were produced by the appellant in respect of the motor-spirit expenses were not connected with the motor vehicles of the respondent or of his agent or of any vehicles maintained by the respondent for election purposes. The High Court found the books of account of Vijaya Auto Service and the "petrol bunk" of Malla Satyanarayana and Brothers at Kanchili unreliable, and held that only those bill-books may be taken into consideration which recorded transactions signed by persons admitted to be the agents of the respondent. The High Court accordingly held that in addition to the amount admitted by the respondent an amount of Rs. 1,521-21 was proved. No substantial argument was advanced before us challenging the finding recorded by the learned Trial Judge on the question as to the expenditure incurred for the motor vehicles employed in the course of the election of the respondent, and we see no reason to disagree with the conclusion recorded by the High Court on a very elaborate and painstaking analysis of the evidence. 34. It was urged that as many as 1100 persons were employed by the respondent during the election days in the campaign for the respondent, and besides their remuneration, expenses for their boarding and lodging were incurred by the respondent, and that amount was not disclosed in the account filed under Section 77(3). It was the case of the respondent that several persons had worked for the Swatantra Party candidate at the election According to the rules of the Swatantra Party they worked voluntarily, and no remuneration was paid to any of the workers, because payment of remuneration to any party workers was against the principles of that party. The High Court held that transport charges and expenses for meals for the workers were not incurred by the respondent, but by the Swatantra Party. In argument it was conceded there was nothing to show that any expenditure was incurred by the respondent for those workers. Venkaiah had, it is said, paid under the directions of Latchanna certain amounts of money for the expenses incurred for the workers of the Swatantra Party. But in the absence of any evidence to show that any specific sums of money were expended on certain items by the respondent or his election agent, no conjecture can be permitted to defeat a candidate who has been elected. 35. Towards the boarding and lodging expenses of the workers, it appears, Simma Jagannadham, President of the District Swatantra Party had paid Rs. 5,000/- and Rs. 1,200/ after the election. It was proved by the evidence that the party office was in the house of Simma Jagannadham. The workers were lodged and boarded at a place called Sri Venkateswara Lodging and Boarding Lodge at Srikakulam, and the expenditure incurred for them was met by Sri Venkateswara Lodge. The amounts which were paid by Simma Jagannadham were not shown to be paid towards the expenses of lodging and boarding of the workers at Sri Venkateswara Lodge. The Manager of Sri Venkateswara Lodge apparently boarded and lodged those workers free of charge. In the absence of any reliable evidence to the contrary, the finding of the High Court that no expenditure was incurred in respect of those workers by the respondent must be accepted. 36. The appellants case that expenditure was incurred for "wall posters" and for printing, distributing and exhibiting them amounting to Rs. 2,081/- was not pressed, nor was the case about the expenditure incurred in respect of "cycle-rickshaws and jutkas" pressed before us. Even if it be granted that an amount of Rupee 500/- which was incurred for purchasing voters lists be taken into account the total amount proved to have been expended by the respondent does not exceed Rs. 25,000/- prescribed under the Act. 37. We have carefully considered the evidence in the light of the arguments advanced at the Bar, and we are of the view that no case is made out for our interference with the conclusion recorded by the High Court. 38. | 0[ds]No substantial argument was advanced before us to persuade us to take a differentconsidering the testimony of the respondent and his witnesses the Court observed that the oral testimony on behalf of the appellant was inconsistent and did not make out a case of corrupt practice, that the probabilities of the case were strongly against the appellants contention and there was no reason to disbelieve the testimony of the witnesses for the respondent. Even in respect of this charge of corrupt practice no argument seeking to persuade us to take a different view was advanced by counsel for theThe High Court held that the corrupt practice was accordingly not established even in respect of this head of chargeCounsel did not urge any substantial argument to persuade us to take a different view.In their evidence they did not specify the persons who used the said lorry and bus on behalf of the respondent, nor did their evidence disclose the names of the voters conveyed by the said lorry orcharge cannot be held established merely upon suspicion, or preponderance of probabilities. Unless the appellant establishes that the appreciation of evidence was vitiated by gross misreading or misconception of the evidence or because of failure to consider important pieces of evidence which had a bearing on the charge or because of serious irregularities in procedure which amount to a denial of a fair trial the appellate court will not proceed tothe evidence on which the findings are recorded by the Court of First Instance on the credibility of witnesses.It is not in dispute that the leaflet Ext.was published. The leaflet was again reasonably calculated to prejudice the prospects of the appellants election. Parts of the leaflet related to the personal character and conduct of the appellant and were defamatory of him and were likely to lower him in the estimation of the electorate.It is not necessary to decide whether the statements of fact madefalse, for the High Court has held that it is not proved that the respondent or his election agent was concerned with the publication or distribution of the leaflet and we agree with that view.It is common ground that one Dola Jagannatha Rao procured the leaflet printed at Sri Ramakrishna Printing Works at Srikakulam. Itwas averred in the election petition that the printing expenses wereby Latchanna the election agent of the respondent and thatd caused distribution of the leaflet at several meetings held by the Swatantra Party at Srikakulam on April 24, 1967; at Mandasa on April 21, 1967, at Takkali on April 20, 1967; and at Palasa on April 21,1967. This was denied by the respondent. D. Jagannatha Rao was examined as a witness for the respondent. Hedeposed that he didget the leafleton his own account and not at the instance of anybody else, that he defrayed the expenses and paid on April 9, 1967 the printing charges amounting to Rs. 85, that he wrote the draft of the leaflet in his house at Srikakulam; that no one else wason that occasion, that he did not consult any other person nor did he take any other persons advice in thatthat before he took it to the press he did not show it to any other person, and that as the printers could not properly decipher the manuscript they got prepared a fair copy by their own employee.This evidence did notsupport the case of theappellant. He examined D. Ramamurthy P.W. 26 who stated that the leaflet Ext.was drafted in the house of Latchanna by K. Chelapati Rao Patnaik to the dictation of Latchanna in the presence of Dola Jagannatha Rao, that one week thereafter the leaflets were got printed by Chelapati Rao Patnaik and Dola Jagannatha Rao, and that Latchanna gave them Rs. 300 and sent them to Srikakulam. Inthe witness stated that he could not write Telugu, though he could read a little. He also admitted that he was not usually consulted in any matter, but whenever required the members of the party used only to take work from him. To explain his presence at the drafting of the leaflet he stated that Latchanna called him on April 25, 1967 at his residence, that when he reached Latchannas place the leaflet was being drafted and that he was detained till the drafting was over and thereafter he was sent away. The witness could not explain the reason why the leaflet was not printed at Guntur. Witness D. Ramamurthy sought tosupport the case of theappellant on several other matters. The High Court observed that his statement was "highly artificial", that there was no reason why he should have been called by Latchanna to be a witness to the drafting of the manuscript of the leaflet, and that the "artificiality of his statement was obvious on the face of it and further his testimony did not bear scrutiny at all". Nothing has been said before us which would justify us in taking a different view.The evidence clearly does not make out the case of the appellant. Itwas the case of the appellant, that Latchanna got the leaflet drafted andprinted. From the mere fact that D. Jagannatha Rao was a partyman and a member of the State Council of the Swatantra Party of which Latchanna was the President, and that D. Jagannatha Rao had contested on the Swatantra Party ticket for a seat in the Andhra Pradesh Legislative Assembly in the general elections inno inference arises that the leaflet was published with the consent of the respondent or his electionwas no allegation in the petition that the publication in the Bahujana was caused byor by therespondent. The evidence brought before the Court could not cure the defect in the pleadings. There is no evidence also that either the respondent or his election agent Latchanna had knowledge before the datethe publication or even before the date of the election of the respondent.It was said that the respondent had expressed his thanks for the work done by the Vahiniduring the election. This was not a matter relevant to the issue under consideration, and the High Court was right in holding that it would be extending the scope of the inquiry contemplated to be made on the allegations made in the petition to hold that by reason of the publication in the Vahini and Bahujana the respondent or his election agent were guilty of any corrupt practice. Inthe petition it was expressly averred that the leaflet Ext.was published by the respondent and his electionIt was not pleaded that the contents of the leaflet Ext.with some modifications were published in the Vahini and Bahujana and that by that publication a corrupt practice under4) was committed by the respondent.The High Court made a painstaking analysis of the evidence of the witnesses relating to the holding of the meetings and the distribution of the leaflet Ext.and the witnesses examined on behalf of the respondent, which ran into as many as 23 printed pages, and in conclusionthe above discussion it is clear that it was Dola Jagannadha Rao himself who got printed Ext.of his own accord and neither the respondent nor his election agent was in any way concerned with it. The respondent and the election agent were in no way connected with its publication, when several thousands of copies of the pamphlet had been printed; they must of course be for purposes of distribution. Dola Jagannadha Rao could have personally distributed them or caused their distribution through others. But there is no positive evidence that these pamphlets were distributed amongst the public either by Dola Jagannadha Rao himselfor by theelection agent, as alleged, or to the knowledge of either the respondent or his electionsee no reason to disagree with the view of the High Court on the evidence.A mere general allegation that more than Rs. 3 lakhs were spent by the respondent or his election agent or other persons for the purposes of the election is not sufficient to make out a case under Section 123(6) of the Representation of the People Act,is not sufficient merely to allege that large sums of money were spent for the purpose of the election.It is the case of the respondent that his friends and sympathisersent him certain sums of money, and that whatever monies were received by him or in the name of his wife or by Venkaiah under his authority remained with Venkaiah. These receipts aggregated to Rs. 19,000 out of which Rs.were spent for theif any, incurred by the party which sponsored the candidature of a candidate cannot be taken into account for the purpose of determining whether the corrupt practice within the meaning of7) was committed by the candidate.is true that Latchanna had from time to time withdrawn from the Andhra Bank various amounts of money. Those amounts, he says, were utilised for satisfying the debts of the party incurred in the generalThere is no evidence to the contrary led by the appellant. Nor is there any evidence to show that the respondent had received any amount in excess of Rs. 19,000/A considerable body of evidence was tendered by the appellant to prove that a large number of vehicles were used for the election campaign of the respondent. Many witnesses were examined to support that case. The High Court made a detailed analysis of the evidence and held that only four vehicles Nos.jeep, (2) APU 7414r and (4), were retained and used for "election purposes" and expenses for purchase ofand oil for those vehicles during the election days were shown in the account. Besides this, in the view of the High Court two more vehicles Nos.97 were used for some time for the purpose of the election. These two vehicles were taken by Balaram and Chitti Babu once to Kanchili petrol bunk, and to that extent they may be held to have been used for the errand of the respondent. Taking into account this amount, the total amount in relation to theused for Kanchili was RupeesThe High Court held that on the evidence, the cash bills which were produced by the appellant in respect of theexpenses were not connected with the motor vehicles of the respondent or of his agent or of any vehicles maintained by the respondent for election purposes. The High Court found the books of account of Vijaya Auto Service and thebunk" of Malla Satyanarayana and Brothers at Kanchili unreliable, and held that only thosemay be taken into consideration which recorded transactions signed by persons admitted to be the agents of the respondent. The High Court accordingly held that in addition to the amount admitted by the respondent an amount of Rs.was proved. No substantial argument was advanced before us challenging the finding recorded by the learned Trial Judge on the question as to the expenditure incurred for the motor vehicles employed in the course of the election of the respondent, and we see no reason to disagree with the conclusion recorded by the High Court on a very elaborate and painstaking analysis of thewas the case of the respondent that several persons had worked for the Swatantra Party candidate at the election According to the rules of the Swatantra Party they worked voluntarilyand no remuneration was paid to any of the workers, because payment of remuneration to any party workers was against the principles of thatparty. The High Court held that transport charges and expenses for meals for the workers were not incurred by the respondent, but by the Swatantra Party. Inargument it was conceded there was nothing to show that any expenditure was incurred by the respondent for those workers. Venkaiah had, it is said, paid under the directions of Latchanna certain amounts of money for the expenses incurred for the workers of the Swatantrain the absence of any evidence to show that any specific sums of money were expended on certain items by the respondent or his election agent, no conjecture can be permitted to defeat a candidate who has been elected.Towards the boarding and lodging expenses of the workers, it appears, Simma Jagannadham, President of the District Swatantra Party had paid Rs. 5,000/and Rs. 1,200/ after the election. It was proved by the evidence that the party office was in the house of Simma Jagannadham. Thewere lodged and boarded at a place called Sri Venkateswara Lodging and Boarding Lodge at Srikakulam, and the expenditure incurred for them was met by Sri Venkateswara Lodge. The amounts which were paid by Simma Jagannadham were not shown to be paid towards the expenses of lodging and boarding of the workers at Sri Venkateswara Lodge. The Manager of Sri Venkateswara Lodge apparently boarded and lodged those workers free of charge. In the absence of any reliable evidence to the contrary, the finding of the High Court that no expenditure was incurred in respect of those workers by the respondent must be accepted.The appellants case that expenditure was incurred for "wall posters" and for printing, distributing and exhibiting them amounting to Rs. 2,081/was not pressed, nor was the case about the expenditure incurred in respect ofand jutkas" pressed before us. Even if it be granted that an amount of Rupee 500/which was incurred for purchasing voters lists be taken into account the total amount proved toexpended by the respondent does not exceed Rs.prescribed under the Act.We have carefully considered the evidence in the light of the arguments advanced at the Bar, and we are of the view that no case is made out for our interference with the conclusion recorded by the High Court. | 0 | 10,195 | 2,388 | ### 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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that expenditure incurred by persons other than candidate for election purposes will not be taken into account (unless it is incurred by such third person as the candidates agent) in determining whether a corrupt practice was committed by the candidate: see also Ram Dayal v. Brijraj Singh AIR 1970 SC 110 and Mahgraj Patodia v. R.K. Birla, C. A. No. 1069 (1094) of 1969 decided on September (1970) 2 SCC 888 It is true that Latchanna had from time to time withdrawn from the Andhra Bank various amounts of money. Those amounts, he says, were utilised for satisfying the debts of the party incurred in the general elections There is no evidence to the contrary led by the appellant. Nor is there any evidence to show that the respondent had received any amount in excess of Rs. 19,000/- out of which he claimed he had spent Rs. 15,834-92. 33. A considerable body of evidence was tendered by the appellant to prove that a large number of vehicles were used for the election campaign of the respondent. Many witnesses were examined to support that case. The High Court made a detailed analysis of the evidence and held that only four vehicles Nos. APK-9486 jeep, (2) APU 7414 Ambassador-car, (3) APY-7719 Ambassador-car and (4) APG-4329 Fiat-car, were retained and used for "election purposes" and expenses for purchase of motor-spirit and oil for those vehicles during the election days were shown in the account. Besides this, in the view of the High Court two more vehicles Nos. APG-2123 and APP-97 were used for some time for the purpose of the election. These two vehicles were taken by Balaram and Chitti Babu once to Kanchili petrol bunk, and to that extent they may be held to have been used for the errand of the respondent. Taking into account this amount, the total amount in relation to the motor-spirit used for Kanchili was Rupees 1,141-13. The High Court held that on the evidence, the cash bills which were produced by the appellant in respect of the motor-spirit expenses were not connected with the motor vehicles of the respondent or of his agent or of any vehicles maintained by the respondent for election purposes. The High Court found the books of account of Vijaya Auto Service and the "petrol bunk" of Malla Satyanarayana and Brothers at Kanchili unreliable, and held that only those bill-books may be taken into consideration which recorded transactions signed by persons admitted to be the agents of the respondent. The High Court accordingly held that in addition to the amount admitted by the respondent an amount of Rs. 1,521-21 was proved. No substantial argument was advanced before us challenging the finding recorded by the learned Trial Judge on the question as to the expenditure incurred for the motor vehicles employed in the course of the election of the respondent, and we see no reason to disagree with the conclusion recorded by the High Court on a very elaborate and painstaking analysis of the evidence. 34. It was urged that as many as 1100 persons were employed by the respondent during the election days in the campaign for the respondent, and besides their remuneration, expenses for their boarding and lodging were incurred by the respondent, and that amount was not disclosed in the account filed under Section 77(3). It was the case of the respondent that several persons had worked for the Swatantra Party candidate at the election According to the rules of the Swatantra Party they worked voluntarily, and no remuneration was paid to any of the workers, because payment of remuneration to any party workers was against the principles of that party. The High Court held that transport charges and expenses for meals for the workers were not incurred by the respondent, but by the Swatantra Party. In argument it was conceded there was nothing to show that any expenditure was incurred by the respondent for those workers. Venkaiah had, it is said, paid under the directions of Latchanna certain amounts of money for the expenses incurred for the workers of the Swatantra Party. But in the absence of any evidence to show that any specific sums of money were expended on certain items by the respondent or his election agent, no conjecture can be permitted to defeat a candidate who has been elected. 35. Towards the boarding and lodging expenses of the workers, it appears, Simma Jagannadham, President of the District Swatantra Party had paid Rs. 5,000/- and Rs. 1,200/ after the election. It was proved by the evidence that the party office was in the house of Simma Jagannadham. The workers were lodged and boarded at a place called Sri Venkateswara Lodging and Boarding Lodge at Srikakulam, and the expenditure incurred for them was met by Sri Venkateswara Lodge. The amounts which were paid by Simma Jagannadham were not shown to be paid towards the expenses of lodging and boarding of the workers at Sri Venkateswara Lodge. The Manager of Sri Venkateswara Lodge apparently boarded and lodged those workers free of charge. In the absence of any reliable evidence to the contrary, the finding of the High Court that no expenditure was incurred in respect of those workers by the respondent must be accepted. 36. The appellants case that expenditure was incurred for "wall posters" and for printing, distributing and exhibiting them amounting to Rs. 2,081/- was not pressed, nor was the case about the expenditure incurred in respect of "cycle-rickshaws and jutkas" pressed before us. Even if it be granted that an amount of Rupee 500/- which was incurred for purchasing voters lists be taken into account the total amount proved to have been expended by the respondent does not exceed Rs. 25,000/- prescribed under the Act. 37. We have carefully considered the evidence in the light of the arguments advanced at the Bar, and we are of the view that no case is made out for our interference with the conclusion recorded by the High Court. 38.
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pamphlets were distributed amongst the public either by Dola Jagannadha Rao himselfor by theelection agent, as alleged, or to the knowledge of either the respondent or his electionsee no reason to disagree with the view of the High Court on the evidence.A mere general allegation that more than Rs. 3 lakhs were spent by the respondent or his election agent or other persons for the purposes of the election is not sufficient to make out a case under Section 123(6) of the Representation of the People Act,is not sufficient merely to allege that large sums of money were spent for the purpose of the election.It is the case of the respondent that his friends and sympathisersent him certain sums of money, and that whatever monies were received by him or in the name of his wife or by Venkaiah under his authority remained with Venkaiah. These receipts aggregated to Rs. 19,000 out of which Rs.were spent for theif any, incurred by the party which sponsored the candidature of a candidate cannot be taken into account for the purpose of determining whether the corrupt practice within the meaning of7) was committed by the candidate.is true that Latchanna had from time to time withdrawn from the Andhra Bank various amounts of money. Those amounts, he says, were utilised for satisfying the debts of the party incurred in the generalThere is no evidence to the contrary led by the appellant. Nor is there any evidence to show that the respondent had received any amount in excess of Rs. 19,000/A considerable body of evidence was tendered by the appellant to prove that a large number of vehicles were used for the election campaign of the respondent. Many witnesses were examined to support that case. The High Court made a detailed analysis of the evidence and held that only four vehicles Nos.jeep, (2) APU 7414r and (4), were retained and used for "election purposes" and expenses for purchase ofand oil for those vehicles during the election days were shown in the account. Besides this, in the view of the High Court two more vehicles Nos.97 were used for some time for the purpose of the election. These two vehicles were taken by Balaram and Chitti Babu once to Kanchili petrol bunk, and to that extent they may be held to have been used for the errand of the respondent. Taking into account this amount, the total amount in relation to theused for Kanchili was RupeesThe High Court held that on the evidence, the cash bills which were produced by the appellant in respect of theexpenses were not connected with the motor vehicles of the respondent or of his agent or of any vehicles maintained by the respondent for election purposes. The High Court found the books of account of Vijaya Auto Service and thebunk" of Malla Satyanarayana and Brothers at Kanchili unreliable, and held that only thosemay be taken into consideration which recorded transactions signed by persons admitted to be the agents of the respondent. The High Court accordingly held that in addition to the amount admitted by the respondent an amount of Rs.was proved. No substantial argument was advanced before us challenging the finding recorded by the learned Trial Judge on the question as to the expenditure incurred for the motor vehicles employed in the course of the election of the respondent, and we see no reason to disagree with the conclusion recorded by the High Court on a very elaborate and painstaking analysis of thewas the case of the respondent that several persons had worked for the Swatantra Party candidate at the election According to the rules of the Swatantra Party they worked voluntarilyand no remuneration was paid to any of the workers, because payment of remuneration to any party workers was against the principles of thatparty. The High Court held that transport charges and expenses for meals for the workers were not incurred by the respondent, but by the Swatantra Party. Inargument it was conceded there was nothing to show that any expenditure was incurred by the respondent for those workers. Venkaiah had, it is said, paid under the directions of Latchanna certain amounts of money for the expenses incurred for the workers of the Swatantrain the absence of any evidence to show that any specific sums of money were expended on certain items by the respondent or his election agent, no conjecture can be permitted to defeat a candidate who has been elected.Towards the boarding and lodging expenses of the workers, it appears, Simma Jagannadham, President of the District Swatantra Party had paid Rs. 5,000/and Rs. 1,200/ after the election. It was proved by the evidence that the party office was in the house of Simma Jagannadham. Thewere lodged and boarded at a place called Sri Venkateswara Lodging and Boarding Lodge at Srikakulam, and the expenditure incurred for them was met by Sri Venkateswara Lodge. The amounts which were paid by Simma Jagannadham were not shown to be paid towards the expenses of lodging and boarding of the workers at Sri Venkateswara Lodge. The Manager of Sri Venkateswara Lodge apparently boarded and lodged those workers free of charge. In the absence of any reliable evidence to the contrary, the finding of the High Court that no expenditure was incurred in respect of those workers by the respondent must be accepted.The appellants case that expenditure was incurred for "wall posters" and for printing, distributing and exhibiting them amounting to Rs. 2,081/was not pressed, nor was the case about the expenditure incurred in respect ofand jutkas" pressed before us. Even if it be granted that an amount of Rupee 500/which was incurred for purchasing voters lists be taken into account the total amount proved toexpended by the respondent does not exceed Rs.prescribed under the Act.We have carefully considered the evidence in the light of the arguments advanced at the Bar, and we are of the view that no case is made out for our interference with the conclusion recorded by the High Court.
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Natha Singh & Others Vs. State of Haryana | 1. This appeal by special leave is directed against the judgment and order dated 30.05.2008 passed by the High Court of Punjab and Haryana at Chandigarh in CRLA No. 76/2007 whereby the High Court, while dismissing the appeal filed by the Appellants, confirmed the order of conviction and sentence passed by the trial Court against them under Section 15(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act). 2. The case of the prosecution, in short, is that on 09.01.2003, when SI Khayali Ram (PW 8) and other police officials were present at bus-stand of village Hamzapur in connection with patrolling and detection of crime, a confidential informant revealed that the appellants Natha Singh, Sukhdev Singh, Baljeet Singh and Deedar Singh had brought contraband poppy husk in truck No. HR-57-1018 from Rajasthan which is parked in the courtyard of Deedar Singh and they were waiting for a chance to unload the same in the bunker constructed in the cattle Kotha of Deedar Singh. SI Khayali Ram (PW 8) then informed the same to DSP through V.T. message and when DSP arrived at the busstand, they conducted a raid and apprehended Natha Singh, Sukhdev Singh and Baljeet Singh from the spot and 30 bags of poppy husk was recovered. On the directions of the DSP, those bags were checked by SI Khayali Ram, the contraband poppy husk was sampled and the reminder was weighed recording the content in each bag as 39 Kilograms and 800 grams and took them into police possession. After completion of the formalities, the accused were arrested. Upon investigation, charge sheet was filed against the appellants who pleaded not guilty and claimed trial. 3. After an elaborate consideration, the trial court came to the conclusion that the appellants were found to be in possession of the contraband poppy husk in `commercial quantity, as described under Section 15(c) of the Act and convicted and sentenced them to undergo rigorous imprisonment for twelve years (12 years) and to pay fine of One Lakh Rupees each and in case of default of payment of fine, they would be liable to further suffer simple imprisonment for a period of two years. 4. Aggrieved by the judgment of the trial court, the appellants approached the High Court in CRLA No. 76/2007 and the High Court declined to interfere with the judgment of the trial court thereby giving rise to the present appeal. 5. We have heard the learned counsel appearing for the appellants and the learned counsel appearing on behalf of the State of Haryana at length. 6. The learned counsel appearing for the appellants has mainly contended that in this case Section 42 of the Act was not complied with, there was delay in sending the sample, secret information allegedly received was not reduced in writing, conscious possession was not established and the appellant was falsely implicated in this case because of his earlier civil litigation with one Darshan Singh. 7. We find from the material that immediately on receipt of the secret information, S.I. (PW 8) has sent V.T message to the DSP and the raid was conducted after DSP arrived at the bus-stand. Compliance of Section 42 of the Act has to be viewed pragmatically and the recovery was effected on 9th January, 2003 in presence of Gazetted Officer, which satisfies the provisions of Section 42 of the Act. Considering the facts on record, we are of the view that none of the contention was established by the appellants which in any way would affect their conviction. Thus, after taking into account the attendant facts and circumstances of the case, we see no reason to interfere with the well-reasoned judgment of the High Court. | 0[ds]7. We find from the material that immediately on receipt of the secret information, S.I. (PW 8) has sent V.T message to the DSP and the raid was conducted after DSP arrived at theCompliance of Section 42 of the Act has to be viewed pragmatically and the recovery was effected on 9th January, 2003 in presence of Gazetted Officer, which satisfies the provisions of Section 42 of the Act. Considering the facts on record, we are of the view that none of the contention was established by the appellants which in any way would affect their conviction. Thus, after taking into account the attendant facts and circumstances of the case, we see no reason to interfere with thejudgment of the High Court. | 0 | 690 | 139 | ### 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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1. This appeal by special leave is directed against the judgment and order dated 30.05.2008 passed by the High Court of Punjab and Haryana at Chandigarh in CRLA No. 76/2007 whereby the High Court, while dismissing the appeal filed by the Appellants, confirmed the order of conviction and sentence passed by the trial Court against them under Section 15(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act). 2. The case of the prosecution, in short, is that on 09.01.2003, when SI Khayali Ram (PW 8) and other police officials were present at bus-stand of village Hamzapur in connection with patrolling and detection of crime, a confidential informant revealed that the appellants Natha Singh, Sukhdev Singh, Baljeet Singh and Deedar Singh had brought contraband poppy husk in truck No. HR-57-1018 from Rajasthan which is parked in the courtyard of Deedar Singh and they were waiting for a chance to unload the same in the bunker constructed in the cattle Kotha of Deedar Singh. SI Khayali Ram (PW 8) then informed the same to DSP through V.T. message and when DSP arrived at the busstand, they conducted a raid and apprehended Natha Singh, Sukhdev Singh and Baljeet Singh from the spot and 30 bags of poppy husk was recovered. On the directions of the DSP, those bags were checked by SI Khayali Ram, the contraband poppy husk was sampled and the reminder was weighed recording the content in each bag as 39 Kilograms and 800 grams and took them into police possession. After completion of the formalities, the accused were arrested. Upon investigation, charge sheet was filed against the appellants who pleaded not guilty and claimed trial. 3. After an elaborate consideration, the trial court came to the conclusion that the appellants were found to be in possession of the contraband poppy husk in `commercial quantity, as described under Section 15(c) of the Act and convicted and sentenced them to undergo rigorous imprisonment for twelve years (12 years) and to pay fine of One Lakh Rupees each and in case of default of payment of fine, they would be liable to further suffer simple imprisonment for a period of two years. 4. Aggrieved by the judgment of the trial court, the appellants approached the High Court in CRLA No. 76/2007 and the High Court declined to interfere with the judgment of the trial court thereby giving rise to the present appeal. 5. We have heard the learned counsel appearing for the appellants and the learned counsel appearing on behalf of the State of Haryana at length. 6. The learned counsel appearing for the appellants has mainly contended that in this case Section 42 of the Act was not complied with, there was delay in sending the sample, secret information allegedly received was not reduced in writing, conscious possession was not established and the appellant was falsely implicated in this case because of his earlier civil litigation with one Darshan Singh. 7. We find from the material that immediately on receipt of the secret information, S.I. (PW 8) has sent V.T message to the DSP and the raid was conducted after DSP arrived at the bus-stand. Compliance of Section 42 of the Act has to be viewed pragmatically and the recovery was effected on 9th January, 2003 in presence of Gazetted Officer, which satisfies the provisions of Section 42 of the Act. Considering the facts on record, we are of the view that none of the contention was established by the appellants which in any way would affect their conviction. Thus, after taking into account the attendant facts and circumstances of the case, we see no reason to interfere with the well-reasoned judgment of the High Court.
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### Explanation:
7. We find from the material that immediately on receipt of the secret information, S.I. (PW 8) has sent V.T message to the DSP and the raid was conducted after DSP arrived at theCompliance of Section 42 of the Act has to be viewed pragmatically and the recovery was effected on 9th January, 2003 in presence of Gazetted Officer, which satisfies the provisions of Section 42 of the Act. Considering the facts on record, we are of the view that none of the contention was established by the appellants which in any way would affect their conviction. Thus, after taking into account the attendant facts and circumstances of the case, we see no reason to interfere with thejudgment of the High Court.
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KARATTU SHOUKATHALI Vs. STATE OF KERALA | by a false defence or a plea which is not accepted by a Court. 152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, 1952 SCR 1091. This case has been Uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (alias) Simmi v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal vinod jha. State of Maharashtra, (1972) 4 SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumants case (supra): It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, 1973 SCC (Cri) 1033 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 4. We have considered the aforesaid decision and on its anvil evidence adduced in the instant case minutely and examined the circumstances found established in the case and have also examined the concurrent finding recorded by the courts below. We find that the chain of circumstances is complete in the instant case. The deceased was taken by the accused in the morning of 11.08.1996 as stated by Vasu, PW-3. The accused was sitting with the deceased on a rock in the forest at 10.30 a.m. Haridas, PW-2, had seen them, at last. When she did not come back in the evening and on making an enquiry about her whereabouts by her father, A. Alavi, PW-1, as she could not be traced, First Information Report was lodged, which was recorded at 2.00 a.m. on 12.08.1996. Thereafter, as the accused and the deceased were last seen together, the appellant was apprehended by the police and at his instance the body was found in the forest. The circumstance that the accused had taken deceased from village and was found in the company of the deceased in forest also stands corroborated. The involvement of accused in offence finds support from material evidence that the fabric of the shirt of the accused tallied with the fabric found on the person of the deceased. Besides that, recovery of gold ornaments and purse of the deceased from the house of Shajahan, brother-in-law of the accused at the instance of accused pursuant to information furnished by him under Section 27 of Evidence Act stands established. 5. We are not impressed by the submission raised by the learned counsel for the appellant that, according to A. Alavi, PW-1, at 6.00 a.m. the police had apprehended the accused/appellant whereas the police says that it apprehended him at 9.00 a.m. There may be some discrepancies as to few hours due to loss of memory of A. Alavi, PW-1, which is not material. Crucial fact is that the recovery of the body at the instance of the appellant in the forest, the shirt fabric of the accused was found on the person of the deceased and also the recovery of the gold ornaments of the deceased. Vasu, PW-3, had seen the accused who had taken the deceased from the house and Haridas, PW-2, had seen them together in forest sitting on a rock, as such chain of circumstances stand completed so as to fasten the guilt. The burden was upon the accused to explain the circumstances in which he parted with company of deceased, how he came into possession of gold ornaments and purse of deceased and how was aware of where body was lying in the forest. He simply made bald denial which is not sufficient whereas as per provision of Section 106 of Evidence Act he should have explained the circumstances against him. | 0[ds]4. We have considered the aforesaid decision and on its anvil evidence adduced in the instant case minutely and examined the circumstances found established in the case and have also examined the concurrent finding recorded by the courts below. We find that the chain of circumstances is complete in the instant case. The deceased was taken by the accused in the morning of 11.08.1996 as stated by Vasu, PW-3. The accused was sitting with the deceased on a rock in the forest at 10.30 a.m. Haridas, PW-2, had seen them, at last. When she did not come back in the evening and on making an enquiry about her whereabouts by her father, A. Alavi, PW-1, as she could not be traced, First Information Report was lodged, which was recorded at 2.00 a.m. on 12.08.1996. Thereafter, as the accused and the deceased were last seen together, the appellant was apprehended by the police and at his instance the body was found in the forest. The circumstance that the accused had taken deceased from village and was found in the company of the deceased in forest also stands corroborated. The involvement of accused in offence finds support from material evidence that the fabric of the shirt of the accused tallied with the fabric found on the person of the deceased. Besides that, recovery of gold ornaments and purse of the deceased from the house of Shajahan, brother-in-law of the accused at the instance of accused pursuant to information furnished by him under Section 27 of Evidence Act stands established.5. We are not impressed by the submission raised by the learned counsel for the appellant that, according to A. Alavi, PW-1, at 6.00 a.m. the police had apprehended the accused/appellant whereas the police says that it apprehended him at 9.00 a.m. There may be some discrepancies as to few hours due to loss of memory of A. Alavi, PW-1, which is not material. Crucial fact is that the recovery of the body at the instance of the appellant in the forest, the shirt fabric of the accused was found on the person of the deceased and also the recovery of the gold ornaments of the deceased. Vasu, PW-3, had seen the accused who had taken the deceased from the house and Haridas, PW-2, had seen them together in forest sitting on a rock, as such chain of circumstances stand completed so as to fasten the guilt. The burden was upon the accused to explain the circumstances in which he parted with company of deceased, how he came into possession of gold ornaments and purse of deceased and how was aware of where body was lying in the forest. He simply made bald denial which is not sufficient whereas as per provision of Section 106 of Evidence Act he should have explained the circumstances against him. | 0 | 1,642 | 517 | ### Instruction:
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by a false defence or a plea which is not accepted by a Court. 152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, 1952 SCR 1091. This case has been Uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (alias) Simmi v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal vinod jha. State of Maharashtra, (1972) 4 SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumants case (supra): It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, 1973 SCC (Cri) 1033 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 4. We have considered the aforesaid decision and on its anvil evidence adduced in the instant case minutely and examined the circumstances found established in the case and have also examined the concurrent finding recorded by the courts below. We find that the chain of circumstances is complete in the instant case. The deceased was taken by the accused in the morning of 11.08.1996 as stated by Vasu, PW-3. The accused was sitting with the deceased on a rock in the forest at 10.30 a.m. Haridas, PW-2, had seen them, at last. When she did not come back in the evening and on making an enquiry about her whereabouts by her father, A. Alavi, PW-1, as she could not be traced, First Information Report was lodged, which was recorded at 2.00 a.m. on 12.08.1996. Thereafter, as the accused and the deceased were last seen together, the appellant was apprehended by the police and at his instance the body was found in the forest. The circumstance that the accused had taken deceased from village and was found in the company of the deceased in forest also stands corroborated. The involvement of accused in offence finds support from material evidence that the fabric of the shirt of the accused tallied with the fabric found on the person of the deceased. Besides that, recovery of gold ornaments and purse of the deceased from the house of Shajahan, brother-in-law of the accused at the instance of accused pursuant to information furnished by him under Section 27 of Evidence Act stands established. 5. We are not impressed by the submission raised by the learned counsel for the appellant that, according to A. Alavi, PW-1, at 6.00 a.m. the police had apprehended the accused/appellant whereas the police says that it apprehended him at 9.00 a.m. There may be some discrepancies as to few hours due to loss of memory of A. Alavi, PW-1, which is not material. Crucial fact is that the recovery of the body at the instance of the appellant in the forest, the shirt fabric of the accused was found on the person of the deceased and also the recovery of the gold ornaments of the deceased. Vasu, PW-3, had seen the accused who had taken the deceased from the house and Haridas, PW-2, had seen them together in forest sitting on a rock, as such chain of circumstances stand completed so as to fasten the guilt. The burden was upon the accused to explain the circumstances in which he parted with company of deceased, how he came into possession of gold ornaments and purse of deceased and how was aware of where body was lying in the forest. He simply made bald denial which is not sufficient whereas as per provision of Section 106 of Evidence Act he should have explained the circumstances against him.
### Response:
0
### Explanation:
4. We have considered the aforesaid decision and on its anvil evidence adduced in the instant case minutely and examined the circumstances found established in the case and have also examined the concurrent finding recorded by the courts below. We find that the chain of circumstances is complete in the instant case. The deceased was taken by the accused in the morning of 11.08.1996 as stated by Vasu, PW-3. The accused was sitting with the deceased on a rock in the forest at 10.30 a.m. Haridas, PW-2, had seen them, at last. When she did not come back in the evening and on making an enquiry about her whereabouts by her father, A. Alavi, PW-1, as she could not be traced, First Information Report was lodged, which was recorded at 2.00 a.m. on 12.08.1996. Thereafter, as the accused and the deceased were last seen together, the appellant was apprehended by the police and at his instance the body was found in the forest. The circumstance that the accused had taken deceased from village and was found in the company of the deceased in forest also stands corroborated. The involvement of accused in offence finds support from material evidence that the fabric of the shirt of the accused tallied with the fabric found on the person of the deceased. Besides that, recovery of gold ornaments and purse of the deceased from the house of Shajahan, brother-in-law of the accused at the instance of accused pursuant to information furnished by him under Section 27 of Evidence Act stands established.5. We are not impressed by the submission raised by the learned counsel for the appellant that, according to A. Alavi, PW-1, at 6.00 a.m. the police had apprehended the accused/appellant whereas the police says that it apprehended him at 9.00 a.m. There may be some discrepancies as to few hours due to loss of memory of A. Alavi, PW-1, which is not material. Crucial fact is that the recovery of the body at the instance of the appellant in the forest, the shirt fabric of the accused was found on the person of the deceased and also the recovery of the gold ornaments of the deceased. Vasu, PW-3, had seen the accused who had taken the deceased from the house and Haridas, PW-2, had seen them together in forest sitting on a rock, as such chain of circumstances stand completed so as to fasten the guilt. The burden was upon the accused to explain the circumstances in which he parted with company of deceased, how he came into possession of gold ornaments and purse of deceased and how was aware of where body was lying in the forest. He simply made bald denial which is not sufficient whereas as per provision of Section 106 of Evidence Act he should have explained the circumstances against him.
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Union of India and Others Vs. Premlata and Others | undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the layout in which the exemplar plots are situated. The decision in the case of Lal Chand (supra) has been subsequently followed by this Court in the case of Maya Devi (Dead) through Lrs. V. State of Haryana, reported in (2018) 2 SCC 474 as well as in the case of Andhra Pradesh Housing Board v. K. Manohar Reddy, reported in (2010) 12 SCC 707 . 6.2 In the case of Dyagala Devamma (supra), while quashing and setting aside the judgment and order of the High Court making deduction towards development charges at 25% in place of 50% as was deducted by the Reference Court, in paragraphs 19 & 20, it is observed and held as under: 19. In addition to these principles, this Court in several cases have laid down that while determining the true market value of the acquired land especially when the acquired land is a large chunk of undeveloped land, it is just and reasonable to make appropriate deduction towards expenses for development of acquired land. It has also been consistently held that at what percentage the deduction should be made varies from 10% to 86% and, therefore, the deduction should be made keeping in mind the nature of the land, area under acquisition, whether the land is developed or not and, if so, to what extent, the purpose of acquisition, etc. It has also been held that while determining the market value of the large chunk of land, the value of smaller pieces of land can be taken into consideration after making proper deduction in the value of lands especially when sale deeds of larger parcel of land are not available. This Court has also laid down that the court should also take into consideration the potentiality of the acquired land apart from other relevant considerations. This Court has also recognised that the courts can always apply reasonable amount of guesswork to balance the equities in order to fix a just and fair market value in terms of parameters specified under Section 23 of the Act. (See Trishala Jain v. State of Uttaranchal [Trishala Jain v. State of Uttaranchal, (2011) 6 SCC 47 : (2011) 3 SCC (Civ) 178] and Vithal Rao v. LAO [Vithal Rao v. LAO, (2017) 8 SCC 558 : (2017) 4 SCC (Civ) 155] .) 20. Keeping in mind the aforementioned principles, when we take note of the facts of the case at hand, we find that firstly, the land acquired in question is a large chunk of land (101 ac. approx.); secondly, it is not fully developed; thirdly, the respondents (landowners) have not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; fourthly, exemplar relied on by the respondents, especially Ext. P-18 pertains to very small pieces of land (19 guntas); fifthly, the three distinguishing features noticed in the land in sale deed (Ext. P-18) are not present in the acquired land. 7. Applying the law laid down by this Court on the deduction to be made towards development charges while determining the compensation to the facts of the case on hand, it is required to be noted that in the present case a large parcel of land admeasuring 46 Hectares 89 R has been acquired. The sale instances at Ex. 91 to 93 in respect of plots out of land bearing Survey No. 42 are with respect to small pieces of land admeasuring 1200 sq. ft. which were non-agricultural developed plots and even the market price mentioned in the said sale deeds were on square foot basis. In the present case, the acquired land is a barren agricultural land which may have a nonagricultural potentiality. Therefore, considering the fact that the sale exemplars/sale deeds produced at Ex. 91 to 93 are in respect of very small plots of land and were non-agricultural developed plots and even the same were on the highway and having the access to the main road, we are of the opinion that there shall be at least 40% deduction towards development charges. As such, the High Court has not assigned any good reason as to why and on what basis, it considered proper to make deduction towards development charges at the rate of 33.33% (1/3rd deduction). The High Court has not at all considered the relevant factors while making an appropriate deduction towards development charges. Therefore, considering the relevant factors on the appropriate deduction towards development charges as per the law laid down by this Court in the aforesaid decisions, and when we take note of the facts of the case on hand, we find that firstly, the land acquired in question is a large extent of land (45 Hectares 89 R); secondly, it was an agricultural land not fully developed; thirdly, the landowner having not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; and fourthly, exemplars relied upon by the landowner, especially Ex. 91 to 93 pertain to very small plots/parcels of land and that too, in respect of small plots which were developed and converted to non-agricultural use and the distinguishing features noticed in the land in sale deeds, Ex. 91 to 93 are not present in the acquired land, we are of the firm view that the deduction towards development charges at 1/3rd as deduced by the High Court can be said to be on a lower side. Considering the aforesaid facts and circumstances and the relevant factors, we are of the opinion that if 40% deduction is ordered to be made towards development charges, it can be said to be an appropriate deduction towards development charges in the facts and circumstances of the case. | 1[ds]At the outset, it is required to be noted that the Reference Court enhanced the amount of compensation determining the market price at Rs. 6/- per square foot after making deduction of 25% of the same towards development charges, relying upon and considering the sale deeds in respect of plots of land bearing survey No. 42 of village Borkhedi, vide Ex. 91 to 93. It is also noted that before the Reference Court, the landowner relied upon other sale instances at Ex. 50, 51 & 27. Having considered the fact that all the sale instances were in respect of small plots, the Reference Court discarded the same. Even the High Court has also agreed with the findings recorded by the Reference Court with respect to sale instances produced as Ex. 50, 51 & 27. We are in complete agreement with the view taken by the Reference Court as well as the High Court regarding the sale instances produced as Ex. 50, 51 & 27. All the sale instances are with respect to small plots and even the same instances were of the year 1987. In the present case, notification under Section 4 of the 1894 Act has been issued in the year 1992. As per the settled position of law, small plots/parcels of land cannot offer the same market value as when a large tract of land is purchased in an open market by a willing and prudent purchaser. As per the settled position of law, generally the sale instances with respect to small plots/parcels of land are not comparable to a large extent of land for the purpose of determining the compensation. In the case of Mahanti Devi v. Jaiprakash Associates Ltd., reported in (2019) 5 SCC 163, after following the decision of this Court in the case of Viluben Jhalejar Contractor v. State of Gujarat, reported in (2005) 4 SCC 789, it is held that in case of acquisition of large tracts of land and the exemplars are of small portion of land, there shall be a suitable deduction towards development costs.5.1 In the present case, the sale instance at Ex. 50 was with respect to plot admeasuring 135 Square Meters. Similarly, the sale instance at Ex. 51 was with respect to plot admeasuring 135 Square Meters. Even the sale instance at Ex. 27 was with respect to 1500 sq. ft. It is also to be noted that even in respect of sale instance at Ex. 50 dated 5.6.1987, the price determined was Rs.10.34/- per square foot and so far as the sale instance at Ex. 51 dated 10.09.1987 is concerned, the price determined was at Rs. 3/- per square foot. In the present case, the land acquired is a large area, i.e., 45 Hectares 89 R. Therefore, as rightly observed and held by the Reference Court as well as the High Court, the sale instances produced at Ex. 50, 51 & 27 are not comparable at all. We are in complete agreement with the view taken by the Reference Court as well as the High Court discarding Ex. 50, 51 & 27.As per the sale deeds, Ex. 91 to 93, the plots were sold at Rs.7/- per square foot. However, considering the fact that survey No. 42 was having direct access to main road and was closer to Chandrapur – Nagpur N.H. 7 than the acquired land, the Reference Court determined the market price at Rs. 6/- per square foot and determined the compensation after deducting 25% towards development charges. The High Court has enhanced the deduction from 25 % to 1/3rd, i.e., 33.33%.Thus, both, the Reference Court as well as the High Court have heavily relied upon Ex. 91 to 93 with respect to plots out of land bearing Survey No. 42 and determined the market price. It is true that as a general rule, the compensation shall not be determined on square foot basis (see Pitambar Hemlal Badgujar (d) by Lrs. (supra)). However, at the same time, in a given case, the Court may determine the compensation on square foot basis after making a reasonable deduction towards development charges, in case there are no other sale instances available.6.1 What should be reasonable deduction towards development charges has been considered by this Court in the cases of Lal Chand (supra) and Dyagala Devamma (supra).As held by this Court in the case of Lal Chand (supra), the percentage of deduction for development to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the layout in which the exemplar plots are situated. The decision in the case of Lal Chand (supra) has been subsequently followed by this Court in the case of Maya Devi (Dead) through Lrs. V. State of Haryana, reported in (2018) 2 SCC 474 as well as in the case of Andhra Pradesh Housing Board v. K. Manohar Reddy, reported in (2010) 12 SCC 707 .6.2 In the case of Dyagala Devamma (supra), while quashing and setting aside the judgment and order of the High Court making deduction towards development charges at 25% in place of 50% as was deducted by the Reference Court, in paragraphs 19 & 20, it is observed and held as under:19. In addition to these principles, this Court in several cases have laid down that while determining the true market value of the acquired land especially when the acquired land is a large chunk of undeveloped land, it is just and reasonable to make appropriate deduction towards expenses for development of acquired land. It has also been consistently held that at what percentage the deduction should be made varies from 10% to 86% and, therefore, the deduction should be made keeping in mind the nature of the land, area under acquisition, whether the land is developed or not and, if so, to what extent, the purpose of acquisition, etc. It has also been held that while determining the market value of the large chunk of land, the value of smaller pieces of land can be taken into consideration after making proper deduction in the value of lands especially when sale deeds of larger parcel of land are not available. This Court has also laid down that the court should also take into consideration the potentiality of the acquired land apart from other relevant considerations. This Court has also recognised that the courts can always apply reasonable amount of guesswork to balance the equities in order to fix a just and fair market value in terms of parameters specified under Section 23 of the Act. (See Trishala Jain v. State of Uttaranchal [Trishala Jain v. State of Uttaranchal, (2011) 6 SCC 47 : (2011) 3 SCC (Civ) 178] and Vithal Rao v. LAO [Vithal Rao v. LAO, (2017) 8 SCC 558 : (2017) 4 SCC (Civ) 155] .)20. Keeping in mind the aforementioned principles, when we take note of the facts of the case at hand, we find that firstly, the land acquired in question is a large chunk of land (101 ac. approx.); secondly, it is not fully developed; thirdly, the respondents (landowners) have not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; fourthly, exemplar relied on by the respondents, especially Ext. P-18 pertains to very small pieces of land (19 guntas); fifthly, the three distinguishing features noticed in the land in sale deed (Ext. P-18) are not present in the acquired land.7. Applying the law laid down by this Court on the deduction to be made towards development charges while determining the compensation to the facts of the case on hand, it is required to be noted that in the present case a large parcel of land admeasuring 46 Hectares 89 R has been acquired. The sale instances at Ex. 91 to 93 in respect of plots out of land bearing Survey No. 42 are with respect to small pieces of land admeasuring 1200 sq. ft. which were non-agricultural developed plots and even the market price mentioned in the said sale deeds were on square foot basis. In the present case, the acquired land is a barren agricultural land which may have a nonagricultural potentiality. Therefore, considering the fact that the sale exemplars/sale deeds produced at Ex. 91 to 93 are in respect of very small plots of land and were non-agricultural developed plots and even the same were on the highway and having the access to the main road, we are of the opinion that there shall be at least 40% deduction towards development charges. As such, the High Court has not assigned any good reason as to why and on what basis, it considered proper to make deduction towards development charges at the rate of 33.33% (1/3rd deduction). The High Court has not at all considered the relevant factors while making an appropriate deduction towards development charges. Therefore, considering the relevant factors on the appropriate deduction towards development charges as per the law laid down by this Court in the aforesaid decisions, and when we take note of the facts of the case on hand, we find that firstly, the land acquired in question is a large extent of land (45 Hectares 89 R); secondly, it was an agricultural land not fully developed; thirdly, the landowner having not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; and fourthly, exemplars relied upon by the landowner, especially Ex. 91 to 93 pertain to very small plots/parcels of land and that too, in respect of small plots which were developed and converted to non-agricultural use and the distinguishing features noticed in the land in sale deeds, Ex. 91 to 93 are not present in the acquired land, we are of the firm view that the deduction towards development charges at 1/3rd as deduced by the High Court can be said to be on a lower side. Considering the aforesaid facts and circumstances and the relevant factors, we are of the opinion that if 40% deduction is ordered to be made towards development charges, it can be said to be an appropriate deduction towards development charges in the facts and circumstances of the case. | 1 | 4,632 | 1,985 | ### 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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undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the layout in which the exemplar plots are situated. The decision in the case of Lal Chand (supra) has been subsequently followed by this Court in the case of Maya Devi (Dead) through Lrs. V. State of Haryana, reported in (2018) 2 SCC 474 as well as in the case of Andhra Pradesh Housing Board v. K. Manohar Reddy, reported in (2010) 12 SCC 707 . 6.2 In the case of Dyagala Devamma (supra), while quashing and setting aside the judgment and order of the High Court making deduction towards development charges at 25% in place of 50% as was deducted by the Reference Court, in paragraphs 19 & 20, it is observed and held as under: 19. In addition to these principles, this Court in several cases have laid down that while determining the true market value of the acquired land especially when the acquired land is a large chunk of undeveloped land, it is just and reasonable to make appropriate deduction towards expenses for development of acquired land. It has also been consistently held that at what percentage the deduction should be made varies from 10% to 86% and, therefore, the deduction should be made keeping in mind the nature of the land, area under acquisition, whether the land is developed or not and, if so, to what extent, the purpose of acquisition, etc. It has also been held that while determining the market value of the large chunk of land, the value of smaller pieces of land can be taken into consideration after making proper deduction in the value of lands especially when sale deeds of larger parcel of land are not available. This Court has also laid down that the court should also take into consideration the potentiality of the acquired land apart from other relevant considerations. This Court has also recognised that the courts can always apply reasonable amount of guesswork to balance the equities in order to fix a just and fair market value in terms of parameters specified under Section 23 of the Act. (See Trishala Jain v. State of Uttaranchal [Trishala Jain v. State of Uttaranchal, (2011) 6 SCC 47 : (2011) 3 SCC (Civ) 178] and Vithal Rao v. LAO [Vithal Rao v. LAO, (2017) 8 SCC 558 : (2017) 4 SCC (Civ) 155] .) 20. Keeping in mind the aforementioned principles, when we take note of the facts of the case at hand, we find that firstly, the land acquired in question is a large chunk of land (101 ac. approx.); secondly, it is not fully developed; thirdly, the respondents (landowners) have not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; fourthly, exemplar relied on by the respondents, especially Ext. P-18 pertains to very small pieces of land (19 guntas); fifthly, the three distinguishing features noticed in the land in sale deed (Ext. P-18) are not present in the acquired land. 7. Applying the law laid down by this Court on the deduction to be made towards development charges while determining the compensation to the facts of the case on hand, it is required to be noted that in the present case a large parcel of land admeasuring 46 Hectares 89 R has been acquired. The sale instances at Ex. 91 to 93 in respect of plots out of land bearing Survey No. 42 are with respect to small pieces of land admeasuring 1200 sq. ft. which were non-agricultural developed plots and even the market price mentioned in the said sale deeds were on square foot basis. In the present case, the acquired land is a barren agricultural land which may have a nonagricultural potentiality. Therefore, considering the fact that the sale exemplars/sale deeds produced at Ex. 91 to 93 are in respect of very small plots of land and were non-agricultural developed plots and even the same were on the highway and having the access to the main road, we are of the opinion that there shall be at least 40% deduction towards development charges. As such, the High Court has not assigned any good reason as to why and on what basis, it considered proper to make deduction towards development charges at the rate of 33.33% (1/3rd deduction). The High Court has not at all considered the relevant factors while making an appropriate deduction towards development charges. Therefore, considering the relevant factors on the appropriate deduction towards development charges as per the law laid down by this Court in the aforesaid decisions, and when we take note of the facts of the case on hand, we find that firstly, the land acquired in question is a large extent of land (45 Hectares 89 R); secondly, it was an agricultural land not fully developed; thirdly, the landowner having not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; and fourthly, exemplars relied upon by the landowner, especially Ex. 91 to 93 pertain to very small plots/parcels of land and that too, in respect of small plots which were developed and converted to non-agricultural use and the distinguishing features noticed in the land in sale deeds, Ex. 91 to 93 are not present in the acquired land, we are of the firm view that the deduction towards development charges at 1/3rd as deduced by the High Court can be said to be on a lower side. Considering the aforesaid facts and circumstances and the relevant factors, we are of the opinion that if 40% deduction is ordered to be made towards development charges, it can be said to be an appropriate deduction towards development charges in the facts and circumstances of the case.
### Response:
1
### Explanation:
of undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the layout in which the exemplar plots are situated. The decision in the case of Lal Chand (supra) has been subsequently followed by this Court in the case of Maya Devi (Dead) through Lrs. V. State of Haryana, reported in (2018) 2 SCC 474 as well as in the case of Andhra Pradesh Housing Board v. K. Manohar Reddy, reported in (2010) 12 SCC 707 .6.2 In the case of Dyagala Devamma (supra), while quashing and setting aside the judgment and order of the High Court making deduction towards development charges at 25% in place of 50% as was deducted by the Reference Court, in paragraphs 19 & 20, it is observed and held as under:19. In addition to these principles, this Court in several cases have laid down that while determining the true market value of the acquired land especially when the acquired land is a large chunk of undeveloped land, it is just and reasonable to make appropriate deduction towards expenses for development of acquired land. It has also been consistently held that at what percentage the deduction should be made varies from 10% to 86% and, therefore, the deduction should be made keeping in mind the nature of the land, area under acquisition, whether the land is developed or not and, if so, to what extent, the purpose of acquisition, etc. It has also been held that while determining the market value of the large chunk of land, the value of smaller pieces of land can be taken into consideration after making proper deduction in the value of lands especially when sale deeds of larger parcel of land are not available. This Court has also laid down that the court should also take into consideration the potentiality of the acquired land apart from other relevant considerations. This Court has also recognised that the courts can always apply reasonable amount of guesswork to balance the equities in order to fix a just and fair market value in terms of parameters specified under Section 23 of the Act. (See Trishala Jain v. State of Uttaranchal [Trishala Jain v. State of Uttaranchal, (2011) 6 SCC 47 : (2011) 3 SCC (Civ) 178] and Vithal Rao v. LAO [Vithal Rao v. LAO, (2017) 8 SCC 558 : (2017) 4 SCC (Civ) 155] .)20. Keeping in mind the aforementioned principles, when we take note of the facts of the case at hand, we find that firstly, the land acquired in question is a large chunk of land (101 ac. approx.); secondly, it is not fully developed; thirdly, the respondents (landowners) have not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; fourthly, exemplar relied on by the respondents, especially Ext. P-18 pertains to very small pieces of land (19 guntas); fifthly, the three distinguishing features noticed in the land in sale deed (Ext. P-18) are not present in the acquired land.7. Applying the law laid down by this Court on the deduction to be made towards development charges while determining the compensation to the facts of the case on hand, it is required to be noted that in the present case a large parcel of land admeasuring 46 Hectares 89 R has been acquired. The sale instances at Ex. 91 to 93 in respect of plots out of land bearing Survey No. 42 are with respect to small pieces of land admeasuring 1200 sq. ft. which were non-agricultural developed plots and even the market price mentioned in the said sale deeds were on square foot basis. In the present case, the acquired land is a barren agricultural land which may have a nonagricultural potentiality. Therefore, considering the fact that the sale exemplars/sale deeds produced at Ex. 91 to 93 are in respect of very small plots of land and were non-agricultural developed plots and even the same were on the highway and having the access to the main road, we are of the opinion that there shall be at least 40% deduction towards development charges. As such, the High Court has not assigned any good reason as to why and on what basis, it considered proper to make deduction towards development charges at the rate of 33.33% (1/3rd deduction). The High Court has not at all considered the relevant factors while making an appropriate deduction towards development charges. Therefore, considering the relevant factors on the appropriate deduction towards development charges as per the law laid down by this Court in the aforesaid decisions, and when we take note of the facts of the case on hand, we find that firstly, the land acquired in question is a large extent of land (45 Hectares 89 R); secondly, it was an agricultural land not fully developed; thirdly, the landowner having not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; and fourthly, exemplars relied upon by the landowner, especially Ex. 91 to 93 pertain to very small plots/parcels of land and that too, in respect of small plots which were developed and converted to non-agricultural use and the distinguishing features noticed in the land in sale deeds, Ex. 91 to 93 are not present in the acquired land, we are of the firm view that the deduction towards development charges at 1/3rd as deduced by the High Court can be said to be on a lower side. Considering the aforesaid facts and circumstances and the relevant factors, we are of the opinion that if 40% deduction is ordered to be made towards development charges, it can be said to be an appropriate deduction towards development charges in the facts and circumstances of the case.
|
Eastern Investments Ltd Vs. Commissioner Of Income-Tax,West Bengal | we see no such difficulty. C1. 5 empowers a reduction of capital of the Co. and cl. 3(3) empowers the Co. to borrow or raise money by the issue of debentures. The matter is clearly "writ in the bond". Moreover, we do not think that this inquiry is relevant, for we are dealing with a question of income-tax and not judging the legality or propriety of the transaction on an appln. to reduce the capital of the Co. The only question is whether this was done in the ordinary course of business for the purposes we have already pointed out however mistaken the directors and shareholders of the Co. may have been.15. Therefore, as stated by the Income-tax Appellate Tribunal in its statement of the case, the executors of Lord Cables estate needed money. In the next place, the transaction was brought about "at the instance of the holder of the majority of ordinary shares", and also that the shares were originally held by Lord Cable and his nominees. It seems evident therefore that Scott could have compelled the Co. to pay him cash for the shares. He seems to have had the whip hand. Instead of doing that he entered into an arrangement which, while giving him the necessary facilities, appears to have satisfied the Co. by allowing it to retain its investments without apprecipitate liquidation of a large portion thereof. It does not matter whether the Co. was right in this view or wrong, and in any event we are in no position to judge of the soundness of its decision because we have not all the materials before us. It has to be remembered that considerations of this kind go deeper than the apparent profit or loss on an isolated transaction standing by itself. It is not enough to say that the 50,000 shares which were cancelled earned in the following year only 31/2 per cent. interest as against 5 per cent. on the debentures because we do not know to what extent the holdings of the Co. would have been disturbed if this had not been done. What we do know is what the Income-tax Appellate Tribunal has stated, namely, that:"the change brought about had been so designed that the investments of the Co. were to be disturbed and as a consequence the income accrued was in no way to be affected."This has only to be stated to show the commercial nature of the transaction from the Co.s point of view.16. The H. C. consd. that the capital of the Co. could have been reduced in other ways. But that again is not the point. There are usually many ways in which a given thing can be brought about in business circles but it is not for the Ct. to decide which of them should have been employed when the Ct. is deciding a question u/s. 12 (2) Income-tax Act.17. It was urged on behalf of the resp.(basing the same on para. 7 of the applts appln. to the H. C. dated 5-4-1947) that the Co. had at the time sufficient liquid resources to effect the reduction of capital desired and so it was not necessary to resort to this process. But that again is not the point. The Co. chose to do it this way and as there was not even a suggestion of fraud, the only question is whether it was gone through as an ordinary commercial proposition. But we doubt if that is what para. 7 meant because in para. 4 of the appln. to the H.C. dated 11-2-1944 the petnr. stated that the money on hand and at short notice was only Rs. 8,94,379. This is a good deal short of 50 lacs. However, we need not enter into this in detail.18. On a full review of the facts, it is clear that this transaction was voluntarily entered into in order indirectly to facilitate the carrying on of the business of the Co. and was made on the ground of commercial expediency. It therefore falls within the purview of S. 12 (2), Income-tax Act, 1922 before its amendment in 1939.19. This being an investment Co. if it borrowed money and utilised the same for its investments on which it earned income, the interest paid by it on the loans will clearly be a permissible deduction u/s. 12(2), Income-tax Act. Whether the loan is taken on an overdraft, or is a fixed deposit or on a debenture makes no difference in law. The only argument urged against allowing this deduction to be made is that the person who took the debentures was the party who sold the ordinary shares. It cannot be disputed that if the debentures were held by a third party, the interest payable on the same would be an allowable deduction in calculating the total income of the assessee Co. What difference does it make if the holder of the debentures is a shareholder? There appears to be none in principle in view of the fact that no suggestion of fraud is made in respect of the transaction which is carried out between the Co. and the Administrator and which has been sanctioned by the Ct. If the debentures had been paid for in cash by the same party, no objection could have been taken to allowing the interest amount to be deducted. In principle, there appears to us no difference, if instead of paying in cash the payment of the price is in the shape of giving over shares of the Co. when the transaction is not challenged on the ground of fraud and is approved by the Ct. in the re-organisation of the capital of the Co. In our opinion, therefore, the ground on which the Income-tax Appellate Tribunal and the R. C. disallowed the claim of the assessee is not sound.20. In our opinion, the H. C. has failed to appreciate the true position and the question submitted for its opinion should be answered in the affirmative. | 1[ds]In our opinion, the law on this point has been correctly summarised in the judgment of the H. C. The following principles are relevant :(a) though the question must be decided on the facts of each case the final conclusion is one of law. Indian Radio and Cable Communication Ltd. v. Commissioner of Income-tax, Bombay, 1937 I. T R. 270 and Tata Hydro-Electric Agencies Ltd. v. The Commissioner of Income-tax, Bombay, 19371. T. R. 202;(b) it is not necessary to show that the expenditure was a profitable one or that in fact any profit was earned :John.Moore v. Stewart and Lloyds Ltd., (1906) 6 Tax cas501 and UsherWittshire Brewery Ltd. v. Bruce, 1915 A. O.433;(c) it is enough to show that the money was expended "not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the ground of commercial expediency, and in order indirectly to facilitate the carrying on of the business :"BritishInsulated and Helsby Cables Ltd. v. Atherton, 1926 A. C. 205 at pp. 221 and235; and(d) beyond that no hard and fast rule can be laid, down to explain what is meant by the word "solely."11. A case somewhat similar to the present is Farmerv. Scottish North American Trust Ltd., 1912 A. C.118 where it was held that interest paid on an overdraft required for purchasing shares (the shares purchased being retained as security for the overdraft) was an outgoing which could be deducted from the receipts to ascertain the taxable profits and gains which were earned by them. In our opinion, the present case falls, within these principles.On a full review of the facts, it is clear that this transaction was voluntarily entered into in order indirectly to facilitate the carrying on of the business of the Co. and was made on the ground of commercial expediency. It therefore falls within the purview of S. 12 (2), Income-tax Act, 1922 before its amendment in 1939.This being an investment Co. if it borrowed money and utilised the same for its investments on which it earned income, the interest paid by it on the loans will clearly be a permissible deduction u/s. 12(2), Income-taxthe loan is taken on an overdraft, or is a fixed deposit or on a debenture makes no difference in law. The only argument urged against allowing this deduction to be made is that the person who took the debentures was the party who sold the ordinary shares. It cannot be disputed that if the debentures were held by a third party, the interest payable on the same would be an allowable deduction in calculating the total income of the assessee Co. What difference does it make if the holder of the debentures is a shareholder? There appears to be none in principle in view of the fact that no suggestion of fraud is made in respect of the transaction which is carried out between the Co. and the Administrator and which has been sanctioned by the Ct. If the debentures had been paid for in cash by the same party, no objection could have been taken to allowing the interest amount to be deducted. In principle, there appears to us no difference, if instead of paying in cash the payment of the price is in the shape of giving over shares of the Co. when the transaction is not challenged on the ground of fraud and is approved by the Ct. in the re-organisation of the capital of the Co. In our opinion, therefore, the ground on which the Income-tax Appellate Tribunal and the R. C. disallowed the claim of the assessee is not sound.20. In our opinion, the H. C. has failed to appreciate the true position and the question submitted for its opinion should be answered in the affirmative. | 1 | 2,508 | 715 | ### Instruction:
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we see no such difficulty. C1. 5 empowers a reduction of capital of the Co. and cl. 3(3) empowers the Co. to borrow or raise money by the issue of debentures. The matter is clearly "writ in the bond". Moreover, we do not think that this inquiry is relevant, for we are dealing with a question of income-tax and not judging the legality or propriety of the transaction on an appln. to reduce the capital of the Co. The only question is whether this was done in the ordinary course of business for the purposes we have already pointed out however mistaken the directors and shareholders of the Co. may have been.15. Therefore, as stated by the Income-tax Appellate Tribunal in its statement of the case, the executors of Lord Cables estate needed money. In the next place, the transaction was brought about "at the instance of the holder of the majority of ordinary shares", and also that the shares were originally held by Lord Cable and his nominees. It seems evident therefore that Scott could have compelled the Co. to pay him cash for the shares. He seems to have had the whip hand. Instead of doing that he entered into an arrangement which, while giving him the necessary facilities, appears to have satisfied the Co. by allowing it to retain its investments without apprecipitate liquidation of a large portion thereof. It does not matter whether the Co. was right in this view or wrong, and in any event we are in no position to judge of the soundness of its decision because we have not all the materials before us. It has to be remembered that considerations of this kind go deeper than the apparent profit or loss on an isolated transaction standing by itself. It is not enough to say that the 50,000 shares which were cancelled earned in the following year only 31/2 per cent. interest as against 5 per cent. on the debentures because we do not know to what extent the holdings of the Co. would have been disturbed if this had not been done. What we do know is what the Income-tax Appellate Tribunal has stated, namely, that:"the change brought about had been so designed that the investments of the Co. were to be disturbed and as a consequence the income accrued was in no way to be affected."This has only to be stated to show the commercial nature of the transaction from the Co.s point of view.16. The H. C. consd. that the capital of the Co. could have been reduced in other ways. But that again is not the point. There are usually many ways in which a given thing can be brought about in business circles but it is not for the Ct. to decide which of them should have been employed when the Ct. is deciding a question u/s. 12 (2) Income-tax Act.17. It was urged on behalf of the resp.(basing the same on para. 7 of the applts appln. to the H. C. dated 5-4-1947) that the Co. had at the time sufficient liquid resources to effect the reduction of capital desired and so it was not necessary to resort to this process. But that again is not the point. The Co. chose to do it this way and as there was not even a suggestion of fraud, the only question is whether it was gone through as an ordinary commercial proposition. But we doubt if that is what para. 7 meant because in para. 4 of the appln. to the H.C. dated 11-2-1944 the petnr. stated that the money on hand and at short notice was only Rs. 8,94,379. This is a good deal short of 50 lacs. However, we need not enter into this in detail.18. On a full review of the facts, it is clear that this transaction was voluntarily entered into in order indirectly to facilitate the carrying on of the business of the Co. and was made on the ground of commercial expediency. It therefore falls within the purview of S. 12 (2), Income-tax Act, 1922 before its amendment in 1939.19. This being an investment Co. if it borrowed money and utilised the same for its investments on which it earned income, the interest paid by it on the loans will clearly be a permissible deduction u/s. 12(2), Income-tax Act. Whether the loan is taken on an overdraft, or is a fixed deposit or on a debenture makes no difference in law. The only argument urged against allowing this deduction to be made is that the person who took the debentures was the party who sold the ordinary shares. It cannot be disputed that if the debentures were held by a third party, the interest payable on the same would be an allowable deduction in calculating the total income of the assessee Co. What difference does it make if the holder of the debentures is a shareholder? There appears to be none in principle in view of the fact that no suggestion of fraud is made in respect of the transaction which is carried out between the Co. and the Administrator and which has been sanctioned by the Ct. If the debentures had been paid for in cash by the same party, no objection could have been taken to allowing the interest amount to be deducted. In principle, there appears to us no difference, if instead of paying in cash the payment of the price is in the shape of giving over shares of the Co. when the transaction is not challenged on the ground of fraud and is approved by the Ct. in the re-organisation of the capital of the Co. In our opinion, therefore, the ground on which the Income-tax Appellate Tribunal and the R. C. disallowed the claim of the assessee is not sound.20. In our opinion, the H. C. has failed to appreciate the true position and the question submitted for its opinion should be answered in the affirmative.
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In our opinion, the law on this point has been correctly summarised in the judgment of the H. C. The following principles are relevant :(a) though the question must be decided on the facts of each case the final conclusion is one of law. Indian Radio and Cable Communication Ltd. v. Commissioner of Income-tax, Bombay, 1937 I. T R. 270 and Tata Hydro-Electric Agencies Ltd. v. The Commissioner of Income-tax, Bombay, 19371. T. R. 202;(b) it is not necessary to show that the expenditure was a profitable one or that in fact any profit was earned :John.Moore v. Stewart and Lloyds Ltd., (1906) 6 Tax cas501 and UsherWittshire Brewery Ltd. v. Bruce, 1915 A. O.433;(c) it is enough to show that the money was expended "not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the ground of commercial expediency, and in order indirectly to facilitate the carrying on of the business :"BritishInsulated and Helsby Cables Ltd. v. Atherton, 1926 A. C. 205 at pp. 221 and235; and(d) beyond that no hard and fast rule can be laid, down to explain what is meant by the word "solely."11. A case somewhat similar to the present is Farmerv. Scottish North American Trust Ltd., 1912 A. C.118 where it was held that interest paid on an overdraft required for purchasing shares (the shares purchased being retained as security for the overdraft) was an outgoing which could be deducted from the receipts to ascertain the taxable profits and gains which were earned by them. In our opinion, the present case falls, within these principles.On a full review of the facts, it is clear that this transaction was voluntarily entered into in order indirectly to facilitate the carrying on of the business of the Co. and was made on the ground of commercial expediency. It therefore falls within the purview of S. 12 (2), Income-tax Act, 1922 before its amendment in 1939.This being an investment Co. if it borrowed money and utilised the same for its investments on which it earned income, the interest paid by it on the loans will clearly be a permissible deduction u/s. 12(2), Income-taxthe loan is taken on an overdraft, or is a fixed deposit or on a debenture makes no difference in law. The only argument urged against allowing this deduction to be made is that the person who took the debentures was the party who sold the ordinary shares. It cannot be disputed that if the debentures were held by a third party, the interest payable on the same would be an allowable deduction in calculating the total income of the assessee Co. What difference does it make if the holder of the debentures is a shareholder? There appears to be none in principle in view of the fact that no suggestion of fraud is made in respect of the transaction which is carried out between the Co. and the Administrator and which has been sanctioned by the Ct. If the debentures had been paid for in cash by the same party, no objection could have been taken to allowing the interest amount to be deducted. In principle, there appears to us no difference, if instead of paying in cash the payment of the price is in the shape of giving over shares of the Co. when the transaction is not challenged on the ground of fraud and is approved by the Ct. in the re-organisation of the capital of the Co. In our opinion, therefore, the ground on which the Income-tax Appellate Tribunal and the R. C. disallowed the claim of the assessee is not sound.20. In our opinion, the H. C. has failed to appreciate the true position and the question submitted for its opinion should be answered in the affirmative.
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VETINDIA PHARMACEUTICALS LIMITED Vs. STATE OF UTTAR PRADESH AND ANOTHER | of such a harsh penalty like blacklisting with severe consequences, would itself amount to causing prejudice to the appellant. 12. If the respondents had expressed their mind in the show cause notice to blacklist, the appellant could have filed an appropriate response to the same. The insistence of the respondents to support the impugned order by reference to the terms of the tender cannot cure the illegality in absence of the appellant being a successful tenderer and supplier. We therefore hold that the order of blacklisting dated 08.09.2009 stands vitiated from the very inception on more than one ground and merits interference. 13. In view of the aforesaid conclusion, there may have been no need to go into the question of the duration of the blacklisting, but for the arguments addressed before us. An order of blacklisting operates to the prejudice of a commercial person not only in praesenti but also puts a taint which attaches far beyond and may well spell the death knell of the organisation/institution for all times to come described as a civil death. The repercussions on the appellant were clearly spelt out by it in the representations as also in the writ petition, including the consequences under the Rajasthan tender, where it stood debarred expressly because of the present impugned order. The possibility always remains that if a proper show cause notice had been given and the reply furnished would have been considered in accordance with law, even if the respondents decided to blacklist the appellant, entirely different considerations may have prevailed in their minds especially with regard to the duration. This court in Kulja Industries Limited vs. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Limited and others, (2014) 14 SCC 731 , despite declining to interfere with an order of blacklisting, but noticing that an order of permanent debarment was unjustified, observed: - 28.2. Secondly, because while determining the period for which the blacklisting should be effective the respondent Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different periods of debarment depending upon the gravity of the offences, violations and breaches may be prescribed by such guidelines. While it may not be possible to exhaustively enumerate all types of offences and acts of misdemeanour, or violations of contractual obligations by a contractor, the respondent Corporation may do so as far as possible to reduce if not totally eliminate arbitrariness in the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting contractor. Since the order of blacklisting has been found to be unsustainable by us, and considering the long passage of time, we are not inclined to remand the matter to the authorities. In M/s Daffodills Pharmaceuticals (supra), relied upon by the appellant, this court has observed that an order of blacklisting beyond 3 years or maximum of 5 years was disproportionate. 14. That brings us to the question of delay. There is no doubt that the High Court in its discretionary jurisdiction may decline to exercise the discretionary writ jurisdiction on ground of delay in approaching the court. But it is only a rule of discretion by exercise of self-restraint evolved by the court in exercise of the discretionary equitable jurisdiction and not a mandatory requirement that every delayed petition must be dismissed on the ground of delay. The Limitation Act stricto sensu does not apply to the writ jurisdiction. The discretion vested in the court under Article 226 of the Constitution therefore has to be a judicious exercise of the discretion after considering all pros and cons of the matter, including the nature of the dispute, the explanation for the delay, whether any third-party rights have intervened etc. The jurisdiction under Article 226 being equitable in nature, questions of proportionality in considering whether the impugned order merits interference or not in exercise of the discretionary jurisdiction will also arise. This Court in Basanti Prasad vs. Bihar School Examination Board and others, (2009) 6 SCC 791 , after referring to Moon Mills Ltd. vs. Industrial Court, AIR 1967 SC 1450 , Maharashtra SRTC vs. Balwant Regular Motor Service, AIR 1969 SC 329 and State of M.P. and Others vs. Nandlal Jaiswal and others, (1986) 4 SCC 566 , held that if the delay is properly explained and no third party rights are being affected, the writ court under Article 226 of the Constitution may condone the delay, holding as follows: 18. In the normal course, we would not have taken exception to the order passed by the High Court. They are justified in saying that a delinquent employee should not be permitted to revive the stale claim and the High Court in exercise of its discretion would not ordinarily assist the tardy and indolent person. This is the traditional view and is well supported by a plethora of decisions of this Court. This Court also has taken the view that there is no inviolable rule, that, whenever there is delay the Court must refuse to entertain a petition. This Court has stated that the writ court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution may condone the delay in filing the petition, if the delay is satisfactorily explained. 15. The contention of the respondents that they have acted in accordance with the provisions of the Drugs Act pursuant to the report of the analyst for misbranded product under Section 9 is devoid of substance and merits no consideration. It is not the case of the respondents that the procedure prescribed under Sections 23, 25 and 26 of the Drug Act has been followed. The feeble attempt to show compliance with provisions of the Drugs Act by alleged purchase of the samples under Form 14A at Annexure R-5 to the counter affidavit dated 21.07.2008 from an unknown source and date must be rejected outright as an attempt to create evidence where none exists. | 0[ds]9. There is no dispute that the injection was not supplied to the respondents by the appellant. Yet the show cause notice dated 21.10.2008 referred to further action in terms of the Tender for supplying misbranded medicine to the appellant. Furthermore, the show cause notice did not state that action by blacklisting was to be taken, or was under contemplation. It only mentioned appropriate action in accordance with the rules of the Tender. The fact that the terms of the tender may have provided for blacklisting is irrelevant in the facts of the case. In absence of any supply by the appellant, the order of blacklisting dated 08.09.2009 invoking clauses 8.12 and 8.23 of the Tender is a fundamental flaw, vitiating the impugned order on the face of it reflecting non application of mind to the issues involved. Even after the appellant brought this fact to the attention of the respondents, they refused to pay any heed to it. Further, it specifies no duration for the same.12. If the respondents had expressed their mind in the show cause notice to blacklist, the appellant could have filed an appropriate response to the same. The insistence of the respondents to support the impugned order by reference to the terms of the tender cannot cure the illegality in absence of the appellant being a successful tenderer and supplier. We therefore hold that the order of blacklisting dated 08.09.2009 stands vitiated from the very inception on more than one ground and merits interference.13. In view of the aforesaid conclusion, there may have been no need to go into the question of the duration of the blacklisting, but for the arguments addressed before us. An order of blacklisting operates to the prejudice of a commercial person not only in praesenti but also puts a taint which attaches far beyond and may well spell the death knell of the organisation/institution for all times to come described as a civil death. The repercussions on the appellant were clearly spelt out by it in the representations as also in the writ petition, including the consequences under the Rajasthan tender, where it stood debarred expressly because of the present impugned order. The possibility always remains that if a proper show cause notice had been given and the reply furnished would have been considered in accordance with law, even if the respondents decided to blacklist the appellant, entirely different considerations may have prevailed in their minds especially with regard to the duration. This court in Kulja Industries Limited vs. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Limited and others, (2014) 14 SCC 731 , despite declining to interfere with an order of blacklisting, but noticing that an order of permanent debarment was unjustified, observed: -28.2. Secondly, because while determining the period for which the blacklisting should be effective the respondent Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different periods of debarment depending upon the gravity of the offences, violations and breaches may be prescribed by such guidelines. While it may not be possible to exhaustively enumerate all types of offences and acts of misdemeanour, or violations of contractual obligations by a contractor, the respondent Corporation may do so as far as possible to reduce if not totally eliminate arbitrariness in the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting contractor.Since the order of blacklisting has been found to be unsustainable by us, and considering the long passage of time, we are not inclined to remand the matter to the authorities. In M/s Daffodills Pharmaceuticals (supra), relied upon by the appellant, this court has observed that an order of blacklisting beyond 3 years or maximum of 5 years was disproportionate.There is no doubt that the High Court in its discretionary jurisdiction may decline to exercise the discretionary writ jurisdiction on ground of delay in approaching the court. But it is only a rule of discretion by exercise of self-restraint evolved by the court in exercise of the discretionary equitable jurisdiction and not a mandatory requirement that every delayed petition must be dismissed on the ground of delay. The Limitation Act stricto sensu does not apply to the writ jurisdiction. The discretion vested in the court under Article 226 of the Constitution therefore has to be a judicious exercise of the discretion after considering all pros and cons of the matter, including the nature of the dispute, the explanation for the delay, whether any third-party rights have intervened etc. The jurisdiction under Article 226 being equitable in nature, questions of proportionality in considering whether the impugned order merits interference or not in exercise of the discretionary jurisdiction will also arise. This Court in Basanti Prasad vs. Bihar School Examination Board and others, (2009) 6 SCC 791 , after referring to Moon Mills Ltd. vs. Industrial Court, AIR 1967 SC 1450 , Maharashtra SRTC vs. Balwant Regular Motor Service, AIR 1969 SC 329 and State of M.P. and Others vs. Nandlal Jaiswal and others, (1986) 4 SCC 566 , held that if the delay is properly explained and no third party rights are being affected, the writ court under Article 226 of the Constitution may condone the delay, holding as follows:18. In the normal course, we would not have taken exception to the order passed by the High Court. They are justified in saying that a delinquent employee should not be permitted to revive the stale claim and the High Court in exercise of its discretion would not ordinarily assist the tardy and indolent person. This is the traditional view and is well supported by a plethora of decisions of this Court. This Court also has taken the view that there is no inviolable rule, that, whenever there is delay the Court must refuse to entertain a petition. This Court has stated that the writ court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution may condone the delay in filing the petition, if the delay is satisfactorily explained.15. The contention of the respondents that they have acted in accordance with the provisions of the Drugs Act pursuant to the report of the analyst for misbranded product under Section 9 is devoid of substance and merits no consideration. It is not the case of the respondents that the procedure prescribed under Sections 23, 25 and 26 of the Drug Act has been followed. The feeble attempt to show compliance with provisions of the Drugs Act by alleged purchase of the samples under Form 14A at Annexure R-5 to the counter affidavit dated 21.07.2008 from an unknown source and date must be rejected outright as an attempt to create evidence where none exists. | 0 | 3,030 | 1,221 | ### 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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of such a harsh penalty like blacklisting with severe consequences, would itself amount to causing prejudice to the appellant. 12. If the respondents had expressed their mind in the show cause notice to blacklist, the appellant could have filed an appropriate response to the same. The insistence of the respondents to support the impugned order by reference to the terms of the tender cannot cure the illegality in absence of the appellant being a successful tenderer and supplier. We therefore hold that the order of blacklisting dated 08.09.2009 stands vitiated from the very inception on more than one ground and merits interference. 13. In view of the aforesaid conclusion, there may have been no need to go into the question of the duration of the blacklisting, but for the arguments addressed before us. An order of blacklisting operates to the prejudice of a commercial person not only in praesenti but also puts a taint which attaches far beyond and may well spell the death knell of the organisation/institution for all times to come described as a civil death. The repercussions on the appellant were clearly spelt out by it in the representations as also in the writ petition, including the consequences under the Rajasthan tender, where it stood debarred expressly because of the present impugned order. The possibility always remains that if a proper show cause notice had been given and the reply furnished would have been considered in accordance with law, even if the respondents decided to blacklist the appellant, entirely different considerations may have prevailed in their minds especially with regard to the duration. This court in Kulja Industries Limited vs. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Limited and others, (2014) 14 SCC 731 , despite declining to interfere with an order of blacklisting, but noticing that an order of permanent debarment was unjustified, observed: - 28.2. Secondly, because while determining the period for which the blacklisting should be effective the respondent Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different periods of debarment depending upon the gravity of the offences, violations and breaches may be prescribed by such guidelines. While it may not be possible to exhaustively enumerate all types of offences and acts of misdemeanour, or violations of contractual obligations by a contractor, the respondent Corporation may do so as far as possible to reduce if not totally eliminate arbitrariness in the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting contractor. Since the order of blacklisting has been found to be unsustainable by us, and considering the long passage of time, we are not inclined to remand the matter to the authorities. In M/s Daffodills Pharmaceuticals (supra), relied upon by the appellant, this court has observed that an order of blacklisting beyond 3 years or maximum of 5 years was disproportionate. 14. That brings us to the question of delay. There is no doubt that the High Court in its discretionary jurisdiction may decline to exercise the discretionary writ jurisdiction on ground of delay in approaching the court. But it is only a rule of discretion by exercise of self-restraint evolved by the court in exercise of the discretionary equitable jurisdiction and not a mandatory requirement that every delayed petition must be dismissed on the ground of delay. The Limitation Act stricto sensu does not apply to the writ jurisdiction. The discretion vested in the court under Article 226 of the Constitution therefore has to be a judicious exercise of the discretion after considering all pros and cons of the matter, including the nature of the dispute, the explanation for the delay, whether any third-party rights have intervened etc. The jurisdiction under Article 226 being equitable in nature, questions of proportionality in considering whether the impugned order merits interference or not in exercise of the discretionary jurisdiction will also arise. This Court in Basanti Prasad vs. Bihar School Examination Board and others, (2009) 6 SCC 791 , after referring to Moon Mills Ltd. vs. Industrial Court, AIR 1967 SC 1450 , Maharashtra SRTC vs. Balwant Regular Motor Service, AIR 1969 SC 329 and State of M.P. and Others vs. Nandlal Jaiswal and others, (1986) 4 SCC 566 , held that if the delay is properly explained and no third party rights are being affected, the writ court under Article 226 of the Constitution may condone the delay, holding as follows: 18. In the normal course, we would not have taken exception to the order passed by the High Court. They are justified in saying that a delinquent employee should not be permitted to revive the stale claim and the High Court in exercise of its discretion would not ordinarily assist the tardy and indolent person. This is the traditional view and is well supported by a plethora of decisions of this Court. This Court also has taken the view that there is no inviolable rule, that, whenever there is delay the Court must refuse to entertain a petition. This Court has stated that the writ court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution may condone the delay in filing the petition, if the delay is satisfactorily explained. 15. The contention of the respondents that they have acted in accordance with the provisions of the Drugs Act pursuant to the report of the analyst for misbranded product under Section 9 is devoid of substance and merits no consideration. It is not the case of the respondents that the procedure prescribed under Sections 23, 25 and 26 of the Drug Act has been followed. The feeble attempt to show compliance with provisions of the Drugs Act by alleged purchase of the samples under Form 14A at Annexure R-5 to the counter affidavit dated 21.07.2008 from an unknown source and date must be rejected outright as an attempt to create evidence where none exists.
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mind to the issues involved. Even after the appellant brought this fact to the attention of the respondents, they refused to pay any heed to it. Further, it specifies no duration for the same.12. If the respondents had expressed their mind in the show cause notice to blacklist, the appellant could have filed an appropriate response to the same. The insistence of the respondents to support the impugned order by reference to the terms of the tender cannot cure the illegality in absence of the appellant being a successful tenderer and supplier. We therefore hold that the order of blacklisting dated 08.09.2009 stands vitiated from the very inception on more than one ground and merits interference.13. In view of the aforesaid conclusion, there may have been no need to go into the question of the duration of the blacklisting, but for the arguments addressed before us. An order of blacklisting operates to the prejudice of a commercial person not only in praesenti but also puts a taint which attaches far beyond and may well spell the death knell of the organisation/institution for all times to come described as a civil death. The repercussions on the appellant were clearly spelt out by it in the representations as also in the writ petition, including the consequences under the Rajasthan tender, where it stood debarred expressly because of the present impugned order. The possibility always remains that if a proper show cause notice had been given and the reply furnished would have been considered in accordance with law, even if the respondents decided to blacklist the appellant, entirely different considerations may have prevailed in their minds especially with regard to the duration. This court in Kulja Industries Limited vs. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Limited and others, (2014) 14 SCC 731 , despite declining to interfere with an order of blacklisting, but noticing that an order of permanent debarment was unjustified, observed: -28.2. Secondly, because while determining the period for which the blacklisting should be effective the respondent Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different periods of debarment depending upon the gravity of the offences, violations and breaches may be prescribed by such guidelines. While it may not be possible to exhaustively enumerate all types of offences and acts of misdemeanour, or violations of contractual obligations by a contractor, the respondent Corporation may do so as far as possible to reduce if not totally eliminate arbitrariness in the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting contractor.Since the order of blacklisting has been found to be unsustainable by us, and considering the long passage of time, we are not inclined to remand the matter to the authorities. In M/s Daffodills Pharmaceuticals (supra), relied upon by the appellant, this court has observed that an order of blacklisting beyond 3 years or maximum of 5 years was disproportionate.There is no doubt that the High Court in its discretionary jurisdiction may decline to exercise the discretionary writ jurisdiction on ground of delay in approaching the court. But it is only a rule of discretion by exercise of self-restraint evolved by the court in exercise of the discretionary equitable jurisdiction and not a mandatory requirement that every delayed petition must be dismissed on the ground of delay. The Limitation Act stricto sensu does not apply to the writ jurisdiction. The discretion vested in the court under Article 226 of the Constitution therefore has to be a judicious exercise of the discretion after considering all pros and cons of the matter, including the nature of the dispute, the explanation for the delay, whether any third-party rights have intervened etc. The jurisdiction under Article 226 being equitable in nature, questions of proportionality in considering whether the impugned order merits interference or not in exercise of the discretionary jurisdiction will also arise. This Court in Basanti Prasad vs. Bihar School Examination Board and others, (2009) 6 SCC 791 , after referring to Moon Mills Ltd. vs. Industrial Court, AIR 1967 SC 1450 , Maharashtra SRTC vs. Balwant Regular Motor Service, AIR 1969 SC 329 and State of M.P. and Others vs. Nandlal Jaiswal and others, (1986) 4 SCC 566 , held that if the delay is properly explained and no third party rights are being affected, the writ court under Article 226 of the Constitution may condone the delay, holding as follows:18. In the normal course, we would not have taken exception to the order passed by the High Court. They are justified in saying that a delinquent employee should not be permitted to revive the stale claim and the High Court in exercise of its discretion would not ordinarily assist the tardy and indolent person. This is the traditional view and is well supported by a plethora of decisions of this Court. This Court also has taken the view that there is no inviolable rule, that, whenever there is delay the Court must refuse to entertain a petition. This Court has stated that the writ court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution may condone the delay in filing the petition, if the delay is satisfactorily explained.15. The contention of the respondents that they have acted in accordance with the provisions of the Drugs Act pursuant to the report of the analyst for misbranded product under Section 9 is devoid of substance and merits no consideration. It is not the case of the respondents that the procedure prescribed under Sections 23, 25 and 26 of the Drug Act has been followed. The feeble attempt to show compliance with provisions of the Drugs Act by alleged purchase of the samples under Form 14A at Annexure R-5 to the counter affidavit dated 21.07.2008 from an unknown source and date must be rejected outright as an attempt to create evidence where none exists.
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Maharashtra General Kamgar Union Vs. Universal Dyeing & Printing Works & Another | of Section 25-H has been sought for by way of making grounds in the Writ Petition and in appeal, it has not been granted by the Honble Single Judge or Division Bench of the High Court. It cannot be said that the said grounds were not considered by the High Court, as no finding has been given by the Honble High Court. By implication it has to be presumed and treated that whatever has been stated in the Appeal grounds have been considered on merits and when the relief is not granted the grounds have been turned down.Consequently the logical position boils down to this that once the remedy claimed under section 25-H of I.D.Act has been turned down by the Honble Single Judge and Division Bench of the High Court, the question of filing the complaint under the provisions of MRTU & PULP Act, 1971 for similar kind of relief does not arise. If such complaints are entertained by the courts of law, then there will be no end to the litigation and it will tantamount to prevail upon the relief already not granted by the Honble High Court.Therefore, even though the complainant is found to have succeeded in establishing a satisfactory cause for condonation of delay, the complainant seems to be quite unfortunate in convincing the court that the complaint is tenable, and there is no bar of principle of res judicata and bar of section 59 of the MRTU & PULP Act, 1971. Thus, though the complainant is winning on one front, he is losing one most important front about the tenability of the complaint itself. Hence, the complaint as such will have to be dismissed, being not tenable. ... ... ...These observations indicates that the Industrial Court opined that the plea covered by Section 25-H of the Act was raised, adjudicated upon and finally decided and, as the plea was finally decided, the decision in the earlier proceedings operates as res judicata in the instant proceedings.5.Before we deal with the legal question arising in this petition, it has become necessary to go backward. The workmen, whose cause is being expoused by the petitioner, were retrenched from service with effect from July 26, 1984 and July 30, 1984. The retrenchment orders/notices were challenged under section 78 of the Bombay Industrial Relations Act. The only question which was raised and adjudicated upon was whether the retrenchment had been ordered after following due process of law. The Labour Court and the Industrial Court upheld the contention of the management that the retrenchment was ordered after complying with the provisions of Sections 25-F of the Act. Before the single Judge of this Court, it was agitated by the workmen that the plea whether approach notice was given or not was never put in issue. The learned Judges constituting the Division Bench observed that this question cannot be gone into in appeal arising in writ proceedings. No other question was agitated in this Court. This Court only answered the question that was raised before it that the retrenchment was made after complying with the provisions of Section 25-F of the Act. The plea which has been raised in these proceedings is that the respondent-company started its manufacturing activities in September 1989 and that it had employed 78 workmen and out of these 78 workmen, 36 workmen are those who were retrenched earlier and they were given employment. The petitioner says : not giving employment to the other workmen who were retrenched on identical grounds as those who have been taken back in service, amounts to victimization. The plea of the petitioner as unfolded in the complaint is squarely based on Section 25-H of the Act which reads thus :-"25H. Re-employment of retrenched workmen. Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons."The opportunity as enjoined by this section has to be given to the retrenched workmen after the employer decides to proceed with his manufacturing activities. The case of the respondent has throughout been that in view of the recession in the market, it curtailed its manufacturing activities and that reduction in manufacturing activities necessitated retrenchment of the employees. Once the company decides to recommence its manufacturing activities and to give employment to persons, the condition precedent as enjoined under Section 25-H has to be complied with. It cannot be disputed that this plea was not available to the workmen in 1984 when the retrenchment orders/notices were issued. It became available to them only after the manufacturing activities were started in September 1989. What was in issue in the earlier proceedings was whether the retrenchment was valid and not whether the retrenched workmen have to be offered employment as envisaged by Section 25-H of the Act. In order to attract the plea of res judicata, it is necessary to establish that the matter was in issue in the former proceedings and the matter must have been in issue directly and substantially. A matter cannot be said to be directly or substantially in issue in a suit or lis unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other. It is not enough that the matter was alleged by one party. The word `substantial means of importance and value. A matter is substantially in issue if it is of importance and value for the purpose of decision of the main proceedings. The question raised in the instant proceedings was not even remotely raised before the Labour Court or the Industrial Court or this Court in the earlier proceedings. The conclusion arrived at by the Industrial Court that the decision in the earlier proceedings operates as res judicata is not only illegal but factually incorrect. | 1[ds]The opportunity as enjoined by this section has to be given to the retrenched workmen after the employer decides to proceed with his manufacturing activities. The case of the respondent has throughout been that in view of the recession in the market, it curtailed its manufacturing activities and that reduction in manufacturing activities necessitated retrenchment of the employees. Once the company decides to recommence its manufacturing activities and to give employment to persons, the condition precedent as enjoined under Sectionhas to be complied with. It cannot be disputed that this plea was not available to the workmen in 1984 when the retrenchment orders/notices were issued. It became available to them only after the manufacturing activities were started in September 1989. What was in issue in the earlier proceedings was whether the retrenchment was valid and not whether the retrenched workmen have to be offered employment as envisaged by Sectionof the Act. In order to attract the plea of res judicata, it is necessary to establish that the matter was in issue in the former proceedings and the matter must have been in issue directly and substantially. A matter cannot be said to be directly or substantially in issue in a suit or lis unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other. It is not enough that the matter was alleged by one party. The word `substantial means of importance and value. A matter is substantially in issue if it is of importance and value for the purpose of decision of the main proceedings. The question raised in the instant proceedings was not even remotely raised before the Labour Court or the Industrial Court or this Court in the earlier proceedings. The conclusion arrived at by the Industrial Court that the decision in the earlier proceedings operates as res judicata is not only illegal but factually incorrect. | 1 | 2,210 | 343 | ### Instruction:
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of Section 25-H has been sought for by way of making grounds in the Writ Petition and in appeal, it has not been granted by the Honble Single Judge or Division Bench of the High Court. It cannot be said that the said grounds were not considered by the High Court, as no finding has been given by the Honble High Court. By implication it has to be presumed and treated that whatever has been stated in the Appeal grounds have been considered on merits and when the relief is not granted the grounds have been turned down.Consequently the logical position boils down to this that once the remedy claimed under section 25-H of I.D.Act has been turned down by the Honble Single Judge and Division Bench of the High Court, the question of filing the complaint under the provisions of MRTU & PULP Act, 1971 for similar kind of relief does not arise. If such complaints are entertained by the courts of law, then there will be no end to the litigation and it will tantamount to prevail upon the relief already not granted by the Honble High Court.Therefore, even though the complainant is found to have succeeded in establishing a satisfactory cause for condonation of delay, the complainant seems to be quite unfortunate in convincing the court that the complaint is tenable, and there is no bar of principle of res judicata and bar of section 59 of the MRTU & PULP Act, 1971. Thus, though the complainant is winning on one front, he is losing one most important front about the tenability of the complaint itself. Hence, the complaint as such will have to be dismissed, being not tenable. ... ... ...These observations indicates that the Industrial Court opined that the plea covered by Section 25-H of the Act was raised, adjudicated upon and finally decided and, as the plea was finally decided, the decision in the earlier proceedings operates as res judicata in the instant proceedings.5.Before we deal with the legal question arising in this petition, it has become necessary to go backward. The workmen, whose cause is being expoused by the petitioner, were retrenched from service with effect from July 26, 1984 and July 30, 1984. The retrenchment orders/notices were challenged under section 78 of the Bombay Industrial Relations Act. The only question which was raised and adjudicated upon was whether the retrenchment had been ordered after following due process of law. The Labour Court and the Industrial Court upheld the contention of the management that the retrenchment was ordered after complying with the provisions of Sections 25-F of the Act. Before the single Judge of this Court, it was agitated by the workmen that the plea whether approach notice was given or not was never put in issue. The learned Judges constituting the Division Bench observed that this question cannot be gone into in appeal arising in writ proceedings. No other question was agitated in this Court. This Court only answered the question that was raised before it that the retrenchment was made after complying with the provisions of Section 25-F of the Act. The plea which has been raised in these proceedings is that the respondent-company started its manufacturing activities in September 1989 and that it had employed 78 workmen and out of these 78 workmen, 36 workmen are those who were retrenched earlier and they were given employment. The petitioner says : not giving employment to the other workmen who were retrenched on identical grounds as those who have been taken back in service, amounts to victimization. The plea of the petitioner as unfolded in the complaint is squarely based on Section 25-H of the Act which reads thus :-"25H. Re-employment of retrenched workmen. Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons."The opportunity as enjoined by this section has to be given to the retrenched workmen after the employer decides to proceed with his manufacturing activities. The case of the respondent has throughout been that in view of the recession in the market, it curtailed its manufacturing activities and that reduction in manufacturing activities necessitated retrenchment of the employees. Once the company decides to recommence its manufacturing activities and to give employment to persons, the condition precedent as enjoined under Section 25-H has to be complied with. It cannot be disputed that this plea was not available to the workmen in 1984 when the retrenchment orders/notices were issued. It became available to them only after the manufacturing activities were started in September 1989. What was in issue in the earlier proceedings was whether the retrenchment was valid and not whether the retrenched workmen have to be offered employment as envisaged by Section 25-H of the Act. In order to attract the plea of res judicata, it is necessary to establish that the matter was in issue in the former proceedings and the matter must have been in issue directly and substantially. A matter cannot be said to be directly or substantially in issue in a suit or lis unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other. It is not enough that the matter was alleged by one party. The word `substantial means of importance and value. A matter is substantially in issue if it is of importance and value for the purpose of decision of the main proceedings. The question raised in the instant proceedings was not even remotely raised before the Labour Court or the Industrial Court or this Court in the earlier proceedings. The conclusion arrived at by the Industrial Court that the decision in the earlier proceedings operates as res judicata is not only illegal but factually incorrect.
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### Explanation:
The opportunity as enjoined by this section has to be given to the retrenched workmen after the employer decides to proceed with his manufacturing activities. The case of the respondent has throughout been that in view of the recession in the market, it curtailed its manufacturing activities and that reduction in manufacturing activities necessitated retrenchment of the employees. Once the company decides to recommence its manufacturing activities and to give employment to persons, the condition precedent as enjoined under Sectionhas to be complied with. It cannot be disputed that this plea was not available to the workmen in 1984 when the retrenchment orders/notices were issued. It became available to them only after the manufacturing activities were started in September 1989. What was in issue in the earlier proceedings was whether the retrenchment was valid and not whether the retrenched workmen have to be offered employment as envisaged by Sectionof the Act. In order to attract the plea of res judicata, it is necessary to establish that the matter was in issue in the former proceedings and the matter must have been in issue directly and substantially. A matter cannot be said to be directly or substantially in issue in a suit or lis unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other. It is not enough that the matter was alleged by one party. The word `substantial means of importance and value. A matter is substantially in issue if it is of importance and value for the purpose of decision of the main proceedings. The question raised in the instant proceedings was not even remotely raised before the Labour Court or the Industrial Court or this Court in the earlier proceedings. The conclusion arrived at by the Industrial Court that the decision in the earlier proceedings operates as res judicata is not only illegal but factually incorrect.
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Shramik Utkarsha Sabha Vs. Raymond Woollen Mills Limited | have encaged in such unfair labour practices complained of by them. ( 15 ) WE may also add that Sub-section (2) of Section 21 of the Act No. 1 of 1972 curtails not only the right of an employee to appear and act or allowed to be represented in proceeding of unfair labour practices stipulated therein but also prohibits the right of Trade Unions other than the representative union. It is difficult for us to draw the conclusion that the proceedings other than that stipulated in Sub-section (2) of 21, the representative union has no legal right to appear and act on behalf of the employees and that right could be exercised by other trade unions in the field.( 16 ) HAVING held that the representative union has a right to represent the employees it is necessary now to consider whether the appellant Union spells out any other right to be joined as a party respondent. We have already pointed out that there is no material on record to come to the conclusion that some of the employees of the respondent No. 1 Company have become the members of the appellant union. It appears that the appellant union with the intention to establish the fact that they also have a hold on the employees have adopted a backdoor method to make an entry as a rival union in the industry. If the appellant union is so sure of having substantial membership it should not have hesitated to take steps of getting themselves recognised as a representative union by taking recourse to relevant provisions under the B. I. R. Act. The appellant not having adopted that procedure is a clear pointer to the fact that they cannot establish their claim of having large membership with them. Actually the aim of the appellant union appears to be to somehow gam entry in the industry of respondent No. 1 company so that it could create chaos in already charged atmosphere and also achieve the object of propagating membership which presently they have none or is very meagre. By this we however do not desire to lay down that the trade unions other than the representative one cannot carry out the trade union activities by propagating for membership by legal, just and constitutional means. ( 17 ) IN the application filed by the appellant-union it was also contended that the ad-interim order passed by the Industrial Court in the original complaint is detrimental to the appellant because it tends to curb their legitimate right to carry on the trade union activities. In this connection it is alleged that the Secretary of the appellant union could not address the meeting near the Company on 24. 1. 1991. It appears from the averments made in the application that the appellant learnt about the order through police authorities which perhaps led them to abandon the idea of holding the meeting. With these contentions it was urged on behalf of the appellant that their right to carry on trade union activities was seriously impaired and, therefore, the interim order passed deserves to be struck down being unconstitutional and violative of fundamental rights.( 18 ) WE find absolutely no substance in the contention raised and canvassed. An ingenious mode is found out by the appellant to attack the interim order which right they do not have since having failed to establish their locus standi to appear and defend the proceedings. The appellants, therefore, cannot challenge the interim orders judicially passed by such indirect means. In any event, the appellant union could have held the meeting which they had really proposed to hold, a little distance away from the restrained limits specified in the interim order in case they were certain of their following. A slight curb or the restriction imposed in disturbed circumstances cannot be taken advantage of to contend that their constitutional rights to carry on trade union activities is infringed. If the contentions raised and canvassed were to be accepted it would make the Courts below impossible to function. We say so because it would always be open for a trade union more so by a rival union to impose itself in a pending proceeding and stall the same with the result that the purpose for which the proceeding was initiated should stand frustrated. We hence do not agree that the appellant right to carry on the trade union activities is in any manner infringed. ( 19 ) IT was then urged that the learned Industrial Court had granted reliefs without properly perusing the complaint which is absolutely vague, lacking in material particulars and without joining proper parties. According to the appellant no prima facie case is made out to grant interim relief as prayed for by the respondent No. 1 company. For this purpose the appellant relied upon Sections 27 and 28 of Act No. 1 of 1972 and Regulation 100 of the Industrial Court regulations, 1975. Since we have already held that the appellant has no locus standi to appear and act as a party respondent, we refrain from deciding this question. Even otherwise, it is for the learned Court below to find out whether the allegations in the complaint constitute unfair labour practices within the ambit of Items 5 and 6 of Schedule III of the Act No. 1 of 1972 at the appropriate stage. In case the learned Court finds that the allegations are factually vague, lacking in material particular and want of proper parties, the complaint would be dismissed. The final order would, however, depend upon the pleadings of both the parties. For the time being the learned Court below has passed the order by way of interim reliefs in the circumstances then prevailing. We do not find any ground to interfere with it more so while exercising writ jurisdiction. It may be relevant to observe here the ad-interim order was confirmed by the learned Court below even before the application was moved by the appellant to join them as party respondent. | 0[ds]In any event the respondent No. 2 enjoys the special privilege of getting their annual membership subscription deducted directly from the salary of the employees who are members of that Union and such a privilege cannot be curtailed even by the Court unless the employee himself applies to the employer not to do so or revoked the authority granted to the representative union. Such deductions are permissible deductions not liable to be questioned at least by an unrecognised union. We hence cannot accept that the appellant union has substantial membership and that they have a right to defend suchare dealing with this point notwithstanding our finding given above. it was contended that merely because the respondent No. 2 is a recognised and representative union it cannot deprive other Trade Unions from representing the employees who are its members under Act No. 1 of 1972. In this context reliance was heavily placed upon(2) of Section 21 of the Act No. 1 of 1972 and section 27a of the B. I. R. Act. It was urged that the two provisions read together the recognised union like respondent No. 2 have a right to represent the employees only to the extent specified therein. In particular it was submitted that the right of a recognised union to represent employees under the B. I. R. Act was unlimited but it is not so under the Act No. 1 of 1972. We will shortly point out that the submissions are devoid of any merits and must beno doubt is left that a recognised and an approved union has every right to appear and act in every proceeding irrespective of the fact whether those employees are members of the Union or not with certain exceptions as carved out also under sectionof the B. I. R. Act. That section specifically provides that no employee shall be allowed to appear and act in any proceeding under the B. I. R. Act except through the representative of employees and the representative of employees is provided for in Section 30 of the Act. A representative union is first in the order of preference. No doubt, Sectionalso provides for some exceptions because the Section begins by the words "save as provided in sections 32, 33 and 33a" with which we are not presently concerned. An unequivocal right is hence established that the representative union have the sole privilege of representing employees in an industry and that right is not taken away or in any manner affected in proceedings under act No. 1 of 1972. For alt purposes a recognised union continues to be a representative union and shall remain as such till the recognition is lost orappellant not having adopted that procedure is a clear pointer to the fact that they cannot establish their claim of having large membership with them. Actually the aim of the appellant union appears to be to somehow gam entry in the industry of respondent No. 1 company so that it could create chaos in already charged atmosphere and also achieve the object of propagating membership which presently they have none or is very meagre. By this we however do not desire to lay down that the trade unions other than the representative one cannot carry out the trade union activities by propagating for membership by legal, just and constitutionalthese contentions it was urged on behalf of the appellant that their right to carry on trade union activities was seriously impaired and, therefore, the interim order passed deserves to be struck down being unconstitutional and violative of fundamental rights.( 18 ) WE find absolutely no substance in the contention raised and canvassed. An ingenious mode is found out by the appellant to attack the interim order which right they do not have since having failed to establish their locus standi to appear and defend the proceedings. The appellants, therefore, cannot challenge the interim orders judicially passed by such indirect means. In any event, the appellant union could have held the meeting which they had really proposed to hold, a little distance away from the restrained limits specified in the interim order in case they were certain of their following. A slight curb or the restriction imposed in disturbed circumstances cannot be taken advantage of to contend that their constitutional rights to carry on trade union activities is infringed. If the contentions raised and canvassed were to be accepted it would make the Courts below impossible to function. We say so because it would always be open for a trade union more so by a rival union to impose itself in a pending proceeding and stall the same with the result that the purpose for which the proceeding was initiated should stand frustrated. We hence do not agree that the appellant right to carry on the trade union activities is in any manner19 ) IT was then urged that the learned Industrial Court had granted reliefs without properly perusing the complaint which is absolutely vague, lacking in material particulars and without joining proper parties. According to the appellant no prima facie case is made out to grant interim relief as prayed for by the respondent No. 1 company. For this purpose the appellant relied upon Sections 27 and 28 of Act No. 1 of 1972 and Regulation 100 of the Industrial Court regulations, 1975. Since we have already held that the appellant has no locus standi to appear and act as a party respondent, we refrain from deciding this question. Even otherwise, it is for the learned Court below to find out whether the allegations in the complaint constitute unfair labour practices within the ambit of Items 5 and 6 of Schedule III of the Act No. 1 of 1972 at the appropriate stage. In case the learned Court finds that the allegations are factually vague, lacking in material particular and want of proper parties, the complaint would be dismissed. The final order would, however, depend upon the pleadings of both the parties. For the time being the learned Court below has passed the order by way of interim reliefs in the circumstances then prevailing. We do not find any ground to interfere with it more so while exercising writ jurisdiction. It may be relevant to observe here theorder was confirmed by the learned Court below even before the application was moved by the appellant to join them as party respondent. | 0 | 4,025 | 1,140 | ### Instruction:
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have encaged in such unfair labour practices complained of by them. ( 15 ) WE may also add that Sub-section (2) of Section 21 of the Act No. 1 of 1972 curtails not only the right of an employee to appear and act or allowed to be represented in proceeding of unfair labour practices stipulated therein but also prohibits the right of Trade Unions other than the representative union. It is difficult for us to draw the conclusion that the proceedings other than that stipulated in Sub-section (2) of 21, the representative union has no legal right to appear and act on behalf of the employees and that right could be exercised by other trade unions in the field.( 16 ) HAVING held that the representative union has a right to represent the employees it is necessary now to consider whether the appellant Union spells out any other right to be joined as a party respondent. We have already pointed out that there is no material on record to come to the conclusion that some of the employees of the respondent No. 1 Company have become the members of the appellant union. It appears that the appellant union with the intention to establish the fact that they also have a hold on the employees have adopted a backdoor method to make an entry as a rival union in the industry. If the appellant union is so sure of having substantial membership it should not have hesitated to take steps of getting themselves recognised as a representative union by taking recourse to relevant provisions under the B. I. R. Act. The appellant not having adopted that procedure is a clear pointer to the fact that they cannot establish their claim of having large membership with them. Actually the aim of the appellant union appears to be to somehow gam entry in the industry of respondent No. 1 company so that it could create chaos in already charged atmosphere and also achieve the object of propagating membership which presently they have none or is very meagre. By this we however do not desire to lay down that the trade unions other than the representative one cannot carry out the trade union activities by propagating for membership by legal, just and constitutional means. ( 17 ) IN the application filed by the appellant-union it was also contended that the ad-interim order passed by the Industrial Court in the original complaint is detrimental to the appellant because it tends to curb their legitimate right to carry on the trade union activities. In this connection it is alleged that the Secretary of the appellant union could not address the meeting near the Company on 24. 1. 1991. It appears from the averments made in the application that the appellant learnt about the order through police authorities which perhaps led them to abandon the idea of holding the meeting. With these contentions it was urged on behalf of the appellant that their right to carry on trade union activities was seriously impaired and, therefore, the interim order passed deserves to be struck down being unconstitutional and violative of fundamental rights.( 18 ) WE find absolutely no substance in the contention raised and canvassed. An ingenious mode is found out by the appellant to attack the interim order which right they do not have since having failed to establish their locus standi to appear and defend the proceedings. The appellants, therefore, cannot challenge the interim orders judicially passed by such indirect means. In any event, the appellant union could have held the meeting which they had really proposed to hold, a little distance away from the restrained limits specified in the interim order in case they were certain of their following. A slight curb or the restriction imposed in disturbed circumstances cannot be taken advantage of to contend that their constitutional rights to carry on trade union activities is infringed. If the contentions raised and canvassed were to be accepted it would make the Courts below impossible to function. We say so because it would always be open for a trade union more so by a rival union to impose itself in a pending proceeding and stall the same with the result that the purpose for which the proceeding was initiated should stand frustrated. We hence do not agree that the appellant right to carry on the trade union activities is in any manner infringed. ( 19 ) IT was then urged that the learned Industrial Court had granted reliefs without properly perusing the complaint which is absolutely vague, lacking in material particulars and without joining proper parties. According to the appellant no prima facie case is made out to grant interim relief as prayed for by the respondent No. 1 company. For this purpose the appellant relied upon Sections 27 and 28 of Act No. 1 of 1972 and Regulation 100 of the Industrial Court regulations, 1975. Since we have already held that the appellant has no locus standi to appear and act as a party respondent, we refrain from deciding this question. Even otherwise, it is for the learned Court below to find out whether the allegations in the complaint constitute unfair labour practices within the ambit of Items 5 and 6 of Schedule III of the Act No. 1 of 1972 at the appropriate stage. In case the learned Court finds that the allegations are factually vague, lacking in material particular and want of proper parties, the complaint would be dismissed. The final order would, however, depend upon the pleadings of both the parties. For the time being the learned Court below has passed the order by way of interim reliefs in the circumstances then prevailing. We do not find any ground to interfere with it more so while exercising writ jurisdiction. It may be relevant to observe here the ad-interim order was confirmed by the learned Court below even before the application was moved by the appellant to join them as party respondent.
### Response:
0
### Explanation:
Such deductions are permissible deductions not liable to be questioned at least by an unrecognised union. We hence cannot accept that the appellant union has substantial membership and that they have a right to defend suchare dealing with this point notwithstanding our finding given above. it was contended that merely because the respondent No. 2 is a recognised and representative union it cannot deprive other Trade Unions from representing the employees who are its members under Act No. 1 of 1972. In this context reliance was heavily placed upon(2) of Section 21 of the Act No. 1 of 1972 and section 27a of the B. I. R. Act. It was urged that the two provisions read together the recognised union like respondent No. 2 have a right to represent the employees only to the extent specified therein. In particular it was submitted that the right of a recognised union to represent employees under the B. I. R. Act was unlimited but it is not so under the Act No. 1 of 1972. We will shortly point out that the submissions are devoid of any merits and must beno doubt is left that a recognised and an approved union has every right to appear and act in every proceeding irrespective of the fact whether those employees are members of the Union or not with certain exceptions as carved out also under sectionof the B. I. R. Act. That section specifically provides that no employee shall be allowed to appear and act in any proceeding under the B. I. R. Act except through the representative of employees and the representative of employees is provided for in Section 30 of the Act. A representative union is first in the order of preference. No doubt, Sectionalso provides for some exceptions because the Section begins by the words "save as provided in sections 32, 33 and 33a" with which we are not presently concerned. An unequivocal right is hence established that the representative union have the sole privilege of representing employees in an industry and that right is not taken away or in any manner affected in proceedings under act No. 1 of 1972. For alt purposes a recognised union continues to be a representative union and shall remain as such till the recognition is lost orappellant not having adopted that procedure is a clear pointer to the fact that they cannot establish their claim of having large membership with them. Actually the aim of the appellant union appears to be to somehow gam entry in the industry of respondent No. 1 company so that it could create chaos in already charged atmosphere and also achieve the object of propagating membership which presently they have none or is very meagre. By this we however do not desire to lay down that the trade unions other than the representative one cannot carry out the trade union activities by propagating for membership by legal, just and constitutionalthese contentions it was urged on behalf of the appellant that their right to carry on trade union activities was seriously impaired and, therefore, the interim order passed deserves to be struck down being unconstitutional and violative of fundamental rights.( 18 ) WE find absolutely no substance in the contention raised and canvassed. An ingenious mode is found out by the appellant to attack the interim order which right they do not have since having failed to establish their locus standi to appear and defend the proceedings. The appellants, therefore, cannot challenge the interim orders judicially passed by such indirect means. In any event, the appellant union could have held the meeting which they had really proposed to hold, a little distance away from the restrained limits specified in the interim order in case they were certain of their following. A slight curb or the restriction imposed in disturbed circumstances cannot be taken advantage of to contend that their constitutional rights to carry on trade union activities is infringed. If the contentions raised and canvassed were to be accepted it would make the Courts below impossible to function. We say so because it would always be open for a trade union more so by a rival union to impose itself in a pending proceeding and stall the same with the result that the purpose for which the proceeding was initiated should stand frustrated. We hence do not agree that the appellant right to carry on the trade union activities is in any manner19 ) IT was then urged that the learned Industrial Court had granted reliefs without properly perusing the complaint which is absolutely vague, lacking in material particulars and without joining proper parties. According to the appellant no prima facie case is made out to grant interim relief as prayed for by the respondent No. 1 company. For this purpose the appellant relied upon Sections 27 and 28 of Act No. 1 of 1972 and Regulation 100 of the Industrial Court regulations, 1975. Since we have already held that the appellant has no locus standi to appear and act as a party respondent, we refrain from deciding this question. Even otherwise, it is for the learned Court below to find out whether the allegations in the complaint constitute unfair labour practices within the ambit of Items 5 and 6 of Schedule III of the Act No. 1 of 1972 at the appropriate stage. In case the learned Court finds that the allegations are factually vague, lacking in material particular and want of proper parties, the complaint would be dismissed. The final order would, however, depend upon the pleadings of both the parties. For the time being the learned Court below has passed the order by way of interim reliefs in the circumstances then prevailing. We do not find any ground to interfere with it more so while exercising writ jurisdiction. It may be relevant to observe here theorder was confirmed by the learned Court below even before the application was moved by the appellant to join them as party respondent.
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Ahmedabad Millowners' Association & Anr Vs. I.G. Thakore, President & Ors | under the power conferred on the Bombay Legislature and the Central Legislature under item 29 of Part II of the Concurrent List III of the Seventh Schedule to the Government of India Act, 1935. The principle relied upon by the appellants is that, if two pieces of legislation cover the same field and each one of them contains a complete code making detailed provision for all aspects of the subject-Matter of the legislation, repugnancy must be held to arise; even though one Act may not, in terms, repeal the other and may not correspond section by section with the other. For this principle, reliance was placed on the tests enumerated by Nicholas in his Australian Constitution, 2nd Edition, p. 303, to determine inconsistency or repugnancy between a State law and a Commonwealth law in Australia. The three tests were enumerated as follows :-"(1) There may be inconsistency in the actual terms of the competing statutes;(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to he a complete exhaustive code : and(3) Even in the absence of intention, conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter."This principle was deduced from the decisions in Ex parte , Mclean (1930) 43 CLR 472, and State of Victoria v. Commonwealth of Australia, 58 CLR 618. Reliance was also placed on decisions of this Court in Zaverbhai Amaidas v. State of Bombay, 1955-1 SCR 799 : (AIR 1954 SC 752 ), Ch Tika Ramji v. State of Uttar Pradesh, 1953 SCR 393 : (AIR 1956 SC 676 ) and Deep Chand v. State of Uttar Pradesh, 1959 Supp (2) SCR 8: (AIR 1959 SC 648 ). In the last of these cases, after quoting from Nicholas, this Court held."Repugnancy between two statutes may thus be ascertained on the bash of the following three principles:-(1) Whether there is direct conflict between the two provisions;(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature, and(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field."12. Relying on these principles, it has been urged that the Industrial Disputes Act, 1947 intended to lay down an exhaustive code in respect of settlement of all industrial disputes, and since the Bombay Act of 1938 was also on the same subject, it must be presumed that the two statutes are repugnant, so that the Bombay Act of 1938 became void with effect from 1st April, 1947 when the Industrial Disputes Act, 1947 came into force.It has, however, been rightly pointed out by the High Court in the judgment under appeal that the Bombay Act of 1938 did not confine itself entirely to the subject of settlement of industrial disputes. Chapter V of that Act containing Sections 26 to 33 clears with a matter which is not covered by the Industrial Disputes Act, 1947 at all. These sections of the Bombay Act of 1938 lay down the procedure for prescribing Standing Orders regulating the relations between an employer and his employees, and for making changes therein. The prescribing of the Standing Orders and making of changes in them may not involve any industrial dispute at all. In fact at the first stage, when Standing Orders are prescribed, no question would arise of any industrial dispute requiring settlement. The Industrial Disputes Act, 1947, did not contain any provisions at all dealing with this subject of prescribing Standing Orders and making changes therein. Consequently, even if the submission made on behalf of the appellants be accepted that the Industrial Disputes Act, 1947, is an exhaustive code dealing with the question of settlement of industrial disputes, only those provisions of the Bombay Act of 1938 can be held to be repugnant and void on account of the repugnancy which also dealt with the same subject-matter of settlement of industrial disputes. The provisions contained in Chapter V of that Act, which had nothing to do with settlement of industrial disputes could not, therefore, be affected by the enactment of the Industrial Disputes Act, 1947, and hence, the enforcement of the Industrial Disputes Act, 1947 did not in any way affect the applicability of the provisions of Chapter V of the Bombay Act of 1938 to the industry run by the appellants. To the extent that Bombay Act of 1938 contained these provisions in Chapter V, that Act, therefore, continued in force and also continued to apply to the industries now in question. It was also urged that the industrial Disputes Act, 1947 did not, similarly, make any provision for arbitration of industrial disputes and, consequently, the provisions of the Bombay Act of 1938, relating to arbitration of industrial disputes, could not be held to have become invalid. It is not necessary to examine this further question in view of our decision that at least the provisions of Chapter V of the Bombay Act of 1938 continued in force. That Act did not stand repealed as a whole; at best, only a part of that Act can be held to have ceased to be effective because of the repugnancy with the Industrial Disputes Act, 1947. But, while another part of that Act continued to be in force, the Bombay Act of 1938 also continued to be applicable to the cotton industry in Ahmedabad with which we are concerned. When the Bombay Industrial Relation Act, 1946 came into force on 29th September, 1947, therefore, the Bombay Act of 1938 was applicable to these industries, and consequently, under Sub-section (3) of Section 2 of the Act, the Act became applicable to the industry of the appellants and did not require a notification under Sub-section (4) of Section 2 to make it applicable. This point was also, therefore, rightly decided against the appellants, and the judgment of the High Court must be upheld. | 0[ds]In respect of matters covered by Schedules I and III, provision is made in subsection (4) of S. 42 which lays down that such disputes are to be decided by making au applications to the Labour Court, and. as we have indicated earlier. S. 73A does not apply to disputes which are required to be referred to a Labour Court. The result of all these provisions is that S. 73A of the Act comes into play only in cases when the dispute relates to matters not contained in Schedules I and III, the dispute is not resolved by private agreement or by conciliation, and there is no submission of the dispute to arbitration under S. 66 of thedo not think that the provision contained in S. 66 of the Act places the employer under any such, handicap. Under sub-section (2) of S. 66, the employer can straightaway offer that the dispute be referred to the arbitration of the Industrial Court, and thereupon, the Union would be debarred from refusing to agree to that submission. In any case, even if the Union were to refuse to agree to it, the State Government will determine under Section 71 of the Act whether the dispute should be referred to the arbitration of the Labour Court or the Industrial Court and refer it to that body. The mere fact that the Union may not agree to the offer of the employer to submit the dispute for arbitration to the Industrial Court whereupon the State Government can direct that the arbitration be made by a Labour Court or the Industrial Court does not in our opinion, place the employer in any disadvantageous position, and we do not think, therefore, that there was any requirement that the employer should also be given a right corresponding to the right of the Union under S. 73A of the Act.We consider that this submission is based on a misapprehension of the scope of S. 92 of the Act. The rules and regulations made by the Industrial Court under S. 92 are to govern the procedure of the Industrial Court in all proceedings before it irrespective of the fact whether those proceedings come up before it by a reference made by the State Government under S. 72 or S. 73 of the Act, or by A reference made by the Union under S. 73A of the Act, or by a joint submission made by the parties under S. 66(2) of the Act. Section 68 of the Act is in very general terms, and lays down that proceedings in arbitration under the whole of the Chapter XI are to be in accordance with the provisions ofthe Arbitration Act, 1940, in so far as they may be applicable. The provisions of the Arbitration Act have, therefore, been made applicable not only to arbitrations by submission under Section 66 of the Act, but also to arbitrations on references made by the State Government under Section 72 or Section 73 or a reference made by a Union under S. 73-A of the Act. If the submission or the reference happens to be to the Industrial Court, that Court must follow the rules and regulations made under S. 92, and the provisions of the Arbitration Act will only apply insofar as they may be applicable in view of those rules and regulations. Consequently, whether a dispute is referred for arbitration to the Industrial Court by submission under Section 66(2) of the Act, or by, a reference under Section 73-A of the Act, that Court has to proceed in the same identical manner and the parties seeking the reference obtain the award in both cases under identical circumstances.9. In this connection, the regulations made by the Industrial Court, known as the Industrial Court Regulations 1947, were brought to our notice. A perusal of these regulations shows that, in the matter of procedure of the Industrial Court for dealing with arbitrations made by submissions under Section 66, or by references under other sections, there is uniformity and no distinction is made between references under these different sections. The Industrial Court is required to proceed in the same manner in all cases and to give its decision under S. 87 of the Act. It is significant that Section 87, defining the duties of the Industrial Court uses identical language in respect of all arbitrations by the Industrial Court under Clause (v) the duty of the Industrial Court is laid down to be to decide industrial disputes referred to it in accordance with submissions registered under S. 66 which provide for such reference to the Industrial Court, and under Clause (vi), the duty of the Industrial Court is similarly defined to be to decide industrial disputes referred to it under Sections 71, 72, 73 or 73-A. The Industrial Court, in all cases, is required to give a decision on the dispute, and hence, in all these proceedings, the parties have identical rights in the matter of procedure of the Industrial Court of hearing and of obtaining a decision from it. This makes it clear that Section 73-A of the Act was required only to fill up a gap which would have existed, leaving no remedy to a Union to obtain arbitration of a dispute if the employers did not agree to that arbitration, and that no similar right was required to be conferred on the employers who, under the other provisions of the Act, could always obtain a reference of the dispute to arbitration by making a submission under Section 66 which the Union was bound to agree to. The first point raised on behalf of the appellants has therefore, no force and Section 73-A of the Act cannot be held to be invalid.10. On the second question, it has rightly been urged on behalf of the appellants that the Act was not applied by the State Government to the industries run by the appellants whether generally or by specifying any local area by issue of a notification under Sub-section (4) of Section 2 of the Act.11. Admittedly, the Bombay Act of 1938 was made applicable to the entire cotton industry throughout the Province of Bombay by various notifications issued in the year 1939 under that Act by the then Provincial Government. Ahmedabad, where the industries of the appellants are situated, was then a part of the Province of Bombay. The Bombay Act of 1938 was never entirely repealed. However, the Central Government enacted the Industrial Disputes Act No. 14 of 1947 which received the assent of the Governor General on 17th March 1947, and was brought into force from April 1, 1947. This Act did not, in terms, repeal the Bombay Act of 1938, but the contention on behalf of the appellants is that the Bombay Act of 1938 and the Central Industrial Disputes Act, 1947 both covered the same field of Industrial disputes, and consequently, it should be held that the Bombay Act of 1938 became void on the ground of repugnancy withthe Industrial Disputes Act, 1947 under Subsection (1) of Section 107 ofthe Government of India Act, 1935. It was urged that the Bombay Act of 1938 as well asthe Industrial Disputes Act, 1947 were both enacted under the power conferred on the Bombay Legislature and the Central Legislature under item 29 of Part II of the Concurrent List III of the Seventh Schedule tothe Government of India Act, 1935. The principle relied upon by the appellants is that, if two pieces of legislation cover the same field and each one of them contains a complete code making detailed provision for all aspects of the subject-Matter of the legislation, repugnancy must be held to arise; even though one Act may not, in terms, repeal the other and may not correspond section by section with the other.has, however, been rightly pointed out by the High Court in the judgment under appeal that the Bombay Act of 1938 did not confine itself entirely to the subject of settlement of industrial disputes. Chapter V of that Act containing Sections 26 to 33 clears with a matter which is not covered bythe Industrial Disputes Act, 1947 at all. These sections of the Bombay Act of 1938 lay down the procedure for prescribing Standing Orders regulating the relations between an employer and his employees, and for making changes therein. The prescribing of the Standing Orders and making of changes in them may not involve any industrial dispute at all. In fact at the first stage, when Standing Orders are prescribed, no question would arise of any industrial dispute requiring settlement. The Industrial Disputes Act, 1947, did not contain any provisions at all dealing with this subject of prescribing Standing Orders and making changes therein. Consequently, even if the submission made on behalf of the appellants be accepted thatthe Industrial Disputes Act, 1947, is an exhaustive code dealing with the question of settlement of industrial disputes, only those provisions of the Bombay Act of 1938 can be held to be repugnant and void on account of the repugnancy which also dealt with the same subject-matter of settlement of industrial disputes. The provisions contained in Chapter V of that Act, which had nothing to do with settlement of industrial disputes could not, therefore, be affected by the enactment ofthe Industrial Disputes Act, 1947, and hence, the enforcement ofthe Industrial Disputes Act, 1947 did not in any way affect the applicability of the provisions of Chapter V of the Bombay Act of 1938 to the industry run by the appellants. To the extent that Bombay Act of 1938 contained these provisions in Chapter V, that Act, therefore, continued in force and also continued to apply to the industries now inIt is not necessary to examine this further question in view of our decision that at least the provisions of Chapter V of the Bombay Act of 1938 continued in force. That Act did not stand repealed as a whole; at best, only a part of that Act can be held to have ceased to be effective because of the repugnancy withthe Industrial Disputes Act, 1947. But, while another part of that Act continued to be in force, the Bombay Act of 1938 also continued to be applicable to the cotton industry in Ahmedabad with which we are concerned. When the Bombay Industrial Relation Act, 1946 came into force on 29th September, 1947, therefore, the Bombay Act of 1938 was applicable to these industries, and consequently, under Sub-section (3) of Section 2 of the Act, the Act became applicable to the industry of the appellants and did not require a notification under Sub-section (4) of Section 2 to make it applicable. This point was also, therefore, rightly decided against the appellants, and the judgment of the High Court must be upheld.4. To appreciate this submission made on behalf of the respondents, certain features of the Act have to be examined and their implication taken into account. Section 73A grants a right of making a reference of an industrial dispute for arbitration to the Industrial Court only to "a registered union which is a representative of employees and which is also an approved union." Further, under the proviso to that section, the reference cannot be made if the employer offers in writing before the Conciliaton to submit the dispute to arbitration under the Act and the dispute to arbitration under the Act and the Union refuses to agree to it. Two other conditions attached are that the dispute must first be submitted to the Conciliator and can be referred for arbitration to the Industrial Court only when the Conciliator certifies that the dispute is not capable of being settled by conciliation, and that no such dispute is to be referred if, under any provisions of the Act, it is required to be referred to the Labour Court for its decision. It is the effect of all these detailed provisions, laying down limitations for reference under S. 73A, that requires examination.It is in this light that the provision which has to be made by the Union in its rules under Section 23 (1) (v) assumes importance. Whenever a dispute is raised either by an employer or by a Union which can ultimately take advantages of S.73A of the Act, theUnion must invariably offer that the dispute be submitted to arbitration, and, in the alternative if the employer offers to submit the dispute to arbitration, the Union must not refuse it. The result is that in respect of any such dispute, the Union has no option but to offer or agree to arbitration of the dispute under Section 66 of the Act. On the other hand, there is no such limitation placed on the employer. There is no provision in the making it compulsory for the employer either to submit the dispute to arbitration or to agree to the submission of the dispute to arbitration when offered by the Union. Consequently, whenever any industrial dispute arises, the employer can always ensure arbitration of that dispute by making an offer to the Union under Section 66 of the Act, whereupon the Union is compelled to agree to submission of the dispute to arbitration. Clearly, therefore, there was no need to make any provision empowering the employer to make a reference of the dispute for arbitration to the Industrial Court. On the other hand, if a Union wants a dispute to be settled and even offers that the dispute be submitted to arbitration under Section 66 of the Act, the employer can refuse, whereupon the Union would be left without any remedy. It is obvious that Sectionwas enacted to fill this gap and place the Union on parity with the employer so as to enable the Union to have any dispute settled by arbitration even when the employer does not agree to arbitration. These provisions granting the rights to the employers and the Union are, of course, in addition to, and without prejudice to, the provisions contained in sections 72 and 73 of the Act, under which the State Government is given the power to refer any industrial dispute between employees and employees and employers and employees to the arbitration of a Labour Court or the Industrial Court on the basis of a report made by the Labour Officer, or even otherwise. These provisions in Ss. 72 and 73 leave the discretion with the State Govt. to make a reference in appropriate cases, so that neither the employers nor the employees can, as of right, obtain a reference under these sections from the State Government. So far as they are concerned, the provisions contained in the act require that the disputes between hem must first go before a conciliator for conciliation, and subsequently, either part a can exercise its option of offering the submission of the dispute to arbitration when such an enquiry is made from them b the Conciliator under S. 58 (5) of the Act. Thereafter if the offer is by an employer, the Union, under its rules, is bound to accept the submission, so that whenever an employer desires that a dispute be decided by arbitration, the Union is compelled to agree to it. In the reverse case, when a Union wants submission of the dispute to arbitration, the Union is compelled to agree to it. In the reverse case, when a Union wants submission of the dispute to arbitration, the employer has discretion not to agree, and then only can the Union resort to S. 73A and refer the dispute to the Industrial Court. This section, in these circumstance did not at all require that the right granted to the Union should also be granted to the employer.7. In this connection, two other points were urged by learned counsel for the appellant before us. One was that, under S. 66 of the Act, the offer to submit the dispute for arbitration can be to any private individual also, and this did not give the right to the employer to have it decided by an Industrial Court so as to be equated with the right of the Union to have it decided by the Industrial Court wedo not think that the provision contained in S. 66 of the Act places the employer under any such, handicap. Under(2) of S. 66, the employer can straightaway offer that the dispute be referred to the arbitration of the Industrial Court, and thereupon, the Union would be debarred from refusing to agree to that submission. In any case, even if the Union were to refuse to agree to it, the State Government will determine under Section 71 of the Act whether the dispute should be referred to the arbitration of the Labour Court or the Industrial Court and refer it to that body. The mere fact that the Union may not agree to the offer of the employer to submit the dispute for arbitration to the Industrial Court whereupon the State Government can direct that the arbitration be made by a Labour Court or the Industrial Court does not in our opinion, place the employer in any disadvantageous position, and we do not think, therefore, that there was any requirement that the employer should also be given a right corresponding to the right of the Union under S. 73A of the Act. | 0 | 5,073 | 3,154 | ### Instruction:
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under the power conferred on the Bombay Legislature and the Central Legislature under item 29 of Part II of the Concurrent List III of the Seventh Schedule to the Government of India Act, 1935. The principle relied upon by the appellants is that, if two pieces of legislation cover the same field and each one of them contains a complete code making detailed provision for all aspects of the subject-Matter of the legislation, repugnancy must be held to arise; even though one Act may not, in terms, repeal the other and may not correspond section by section with the other. For this principle, reliance was placed on the tests enumerated by Nicholas in his Australian Constitution, 2nd Edition, p. 303, to determine inconsistency or repugnancy between a State law and a Commonwealth law in Australia. The three tests were enumerated as follows :-"(1) There may be inconsistency in the actual terms of the competing statutes;(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to he a complete exhaustive code : and(3) Even in the absence of intention, conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter."This principle was deduced from the decisions in Ex parte , Mclean (1930) 43 CLR 472, and State of Victoria v. Commonwealth of Australia, 58 CLR 618. Reliance was also placed on decisions of this Court in Zaverbhai Amaidas v. State of Bombay, 1955-1 SCR 799 : (AIR 1954 SC 752 ), Ch Tika Ramji v. State of Uttar Pradesh, 1953 SCR 393 : (AIR 1956 SC 676 ) and Deep Chand v. State of Uttar Pradesh, 1959 Supp (2) SCR 8: (AIR 1959 SC 648 ). In the last of these cases, after quoting from Nicholas, this Court held."Repugnancy between two statutes may thus be ascertained on the bash of the following three principles:-(1) Whether there is direct conflict between the two provisions;(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature, and(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field."12. Relying on these principles, it has been urged that the Industrial Disputes Act, 1947 intended to lay down an exhaustive code in respect of settlement of all industrial disputes, and since the Bombay Act of 1938 was also on the same subject, it must be presumed that the two statutes are repugnant, so that the Bombay Act of 1938 became void with effect from 1st April, 1947 when the Industrial Disputes Act, 1947 came into force.It has, however, been rightly pointed out by the High Court in the judgment under appeal that the Bombay Act of 1938 did not confine itself entirely to the subject of settlement of industrial disputes. Chapter V of that Act containing Sections 26 to 33 clears with a matter which is not covered by the Industrial Disputes Act, 1947 at all. These sections of the Bombay Act of 1938 lay down the procedure for prescribing Standing Orders regulating the relations between an employer and his employees, and for making changes therein. The prescribing of the Standing Orders and making of changes in them may not involve any industrial dispute at all. In fact at the first stage, when Standing Orders are prescribed, no question would arise of any industrial dispute requiring settlement. The Industrial Disputes Act, 1947, did not contain any provisions at all dealing with this subject of prescribing Standing Orders and making changes therein. Consequently, even if the submission made on behalf of the appellants be accepted that the Industrial Disputes Act, 1947, is an exhaustive code dealing with the question of settlement of industrial disputes, only those provisions of the Bombay Act of 1938 can be held to be repugnant and void on account of the repugnancy which also dealt with the same subject-matter of settlement of industrial disputes. The provisions contained in Chapter V of that Act, which had nothing to do with settlement of industrial disputes could not, therefore, be affected by the enactment of the Industrial Disputes Act, 1947, and hence, the enforcement of the Industrial Disputes Act, 1947 did not in any way affect the applicability of the provisions of Chapter V of the Bombay Act of 1938 to the industry run by the appellants. To the extent that Bombay Act of 1938 contained these provisions in Chapter V, that Act, therefore, continued in force and also continued to apply to the industries now in question. It was also urged that the industrial Disputes Act, 1947 did not, similarly, make any provision for arbitration of industrial disputes and, consequently, the provisions of the Bombay Act of 1938, relating to arbitration of industrial disputes, could not be held to have become invalid. It is not necessary to examine this further question in view of our decision that at least the provisions of Chapter V of the Bombay Act of 1938 continued in force. That Act did not stand repealed as a whole; at best, only a part of that Act can be held to have ceased to be effective because of the repugnancy with the Industrial Disputes Act, 1947. But, while another part of that Act continued to be in force, the Bombay Act of 1938 also continued to be applicable to the cotton industry in Ahmedabad with which we are concerned. When the Bombay Industrial Relation Act, 1946 came into force on 29th September, 1947, therefore, the Bombay Act of 1938 was applicable to these industries, and consequently, under Sub-section (3) of Section 2 of the Act, the Act became applicable to the industry of the appellants and did not require a notification under Sub-section (4) of Section 2 to make it applicable. This point was also, therefore, rightly decided against the appellants, and the judgment of the High Court must be upheld.
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the dispute to arbitration under the Act and the dispute to arbitration under the Act and the Union refuses to agree to it. Two other conditions attached are that the dispute must first be submitted to the Conciliator and can be referred for arbitration to the Industrial Court only when the Conciliator certifies that the dispute is not capable of being settled by conciliation, and that no such dispute is to be referred if, under any provisions of the Act, it is required to be referred to the Labour Court for its decision. It is the effect of all these detailed provisions, laying down limitations for reference under S. 73A, that requires examination.It is in this light that the provision which has to be made by the Union in its rules under Section 23 (1) (v) assumes importance. Whenever a dispute is raised either by an employer or by a Union which can ultimately take advantages of S.73A of the Act, theUnion must invariably offer that the dispute be submitted to arbitration, and, in the alternative if the employer offers to submit the dispute to arbitration, the Union must not refuse it. The result is that in respect of any such dispute, the Union has no option but to offer or agree to arbitration of the dispute under Section 66 of the Act. On the other hand, there is no such limitation placed on the employer. There is no provision in the making it compulsory for the employer either to submit the dispute to arbitration or to agree to the submission of the dispute to arbitration when offered by the Union. Consequently, whenever any industrial dispute arises, the employer can always ensure arbitration of that dispute by making an offer to the Union under Section 66 of the Act, whereupon the Union is compelled to agree to submission of the dispute to arbitration. Clearly, therefore, there was no need to make any provision empowering the employer to make a reference of the dispute for arbitration to the Industrial Court. On the other hand, if a Union wants a dispute to be settled and even offers that the dispute be submitted to arbitration under Section 66 of the Act, the employer can refuse, whereupon the Union would be left without any remedy. It is obvious that Sectionwas enacted to fill this gap and place the Union on parity with the employer so as to enable the Union to have any dispute settled by arbitration even when the employer does not agree to arbitration. These provisions granting the rights to the employers and the Union are, of course, in addition to, and without prejudice to, the provisions contained in sections 72 and 73 of the Act, under which the State Government is given the power to refer any industrial dispute between employees and employees and employers and employees to the arbitration of a Labour Court or the Industrial Court on the basis of a report made by the Labour Officer, or even otherwise. These provisions in Ss. 72 and 73 leave the discretion with the State Govt. to make a reference in appropriate cases, so that neither the employers nor the employees can, as of right, obtain a reference under these sections from the State Government. So far as they are concerned, the provisions contained in the act require that the disputes between hem must first go before a conciliator for conciliation, and subsequently, either part a can exercise its option of offering the submission of the dispute to arbitration when such an enquiry is made from them b the Conciliator under S. 58 (5) of the Act. Thereafter if the offer is by an employer, the Union, under its rules, is bound to accept the submission, so that whenever an employer desires that a dispute be decided by arbitration, the Union is compelled to agree to it. In the reverse case, when a Union wants submission of the dispute to arbitration, the Union is compelled to agree to it. In the reverse case, when a Union wants submission of the dispute to arbitration, the employer has discretion not to agree, and then only can the Union resort to S. 73A and refer the dispute to the Industrial Court. This section, in these circumstance did not at all require that the right granted to the Union should also be granted to the employer.7. In this connection, two other points were urged by learned counsel for the appellant before us. One was that, under S. 66 of the Act, the offer to submit the dispute for arbitration can be to any private individual also, and this did not give the right to the employer to have it decided by an Industrial Court so as to be equated with the right of the Union to have it decided by the Industrial Court wedo not think that the provision contained in S. 66 of the Act places the employer under any such, handicap. Under(2) of S. 66, the employer can straightaway offer that the dispute be referred to the arbitration of the Industrial Court, and thereupon, the Union would be debarred from refusing to agree to that submission. In any case, even if the Union were to refuse to agree to it, the State Government will determine under Section 71 of the Act whether the dispute should be referred to the arbitration of the Labour Court or the Industrial Court and refer it to that body. The mere fact that the Union may not agree to the offer of the employer to submit the dispute for arbitration to the Industrial Court whereupon the State Government can direct that the arbitration be made by a Labour Court or the Industrial Court does not in our opinion, place the employer in any disadvantageous position, and we do not think, therefore, that there was any requirement that the employer should also be given a right corresponding to the right of the Union under S. 73A of the Act.
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The Maharashtra State Coop.Housing.Fin.C Vs. Prabhakar Sitaram Bhadange | , the Court held that the expression `touching the business of the society would not cover the disputes pertaining to alteration of conditions of service of workman.These judgments were taken note of in Morinda Coop. Sugar Mills Ltd. v. Morinda Coop. Sugar Mills Workers Union, 2006(3) S.C.T. 558 : (2006) 6 SCC 80 , where scope of Section 55 of the Punjab Cooperative Societies Act, 1961 came up for consideration. That section provided for reference of dispute to arbitration `if any dispute touching the constitution, management or the business of a cooperative society arises. Following the aforesaid judgments, the Court gave limited meaning to the aforesaid expression and held that the suit filed by the Workers Union of the cooperative society claiming dearness allowance on the wages plus fixed allowance in accordance with the Third Wage Board Report was maintainable in the Civil Court, and such a dispute was not covered by the provisions of Section 55 of the Punjab Cooperative Societies Act, 1961.The reading of the aforesaid judgments make it crystal clear that dispute of this nature does not come within the scope of `business of the society.14. We now advert to the question as to whether such a dispute can be treated as dispute relating to `management of the society. On this aspect as well, there is a direct judgment of this Court in Gujarat State Cooperative Land Development Bank Ltd. v. P.R. Mankad & Ors., (1979) 3 SCC 123 wherein the expression `management of the society was assigned the following meaning:"35. We will now focus attention on the expression "management of the Society" used in Section 96(1) of the Act of 1961. Grammatically, one meaning of the term `management is: "the Board of Directors or "the apex body" or "Executive Committee at the helm which guides, regulates, supervises, directs and controls the affairs of the Society". In this sense it may not include the individuals who under the overall control of that governing body or Committee, run the day-to-day business of the Society, (see Words and Phrases, by West Publishing Co., Permanent Edn., Vol. 26, p. 357, citing Warner and Swasey Co. v. Rusterholz D.C. Minn [41 F Supp 398, 505]. Another meaning of the term "management", may be: `the act or acts of managing or governing by direction, guidance, superintendence, regulation and control, the affairs of a Society.36. A still wider meaning of the term which will encompass the entire staff of servants and workmen of the Society, has been canvassed for by Mr Dholakia. The use of the term "management" in such a wide sense in Section 96(1) appears to us, to be very doubtful."It, thus, clearly follows that the dispute raised by the respondent is not covered within the meaning of Section 91 of the Act and, therefore, the Cooperative Court does not have the jurisdiction to entertain the claim filed by the respondent.15. The learned counsel for the respondent referred to the judgment of this Court in the case of R.C. Tiwari v. M.P. State Cooperative Marketing Federation Ltd. & Ors., 1997(2) S.C.T. 793 : (1997) 5 SCC 125. However, a close scrutiny of the said judgment would reveal that the power of the Registrar to deal with the dispute of dismissal from service of the employee was recognised having regard to Section 55 of the M.P. Cooperative Societies Act, 1960 which gave specific power to the Registrar to determine conditions of employment in societies, including deciding the disputes regarding terms of employment, working conditions and disciplinary actions taken by the society arising between the society and its employees. Therefore, that judgment would be of no help to the respondent.16. It may be noted that the High Court, in the impugned judgment, has itself proceeded on the basis that if the dispute relates to reinstatement, the Cooperative Court will not have any jurisdiction. The main reason for conferring jurisdiction upon the Cooperative Court in the instant case is that the Cooperative Court has replaced the Civil Court and, therefore, powers of the Civil Court are given to the Cooperative Court. However, the High Court erred in not further analysing the provisions of Section 91 of the Act which spells out the specific powers that are given to the Cooperative Court and those powers are of limited nature. Our aforesaid analysis leads to the conclusion that the disputes between the cooperative society and its employees are not covered by the said provision. We may hasten to add that if the provision is couched in a language to include such disputes (and we find such provisions in the Cooperative Societies Acts of certain States) and it is found that the Cooperative Society Act provides for complete machinery of redressal of grievances of the employees, then even the jurisdiction of the Labour Court/ Industrial Tribunal under the Industrial Disputes Act shall be barred having regard to the provisions of such a special statute vis-a-vis general statute like the Industrial Disputes Act {See - Ghaziabad Zila Sahkari Bank Ltd., Refer Footnote 4.17. In Gujarat State Co-operative Land Development Bank Ltd. v. P.R. Mankad & Ors., (1979) 3 SCC 123 , an employee working as Additional Supervisor was removed from service by giving one months pay in lieu of Notice under the Staff Regulations. He had issued a notice under the Bombay Industrial Relations Act, 1946, as he was an employee as defined under section 2(13) of the said Act. One of the questions that was considered by this Court was whether a dispute raised by the said employee for setting aside his removal from service on the ground that it was an act of victimization and for reinstatement in service with back wages was one `touching the management or business of the society, within the contemplation of the Co-operative Societies Act. This Court held that the expression `any dispute referred to in section 96 of the Gujarat Co-operative Societies Act, 1961 did not cover a dispute of the kind raised by the respondent employee against the bank. | 1[ds]7. We may state at the outset that it was conceded at the Bar that if the employee of a cooperative society is covered by the definition of `workman within the meaning of the Industrial Disputes Act, 1947 and claims a relief of reinstatement, in that event the Cooperative Court will not have jurisdiction to entertain such a claim, inasmuch as, relief of reinstatement cannot be granted by the Cooperative Court. Such a relief can only be granted by the Labour Court or the Industrial Tribunal constituted under the Industrial Disputes Act having regard to the fact that special and complete machinery for this purpose is provided under the provisions of the Industrial Disputes Act, the jurisdiction of the Civil Court stands ousted.8. Even when the employees falling under any of the aforesaid three categories raise dispute qua their termination, the Civil Court is not empowered to grant reinstatement and the remedy would be, in the first two categories, by way of writ petition under Article 226 of the Constitution or the Administrative Tribunal Act, as the case may be, and in the third category, it would be under the Industrial Disputes Act. An employee who does not fall in any of the aforesaid exceptions cannot claim reinstatement. His only remedy is to file a suit in the Civil Court seeking declaration that termination was wrongful and claim damages for such wrongful termination of services. Admittedly, the appellant Corporation is not a `State under Article 12 of the Constitution. The respondent also cannot be treated as a Government/public servant as he was not under the employment of any Government. He was also not `workman under the Industrial Disputes Act as he was working as Manager with the appellant Corporation.9. In the aforesaid conspectus, we have to examine as to whether this power which is available with the Civil Court to grant damages is now given to the Cooperative Court under Section 91 of the Act. We may also mention at this stage that some of the States have statutes which contain provisions regarding management and regulations of the cooperative society, where specific machinery under these State Cooperative Societies Acts is provided for resolution of employment disputes as well, between the cooperative societies and its employees, that too by excluding the applicability of labour laws. No doubt, in such cases, the disputes between the cooperative societies and it employees, including the workmen, would be dealt with by such machinery and the general Act, like the Industrial Disputes Act, would not be applicable (See Ghaziabad Zila Sahkari Bank Ltd. v. Addl. Labour Commissioner & Ors., (2007) 11 SCC 756 and Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd., 2007(3) S.C.T. 491 : (2007) 9 SCC 109 ). Pertinently, in the instant case, Section 91 specifically excludes the disputes between the cooperative society as employer and its `workmen. Ultimately, the outcome depends upon the powers that are given to the Cooperative Court or the stipulated tribunal created under such Acts. It is in this hue we have to find out as to whether Section 91 of the Act at hand empowers Cooperative Courts to decide such disputes.It may be noted that the High Court, in the impugned judgment, has itself proceeded on the basis that if the dispute relates to reinstatement, the Cooperative Court will not have any jurisdiction. The main reason for conferring jurisdiction upon the Cooperative Court in the instant case is that the Cooperative Court has replaced the Civil Court and, therefore, powers of the Civil Court are given to the Cooperative Court. However, the High Court erred in not further analysing the provisions of Section 91 of the Act which spells out the specific powers that are given to the Cooperative Court and those powers are of limited nature. Our aforesaid analysis leads to the conclusion that the disputes between the cooperative society and its employees are not covered by the said provision. We may hasten to add that if the provision is couched in a language to include such disputes (and we find such provisions in the Cooperative Societies Acts of certain States) and it is found that the Cooperative Society Act provides for complete machinery of redressal of grievances of the employees, then even the jurisdiction of the Labour Court/ Industrial Tribunal under the Industrial Disputes Act shall be barred having regard to the provisions of such a special statute vis-a-vis general statute like the Industrial Disputes Act17. In Gujarat State Co-operative Land Development Bank Ltd. v. P.R. Mankad & Ors., (1979) 3 SCC 123 , an employee working as Additional Supervisor was removed from service by giving one months pay in lieu of Notice under the Staff Regulations. He had issued a notice under the Bombay Industrial Relations Act, 1946, as he was an employee as defined under section 2(13) of the said Act. One of the questions that was considered by this Court was whether a dispute raised by the said employee for setting aside his removal from service on the ground that it was an act of victimization and for reinstatement in service with back wages was one `touching the management or business of the society, within the contemplation of the Co-operative Societies Act. This Court held that the expression `any dispute referred to in section 96 of the Gujarat Co-operative Societies Act, 1961 did not cover a dispute of the kind raised by the respondent employee against the bank. | 1 | 4,055 | 1,001 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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, the Court held that the expression `touching the business of the society would not cover the disputes pertaining to alteration of conditions of service of workman.These judgments were taken note of in Morinda Coop. Sugar Mills Ltd. v. Morinda Coop. Sugar Mills Workers Union, 2006(3) S.C.T. 558 : (2006) 6 SCC 80 , where scope of Section 55 of the Punjab Cooperative Societies Act, 1961 came up for consideration. That section provided for reference of dispute to arbitration `if any dispute touching the constitution, management or the business of a cooperative society arises. Following the aforesaid judgments, the Court gave limited meaning to the aforesaid expression and held that the suit filed by the Workers Union of the cooperative society claiming dearness allowance on the wages plus fixed allowance in accordance with the Third Wage Board Report was maintainable in the Civil Court, and such a dispute was not covered by the provisions of Section 55 of the Punjab Cooperative Societies Act, 1961.The reading of the aforesaid judgments make it crystal clear that dispute of this nature does not come within the scope of `business of the society.14. We now advert to the question as to whether such a dispute can be treated as dispute relating to `management of the society. On this aspect as well, there is a direct judgment of this Court in Gujarat State Cooperative Land Development Bank Ltd. v. P.R. Mankad & Ors., (1979) 3 SCC 123 wherein the expression `management of the society was assigned the following meaning:"35. We will now focus attention on the expression "management of the Society" used in Section 96(1) of the Act of 1961. Grammatically, one meaning of the term `management is: "the Board of Directors or "the apex body" or "Executive Committee at the helm which guides, regulates, supervises, directs and controls the affairs of the Society". In this sense it may not include the individuals who under the overall control of that governing body or Committee, run the day-to-day business of the Society, (see Words and Phrases, by West Publishing Co., Permanent Edn., Vol. 26, p. 357, citing Warner and Swasey Co. v. Rusterholz D.C. Minn [41 F Supp 398, 505]. Another meaning of the term "management", may be: `the act or acts of managing or governing by direction, guidance, superintendence, regulation and control, the affairs of a Society.36. A still wider meaning of the term which will encompass the entire staff of servants and workmen of the Society, has been canvassed for by Mr Dholakia. The use of the term "management" in such a wide sense in Section 96(1) appears to us, to be very doubtful."It, thus, clearly follows that the dispute raised by the respondent is not covered within the meaning of Section 91 of the Act and, therefore, the Cooperative Court does not have the jurisdiction to entertain the claim filed by the respondent.15. The learned counsel for the respondent referred to the judgment of this Court in the case of R.C. Tiwari v. M.P. State Cooperative Marketing Federation Ltd. & Ors., 1997(2) S.C.T. 793 : (1997) 5 SCC 125. However, a close scrutiny of the said judgment would reveal that the power of the Registrar to deal with the dispute of dismissal from service of the employee was recognised having regard to Section 55 of the M.P. Cooperative Societies Act, 1960 which gave specific power to the Registrar to determine conditions of employment in societies, including deciding the disputes regarding terms of employment, working conditions and disciplinary actions taken by the society arising between the society and its employees. Therefore, that judgment would be of no help to the respondent.16. It may be noted that the High Court, in the impugned judgment, has itself proceeded on the basis that if the dispute relates to reinstatement, the Cooperative Court will not have any jurisdiction. The main reason for conferring jurisdiction upon the Cooperative Court in the instant case is that the Cooperative Court has replaced the Civil Court and, therefore, powers of the Civil Court are given to the Cooperative Court. However, the High Court erred in not further analysing the provisions of Section 91 of the Act which spells out the specific powers that are given to the Cooperative Court and those powers are of limited nature. Our aforesaid analysis leads to the conclusion that the disputes between the cooperative society and its employees are not covered by the said provision. We may hasten to add that if the provision is couched in a language to include such disputes (and we find such provisions in the Cooperative Societies Acts of certain States) and it is found that the Cooperative Society Act provides for complete machinery of redressal of grievances of the employees, then even the jurisdiction of the Labour Court/ Industrial Tribunal under the Industrial Disputes Act shall be barred having regard to the provisions of such a special statute vis-a-vis general statute like the Industrial Disputes Act {See - Ghaziabad Zila Sahkari Bank Ltd., Refer Footnote 4.17. In Gujarat State Co-operative Land Development Bank Ltd. v. P.R. Mankad & Ors., (1979) 3 SCC 123 , an employee working as Additional Supervisor was removed from service by giving one months pay in lieu of Notice under the Staff Regulations. He had issued a notice under the Bombay Industrial Relations Act, 1946, as he was an employee as defined under section 2(13) of the said Act. One of the questions that was considered by this Court was whether a dispute raised by the said employee for setting aside his removal from service on the ground that it was an act of victimization and for reinstatement in service with back wages was one `touching the management or business of the society, within the contemplation of the Co-operative Societies Act. This Court held that the expression `any dispute referred to in section 96 of the Gujarat Co-operative Societies Act, 1961 did not cover a dispute of the kind raised by the respondent employee against the bank.
### Response:
1
### Explanation:
7. We may state at the outset that it was conceded at the Bar that if the employee of a cooperative society is covered by the definition of `workman within the meaning of the Industrial Disputes Act, 1947 and claims a relief of reinstatement, in that event the Cooperative Court will not have jurisdiction to entertain such a claim, inasmuch as, relief of reinstatement cannot be granted by the Cooperative Court. Such a relief can only be granted by the Labour Court or the Industrial Tribunal constituted under the Industrial Disputes Act having regard to the fact that special and complete machinery for this purpose is provided under the provisions of the Industrial Disputes Act, the jurisdiction of the Civil Court stands ousted.8. Even when the employees falling under any of the aforesaid three categories raise dispute qua their termination, the Civil Court is not empowered to grant reinstatement and the remedy would be, in the first two categories, by way of writ petition under Article 226 of the Constitution or the Administrative Tribunal Act, as the case may be, and in the third category, it would be under the Industrial Disputes Act. An employee who does not fall in any of the aforesaid exceptions cannot claim reinstatement. His only remedy is to file a suit in the Civil Court seeking declaration that termination was wrongful and claim damages for such wrongful termination of services. Admittedly, the appellant Corporation is not a `State under Article 12 of the Constitution. The respondent also cannot be treated as a Government/public servant as he was not under the employment of any Government. He was also not `workman under the Industrial Disputes Act as he was working as Manager with the appellant Corporation.9. In the aforesaid conspectus, we have to examine as to whether this power which is available with the Civil Court to grant damages is now given to the Cooperative Court under Section 91 of the Act. We may also mention at this stage that some of the States have statutes which contain provisions regarding management and regulations of the cooperative society, where specific machinery under these State Cooperative Societies Acts is provided for resolution of employment disputes as well, between the cooperative societies and its employees, that too by excluding the applicability of labour laws. No doubt, in such cases, the disputes between the cooperative societies and it employees, including the workmen, would be dealt with by such machinery and the general Act, like the Industrial Disputes Act, would not be applicable (See Ghaziabad Zila Sahkari Bank Ltd. v. Addl. Labour Commissioner & Ors., (2007) 11 SCC 756 and Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd., 2007(3) S.C.T. 491 : (2007) 9 SCC 109 ). Pertinently, in the instant case, Section 91 specifically excludes the disputes between the cooperative society as employer and its `workmen. Ultimately, the outcome depends upon the powers that are given to the Cooperative Court or the stipulated tribunal created under such Acts. It is in this hue we have to find out as to whether Section 91 of the Act at hand empowers Cooperative Courts to decide such disputes.It may be noted that the High Court, in the impugned judgment, has itself proceeded on the basis that if the dispute relates to reinstatement, the Cooperative Court will not have any jurisdiction. The main reason for conferring jurisdiction upon the Cooperative Court in the instant case is that the Cooperative Court has replaced the Civil Court and, therefore, powers of the Civil Court are given to the Cooperative Court. However, the High Court erred in not further analysing the provisions of Section 91 of the Act which spells out the specific powers that are given to the Cooperative Court and those powers are of limited nature. Our aforesaid analysis leads to the conclusion that the disputes between the cooperative society and its employees are not covered by the said provision. We may hasten to add that if the provision is couched in a language to include such disputes (and we find such provisions in the Cooperative Societies Acts of certain States) and it is found that the Cooperative Society Act provides for complete machinery of redressal of grievances of the employees, then even the jurisdiction of the Labour Court/ Industrial Tribunal under the Industrial Disputes Act shall be barred having regard to the provisions of such a special statute vis-a-vis general statute like the Industrial Disputes Act17. In Gujarat State Co-operative Land Development Bank Ltd. v. P.R. Mankad & Ors., (1979) 3 SCC 123 , an employee working as Additional Supervisor was removed from service by giving one months pay in lieu of Notice under the Staff Regulations. He had issued a notice under the Bombay Industrial Relations Act, 1946, as he was an employee as defined under section 2(13) of the said Act. One of the questions that was considered by this Court was whether a dispute raised by the said employee for setting aside his removal from service on the ground that it was an act of victimization and for reinstatement in service with back wages was one `touching the management or business of the society, within the contemplation of the Co-operative Societies Act. This Court held that the expression `any dispute referred to in section 96 of the Gujarat Co-operative Societies Act, 1961 did not cover a dispute of the kind raised by the respondent employee against the bank.
|
Shashikant Laxman Kale and Another Vs. Union of India and Others (And Others Petitions) | the benefit only to a few in the same class denying the same to those left out does not arise. 19. We shall now refer to some other clauses of section 10 of the Act to which reference was made at the hearing in support of the rival contentions. Sub-clause (i) of clause (10) of section 10 confines the benefit thereunder only to the Government servants, defence personnel and employees of a local authority. Sub-clause (i) of clause (10A) similarly confines the benefit to Government servants, defence personnel and employees of local authority or a corporation established by a statute. Clause (10A) also makes a distinction between the Government employees and other employees. Clause (10B) also removes the limit in respect of any payment as retrenchment compensation under a scheme approved by the Central Government. Some other clauses in section 10 of the Act further show that the scheme of section 10 contemplates a distinction between the employees based on the category of their employer. Accordingly, clause (10C) therein is not a departure from the existing scheme but in conformity with some clauses earlier enacted thereinOnce the impugned provision contained in the newly inserted clause (10C) of section 10 of the Income-tax Act, 1961, is viewed in the above perspective, keeping in mind the true object of the provision, there is no foundation for the argument that it is either discriminatory or arbitrary. There is a definite purpose for its enactment. One of the purposes is streamlining the public sector to cure it of one of its ailments of overstaffing which is realised from experience of almost four decades of its functioning. In view of the role attributed to the public sector in the sphere of national economy, improvement in the functioning thereof must be achieved in all possible ways. A measure adopted to cure it of one of its ailments is undoubtedly a forward step towards promoting the national economy. The provision is an incentive to the unwanted personnel to seek voluntary retirement thereby enabling the public sector to achieve the true object indicated. The personnel seeking voluntary retirement no doubt get a tax benefit but then that is an incentive for seeking voluntary retirement and at any rate that is an effect of the provision or its fall-out and not its true object. It is similar to the incentive given to the taxpayers to invest in the public sector bonds by non-inclusion of the interest earned thereon in the taxpayers total income which promotes the true object of raising the resources of the public sector for its growth and modernisation. The real distinction between the true object of an enactment and the effect thereof, even though appearing to be blurred at times, has to be borne in mind, particularly in a situation like this. With this perspective, keeping in view the true object of the impugned enactment, there is no doubt that employees of the private sector who are left out of the ambit of the impugned provision do not fall in the same class as employees of the public sector and the benefit of the fall-out of the provision being available only to the public sector employees cannot render the classification invalid or arbitrary. This classification cannot, therefore, be faultedSome of the cases cited by the petitioners in support of the contention of equality of employees in the public and private sectors in the present context also are inapplicable. The decision in Hindustan Antibiotics Ltd. v. Workmen [1966-67] 30 FJR 461 ; 1967 (1) SCR 652 , related to wage fixation and is distinguishable. S. K. Dutta, ITO v. Lawrence Singh Ingty was distinguished and explained in ITO v. N. Takin Roy Rymbai relied on by us. Moreover, ITO v. N. Takin Roy Rymbai which also related to a provision in section 10 of the Income-tax Act, 1961, itself says as under (at pp. 89, 90) "Classification or purposes of taxation or for exempting from tax with reference to the source of the income is integral to the fundamental scheme of the Income-tax Act. Indeed, the entire warp and woof of the 1961 Act has been woven on this pattern." "... Suffice it to say that classification of sources of income is integral to the basic scheme of the 1961 Act. It is nobodys case that the entire scheme of the Act is irrational and violative of article 14 of the Constitution. Such an extravagant contention has not been canvassed before us. Thus, the classification made by the aforesaid sub-clause (a) for purposes of exemption is not unreal or unknown. It conforms to a well-recognised pattern. It is based on intelligible differentia. The object of this differentiation between income accruing or received from a source in the specified areas and the income accruing or received from a source outside such areas, is to benefit not only the members of the Scheduled Tribes residing in the specified areas but also to benefit economically such areas..." * 20. The other submission of the petitioners is to read the provision in manner which would cover all employees including employees of the private sector within the ambit of the impugned provision. This further question does not arise in view of our conclusion that there is no discrimination made out. We may, however, mention that the Finance Bill, 1987, while inserting a new clause (10C) in section 10 of the Income-tax Act simultaneously inserted a new clause (36A) in section 2 of the Act with effect from April 1, 1987, defining "public sector company", which expression has been used in the newly inserted clause (10C) of section 10. In view of the simultaneous definition of "public sector company" in the Act, there can be no occasion to construe this expression differently without which a private sector company cannot be included in it. It is, therefore, not possible to construe the impugned provision while upholding its validity in such a manner as to include a private sector company also within its ambit. Consequently, | 0[ds]For determining the purpose or object of the legislation, it is permissible to look into the circumstances which prevailed at the time when the law was passed and which necessitated the passing of that law. For the limited purpose of appreciating the background and the antecedent factual matrix leading to the legislation, it is permissible to look into the Statement of Objects and Reasons of the Bill which actuated the step to provide remedy for the then existing malady. In A. Thangal Kunju Musaliar v. M. Venkatachalam Potti the Statement of Objects and Reasons was used for judging the reasonableness of a classification made in an enactment to see if it infringed or was contrary to the Constitution. In that decision for determining the question, even an affidavit on behalf of the State of "the circumstances which prevailed at the time when the law there under consideration had been passed and which necessitated the passing of that law" was relied on. It was reiterated in State of West Bengal v. Union of India that the Statement of Objects and Reasons accompanying a Bill, when introduced in Parliament, can be used for "the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation." Similarly, in Pannalal Binjraj v. Union of India a challenge to the validity of classification was repelled placing reliance on an affidavit filed on behalf of the Central Board of Revenue disclosing the true object of enacting the impugned provision in the Income-tax ActNot only this, to sustain the presumption of constitutionality, consideration may be had even to matters of common knowledge, the history of the times and every conceivable state of facts existing at the time of legislation which can be assumed. Even though, for the purpose of construing the meaning of the enacted provision, it is not permissible to use these aids, yet it is permissible to look into the historical facts and surrounding circumstances for ascertaining the evil sought to be remedied. The distinction between the purpose or object of the legislation and the legislative intention, indicated earlier, is significant in this exercise to emphasise the availability of larger material to the court for reliance when determining the purpose or object of the legislation as distinguished from the meaning of the enactedis useful to remember that the country having opted for mixed economy, the healthy and vigorous functioning of the public sector undertakings is conducive to the benefit of the private sector as well, in addition, to promoting the well-being of the national economy. A point of view emerging currently is that just as public sector undertakings are outside the purview of the Monopolies and Restrictive Trade Practices Act by virtue of the exemption conferred on them, the Income-tax Act should confer similar exemption to it from tax liability by suitable amendment in section 10 of the Act as is given to local authorities, housing boards, etc. This view is supported on the ground that the exemption from tax liability of public sector undertakings would ultimately benefit the consumers of the products of the public sector undertakings. This is not an irrelevant circumstance to indicate that, according to the general perception, there is a distinction between the public and private sectors. In some earlier decisions of this court, the public sector has been treated as a distinct class for the purpose of exemption under statutesIn Hindustan Paper Corporation Ltd. v. Government of Kerala a provision granting exemption to Government companies and co-operative societies alone for selling forest produce at less than the selling price fixed under the Kerala Forest Produce (Fixation of Selling Price) Act, 1978, was held to be constitutionally valid and not violative of articles 14 and 19(1)(g) of the Constitution of India. It was held that the Government or public sector undertakings formed a distinctis clear that Government or public sector undertakings have been treated as a distinct class separate from those in the private sector and the fact that the profit earned in the former is for public benefit instead of private benefit, provides an intelligible differentia, from the social point of view which is of prime importance for the national economy. Thus, there exists an intelligible differentia between the two categories which has a rational nexus with the main object of promoting the national economic policy or the public policy. This element also appears in the impugned enactment itself wherein "economic viability of such company" is specified as the most relevant circumstance for grant of approval of the scheme by the Central Government. This intrinsic element in the provision itself supports the view that the main object thereof is to promote and improve the health of the public sector companies even though its effect is a benefit to its employeesAs already indicated, clause (10C) of section 10 of the Act itself mentions economic viability of a public sector company as the most relevant circumstance to attract the provision. The economic status of employees of a public sector company who get the benefit of the provision is also lower as compared to their counterparts in the private sector. If this be the correct perspective, as we think it is in the present case, the very foundation of the challenge to the impugned provision on the basis of economic equality of employees in both sectors is non-existent. Once the stage is reached where the differentiation is rightly made between a public sector company and a private sector company and that too essentially on the ground of economic viability of the public sector company and other relevant circumstances, the argument based on equality does not survive. This is independent of the disparity in the compensation package of employees in the private sector and the public sector. The argument of discrimination is based on initial equality between the two classes alleging bifurcation thereafter between those who stood integrated earlier as one class. This basic assumption being fallacious, the question of any hostile discrimination by granting the benefit only to a few in the same class denying the same to those left out does notother submission of the petitioners is to read the provision in manner which would cover all employees including employees of the private sector within the ambit of the impugned provision. This further question does not arise in view of our conclusion that there is no discrimination made out. We may, however, mention that the Finance Bill, 1987, while inserting a new clause (10C) in section 10 of the Income-tax Act simultaneously inserted a new clause (36A) in section 2 of the Act with effect from April 1, 1987, defining "public sector company", which expression has been used in the newly inserted clause (10C) of section 10. In view of the simultaneous definition of "public sector company" in the Act, there can be no occasion to construe this expression differently without which a private sector company cannot be included in it. It is, therefore, not possible to construe the impugned provision while upholding its validity in such a manner as to include a private sector company also within its | 0 | 9,592 | 1,283 | ### 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 benefit only to a few in the same class denying the same to those left out does not arise. 19. We shall now refer to some other clauses of section 10 of the Act to which reference was made at the hearing in support of the rival contentions. Sub-clause (i) of clause (10) of section 10 confines the benefit thereunder only to the Government servants, defence personnel and employees of a local authority. Sub-clause (i) of clause (10A) similarly confines the benefit to Government servants, defence personnel and employees of local authority or a corporation established by a statute. Clause (10A) also makes a distinction between the Government employees and other employees. Clause (10B) also removes the limit in respect of any payment as retrenchment compensation under a scheme approved by the Central Government. Some other clauses in section 10 of the Act further show that the scheme of section 10 contemplates a distinction between the employees based on the category of their employer. Accordingly, clause (10C) therein is not a departure from the existing scheme but in conformity with some clauses earlier enacted thereinOnce the impugned provision contained in the newly inserted clause (10C) of section 10 of the Income-tax Act, 1961, is viewed in the above perspective, keeping in mind the true object of the provision, there is no foundation for the argument that it is either discriminatory or arbitrary. There is a definite purpose for its enactment. One of the purposes is streamlining the public sector to cure it of one of its ailments of overstaffing which is realised from experience of almost four decades of its functioning. In view of the role attributed to the public sector in the sphere of national economy, improvement in the functioning thereof must be achieved in all possible ways. A measure adopted to cure it of one of its ailments is undoubtedly a forward step towards promoting the national economy. The provision is an incentive to the unwanted personnel to seek voluntary retirement thereby enabling the public sector to achieve the true object indicated. The personnel seeking voluntary retirement no doubt get a tax benefit but then that is an incentive for seeking voluntary retirement and at any rate that is an effect of the provision or its fall-out and not its true object. It is similar to the incentive given to the taxpayers to invest in the public sector bonds by non-inclusion of the interest earned thereon in the taxpayers total income which promotes the true object of raising the resources of the public sector for its growth and modernisation. The real distinction between the true object of an enactment and the effect thereof, even though appearing to be blurred at times, has to be borne in mind, particularly in a situation like this. With this perspective, keeping in view the true object of the impugned enactment, there is no doubt that employees of the private sector who are left out of the ambit of the impugned provision do not fall in the same class as employees of the public sector and the benefit of the fall-out of the provision being available only to the public sector employees cannot render the classification invalid or arbitrary. This classification cannot, therefore, be faultedSome of the cases cited by the petitioners in support of the contention of equality of employees in the public and private sectors in the present context also are inapplicable. The decision in Hindustan Antibiotics Ltd. v. Workmen [1966-67] 30 FJR 461 ; 1967 (1) SCR 652 , related to wage fixation and is distinguishable. S. K. Dutta, ITO v. Lawrence Singh Ingty was distinguished and explained in ITO v. N. Takin Roy Rymbai relied on by us. Moreover, ITO v. N. Takin Roy Rymbai which also related to a provision in section 10 of the Income-tax Act, 1961, itself says as under (at pp. 89, 90) "Classification or purposes of taxation or for exempting from tax with reference to the source of the income is integral to the fundamental scheme of the Income-tax Act. Indeed, the entire warp and woof of the 1961 Act has been woven on this pattern." "... Suffice it to say that classification of sources of income is integral to the basic scheme of the 1961 Act. It is nobodys case that the entire scheme of the Act is irrational and violative of article 14 of the Constitution. Such an extravagant contention has not been canvassed before us. Thus, the classification made by the aforesaid sub-clause (a) for purposes of exemption is not unreal or unknown. It conforms to a well-recognised pattern. It is based on intelligible differentia. The object of this differentiation between income accruing or received from a source in the specified areas and the income accruing or received from a source outside such areas, is to benefit not only the members of the Scheduled Tribes residing in the specified areas but also to benefit economically such areas..." * 20. The other submission of the petitioners is to read the provision in manner which would cover all employees including employees of the private sector within the ambit of the impugned provision. This further question does not arise in view of our conclusion that there is no discrimination made out. We may, however, mention that the Finance Bill, 1987, while inserting a new clause (10C) in section 10 of the Income-tax Act simultaneously inserted a new clause (36A) in section 2 of the Act with effect from April 1, 1987, defining "public sector company", which expression has been used in the newly inserted clause (10C) of section 10. In view of the simultaneous definition of "public sector company" in the Act, there can be no occasion to construe this expression differently without which a private sector company cannot be included in it. It is, therefore, not possible to construe the impugned provision while upholding its validity in such a manner as to include a private sector company also within its ambit. Consequently,
### Response:
0
### Explanation:
introduced in Parliament, can be used for "the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation." Similarly, in Pannalal Binjraj v. Union of India a challenge to the validity of classification was repelled placing reliance on an affidavit filed on behalf of the Central Board of Revenue disclosing the true object of enacting the impugned provision in the Income-tax ActNot only this, to sustain the presumption of constitutionality, consideration may be had even to matters of common knowledge, the history of the times and every conceivable state of facts existing at the time of legislation which can be assumed. Even though, for the purpose of construing the meaning of the enacted provision, it is not permissible to use these aids, yet it is permissible to look into the historical facts and surrounding circumstances for ascertaining the evil sought to be remedied. The distinction between the purpose or object of the legislation and the legislative intention, indicated earlier, is significant in this exercise to emphasise the availability of larger material to the court for reliance when determining the purpose or object of the legislation as distinguished from the meaning of the enactedis useful to remember that the country having opted for mixed economy, the healthy and vigorous functioning of the public sector undertakings is conducive to the benefit of the private sector as well, in addition, to promoting the well-being of the national economy. A point of view emerging currently is that just as public sector undertakings are outside the purview of the Monopolies and Restrictive Trade Practices Act by virtue of the exemption conferred on them, the Income-tax Act should confer similar exemption to it from tax liability by suitable amendment in section 10 of the Act as is given to local authorities, housing boards, etc. This view is supported on the ground that the exemption from tax liability of public sector undertakings would ultimately benefit the consumers of the products of the public sector undertakings. This is not an irrelevant circumstance to indicate that, according to the general perception, there is a distinction between the public and private sectors. In some earlier decisions of this court, the public sector has been treated as a distinct class for the purpose of exemption under statutesIn Hindustan Paper Corporation Ltd. v. Government of Kerala a provision granting exemption to Government companies and co-operative societies alone for selling forest produce at less than the selling price fixed under the Kerala Forest Produce (Fixation of Selling Price) Act, 1978, was held to be constitutionally valid and not violative of articles 14 and 19(1)(g) of the Constitution of India. It was held that the Government or public sector undertakings formed a distinctis clear that Government or public sector undertakings have been treated as a distinct class separate from those in the private sector and the fact that the profit earned in the former is for public benefit instead of private benefit, provides an intelligible differentia, from the social point of view which is of prime importance for the national economy. Thus, there exists an intelligible differentia between the two categories which has a rational nexus with the main object of promoting the national economic policy or the public policy. This element also appears in the impugned enactment itself wherein "economic viability of such company" is specified as the most relevant circumstance for grant of approval of the scheme by the Central Government. This intrinsic element in the provision itself supports the view that the main object thereof is to promote and improve the health of the public sector companies even though its effect is a benefit to its employeesAs already indicated, clause (10C) of section 10 of the Act itself mentions economic viability of a public sector company as the most relevant circumstance to attract the provision. The economic status of employees of a public sector company who get the benefit of the provision is also lower as compared to their counterparts in the private sector. If this be the correct perspective, as we think it is in the present case, the very foundation of the challenge to the impugned provision on the basis of economic equality of employees in both sectors is non-existent. Once the stage is reached where the differentiation is rightly made between a public sector company and a private sector company and that too essentially on the ground of economic viability of the public sector company and other relevant circumstances, the argument based on equality does not survive. This is independent of the disparity in the compensation package of employees in the private sector and the public sector. The argument of discrimination is based on initial equality between the two classes alleging bifurcation thereafter between those who stood integrated earlier as one class. This basic assumption being fallacious, the question of any hostile discrimination by granting the benefit only to a few in the same class denying the same to those left out does notother submission of the petitioners is to read the provision in manner which would cover all employees including employees of the private sector within the ambit of the impugned provision. This further question does not arise in view of our conclusion that there is no discrimination made out. We may, however, mention that the Finance Bill, 1987, while inserting a new clause (10C) in section 10 of the Income-tax Act simultaneously inserted a new clause (36A) in section 2 of the Act with effect from April 1, 1987, defining "public sector company", which expression has been used in the newly inserted clause (10C) of section 10. In view of the simultaneous definition of "public sector company" in the Act, there can be no occasion to construe this expression differently without which a private sector company cannot be included in it. It is, therefore, not possible to construe the impugned provision while upholding its validity in such a manner as to include a private sector company also within its
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Smt. Lachi Tewari and Others Vs. Director of Land Records and Others | 1. Special leave granted.2. When a notice was ordered to be issued in this case a specific direction was given that the notice must recite that the matter will be finally heard on that day. Such a notice has been served on the respondents. Yet respondents have not entered appearance. We, therefore, see no justification for serving a fresh notice, and proceed to dispose of the matter finally.3. One Dwarika Nath Tewari, who is now dead, had obtained rule nisi in Civil Rule No. 217 of 1976 in the High Court of Assam, Nagaland, Meghalaya. Manipur & Tripura. When rule nisi came up for hearing on April 21, 1983 which appears to be the first day of hearing after the rule was issued, the learned Judges of the Division Bench of the High Court made an order which reads as under :None to press this application. Accordingly the same is rejected. The rule is discharged. That stay order granted by this Court on May 6, 1976 stands vacated.It appears that soon thereafter within a span of about 10 days an application was moved on behalf of the petitioner pointing out to the Court the circumstances in which neither the petitioner nor his three learned counsel were present and sought the indulgence of the Court to recall the order dated April 21, 1983 on the ground that April 21, 1983 happened to be a day on which the Court reopened after Bihu holidays and that the learned senior counsel who had gone to Calcutta during the vacation and not been able to return on account of the irregularity of air services. It was further stated that the two other learned counsel were busy in Court Nos. 2 and 3 when the matter was called for hearing and a request was made to pass over the matter. This ground did not find favour with the learned Judges of the High Court and the application for recalling the order was rejected. Hence this appeal by special leave.4. The mere narration of facts would attention on what point is involved in this appeal. The petitioner obtained rule nisi in 1976 and waited for 7 years for its being heard. Suddenly one day the High Court consistent with its calendar fixed the matter for hearing on April 21, 1983. The petitioner had taken extra caution to engage three learned counsels. We fail to see what more can be expected of him. Further we fail to understand what more steps should he have taken in the matter to avoid being thrown out unheard. In Rafiq v. Munshilal ((1981) 3 SCR 509 : (1981) 2 SCC 788 : AIR 1981 SC 1402) this Court succinctly brought out this aspect. Says the Court : (SCC p. 789, para 3)The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefor, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.Again in Goswami Krishna Murarilal Sharma v. Dhan Prakash ((1981) 4 SCC 574 ) this Court reiterated this very principal. And that squarely applies to the facts of this case. On this short ground we allow this appeal, set aside the order of the High Court dated April 21, 1983 as also the order refusing to recall the earlier order dated May 2, 1983 and restore the civil rule to the file of the High Court to be disposed of by the High Court on merits consistent with its calendar.5. Earlier when the rule nisi was issued some interim relief was granted by the High Court which stood vacated when the matter was rejected for non-prosecution. Now when we restore the rule the interim order shall stand revived. | 1[ds]The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefor, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.Again in Goswami Krishna Murarilal Sharma v. Dhan Prakash ((1981) 4 SCC 574 ) this Court reiterated this very principal. And that squarely applies to the facts of this case. On this short ground we allow this appeal, set aside the order of the High Court dated April 21, 1983 as also the order refusing to recall the earlier order dated May 2, 1983 and restore the civil rule to the file of the High Court to be disposed of by the High Court on merits consistent with its calendar.5. Earlier when the rule nisi was issued some interim relief was granted by the High Court which stood vacated when the matter was rejected forNow when we restore the rule the interim order shall stand revived. | 1 | 846 | 339 | ### 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:
1. Special leave granted.2. When a notice was ordered to be issued in this case a specific direction was given that the notice must recite that the matter will be finally heard on that day. Such a notice has been served on the respondents. Yet respondents have not entered appearance. We, therefore, see no justification for serving a fresh notice, and proceed to dispose of the matter finally.3. One Dwarika Nath Tewari, who is now dead, had obtained rule nisi in Civil Rule No. 217 of 1976 in the High Court of Assam, Nagaland, Meghalaya. Manipur & Tripura. When rule nisi came up for hearing on April 21, 1983 which appears to be the first day of hearing after the rule was issued, the learned Judges of the Division Bench of the High Court made an order which reads as under :None to press this application. Accordingly the same is rejected. The rule is discharged. That stay order granted by this Court on May 6, 1976 stands vacated.It appears that soon thereafter within a span of about 10 days an application was moved on behalf of the petitioner pointing out to the Court the circumstances in which neither the petitioner nor his three learned counsel were present and sought the indulgence of the Court to recall the order dated April 21, 1983 on the ground that April 21, 1983 happened to be a day on which the Court reopened after Bihu holidays and that the learned senior counsel who had gone to Calcutta during the vacation and not been able to return on account of the irregularity of air services. It was further stated that the two other learned counsel were busy in Court Nos. 2 and 3 when the matter was called for hearing and a request was made to pass over the matter. This ground did not find favour with the learned Judges of the High Court and the application for recalling the order was rejected. Hence this appeal by special leave.4. The mere narration of facts would attention on what point is involved in this appeal. The petitioner obtained rule nisi in 1976 and waited for 7 years for its being heard. Suddenly one day the High Court consistent with its calendar fixed the matter for hearing on April 21, 1983. The petitioner had taken extra caution to engage three learned counsels. We fail to see what more can be expected of him. Further we fail to understand what more steps should he have taken in the matter to avoid being thrown out unheard. In Rafiq v. Munshilal ((1981) 3 SCR 509 : (1981) 2 SCC 788 : AIR 1981 SC 1402) this Court succinctly brought out this aspect. Says the Court : (SCC p. 789, para 3)The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefor, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.Again in Goswami Krishna Murarilal Sharma v. Dhan Prakash ((1981) 4 SCC 574 ) this Court reiterated this very principal. And that squarely applies to the facts of this case. On this short ground we allow this appeal, set aside the order of the High Court dated April 21, 1983 as also the order refusing to recall the earlier order dated May 2, 1983 and restore the civil rule to the file of the High Court to be disposed of by the High Court on merits consistent with its calendar.5. Earlier when the rule nisi was issued some interim relief was granted by the High Court which stood vacated when the matter was rejected for non-prosecution. Now when we restore the rule the interim order shall stand revived.
### Response:
1
### Explanation:
The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefor, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.Again in Goswami Krishna Murarilal Sharma v. Dhan Prakash ((1981) 4 SCC 574 ) this Court reiterated this very principal. And that squarely applies to the facts of this case. On this short ground we allow this appeal, set aside the order of the High Court dated April 21, 1983 as also the order refusing to recall the earlier order dated May 2, 1983 and restore the civil rule to the file of the High Court to be disposed of by the High Court on merits consistent with its calendar.5. Earlier when the rule nisi was issued some interim relief was granted by the High Court which stood vacated when the matter was rejected forNow when we restore the rule the interim order shall stand revived.
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Babu & Others Vs. State rep. by Inspector of Police, Chennai | and registered Crl No.181/2004 under Sections 147, 148, 341, 324 and 302, IPC. The complaint written by PW-1 has been marked as Ext.P-1 and the printed FIR prepared by PW-13 has been marked as Ext.P-21. PW-13 has further stated that the printed FIR was sent to the 5th Metropolitan Magistrate and the copies were sent to the higher officials concerned and immediately he visited the place of occurrence at 11.30 p.m. The evidence of PW-13 is supported by the evidence of PW-1 who has stated that after his brother died, he informed his house and informed the police at K.4 Anna Nagar Police Station and the police came and saw the place at which the murder was committed. In his cross examination, however, he has stated that Sub-Inspector had written the FIR and that he did not know the name of the Sub-Inspector and he saw the Inspector on the next day and when he lodged the complaint he has not seen the Inspector. On a reading of the evidence of PW-1, in its entirety, one can only come to the conclusion that the FIR was lodged by PW-1 on 25.01.2004 soon after the incident between 10.30 p.m. to 11 p.m. but PW-1 was confused as to the designation of the officer before whom he lodged the FIR, the Sub-Inspector or the Inspector. We have, therefore, no doubt that the FIR was lodged at the K.4 Police Station within half an hour of the incident on 25.01.2004. Hence, the decision of this Court in Meharaj Singh (L/Nk.) etc. v. State of U.P. (supra) that where there is delay in lodging of the FIR, there is danger of introduction of a false prosecution story does not apply to the facts of the present case.16. We also do not find any merit in the submission of learned counsel for the appellants that there was no evidence to show that at the residence of the deceased there was a telephone through which the wife of the deceased received the threat call from A-1 at 5.30 p.m. on 25.01.2004. PW-1 has stated that the wife of the deceased Vijayalakshmi had a mobile phone and A-1 had talked over cell phone to Vijayalakshmi. Similarly, we do not find any merit in the submission of learned counsel for the appellants that the prosecution case should not be believed as the knives (MO 1 to MO 5) which have been recovered had not been examined by the finger print experts to find out the real accused persons because in this case there is direct evidence of three eye witnesses, PW-1, PW-2 and PW-3, to establish beyond reasonable doubt that the appellants had struck the deceased with knives. If a defect in the investigation does not create a reasonable doubt on the guilt of the accused, the Court cannot discard the prosecution case on the ground that there was some defect in the investigation. 17. We are also not convinced with the submission of the learned counsel for the appellants that this was a case which fell under Exception 4 to Section 300, IPC. Exception 4 to Section 300, IPC is quoted hereinbelow: “Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” The language of Exception 4 to Section 300 is, thus, clear that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel provided the offender has not taken undue advantage or acted in a cruel or unusual manner. In this case, there is no evidence to show that the deceased was armed in any manner when he questioned A-1 as to why he had threatened his wife. On the other hand, the appellants were armed with knives and attacked the deceased on his head and face even after he fell down. Thus, A-1, A-2, A-3 and A-4, who were the offenders, have taken undue advantage and acted in a cruel and unusual manner towards the deceased who is not proved to have been armed. 18. Moreover, we find from the evidence of PW-7, the doctor who conducted the post mortem of the deceased on 26.01.2004 at around 12.45 hours, that he found as many as six injuries on the head and face of the deceased. These injuries are extracted hereinbelow: “Injury 1: A bruised injury in red colour admeasuring 3x2 cm on the left cheek and in 2x2 cm at the tip of the nose.Injury 2: An oblique incised injury 3x0.05 cm bone deep on the lower jaw.Injury 3: An incised injury vertical, 2x0.5 cm bone deep on the left side of the lower jaw.Injury 4: An incised injury, oblique 3x05 cm muscle deep on the lower lip on its right side.Injury 5: Several incised injuries crosswise and longitudinal. On opening it, it was found that the tissues on the cranium were found bruised and the bones of the skull fractured and brain smashed and visible from outside.Injury 6: An incised injury seen horizontally and gaping in between the eyes, 22x6 cm. on dissecting, it was found that, all the tissues, nerves and blood vessels had got cut the face was smashed and the upper jaw bone and the lower jaw bone crumbled. Both the eyes had got completely smashed and seen outside the eye-sockets. The teeth in the upper jaw and those of the lower jaw were broken and some fallen.” PW-7 has further stated that due to these injuries sustained on his head and face, the deceased would have died as has been expressed by him in the post mortem report Ext.P-7. Considering the nature of the injuries and, in particular, injury nos.5 and 6, we have no doubt that the common intention of A-1, A-2, A-3 and A-4 was to cause the death of the deceased. | 0[ds]We have considered the discrepancies in the eye-witnesses account of the occurrence given by PW-1, PW-2 and PW-3 pointed out by the learned counsel for the appellants with regard to the names and number of persons who were present at the place of occurrence when the incident took place on 25.01.2004, but we find that PW-1, PW-2 and PW-3 were examined on 21st September, 2005 more than one and a half years after the incident and it was natural for them to differ in some respects of what they saw and what they remember. As has been held by this Court in State of Rajasthan v. Smt. Kalki and Another [(1981) 2 SCC 752] , in the depositions of witnesses there are always normal discrepancies however honest and truthful the witnesses may be and these discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.15. We have also considered the contention of the learned counsel for the appellants that it is doubtful that the FIR was registered at the Police Station and that the FIR may not have been registered on 25.01.2004 but on the next day when PW-1 met the Inspector of the Police Station. We, however, find that the Inspector of Police who has been examined as PW-13 has stated very clearly in his evidence that on 25.01.2004 at 10.45 pm when he was at the Police Station, PW-1 lodged a complaint and he wrote down that complaint and read it over to PW-1 and obtained his signature and registered Crl No.181/2004 under Sections 147, 148, 341, 324 and 302, IPC. The complaint written by PW-1 has been marked as Ext.P-1 and the printed FIR prepared by PW-13 has been marked as Ext.P-21. PW-13 has further stated that the printed FIR was sent to the 5th Metropolitan Magistrate and the copies were sent to the higher officials concerned and immediately he visited the place of occurrence at 11.30 p.m. The evidence of PW-13 is supported by the evidence of PW-1 who has stated that after his brother died, he informed his house and informed the police at K.4 Anna Nagar Police Station and the police came and saw the place at which the murder was committed. In his cross examination, however, he has stated that Sub-Inspector had written the FIR and that he did not know the name of the Sub-Inspector and he saw the Inspector on the next day and when he lodged the complaint he has not seen the Inspector. On a reading of the evidence of PW-1, in its entirety, one can only come to the conclusion that the FIR was lodged by PW-1 on 25.01.2004 soon after the incident between 10.30 p.m. to 11 p.m. but PW-1 was confused as to the designation of the officer before whom he lodged the FIR, the Sub-Inspector or the Inspector. We have, therefore, no doubt that the FIR was lodged at the K.4 Police Station within half an hour of the incident on 25.01.2004. Hence, the decision of this Court in Meharaj Singh (L/Nk.) etc. v. State of U.P. (supra) that where there is delay in lodging of the FIR, there is danger of introduction of a false prosecution story does not apply to the facts of the present case.16. We also do not find any merit in the submission of learned counsel for the appellants that there was no evidence to show that at the residence of the deceased there was a telephone through which the wife of the deceased received the threat call from A-1 at 5.30 p.m. on 25.01.2004. PW-1 has stated that the wife of the deceased Vijayalakshmi had a mobile phone and A-1 had talked over cell phone to Vijayalakshmi. Similarly, we do not find any merit in the submission of learned counsel for the appellants that the prosecution case should not be believed as the knives (MO 1 to MO 5) which have been recovered had not been examined by the finger print experts to find out the real accused persons because in this case there is direct evidence of three eye witnesses, PW-1, PW-2 and PW-3, to establish beyond reasonable doubt that the appellants had struck the deceased with knives. If a defect in the investigation does not create a reasonable doubt on the guilt of the accused, the Court cannot discard the prosecution case on the ground that there was some defect in the investigation. | 0 | 4,287 | 823 | ### 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 registered Crl No.181/2004 under Sections 147, 148, 341, 324 and 302, IPC. The complaint written by PW-1 has been marked as Ext.P-1 and the printed FIR prepared by PW-13 has been marked as Ext.P-21. PW-13 has further stated that the printed FIR was sent to the 5th Metropolitan Magistrate and the copies were sent to the higher officials concerned and immediately he visited the place of occurrence at 11.30 p.m. The evidence of PW-13 is supported by the evidence of PW-1 who has stated that after his brother died, he informed his house and informed the police at K.4 Anna Nagar Police Station and the police came and saw the place at which the murder was committed. In his cross examination, however, he has stated that Sub-Inspector had written the FIR and that he did not know the name of the Sub-Inspector and he saw the Inspector on the next day and when he lodged the complaint he has not seen the Inspector. On a reading of the evidence of PW-1, in its entirety, one can only come to the conclusion that the FIR was lodged by PW-1 on 25.01.2004 soon after the incident between 10.30 p.m. to 11 p.m. but PW-1 was confused as to the designation of the officer before whom he lodged the FIR, the Sub-Inspector or the Inspector. We have, therefore, no doubt that the FIR was lodged at the K.4 Police Station within half an hour of the incident on 25.01.2004. Hence, the decision of this Court in Meharaj Singh (L/Nk.) etc. v. State of U.P. (supra) that where there is delay in lodging of the FIR, there is danger of introduction of a false prosecution story does not apply to the facts of the present case.16. We also do not find any merit in the submission of learned counsel for the appellants that there was no evidence to show that at the residence of the deceased there was a telephone through which the wife of the deceased received the threat call from A-1 at 5.30 p.m. on 25.01.2004. PW-1 has stated that the wife of the deceased Vijayalakshmi had a mobile phone and A-1 had talked over cell phone to Vijayalakshmi. Similarly, we do not find any merit in the submission of learned counsel for the appellants that the prosecution case should not be believed as the knives (MO 1 to MO 5) which have been recovered had not been examined by the finger print experts to find out the real accused persons because in this case there is direct evidence of three eye witnesses, PW-1, PW-2 and PW-3, to establish beyond reasonable doubt that the appellants had struck the deceased with knives. If a defect in the investigation does not create a reasonable doubt on the guilt of the accused, the Court cannot discard the prosecution case on the ground that there was some defect in the investigation. 17. We are also not convinced with the submission of the learned counsel for the appellants that this was a case which fell under Exception 4 to Section 300, IPC. Exception 4 to Section 300, IPC is quoted hereinbelow: “Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” The language of Exception 4 to Section 300 is, thus, clear that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel provided the offender has not taken undue advantage or acted in a cruel or unusual manner. In this case, there is no evidence to show that the deceased was armed in any manner when he questioned A-1 as to why he had threatened his wife. On the other hand, the appellants were armed with knives and attacked the deceased on his head and face even after he fell down. Thus, A-1, A-2, A-3 and A-4, who were the offenders, have taken undue advantage and acted in a cruel and unusual manner towards the deceased who is not proved to have been armed. 18. Moreover, we find from the evidence of PW-7, the doctor who conducted the post mortem of the deceased on 26.01.2004 at around 12.45 hours, that he found as many as six injuries on the head and face of the deceased. These injuries are extracted hereinbelow: “Injury 1: A bruised injury in red colour admeasuring 3x2 cm on the left cheek and in 2x2 cm at the tip of the nose.Injury 2: An oblique incised injury 3x0.05 cm bone deep on the lower jaw.Injury 3: An incised injury vertical, 2x0.5 cm bone deep on the left side of the lower jaw.Injury 4: An incised injury, oblique 3x05 cm muscle deep on the lower lip on its right side.Injury 5: Several incised injuries crosswise and longitudinal. On opening it, it was found that the tissues on the cranium were found bruised and the bones of the skull fractured and brain smashed and visible from outside.Injury 6: An incised injury seen horizontally and gaping in between the eyes, 22x6 cm. on dissecting, it was found that, all the tissues, nerves and blood vessels had got cut the face was smashed and the upper jaw bone and the lower jaw bone crumbled. Both the eyes had got completely smashed and seen outside the eye-sockets. The teeth in the upper jaw and those of the lower jaw were broken and some fallen.” PW-7 has further stated that due to these injuries sustained on his head and face, the deceased would have died as has been expressed by him in the post mortem report Ext.P-7. Considering the nature of the injuries and, in particular, injury nos.5 and 6, we have no doubt that the common intention of A-1, A-2, A-3 and A-4 was to cause the death of the deceased.
### Response:
0
### Explanation:
We have considered the discrepancies in the eye-witnesses account of the occurrence given by PW-1, PW-2 and PW-3 pointed out by the learned counsel for the appellants with regard to the names and number of persons who were present at the place of occurrence when the incident took place on 25.01.2004, but we find that PW-1, PW-2 and PW-3 were examined on 21st September, 2005 more than one and a half years after the incident and it was natural for them to differ in some respects of what they saw and what they remember. As has been held by this Court in State of Rajasthan v. Smt. Kalki and Another [(1981) 2 SCC 752] , in the depositions of witnesses there are always normal discrepancies however honest and truthful the witnesses may be and these discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.15. We have also considered the contention of the learned counsel for the appellants that it is doubtful that the FIR was registered at the Police Station and that the FIR may not have been registered on 25.01.2004 but on the next day when PW-1 met the Inspector of the Police Station. We, however, find that the Inspector of Police who has been examined as PW-13 has stated very clearly in his evidence that on 25.01.2004 at 10.45 pm when he was at the Police Station, PW-1 lodged a complaint and he wrote down that complaint and read it over to PW-1 and obtained his signature and registered Crl No.181/2004 under Sections 147, 148, 341, 324 and 302, IPC. The complaint written by PW-1 has been marked as Ext.P-1 and the printed FIR prepared by PW-13 has been marked as Ext.P-21. PW-13 has further stated that the printed FIR was sent to the 5th Metropolitan Magistrate and the copies were sent to the higher officials concerned and immediately he visited the place of occurrence at 11.30 p.m. The evidence of PW-13 is supported by the evidence of PW-1 who has stated that after his brother died, he informed his house and informed the police at K.4 Anna Nagar Police Station and the police came and saw the place at which the murder was committed. In his cross examination, however, he has stated that Sub-Inspector had written the FIR and that he did not know the name of the Sub-Inspector and he saw the Inspector on the next day and when he lodged the complaint he has not seen the Inspector. On a reading of the evidence of PW-1, in its entirety, one can only come to the conclusion that the FIR was lodged by PW-1 on 25.01.2004 soon after the incident between 10.30 p.m. to 11 p.m. but PW-1 was confused as to the designation of the officer before whom he lodged the FIR, the Sub-Inspector or the Inspector. We have, therefore, no doubt that the FIR was lodged at the K.4 Police Station within half an hour of the incident on 25.01.2004. Hence, the decision of this Court in Meharaj Singh (L/Nk.) etc. v. State of U.P. (supra) that where there is delay in lodging of the FIR, there is danger of introduction of a false prosecution story does not apply to the facts of the present case.16. We also do not find any merit in the submission of learned counsel for the appellants that there was no evidence to show that at the residence of the deceased there was a telephone through which the wife of the deceased received the threat call from A-1 at 5.30 p.m. on 25.01.2004. PW-1 has stated that the wife of the deceased Vijayalakshmi had a mobile phone and A-1 had talked over cell phone to Vijayalakshmi. Similarly, we do not find any merit in the submission of learned counsel for the appellants that the prosecution case should not be believed as the knives (MO 1 to MO 5) which have been recovered had not been examined by the finger print experts to find out the real accused persons because in this case there is direct evidence of three eye witnesses, PW-1, PW-2 and PW-3, to establish beyond reasonable doubt that the appellants had struck the deceased with knives. If a defect in the investigation does not create a reasonable doubt on the guilt of the accused, the Court cannot discard the prosecution case on the ground that there was some defect in the investigation.
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REGIONAL TRANSPORT OFFICER Vs. K. JAYACHANDRA ETC | to issue a notification and permit any person owning not less than 10 transport vehicles to alter any vehicle owned by him so as to replace the ‘engine? with an engine of the same make and type, without the approval of the Registering Authority. Section 52(3) provides that where the alteration has been made without the approval of the Registering Authority, obviously the one which is permissible in the motor vehicle, the owner of the vehicle has to report the same within 14 days to make an entry in the particulars of the registration. The provisions of section 52(2), (3), (4) and (5) have to be read harmoniously. The Explanation to section 52 says that ?alteration? means a change in the structure of a vehicle which results in a change in its basic feature. The alterations which do not change the basic features are outside the purview of alteration. 28. The object and the clear intent of amended section 52 is that the vehicle cannot be so altered that the particulars contained in the certificate of registration are at variance with those ?originally specified by the manufacturer?. The manufacturer issues sale certificate in Form 21 which has been framed under Rule 47(1)(a) of the Central Rules. Rule 47(1)(a) is extracted hereunder : ?47.Application for registration of motor vehicles.-- (1) An application for registration of a motor vehicle shall be made in Form 20 to the registering authority within a period of 1[seven days] from the date of taking delivery of such vehicle, excluding the period of journey and shall be accompanied by-- (a) sale certificate in Form 21;? 29. The particulars are to be specified by the manufacturer. An application for registration of the motor vehicle has to be filed in Form 20. It has to accompany a sale certificate issued by the manufacturer or dealer etc. as the case may be as provided in Rule 47(1)(a) and (d). Form 20 is extracted hereunder: chart 30. Form 21 as provided in Rule 47(a) and (d) contain sale certificate issued by the manufacturer same is extracted hereunder: chart 31. The certificate of registration has to be issued in Form 23 as provided in Rule 48 of the Central Rules. Rule 48 deals with the issue of the certificate of registration under Rule 47. Rule 48 is extracted hereunder : ?48. Issue of certificate of registration.-- On receipt of an application under rule 47 and after verification of the documents furnished therewith, the registering authority shall, subject to the provisions of section 44, issue to the owner of the motor vehicle a certificate of registration in Form 23 or Form 23A, as may be specified in the Notification issued by the concerned State Government or Union Territory Administration [within the period of thirty days from the receipt of such an application]: [Provided that where the certificate of registration pertains to a transport vehicle it shall be handed over to the registered owner only after recording the certificate of fitness in Form 38 [within the period of thirty days from the date of receipt of such an application].]? 32. The vehicle has to comply with the provisions of the Rules contained in Chapter V of the Central Rules as provided in Rule 92(1). Rule 92(1) has to be read as subservient to the provisions contained in section 52 of the Act and what is prohibited therein to allow the same is not the intendment of the rules contained in the Chapter. Various provisions in Chapter V are additional safeguards to what is prohibited in section 52(1) that is to say, what has been specified originally by the manufacturers and once that has been entered in the particulars in the certificate of registration, cannot be varied. No vehicle can be altered so as to change original specification made by manufacturer. Such particulars cannot be altered which have been specified by the manufacturer for the purpose of entry in the certificate of registration. It is provided in Rule 126 of the Central Rules, prototype of every type of vehicle is subject to test. The provisions of Rule 126 intend for fitness of vehicle to be plied on the road by the agencies which are specified therein. Approval and certification of motor vehicles for compliance to these rules shall be in accordance with the AIS: 017-2000. Rule 93 deals with overall dimensions of the motor vehicles such as width, length, height, overhang etc. No doubt about it that the vehicle has to be in conformity with the rules also but Rules cannot be so interpreted so as to permit the alteration as prohibited under section 52(1) of the Act. The alteration under the Rules is permissible except as prohibited by section 52. The specification of the rules would hold good with respect to the matters as not specifically covered under section 52(1) and not specified therein by manufacturer. The emphasis of section 52(1) is not to vary the ?original specifications by the manufacturer?. Remaining particulars in a certificate of registration can be modified and changed and can be noted in the certificate of registration as provided in section 52(2), (3) and (5) and the Rules. Under section 52(5), in case a person is holding a vehicle on a hire purchase agreement, he shall not make any alteration except with the written consent of the original owner. 33. In our considered opinion the Division Bench in the impugned judgment of the High Court of Kerala has failed to give effect to the provisions contained in section 52(1) and has emphasized only on the Rules. As such, the decision rendered by the Division Bench cannot be said to be laying down the law correctly. The Rules are subservient to the provisions of the Act and particulars in certificate of registration can also be changed except to the extent of the entries made in the same as per the specifications originally made by the manufacturer. Circular No.7/2006 is also to be read in that spirit. Authorities to act accordingly. | 1[ds]17. The Division Bench of the High Court in the impugned judgment has opined that alteration is not totally prohibited. More so, in view of Rules 96 and 103 of the Kerala Rules, the Registering Authority is competent to consider roadworthiness and safety of the vehicle and it cannot be rendered a mechanical exercise. It is not only to verify as to whether the measurement conforms to the prototype test etc. The Rules provide for the dimensions of the vehicle. Rule 93 is not an enabling provision to make prototype certification. Rule 47(1)(g) of the Central Rules contemplates on road-worthiness certificate in Form 22 from the manufacturers and in Form 22A from the bodybuilders for applying for registration of the motor vehicles. The body can be built on a chassis in compliance with the provisions of the Motor Vehicles Act and the Rules framed thereunder. The manufacturer or the authorities specified under Rule 126 do not provide for any prescription as to the dimensions or nature of the body that is to be built on the chassis. The writ petitions have been allowed and orders passed by the Registering Authorities have been quashed.It has been observed that the Rules deal in minute details with the construction and maintenance of the vehicle. Rules also deal with the safety of other users on the road. If some individual interest is likely to suffer, such individual interest must give way to the larger public interest.It has been observed by the High Court of Madras that an alternation in the vehicle is not permissible which may be at variance with the particulars contained in the certificate of registration which contains vital particulars of the vehicle and the permissible changes or modifications and which do not result in change in the basic feature, need not be considered as alternation within the meaning of section 52 of the Amended Act.The decision in the case of K.S. Rajesh Kumar v. The Additional Registering Authority of Kerala High Court delivered on 1.2.2010 has also been referred to wherein the question of alteration in the vehicle came up for consideration. The passenger vehicle was purchased as defined in section 2(17) of the M.V . Act. The petitioner wanted to convert the same into the vehicle that could be used as a cinema outdoor unit by fixing a generator set therein. The Court held that the petitioner has not made any alteration to either the chassis or the body of the vehicle as the manufacturer has manufactured only the chassis of the vehicle and not its superstructure. In place of the seats meant for passengers, the petitioner was fitting only a generator which alteration was permissible. There was no violation of the provisions of section 52.The decision in Mohd. Javeed v. Union of India & Ors. (2001) 9 ALD 88 = 2009 1 ALT 507 has also been referred by the learned amicus curiae. In the said case chassis were changed. The Court held that the chassis is the base frame of a motor vehicle and no doubt is an important feature of the vehicle. Whether the change of the chassis would amount to change in the structure of the vehicle. The replacement became necessary on account of the accident. There was no other change in the structure of the vehicle. It was held that section 52(3) enables the owner of the vehicle to replace the engine of the vehicle but the factum of replacement has to be reported to the Authority within 14 days. On the same analogy, the Court held that the chassis was changed by the manufacturer with the approval of the insurance company and the bank and change became necessary due to the damage caused to the chassis owing to the accident. Thus the refusal of registration was held to be bad in law and set aside. In fact, there was no change of chassis except the replacement in the said case.In our considered opinion the Division Bench in the impugned judgment of the High Court of Kerala has failed to give effect to the provisions contained in section 52(1) and has emphasized only on the Rules. As such, the decision rendered by the Division Bench cannot be said to be laying down the law correctly. The Rules are subservient to the provisions of the Act and particulars in certificate of registration can also be changed except to the extent of the entries made in the same as per the specifications originally made by the manufacturer. Circular No.7/2006 is also to be read in that spirit. Authorities to act accordingly. | 1 | 8,498 | 828 | ### 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:
to issue a notification and permit any person owning not less than 10 transport vehicles to alter any vehicle owned by him so as to replace the ‘engine? with an engine of the same make and type, without the approval of the Registering Authority. Section 52(3) provides that where the alteration has been made without the approval of the Registering Authority, obviously the one which is permissible in the motor vehicle, the owner of the vehicle has to report the same within 14 days to make an entry in the particulars of the registration. The provisions of section 52(2), (3), (4) and (5) have to be read harmoniously. The Explanation to section 52 says that ?alteration? means a change in the structure of a vehicle which results in a change in its basic feature. The alterations which do not change the basic features are outside the purview of alteration. 28. The object and the clear intent of amended section 52 is that the vehicle cannot be so altered that the particulars contained in the certificate of registration are at variance with those ?originally specified by the manufacturer?. The manufacturer issues sale certificate in Form 21 which has been framed under Rule 47(1)(a) of the Central Rules. Rule 47(1)(a) is extracted hereunder : ?47.Application for registration of motor vehicles.-- (1) An application for registration of a motor vehicle shall be made in Form 20 to the registering authority within a period of 1[seven days] from the date of taking delivery of such vehicle, excluding the period of journey and shall be accompanied by-- (a) sale certificate in Form 21;? 29. The particulars are to be specified by the manufacturer. An application for registration of the motor vehicle has to be filed in Form 20. It has to accompany a sale certificate issued by the manufacturer or dealer etc. as the case may be as provided in Rule 47(1)(a) and (d). Form 20 is extracted hereunder: chart 30. Form 21 as provided in Rule 47(a) and (d) contain sale certificate issued by the manufacturer same is extracted hereunder: chart 31. The certificate of registration has to be issued in Form 23 as provided in Rule 48 of the Central Rules. Rule 48 deals with the issue of the certificate of registration under Rule 47. Rule 48 is extracted hereunder : ?48. Issue of certificate of registration.-- On receipt of an application under rule 47 and after verification of the documents furnished therewith, the registering authority shall, subject to the provisions of section 44, issue to the owner of the motor vehicle a certificate of registration in Form 23 or Form 23A, as may be specified in the Notification issued by the concerned State Government or Union Territory Administration [within the period of thirty days from the receipt of such an application]: [Provided that where the certificate of registration pertains to a transport vehicle it shall be handed over to the registered owner only after recording the certificate of fitness in Form 38 [within the period of thirty days from the date of receipt of such an application].]? 32. The vehicle has to comply with the provisions of the Rules contained in Chapter V of the Central Rules as provided in Rule 92(1). Rule 92(1) has to be read as subservient to the provisions contained in section 52 of the Act and what is prohibited therein to allow the same is not the intendment of the rules contained in the Chapter. Various provisions in Chapter V are additional safeguards to what is prohibited in section 52(1) that is to say, what has been specified originally by the manufacturers and once that has been entered in the particulars in the certificate of registration, cannot be varied. No vehicle can be altered so as to change original specification made by manufacturer. Such particulars cannot be altered which have been specified by the manufacturer for the purpose of entry in the certificate of registration. It is provided in Rule 126 of the Central Rules, prototype of every type of vehicle is subject to test. The provisions of Rule 126 intend for fitness of vehicle to be plied on the road by the agencies which are specified therein. Approval and certification of motor vehicles for compliance to these rules shall be in accordance with the AIS: 017-2000. Rule 93 deals with overall dimensions of the motor vehicles such as width, length, height, overhang etc. No doubt about it that the vehicle has to be in conformity with the rules also but Rules cannot be so interpreted so as to permit the alteration as prohibited under section 52(1) of the Act. The alteration under the Rules is permissible except as prohibited by section 52. The specification of the rules would hold good with respect to the matters as not specifically covered under section 52(1) and not specified therein by manufacturer. The emphasis of section 52(1) is not to vary the ?original specifications by the manufacturer?. Remaining particulars in a certificate of registration can be modified and changed and can be noted in the certificate of registration as provided in section 52(2), (3) and (5) and the Rules. Under section 52(5), in case a person is holding a vehicle on a hire purchase agreement, he shall not make any alteration except with the written consent of the original owner. 33. In our considered opinion the Division Bench in the impugned judgment of the High Court of Kerala has failed to give effect to the provisions contained in section 52(1) and has emphasized only on the Rules. As such, the decision rendered by the Division Bench cannot be said to be laying down the law correctly. The Rules are subservient to the provisions of the Act and particulars in certificate of registration can also be changed except to the extent of the entries made in the same as per the specifications originally made by the manufacturer. Circular No.7/2006 is also to be read in that spirit. Authorities to act accordingly.
### Response:
1
### Explanation:
17. The Division Bench of the High Court in the impugned judgment has opined that alteration is not totally prohibited. More so, in view of Rules 96 and 103 of the Kerala Rules, the Registering Authority is competent to consider roadworthiness and safety of the vehicle and it cannot be rendered a mechanical exercise. It is not only to verify as to whether the measurement conforms to the prototype test etc. The Rules provide for the dimensions of the vehicle. Rule 93 is not an enabling provision to make prototype certification. Rule 47(1)(g) of the Central Rules contemplates on road-worthiness certificate in Form 22 from the manufacturers and in Form 22A from the bodybuilders for applying for registration of the motor vehicles. The body can be built on a chassis in compliance with the provisions of the Motor Vehicles Act and the Rules framed thereunder. The manufacturer or the authorities specified under Rule 126 do not provide for any prescription as to the dimensions or nature of the body that is to be built on the chassis. The writ petitions have been allowed and orders passed by the Registering Authorities have been quashed.It has been observed that the Rules deal in minute details with the construction and maintenance of the vehicle. Rules also deal with the safety of other users on the road. If some individual interest is likely to suffer, such individual interest must give way to the larger public interest.It has been observed by the High Court of Madras that an alternation in the vehicle is not permissible which may be at variance with the particulars contained in the certificate of registration which contains vital particulars of the vehicle and the permissible changes or modifications and which do not result in change in the basic feature, need not be considered as alternation within the meaning of section 52 of the Amended Act.The decision in the case of K.S. Rajesh Kumar v. The Additional Registering Authority of Kerala High Court delivered on 1.2.2010 has also been referred to wherein the question of alteration in the vehicle came up for consideration. The passenger vehicle was purchased as defined in section 2(17) of the M.V . Act. The petitioner wanted to convert the same into the vehicle that could be used as a cinema outdoor unit by fixing a generator set therein. The Court held that the petitioner has not made any alteration to either the chassis or the body of the vehicle as the manufacturer has manufactured only the chassis of the vehicle and not its superstructure. In place of the seats meant for passengers, the petitioner was fitting only a generator which alteration was permissible. There was no violation of the provisions of section 52.The decision in Mohd. Javeed v. Union of India & Ors. (2001) 9 ALD 88 = 2009 1 ALT 507 has also been referred by the learned amicus curiae. In the said case chassis were changed. The Court held that the chassis is the base frame of a motor vehicle and no doubt is an important feature of the vehicle. Whether the change of the chassis would amount to change in the structure of the vehicle. The replacement became necessary on account of the accident. There was no other change in the structure of the vehicle. It was held that section 52(3) enables the owner of the vehicle to replace the engine of the vehicle but the factum of replacement has to be reported to the Authority within 14 days. On the same analogy, the Court held that the chassis was changed by the manufacturer with the approval of the insurance company and the bank and change became necessary due to the damage caused to the chassis owing to the accident. Thus the refusal of registration was held to be bad in law and set aside. In fact, there was no change of chassis except the replacement in the said case.In our considered opinion the Division Bench in the impugned judgment of the High Court of Kerala has failed to give effect to the provisions contained in section 52(1) and has emphasized only on the Rules. As such, the decision rendered by the Division Bench cannot be said to be laying down the law correctly. The Rules are subservient to the provisions of the Act and particulars in certificate of registration can also be changed except to the extent of the entries made in the same as per the specifications originally made by the manufacturer. Circular No.7/2006 is also to be read in that spirit. Authorities to act accordingly.
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State Of U.P. And Others Vs. Sri Narain | that R. 8A makes it mandatory for the Agricultural Income-tax Officer to realise the agricultural income-tax due from the compensation payable and that compensation continues to be payable till the Bonds are actually encashed. 10. Section 6(d) of the Act, as originally enacted, did not provide, among the consequences of the vesting of the estate in the State, that arrears on account of Agricultural income-tax might be realised by deducting the amount from the compensation money payable to the intermediary under Chapter III. An amendment was made in this clause (d) by S. 3 of U.P. Act XVI of 1953, with retrospective effect from July 1, 1952, and the relevant portion of the provision after amendment reads, thus: an arrear of revenue. . . . . . . , or an arrear on account of tax on agricultural income assessed under the U.P. Agricultural Income-tax Act, 1948 for any, period prior to the date of vesting shall continue to be recoverable from such intermediary and may, without prejudice to any other mode of recovery be realised by deducting the amount from the compensation money payable to such intermediary under Chapter III. 11. Rule 8A was added to the rules by Notification No. 3266/I-A-1056-1954 dated August 17, 1954 and its relevant portions read; 8-A. Without prejudice to the right of the State Government to recover the dues mentioned below by such other means, as may be open to it under law : (1) all arrears of land revenue in respect of the estates which have vested in the States Government as a result of the notification under section 4 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (Act I of 1951) and of tax on agricultural income assessed under the U. P. Agricultural Income-tax Act 1948 (U. P. Act III of 1949) due from an intermediary for any period prior to the date of vesting shall be realised: (a) in the case of an intermediary who was assessed to land reveune of Rs. 10,000 or more from the amount of interim compensation due to him, and (b) in the case of an intermediary who was assessed to a land revenue of less than Rs. 10,000 per annum by deduction from the amount of compensation payable to him; It is clear from the above provisions that neither S. 6(d) nor R. 8A provide that Bonds must or can be accepted in payment of tax on agricultural income 12. It has been held by this Court in Collector and Deputy Commr. of Sultanpur v.Raja Jagdish Pratap, Civil Appeal No. 1014 of 1963, dated 5-11-1964: (AIR 1965 SC 909 ) that the provisions of S. 6(d) of the Act would apply to arrears on account of agricultural income-tax assessed in 1360F on the basis of agricultural income during the year 1359F and that the provisions of R. 8A are mandatory. 13. It is not urged for the appellant that R. 8A is inconsistent with the provisions of S. 6(d) which provides that arrears of tax may be realised from the compensation payable and therefore appears to give a discretion to the authorities to realise the arrears of tax from the compensation payable. 14. We do not agree with the contention for the respondent that the compensation payable to the intermediary continues to remain payable even after the compensation Bonds had been delivered to him. Section 68 of the Act provides that the compensation under the Act shall be payable in cash or in bonds or partly in cash and partly in bonds as may be prescribed. It is clear therefore that the delivery of Bonds to the intermediary is in payment of the compensation. The claim for compensation is thus satisfied when the compensation had been paid in accordance with the provisions of S. 68. This is also clear from the relevant rules for the payment of compensation. 15. Rule 62, as it stood prior to November 29, 1956, provided that the compensation would be paid in negotiable bonds which would be described as Zamindari Abolition Compensation Bonds. Rule 63 as it them stood provided that the Bonds would be issued in specified denominations and would bear interest at the specified rate on the principal that had become payable calculated from the date of vesting. Rule 64 provided that interest together with the principal of a Bond would be paid in equated annual instalments except for the last, as described in Appendix IV during the period of 4o years beginning from the date of vesting, provided that any Bond might be redeemed at an earlier date at the option of the Government. Rule 65 provided that the instalments due on a Bond from the date of its entacement would be payable on presentation from and after July 1st next after the delivery of the Bend to the intermediary. 16. These rules show that the compensation does not remain payable after the delivery of the Bonds and that the Bonds could not be cashed before the due date for their encashment. 17. The fact that the, Bonds are negotiable does not make them legal tender does not make it obligatory on anyone including Government, to accept them in payment of any dues. The only result of their being treated as negotiable instruments is that the owner of them Bonds can transfer them to any person who is agreeable to purchase them. 18. When the compensation payable to an intermediary has been paid in the form of cash or Bonds, that compensation ceases to be payable. Section 6 (d) of the Act and R. 8A of the rules do not, as already stated, provide for the receipt of agricultural income-tax in the form of Bonds. 19. We are therefore of opinion that the Collector cannot be said to be in error in not accepting the Bonds which had been delivered and which were not even cashable at the time, in payment of the arrears of agricultural income-tax payable under the Agricultural Income-tax Act. | 1[ds]13. It is not urged for the appellant that R. 8A is inconsistent with the provisions of S. 6(d) which provides that arrears of tax may be realised from the compensation payable and therefore appears to give a discretion to the authorities to realise the arrears of tax from the compensation payable14. We do not agree with the contention for the respondent that the compensation payable to the intermediary continues to remain payable even after the compensation Bonds had been delivered to him. Section 68 of the Act provides that the compensation under the Act shall be payable in cash or in bonds or partly in cash and partly in bonds as may be prescribed. It is clear therefore that the delivery of Bonds to the intermediary is in payment of the compensation. The claim for compensation is thus satisfied when the compensation had been paid in accordance with the provisions of S. 68. This is also clear from the relevant rules for the payment of compensation15. Rule 62, as it stood prior to November 29, 1956, provided that the compensation would be paid in negotiable bonds which would be described as Zamindari Abolition Compensation Bonds. Rule 63 as it them stood provided that the Bonds would be issued in specified denominations and would bear interest at the specified rate on the principal that had become payable calculated from the date of vesting. Rule 64 provided that interest together with the principal of a Bond would be paid in equated annual instalments except for the last, as described in Appendix IV during the period of 4o years beginning from the date of vesting, provided that any Bond might be redeemed at an earlier date at the option of the Government. Rule 65 provided that the instalments due on a Bond from the date of its entacement would be payable on presentation from and after July 1st next after the delivery of the Bend to the intermediary16. These rules show that the compensation does not remain payable after the delivery of the Bonds and that the Bonds could not be cashed before the due date for their encashment17. The fact that the, Bonds are negotiable does not make them legal tender does not make it obligatory on anyone including Government, to accept them in payment of any dues. The only result of their being treated as negotiable instruments is that the owner of them Bonds can transfer them to any person who is agreeable to purchase them18. When the compensation payable to an intermediary has been paid in the form of cash or Bonds, that compensation ceases to be payable. Section 6 (d) of the Act and R. 8A of the rules do not, as already stated, provide for the receipt of agricultural income-tax in the form of Bonds19. We are therefore of opinion that the Collector cannot be said to be in error in not accepting the Bonds which had been delivered and which were not even cashable at the time, in payment of the arrears of agricultural income-tax payable under the Agricultural Income-tax Act. | 1 | 2,076 | 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:
that R. 8A makes it mandatory for the Agricultural Income-tax Officer to realise the agricultural income-tax due from the compensation payable and that compensation continues to be payable till the Bonds are actually encashed. 10. Section 6(d) of the Act, as originally enacted, did not provide, among the consequences of the vesting of the estate in the State, that arrears on account of Agricultural income-tax might be realised by deducting the amount from the compensation money payable to the intermediary under Chapter III. An amendment was made in this clause (d) by S. 3 of U.P. Act XVI of 1953, with retrospective effect from July 1, 1952, and the relevant portion of the provision after amendment reads, thus: an arrear of revenue. . . . . . . , or an arrear on account of tax on agricultural income assessed under the U.P. Agricultural Income-tax Act, 1948 for any, period prior to the date of vesting shall continue to be recoverable from such intermediary and may, without prejudice to any other mode of recovery be realised by deducting the amount from the compensation money payable to such intermediary under Chapter III. 11. Rule 8A was added to the rules by Notification No. 3266/I-A-1056-1954 dated August 17, 1954 and its relevant portions read; 8-A. Without prejudice to the right of the State Government to recover the dues mentioned below by such other means, as may be open to it under law : (1) all arrears of land revenue in respect of the estates which have vested in the States Government as a result of the notification under section 4 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (Act I of 1951) and of tax on agricultural income assessed under the U. P. Agricultural Income-tax Act 1948 (U. P. Act III of 1949) due from an intermediary for any period prior to the date of vesting shall be realised: (a) in the case of an intermediary who was assessed to land reveune of Rs. 10,000 or more from the amount of interim compensation due to him, and (b) in the case of an intermediary who was assessed to a land revenue of less than Rs. 10,000 per annum by deduction from the amount of compensation payable to him; It is clear from the above provisions that neither S. 6(d) nor R. 8A provide that Bonds must or can be accepted in payment of tax on agricultural income 12. It has been held by this Court in Collector and Deputy Commr. of Sultanpur v.Raja Jagdish Pratap, Civil Appeal No. 1014 of 1963, dated 5-11-1964: (AIR 1965 SC 909 ) that the provisions of S. 6(d) of the Act would apply to arrears on account of agricultural income-tax assessed in 1360F on the basis of agricultural income during the year 1359F and that the provisions of R. 8A are mandatory. 13. It is not urged for the appellant that R. 8A is inconsistent with the provisions of S. 6(d) which provides that arrears of tax may be realised from the compensation payable and therefore appears to give a discretion to the authorities to realise the arrears of tax from the compensation payable. 14. We do not agree with the contention for the respondent that the compensation payable to the intermediary continues to remain payable even after the compensation Bonds had been delivered to him. Section 68 of the Act provides that the compensation under the Act shall be payable in cash or in bonds or partly in cash and partly in bonds as may be prescribed. It is clear therefore that the delivery of Bonds to the intermediary is in payment of the compensation. The claim for compensation is thus satisfied when the compensation had been paid in accordance with the provisions of S. 68. This is also clear from the relevant rules for the payment of compensation. 15. Rule 62, as it stood prior to November 29, 1956, provided that the compensation would be paid in negotiable bonds which would be described as Zamindari Abolition Compensation Bonds. Rule 63 as it them stood provided that the Bonds would be issued in specified denominations and would bear interest at the specified rate on the principal that had become payable calculated from the date of vesting. Rule 64 provided that interest together with the principal of a Bond would be paid in equated annual instalments except for the last, as described in Appendix IV during the period of 4o years beginning from the date of vesting, provided that any Bond might be redeemed at an earlier date at the option of the Government. Rule 65 provided that the instalments due on a Bond from the date of its entacement would be payable on presentation from and after July 1st next after the delivery of the Bend to the intermediary. 16. These rules show that the compensation does not remain payable after the delivery of the Bonds and that the Bonds could not be cashed before the due date for their encashment. 17. The fact that the, Bonds are negotiable does not make them legal tender does not make it obligatory on anyone including Government, to accept them in payment of any dues. The only result of their being treated as negotiable instruments is that the owner of them Bonds can transfer them to any person who is agreeable to purchase them. 18. When the compensation payable to an intermediary has been paid in the form of cash or Bonds, that compensation ceases to be payable. Section 6 (d) of the Act and R. 8A of the rules do not, as already stated, provide for the receipt of agricultural income-tax in the form of Bonds. 19. We are therefore of opinion that the Collector cannot be said to be in error in not accepting the Bonds which had been delivered and which were not even cashable at the time, in payment of the arrears of agricultural income-tax payable under the Agricultural Income-tax Act.
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13. It is not urged for the appellant that R. 8A is inconsistent with the provisions of S. 6(d) which provides that arrears of tax may be realised from the compensation payable and therefore appears to give a discretion to the authorities to realise the arrears of tax from the compensation payable14. We do not agree with the contention for the respondent that the compensation payable to the intermediary continues to remain payable even after the compensation Bonds had been delivered to him. Section 68 of the Act provides that the compensation under the Act shall be payable in cash or in bonds or partly in cash and partly in bonds as may be prescribed. It is clear therefore that the delivery of Bonds to the intermediary is in payment of the compensation. The claim for compensation is thus satisfied when the compensation had been paid in accordance with the provisions of S. 68. This is also clear from the relevant rules for the payment of compensation15. Rule 62, as it stood prior to November 29, 1956, provided that the compensation would be paid in negotiable bonds which would be described as Zamindari Abolition Compensation Bonds. Rule 63 as it them stood provided that the Bonds would be issued in specified denominations and would bear interest at the specified rate on the principal that had become payable calculated from the date of vesting. Rule 64 provided that interest together with the principal of a Bond would be paid in equated annual instalments except for the last, as described in Appendix IV during the period of 4o years beginning from the date of vesting, provided that any Bond might be redeemed at an earlier date at the option of the Government. Rule 65 provided that the instalments due on a Bond from the date of its entacement would be payable on presentation from and after July 1st next after the delivery of the Bend to the intermediary16. These rules show that the compensation does not remain payable after the delivery of the Bonds and that the Bonds could not be cashed before the due date for their encashment17. The fact that the, Bonds are negotiable does not make them legal tender does not make it obligatory on anyone including Government, to accept them in payment of any dues. The only result of their being treated as negotiable instruments is that the owner of them Bonds can transfer them to any person who is agreeable to purchase them18. When the compensation payable to an intermediary has been paid in the form of cash or Bonds, that compensation ceases to be payable. Section 6 (d) of the Act and R. 8A of the rules do not, as already stated, provide for the receipt of agricultural income-tax in the form of Bonds19. We are therefore of opinion that the Collector cannot be said to be in error in not accepting the Bonds which had been delivered and which were not even cashable at the time, in payment of the arrears of agricultural income-tax payable under the Agricultural Income-tax Act.
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Union Of India Vs. Vishav Priya Singh | CO to effectively exercise powers vested in a CO; or b) one who is in immediate command of the unit to which the person is belongs; or c) one who is in immediate command of the unit to which the person is attached to; or d) one who is in immediate command of any detachment or distinct sizeable separate portion of a unit with which the person is for the time being serving. 29. Regulation 9 with its width and amplitude can possibly cover any situation so that there is no room to express any lament as was done in aforesaid Paragraph 24. If the concept of fairness in the procedure demands, as is expressly set out in the form of Rule 39 of the Rules that CO of the Unit to which an accused belongs is disentitled to serve on a GCM or DCM, it would be complete contradiction to insist upon the CO of the Unit to which the accused belongs, regardless of the status and role of such CO in connection with the offence, to be the only authority entitled to convene an SCM. Sections 116 and 120 do not admit of any such construction and in the absence of any express provision to the contrary, Regulation 9 can certainly be the guiding factor. The expression Commanding Officer in Section 116 is not qualified by any explanation that he must be the CO of the Unit to which the accused belongs. Regulation 9, in our view, affords such explanation and is completely consistent with and subserves the basic ingredients of fairness and impartiality. 30. Regulation 381, in the context of trial of Deserters is a special provision. If the Unit to which the accused belongs is serving in high attitude areas or overseas or is engaged in counter-insurgency operations or active hostilities, the accused could be tried in the manner laid down therein by the CO of the Units specified therein. But Regulation 381 is not the only exception as found by the High Court and the finding that in all circumstances, other than those dealt with by Regulation 381, it is the CO of the Unit to which the accused belongs who alone is competent to convene, constitute and complete an SCM, is incorrect. 31. It is noticeable that the expression to which the accused belongs finds mention in Rule 39 of the Rules as dealt with herein above in the context of GCM or DCM but not with respect to SCM. Under Rule 133 of the Rules the proceedings of an SCM must immediately on promulgation be forwarded through the Deputy Judge Advocate General of the command in which the trial is held. On the other hand, under Rule 146 of the Rules the proceedings of an SCM must be preserved with the records of the corps or the department to which the accused belonged. It is thus possible and well contemplated that the trial by SCM may be held in a unit other than the one to which the accused belongs. Rules 39 and 146 further disclose that wherever the statute wanted to specify the unit or department to which the accused belonged it has done that with great clarity. No such qualification is specified in respect the CO who is to convene, constitute and complete the SCM. 32. Lastly, we must note that Note 5 below Section 120 as appearing in the Manual could possibly point that an NCO or a sepoy could not be attached to another unit for trial by SCM except as provided in Regulation 381 of the DSR. Without going into the question of efficacy and force of such Note below a Section in an Act enacted by the Parliament, for the present purposes it is sufficient to notice that this Note stood deleted on and with effect from 28.08.2001. 33. In the premises, we hold that it is not imperative that an SCM be convened, constituted and completed by CO of the Unit to which the accused belonged. It is competent and permissible for the CO of the Unit to which the accused was attached or sent on attachment for the purposes of trial, to try such accused by convening, constituting and completing SCM in a manner known to law i.e. strictly within the confines of Sections 116 and 120 of the Act and other Statutory provisions. We fully endorse and affirm the view taken by the High Court that SCM is an exception and it is imperative that a case must be made out for immediacy of action. The reasons to convene an SCM must be followed by well articulated reasons or the record itself must justify such resort. 34. Before parting, we must mention recommendations of a Committee of Experts appointed by the Defence Minister to review service and pension matters including strengthening of institutional mechanisms related to redressal of grievances, which recommendations appear at page 172 of the Ministry of Defence Report of 2015 in following terms:- ...... the Committee recommends that the environment may be sensitized that the provision of SCM should be used sparingly and exceptionally and preferably only in operational areas where resort to a regular trial is not practicable or when summary/administrative action would not meet the requirements of discipline. It may be emphasized that SCM is an exception and not the rule and was not even originally meant to be a peace-time provision or regular recourse. In the times to come, the desirability of even having such a provision on the statute book may be examined with the suitability of a replacement by amore robust system meeting the aspirations of judiciousness and Constitutional norms. We may however caution that we are not, in any manner, underestimating the requirement of discipline in the uniformed services but are simply stating that SCM may not be treated as a routine recourse when other effective tools of enforcing discipline are available. These recommendations sum up the approach that needs to be adopted, quite well. | 1[ds]20. The High Court of Delhi was therefore completely correct in observing that such power must be exercised rarely and when it is absolutely imperative that immediate action is called for. The satisfaction in that behalf must either be articulated in writing or be available on record, specially when the matter can be considered on merits by a tribunal, with the coming into force of the Armed Forces Tribunals Act, 200731. It is noticeable that the expression to which the accused belongs finds mention in Rule 39 of the Rules as dealt with herein above in the context of GCM or DCM but not with respect to SCM. Under Rule 133 of the Rules the proceedings of an SCM must immediately on promulgation be forwarded through the Deputy Judge Advocate General of the command in which the trial is held. On the other hand, under Rule 146 of the Rules the proceedings of an SCM must be preserved with the records of the corps or the department to which the accused belonged. It is thus possible and well contemplated that the trial by SCM may be held in a unit other than the one to which the accused belongs. Rules 39 and 146 further disclose that wherever the statute wanted to specify the unit or department to which the accused belonged it has done that with great clarity. No such qualification is specified in respect the CO who is to convene, constitute and complete the SCMwe must note that Note 5 below Section 120 as appearing in the Manual could possibly point that an NCO or a sepoy could not be attached to another unit for trial by SCM except as provided in Regulation 381 of the DSR. Without going into the question of efficacy and force of such Note below a Section in an Act enacted by the Parliament, for the present purposes it is sufficient to notice that this Note stood deleted on and with effect from 28.08.200133. In the premises, we hold that it is not imperative that an SCM be convened, constituted and completed by CO of the Unit to which the accused belonged. It is competent and permissible for the CO of the Unit to which the accused was attached or sent on attachment for the purposes of trial, to try such accused by convening, constituting and completing SCM in a manner known to law i.e. strictly within the confines of Sections 116 and 120 of the Act and other Statutory provisions. We fully endorse and affirm the view taken by the High Court that SCM is an exception and it is imperative that a case must be made out for immediacy of action. The reasons to convene an SCM must be followed by well articulated reasons or the record itself must justify such resort | 1 | 10,320 | 498 | ### 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:
CO to effectively exercise powers vested in a CO; or b) one who is in immediate command of the unit to which the person is belongs; or c) one who is in immediate command of the unit to which the person is attached to; or d) one who is in immediate command of any detachment or distinct sizeable separate portion of a unit with which the person is for the time being serving. 29. Regulation 9 with its width and amplitude can possibly cover any situation so that there is no room to express any lament as was done in aforesaid Paragraph 24. If the concept of fairness in the procedure demands, as is expressly set out in the form of Rule 39 of the Rules that CO of the Unit to which an accused belongs is disentitled to serve on a GCM or DCM, it would be complete contradiction to insist upon the CO of the Unit to which the accused belongs, regardless of the status and role of such CO in connection with the offence, to be the only authority entitled to convene an SCM. Sections 116 and 120 do not admit of any such construction and in the absence of any express provision to the contrary, Regulation 9 can certainly be the guiding factor. The expression Commanding Officer in Section 116 is not qualified by any explanation that he must be the CO of the Unit to which the accused belongs. Regulation 9, in our view, affords such explanation and is completely consistent with and subserves the basic ingredients of fairness and impartiality. 30. Regulation 381, in the context of trial of Deserters is a special provision. If the Unit to which the accused belongs is serving in high attitude areas or overseas or is engaged in counter-insurgency operations or active hostilities, the accused could be tried in the manner laid down therein by the CO of the Units specified therein. But Regulation 381 is not the only exception as found by the High Court and the finding that in all circumstances, other than those dealt with by Regulation 381, it is the CO of the Unit to which the accused belongs who alone is competent to convene, constitute and complete an SCM, is incorrect. 31. It is noticeable that the expression to which the accused belongs finds mention in Rule 39 of the Rules as dealt with herein above in the context of GCM or DCM but not with respect to SCM. Under Rule 133 of the Rules the proceedings of an SCM must immediately on promulgation be forwarded through the Deputy Judge Advocate General of the command in which the trial is held. On the other hand, under Rule 146 of the Rules the proceedings of an SCM must be preserved with the records of the corps or the department to which the accused belonged. It is thus possible and well contemplated that the trial by SCM may be held in a unit other than the one to which the accused belongs. Rules 39 and 146 further disclose that wherever the statute wanted to specify the unit or department to which the accused belonged it has done that with great clarity. No such qualification is specified in respect the CO who is to convene, constitute and complete the SCM. 32. Lastly, we must note that Note 5 below Section 120 as appearing in the Manual could possibly point that an NCO or a sepoy could not be attached to another unit for trial by SCM except as provided in Regulation 381 of the DSR. Without going into the question of efficacy and force of such Note below a Section in an Act enacted by the Parliament, for the present purposes it is sufficient to notice that this Note stood deleted on and with effect from 28.08.2001. 33. In the premises, we hold that it is not imperative that an SCM be convened, constituted and completed by CO of the Unit to which the accused belonged. It is competent and permissible for the CO of the Unit to which the accused was attached or sent on attachment for the purposes of trial, to try such accused by convening, constituting and completing SCM in a manner known to law i.e. strictly within the confines of Sections 116 and 120 of the Act and other Statutory provisions. We fully endorse and affirm the view taken by the High Court that SCM is an exception and it is imperative that a case must be made out for immediacy of action. The reasons to convene an SCM must be followed by well articulated reasons or the record itself must justify such resort. 34. Before parting, we must mention recommendations of a Committee of Experts appointed by the Defence Minister to review service and pension matters including strengthening of institutional mechanisms related to redressal of grievances, which recommendations appear at page 172 of the Ministry of Defence Report of 2015 in following terms:- ...... the Committee recommends that the environment may be sensitized that the provision of SCM should be used sparingly and exceptionally and preferably only in operational areas where resort to a regular trial is not practicable or when summary/administrative action would not meet the requirements of discipline. It may be emphasized that SCM is an exception and not the rule and was not even originally meant to be a peace-time provision or regular recourse. In the times to come, the desirability of even having such a provision on the statute book may be examined with the suitability of a replacement by amore robust system meeting the aspirations of judiciousness and Constitutional norms. We may however caution that we are not, in any manner, underestimating the requirement of discipline in the uniformed services but are simply stating that SCM may not be treated as a routine recourse when other effective tools of enforcing discipline are available. These recommendations sum up the approach that needs to be adopted, quite well.
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### Explanation:
20. The High Court of Delhi was therefore completely correct in observing that such power must be exercised rarely and when it is absolutely imperative that immediate action is called for. The satisfaction in that behalf must either be articulated in writing or be available on record, specially when the matter can be considered on merits by a tribunal, with the coming into force of the Armed Forces Tribunals Act, 200731. It is noticeable that the expression to which the accused belongs finds mention in Rule 39 of the Rules as dealt with herein above in the context of GCM or DCM but not with respect to SCM. Under Rule 133 of the Rules the proceedings of an SCM must immediately on promulgation be forwarded through the Deputy Judge Advocate General of the command in which the trial is held. On the other hand, under Rule 146 of the Rules the proceedings of an SCM must be preserved with the records of the corps or the department to which the accused belonged. It is thus possible and well contemplated that the trial by SCM may be held in a unit other than the one to which the accused belongs. Rules 39 and 146 further disclose that wherever the statute wanted to specify the unit or department to which the accused belonged it has done that with great clarity. No such qualification is specified in respect the CO who is to convene, constitute and complete the SCMwe must note that Note 5 below Section 120 as appearing in the Manual could possibly point that an NCO or a sepoy could not be attached to another unit for trial by SCM except as provided in Regulation 381 of the DSR. Without going into the question of efficacy and force of such Note below a Section in an Act enacted by the Parliament, for the present purposes it is sufficient to notice that this Note stood deleted on and with effect from 28.08.200133. In the premises, we hold that it is not imperative that an SCM be convened, constituted and completed by CO of the Unit to which the accused belonged. It is competent and permissible for the CO of the Unit to which the accused was attached or sent on attachment for the purposes of trial, to try such accused by convening, constituting and completing SCM in a manner known to law i.e. strictly within the confines of Sections 116 and 120 of the Act and other Statutory provisions. We fully endorse and affirm the view taken by the High Court that SCM is an exception and it is imperative that a case must be made out for immediacy of action. The reasons to convene an SCM must be followed by well articulated reasons or the record itself must justify such resort
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M/S NATESAN AGENCIES (PLANTATIONS) Vs. STATE REP. BY THE SECRETARY TO GOVERNMENT ENVIRONMENT AND FORESTS DEPARTMENT | In the given circumstances, this Court observed that the petitioner could not be left remediless. In the case of Shring Construction Co. (supra), the arbitration award was initially sought to be challenged by way of a writ petition that was dismissed as being not maintainable on the ground that the award ought to have been challenged under Section 34 of the Arbitration and Conciliation Act, 1996. Then, the District Judge dismissed the application under Section 34 of the said Act of 1996 for being barred by time. This Court found that applicability of Section 14 of the Limitation Act was not excluded from the said Act of 1996 and hence, the matter was remitted to the District Judge to examine if the period spent by the appellant in prosecuting remedy before the High Court could be excluded. 21.4.6. The common thread running through all the decisions above referred is that for the applicability of Section 14 of the Limitation Act and exclusion of the time spent in earlier proceeding, the matter in issue in both the earlier and the later proceeding must be the same. This is apart from the other requirements that the previous proceeding had been civil proceeding, which were being prosecuted by the plaintiff with due diligence and in a Court which, from the defect of jurisdiction or other cause of like nature, was unable to entertain the same though the plaintiff had been prosecuting in that Court in good faith. 21.5. In the present case, except the fact that the earlier writ petition in challenge to the exclusion order dated 19.11.1993 was civil proceeding and the plaintiff might have been prosecuting with due diligence, none of the other requirements of Section 14 of the Limitation Act are satisfied. The basic requirement, that the matter in issue in the earlier and the later proceeding ought to be the same; and both the proceedings, earlier and later, ought to relate to the same cause of action and for the same relief, is totally missing. Rather, the matter in issue in the earlier proceeding could well be contradistinguished from the matter in issue in the present suit. In the said earlier proceeding, the plaintiff-appellant joined the Mutt to assert that the respondent-State was not entitled to exclude the land in question from sanctuary; and that the State ought to take the land and ought to pay compensation as proposed by some of its officers. On the other hand, the claim in the present suit is founded on the ground that the plaintiff has suffered loss due to the proceedings under the Act of 1972 and then, due to exclusion of the subject land from acquisition. The relief claimed in the present suit and matter in issue herein cannot be said to be the same as had been in issue in the earlier proceeding i.e., the said writ petition against the exclusion order dated 19.11.1993. Apart from the fact that the earlier proceeding i.e., the said writ petition was for a different relief for quashing the exclusion order dated 19.11.1993, it is also pertinent that the said writ petition was dismissed on merit and not for want of jurisdiction. Applicability of Section 14 of the Limitation Act is totally ruled out in this case. 21.6. We may also observe that if the said order dated 19.11.1993 had at all given any cause to the appellant to claim damages/compensation, the limitation had begun to run from that date itself and the said proceeding in the writ petition had never arrested such running of limitation. The learned counsel for the appellant has submitted that the said order dated 19.11.1993 was quashed by the learned Single Judge on 13.09.1995 and came to be resurrected only when the Division Bench allowed the appeal of the State on 18.09.1997 and therefore, limitation would run from the date of judgment of the Division Bench. This proposition, at the first blush, appeared attractive but cannot be accepted on a closer look at the matter. The filing of writ petition or any order passed therein did not operate in arresting limitation that had begun to run on 19.11.1993, so far the right to sue for damages is concerned. The plaintiff-appellant consciously chose not to claim damages in the wake of the order dated 19.11.1993 and, instead, joined the Mutt to seek the relief that the said order dated 9.11.1993 be quashed and the land be not excluded from sanctuary. Having failed in such an attempt, the appellant could not have maintained the claim for damages, by filing a suit in the year 1998. 21.7. The observations of the Division Bench in the order dated 18.09.1997, suggesting as if the time spent in the said petition could readily be excluded are of no effect because the Division Bench, while dealing with the said writ matter, could not have decided the issue of limitation in the suit in anticipation. Some of the expressions of conclusive nature, as used by the Division Bench in the judgment dated 18.09.1997, were rather unwarranted and in any case, could not have made the question of limitation in relation to the suit for damage fait accompli. We say no more because, read as a whole, the said judgment dated 18.09.1997, cannot be taken to be of final conclusion as regards the applicability of Section 14 to the future action. As noticed, Section 14 of the Limitation Act does not apply to the present suit; and, for being otherwise barred by limitation, the suit is liable to be dismissed on this ground alone. 22. We may also observe that so far as the denial of felling the trees by the order dated 16.11.1976 is concerned, if the plaintiff-appellant at all had any right to make a claim for damages on that score, the same ought to have been made within limitation from that date. The relief in that regard could not have been claimed by way of a suit filed more than 20 years later. CONCLUSION | 1[ds]11. We have bestowed thoughtful consideration to the rival submissions and have examined the record of the case with reference to the law applicable. Having examined the matter in its totality, we are undoubtedly of the view that the suit filed by the plaintiff-appellant was barred by limitation and even otherwise, the plaintiff-appellant had no case on merits to claim damages from the respondent-State. In other words, the Division Bench of the High Court has rightly allowed the appeal filed by the State and has rightly dismissed the baseless suit filed by the appellant. Hence, this appeal sans merit and deserves to be dismissed12. Before dilating on the questions relating to limitation and sustainability of the appellants claim for damages, we may observe that the contentions belatedly put forth on behalf of the defendant-respondent, as regards validity of the alleged second lease in favour of the appellant on the anvil of the Tamil Nadu Act of 1959 (as urged before this Court); and as regards immunity from any action as per Section 60 of the Act of 1972 (as urged before the Division Bench of High Court) cannot be said to be wholly without substance. We would hasten to observe that the case of the appellant is not being rejected on these grounds for the reason that such contentions were not urged at the trial stage but, in the given set of facts and circumstances, we feel rather impelled to make prima facie observations in regards to these aspects12.1. As per the case of the appellant, the second lease deed dated 20.03.1978 in relation to the land in question was executed in its favour by the Mutt for a period of 25 years. The self-explanatory provisions of Section 34 of the Tamil Nadu Act of 1959 eclare any exchange, sale or mortgage and any lease, for a term exceeding 5 years, of any immoveable property belonging to any religious institution to be null and void unless sanctioned by the Commissioner as being necessary or beneficial to the institution. The first proviso to the said Section 34 of the Tamil Nadu Act of 1959 also requires that before according sanction, the particulars relating to the proposed transaction shall be published, while inviting objections and suggestions; and all objections and suggestions received from the trustee or any other persons having interest shall be considered. In the present case, a vague statement was made by PW-1 that the permission of the department concerned was obtained for the second lease for which, theCollector had made the recommendation but then, neither any documentary proof of any such permission/sanction is adduced nor it is shown that the proposed sanction was duly published and the objections/suggestions were invited and considered. For want of necessary evidence on the validity of second lease deed, prima facie it appears seriously questionable if the plaintiff-appellant had at all acquired any right in the land in question by virtue of the said lease deed, much less a right to claim damages from the State. Having regard to the circumstances of the case, we are leaving the aspect relating to the effect of Section 34 of Tamil Nadu Act of 1959 at that only, essentially because we are satisfied that the said lease deed was even otherwise impermissible and in any case, even on the basis of this questionable second lease, the plaintiff-appellant has no right to claim damages12.2. Secondly, by virtue of Section 60 of the Act of 1972, no civil suit in relation to any action taken in good faith under the Act of 1972 ismaintainable. Although, this aspect was not pleaded in specific terms on behalf of the defendant-respondent nor any issue in that regard was struck but, prima facie, we have reservations if any action of the present nature could have been maintained against the respondent-State in the face of Section 60 of the Act of 1972. Be that as it may, as observed, we are not finally pronouncing on these aspects and are leaving the same at that13. Taking up the material points for determination in this case, though we are satisfied that the suit in question is liable to be dismissed for the bar of limitation but, for the reason that the learned Single Judge decided this issue in favour of the appellant and the Division Bench left it unanswered because of merit dismissal of the suit, it appears appropriate to discuss the question of limitation later and only after dilating on the merits of the claim for damages by the appellant16. It is beyond the pale of doubt that in the scheme of the Act of 1972, issuance of a notification under Section 18 thereof has the peculiar and striking effect, of arresting the accrual of any right in the land comprised within the limits of the area specified in such notification except by way of testamentary or intestate succession (vide Section 20 ibid.). Even if the appellant was given the land in question on lease for a period of 5 years from 01.07.1972, that period came to an end on 30.06.1977. On this date of completion of the term of the lease, indisputably, the notification under Section 18(1), which was issued on 06.03.1976, was in operation and it had been the specific assertion of the appellant that the subject land was included in the said notification. That being the position, there was absolutely no occasion for the appellant acquiring any further right in the land in question after expiry of the term of his lease on 30.06.1977. For this reason alone, we are clearly of the view that the so called second lease deed, said to have been executed in favour of the appellant on 20.03.1978 was of no effect. In other words, the notification under Section 18(1) having been issued on 06.03.1976 (which included the land in question as per the own assertion of the appellant), no right in the land in question could have been acquired except by succession and hence, acquiring of any right by the appellant in the subject land, said to be covered by the said notification dated 06.03.1976, by way of a lease, was absolutely out of question16.1. In our view, the entire substratum of the case of the appellant is knocked to the ground once it is found that the appellant had acquired no right under the said second lease dated 20.03.1978 and least any right against the State. Noteworthy it is that in all the previous litigations, initially seeking exclusion of land in question from the sanctuary; then seeking compensation for its inclusion; and then questioning its exclusion, the Mutt had been an active participant. In fact, the last petition seeking to question the exclusion was filed jointly by the Mutt and the appellant. However, the Mutt has not joined the claim for damages in this suit. The appellant, we have no doubt, had no right whatsoever to claim damages with reference to the alleged cause of action based on the order of exclusion dated 19.11.1993 for the reason that the alleged second lease was of no effect and the appellant had acquired no right thereunder. We may put it in yet other words that if at all the exclusion order dated 19.11.1993 furnished any right to maintain an action against the State, only and only the Mutt could have maintained such an action but not the appellant. The suit filed by the appellant is liable to be dismissed on this count aloneNoteworthy it is that the claim for damages in the present suit is based on the assertion that the respondent- State through its officers caused prejudice and injury by preventing the appellant from entering the subject land and enjoying the usufruct thereof and then, by denying compensation for acquisition by lately excluding the subject land from the sanctuary. Such assertion of the appellant has also taken its strength from some of the observations made by the Division Bench of the High Court in its aforesaid judgment dated 18.09.1997, whereby the claim of the Mutt and the appellant against the exclusion order dated 19.11.1993 was rejected. In our view, there is no merit in the claim of the appellant17.2. In our view, the Division Bench has rightly observed in the impugned judgment that there is nothing on record to establish that the original owner and the plaintiff were prevented from going inside the forest and collecting the usufructs. In a comprehension of the facts on record and the law applicable, it cannot be said that the plaintiff-appellant was prevented from exercising its lawful rights in any unlawful manner by the State. Hence, there appears no basis for the appellant to maintain an action for damages18. There had, of course, been one instance where the appellant was denied the permission to fell the trees. That denial was made way back on 16.11.1976 and could not have furnished any cause to the appellant to maintain the claim for damages for the so called loss of earning for 22 years and for claiming other amount as per the prayers made in the plaint. Even as regards the aforesaid denial of permission to fell the trees, it could be presumed that the trees were available at the site when the area was excluded from sanctuary. Therefore, it cannot be said that the plaintiff- appellant, if having lawful right over such trees, had suffered any loss by the action of the officers of the Government19. For what has been discussed hereinabove, we are satisfied that the appellant had no case for claiming damages against the respondent-State. Hence, it does not appear necessary to deal with various decisions cited by learned counsel for the appellant as regards violation of right to property and the claim for damages on that count. However, one aspect of the matter as regards admission on the part of the Collector in the letter dated 28.05.1987 may be examined. There is no dispute on the fundamental principles in Thiru John, Sushil Kumar and Standard Chartered Bank (supra) that an admission is the best evidence against a litigant, unless properly explained. There had not been any evidence on behalf of the defendant-respondent in this case and the aforesaid letter dated 28.05.1987 has not been denied. The question, however, is about the effect of this letter. In our view, even if the said letter, being essentially of inter- departmental correspondence, is taken on its face value, nothing much turns upon it because, as rightly observed by the High Court, there is nothing on record to indicate that the original owner and the appellant were prevented from going inside the subject land and from collecting the usufructs; and it cannot be said that the appellant was prevented in any unlawful manner by the State in exercising its lawful right (if at all the appellant had any such right)So far the observations by the High Court in the said judgment are concerned, it is but apparent that the Division Bench of High Court could not have, and did not, finally pronounce that the time spent in the said writ matter would be excluded under Section 14. The Division Bench only left it open that such a ground may be raised in the claim for compensation. When raised, the ground was obviously required to be examined on its own merits21.4.6. The common thread running through all the decisions above referred is that for the applicability of Section 14 of the Limitation Act and exclusion of the time spent in earlier proceeding, the matter in issue in both the earlier and the later proceeding must be the same. This is apart from the other requirements that the previous proceeding had been civil proceeding, which were being prosecuted by the plaintiff with due diligence and in a Court which, from the defect of jurisdiction or other cause of like nature, was unable to entertain the same though the plaintiff had been prosecuting in that Court in good faith21.5. In the present case, except the fact that the earlier writ petition in challenge to the exclusion order dated 19.11.1993 was civil proceeding and the plaintiff might have been prosecuting with due diligence, none of the other requirements of Section 14 of the Limitation Act are satisfied. The basic requirement, that the matter in issue in the earlier and the later proceeding ought to be the same; and both the proceedings, earlier and later, ought to relate to the same cause of action and for the same relief, is totally missing. Rather, the matter in issue in the earlier proceeding could well be contradistinguished from the matter in issue in the present suit. In the said earlier proceeding, the plaintiff-appellant joined the Mutt to assert that the respondent-State was not entitled to exclude the land in question from sanctuary; and that the State ought to take the land and ought to pay compensation as proposed by some of its officers. On the other hand, the claim in the present suit is founded on the ground that the plaintiff has suffered loss due to the proceedings under the Act of 1972 and then, due to exclusion of the subject land from acquisition. The relief claimed in the present suit and matter in issue herein cannot be said to be the same as had been in issue in the earlier proceeding i.e., the said writ petition against the exclusion order dated 19.11.1993. Apart from the fact that the earlier proceeding i.e., the said writ petition was for a different relief for quashing the exclusion order dated 19.11.1993, it is also pertinent that the said writ petition was dismissed on merit and not for want of jurisdiction. Applicability of Section 14 of the Limitation Act is totally ruled out in this case21.6. We may also observe that if the said order dated 19.11.1993 had at all given any cause to the appellant to claim damages/compensation, the limitation had begun to run from that date itself and the said proceeding in the writ petition had never arrested such running of limitationThis proposition, at the first blush, appeared attractive but cannot be accepted on a closer look at the matter. The filing of writ petition or any order passed therein did not operate in arresting limitation that had begun to run on 19.11.1993, so far the right to sue for damages is concerned. The plaintiff-appellant consciously chose not to claim damages in the wake of the order dated 19.11.1993 and, instead, joined the Mutt to seek the relief that the said order dated 9.11.1993 be quashed and the land be not excluded from sanctuary. Having failed in such an attempt, the appellant could not have maintained the claim for damages, by filing a suit in the year 199821.7. The observations of the Division Bench in the order dated 18.09.1997, suggesting as if the time spent in the said petition could readily be excluded are of no effect because the Division Bench, while dealing with the said writ matter, could not have decided the issue of limitation in the suit in anticipation. Some of the expressions of conclusive nature, as used by the Division Bench in the judgment dated 18.09.1997, were rather unwarranted and in any case, could not have made the question of limitation in relation to the suit for damage fait accompli. We say no more because, read as a whole, the said judgment dated 18.09.1997, cannot be taken to be of final conclusion as regards the applicability of Section 14 to the future action. As noticed, Section 14 of the Limitation Act does not apply to the present suit; and, for being otherwise barred by limitation, the suit is liable to be dismissed on this ground alone22. We may also observe that so far as the denial of felling the trees by the order dated 16.11.1976 is concerned, if the plaintiff-appellant at all had any right to make a claim for damages on that score, the same ought to have been made within limitation from that date. The relief in that regard could not have been claimed by way of a suit filed more than 20 years later. | 1 | 15,397 | 2,919 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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In the given circumstances, this Court observed that the petitioner could not be left remediless. In the case of Shring Construction Co. (supra), the arbitration award was initially sought to be challenged by way of a writ petition that was dismissed as being not maintainable on the ground that the award ought to have been challenged under Section 34 of the Arbitration and Conciliation Act, 1996. Then, the District Judge dismissed the application under Section 34 of the said Act of 1996 for being barred by time. This Court found that applicability of Section 14 of the Limitation Act was not excluded from the said Act of 1996 and hence, the matter was remitted to the District Judge to examine if the period spent by the appellant in prosecuting remedy before the High Court could be excluded. 21.4.6. The common thread running through all the decisions above referred is that for the applicability of Section 14 of the Limitation Act and exclusion of the time spent in earlier proceeding, the matter in issue in both the earlier and the later proceeding must be the same. This is apart from the other requirements that the previous proceeding had been civil proceeding, which were being prosecuted by the plaintiff with due diligence and in a Court which, from the defect of jurisdiction or other cause of like nature, was unable to entertain the same though the plaintiff had been prosecuting in that Court in good faith. 21.5. In the present case, except the fact that the earlier writ petition in challenge to the exclusion order dated 19.11.1993 was civil proceeding and the plaintiff might have been prosecuting with due diligence, none of the other requirements of Section 14 of the Limitation Act are satisfied. The basic requirement, that the matter in issue in the earlier and the later proceeding ought to be the same; and both the proceedings, earlier and later, ought to relate to the same cause of action and for the same relief, is totally missing. Rather, the matter in issue in the earlier proceeding could well be contradistinguished from the matter in issue in the present suit. In the said earlier proceeding, the plaintiff-appellant joined the Mutt to assert that the respondent-State was not entitled to exclude the land in question from sanctuary; and that the State ought to take the land and ought to pay compensation as proposed by some of its officers. On the other hand, the claim in the present suit is founded on the ground that the plaintiff has suffered loss due to the proceedings under the Act of 1972 and then, due to exclusion of the subject land from acquisition. The relief claimed in the present suit and matter in issue herein cannot be said to be the same as had been in issue in the earlier proceeding i.e., the said writ petition against the exclusion order dated 19.11.1993. Apart from the fact that the earlier proceeding i.e., the said writ petition was for a different relief for quashing the exclusion order dated 19.11.1993, it is also pertinent that the said writ petition was dismissed on merit and not for want of jurisdiction. Applicability of Section 14 of the Limitation Act is totally ruled out in this case. 21.6. We may also observe that if the said order dated 19.11.1993 had at all given any cause to the appellant to claim damages/compensation, the limitation had begun to run from that date itself and the said proceeding in the writ petition had never arrested such running of limitation. The learned counsel for the appellant has submitted that the said order dated 19.11.1993 was quashed by the learned Single Judge on 13.09.1995 and came to be resurrected only when the Division Bench allowed the appeal of the State on 18.09.1997 and therefore, limitation would run from the date of judgment of the Division Bench. This proposition, at the first blush, appeared attractive but cannot be accepted on a closer look at the matter. The filing of writ petition or any order passed therein did not operate in arresting limitation that had begun to run on 19.11.1993, so far the right to sue for damages is concerned. The plaintiff-appellant consciously chose not to claim damages in the wake of the order dated 19.11.1993 and, instead, joined the Mutt to seek the relief that the said order dated 9.11.1993 be quashed and the land be not excluded from sanctuary. Having failed in such an attempt, the appellant could not have maintained the claim for damages, by filing a suit in the year 1998. 21.7. The observations of the Division Bench in the order dated 18.09.1997, suggesting as if the time spent in the said petition could readily be excluded are of no effect because the Division Bench, while dealing with the said writ matter, could not have decided the issue of limitation in the suit in anticipation. Some of the expressions of conclusive nature, as used by the Division Bench in the judgment dated 18.09.1997, were rather unwarranted and in any case, could not have made the question of limitation in relation to the suit for damage fait accompli. We say no more because, read as a whole, the said judgment dated 18.09.1997, cannot be taken to be of final conclusion as regards the applicability of Section 14 to the future action. As noticed, Section 14 of the Limitation Act does not apply to the present suit; and, for being otherwise barred by limitation, the suit is liable to be dismissed on this ground alone. 22. We may also observe that so far as the denial of felling the trees by the order dated 16.11.1976 is concerned, if the plaintiff-appellant at all had any right to make a claim for damages on that score, the same ought to have been made within limitation from that date. The relief in that regard could not have been claimed by way of a suit filed more than 20 years later. CONCLUSION
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on behalf of the defendant-respondent in this case and the aforesaid letter dated 28.05.1987 has not been denied. The question, however, is about the effect of this letter. In our view, even if the said letter, being essentially of inter- departmental correspondence, is taken on its face value, nothing much turns upon it because, as rightly observed by the High Court, there is nothing on record to indicate that the original owner and the appellant were prevented from going inside the subject land and from collecting the usufructs; and it cannot be said that the appellant was prevented in any unlawful manner by the State in exercising its lawful right (if at all the appellant had any such right)So far the observations by the High Court in the said judgment are concerned, it is but apparent that the Division Bench of High Court could not have, and did not, finally pronounce that the time spent in the said writ matter would be excluded under Section 14. The Division Bench only left it open that such a ground may be raised in the claim for compensation. When raised, the ground was obviously required to be examined on its own merits21.4.6. The common thread running through all the decisions above referred is that for the applicability of Section 14 of the Limitation Act and exclusion of the time spent in earlier proceeding, the matter in issue in both the earlier and the later proceeding must be the same. This is apart from the other requirements that the previous proceeding had been civil proceeding, which were being prosecuted by the plaintiff with due diligence and in a Court which, from the defect of jurisdiction or other cause of like nature, was unable to entertain the same though the plaintiff had been prosecuting in that Court in good faith21.5. In the present case, except the fact that the earlier writ petition in challenge to the exclusion order dated 19.11.1993 was civil proceeding and the plaintiff might have been prosecuting with due diligence, none of the other requirements of Section 14 of the Limitation Act are satisfied. The basic requirement, that the matter in issue in the earlier and the later proceeding ought to be the same; and both the proceedings, earlier and later, ought to relate to the same cause of action and for the same relief, is totally missing. Rather, the matter in issue in the earlier proceeding could well be contradistinguished from the matter in issue in the present suit. In the said earlier proceeding, the plaintiff-appellant joined the Mutt to assert that the respondent-State was not entitled to exclude the land in question from sanctuary; and that the State ought to take the land and ought to pay compensation as proposed by some of its officers. On the other hand, the claim in the present suit is founded on the ground that the plaintiff has suffered loss due to the proceedings under the Act of 1972 and then, due to exclusion of the subject land from acquisition. The relief claimed in the present suit and matter in issue herein cannot be said to be the same as had been in issue in the earlier proceeding i.e., the said writ petition against the exclusion order dated 19.11.1993. Apart from the fact that the earlier proceeding i.e., the said writ petition was for a different relief for quashing the exclusion order dated 19.11.1993, it is also pertinent that the said writ petition was dismissed on merit and not for want of jurisdiction. Applicability of Section 14 of the Limitation Act is totally ruled out in this case21.6. We may also observe that if the said order dated 19.11.1993 had at all given any cause to the appellant to claim damages/compensation, the limitation had begun to run from that date itself and the said proceeding in the writ petition had never arrested such running of limitationThis proposition, at the first blush, appeared attractive but cannot be accepted on a closer look at the matter. The filing of writ petition or any order passed therein did not operate in arresting limitation that had begun to run on 19.11.1993, so far the right to sue for damages is concerned. The plaintiff-appellant consciously chose not to claim damages in the wake of the order dated 19.11.1993 and, instead, joined the Mutt to seek the relief that the said order dated 9.11.1993 be quashed and the land be not excluded from sanctuary. Having failed in such an attempt, the appellant could not have maintained the claim for damages, by filing a suit in the year 199821.7. The observations of the Division Bench in the order dated 18.09.1997, suggesting as if the time spent in the said petition could readily be excluded are of no effect because the Division Bench, while dealing with the said writ matter, could not have decided the issue of limitation in the suit in anticipation. Some of the expressions of conclusive nature, as used by the Division Bench in the judgment dated 18.09.1997, were rather unwarranted and in any case, could not have made the question of limitation in relation to the suit for damage fait accompli. We say no more because, read as a whole, the said judgment dated 18.09.1997, cannot be taken to be of final conclusion as regards the applicability of Section 14 to the future action. As noticed, Section 14 of the Limitation Act does not apply to the present suit; and, for being otherwise barred by limitation, the suit is liable to be dismissed on this ground alone22. We may also observe that so far as the denial of felling the trees by the order dated 16.11.1976 is concerned, if the plaintiff-appellant at all had any right to make a claim for damages on that score, the same ought to have been made within limitation from that date. The relief in that regard could not have been claimed by way of a suit filed more than 20 years later.
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Commissioner of Income Tax, Bangalore Vs. M/s. R. Hanumanthappa & Son | elaborately the case law relating to sub-ss. (3) and (4) of S. 25 of the Indian Act in Income tax Appellate Tribunal, Bombay v. Bachraj Nathani of Raipur (1946) 14 ITR 191 = (AIR 1946 Nag 54). The observations made there are pertinent for the purpose of the present case. This is what was said:"It must be observed that sub section (3) is concerned with business, profession or vocation and sub-s. (4) with person. When an owner of a business dies or transfers his business or when partners dissolve their partnership, there is discontinuance so far as the person dying or transferring or the separating partners are concerned but there may be no discontinuance of the business as such. Thus the word discontinuity is capable of double interpretation according as it is vis-a-vis the owners or vis-a-vis the business. In the former case, the discontinuity is notional or jural and in the latter case, it is real or factual."8. All the above decision proceed on the footing that the requirement of sub-s. (3) of S. 25 is that the business should be discontinued and not that the person or person who own the business should cease to be the same. The discontinuity as pointed out in Bachraj Nathanis case, (1946) 14 ITR 191 = (AIR 1946 Nag 54) must be real and factual and it has to be of the business and not of its owner or owners of the business.9. A great deal of emphasis has been laid on behalf of the respondent-assessee on the integrity of the business carried on by the H. U. F. having been broken by the disruption of the family and it is claimed that the business of the family must be deemed to have totally ceased or discontinued on such disruption. Reliance has been placed on a number of decisions out of which mention may be made only of S. N. A. S. A. Annamalai Chettiar v. Commr. of Income tax, Madras, (1951) 20 ITR 238 (Mad) in which a H. U. F. consisting of a father and son carried on money lending business under different vilasams. There was a partition in 1939 under which some of he vilasams were allotted to the father and the rest were allotted to the assessee. The Madras High Court held that as the assets of the H. U. F. were split up on partition the family business no longer continued its existence but was terminated and there was, therefore, a discontinuance within the meaning of S. 25 (3) of the Indian Act. It was observed by the court that the mere fact that after continuing the same books of account and the customers of the money lending business were to some extent identical, would not make the business of the father a continuation of the old business when once what was a single unit was split up into various component parts. The parts separated were distinct and separate parts of a unified whole but the unity and integrity between parts were no longer possible unless there was a reunion or partnership. It is apparent that the facts of this case were different and clearly distinguishable from those of the present case. Here apart from the circumstances and facts which have been found and established the partnership deed itself made it clear that the three coparceners who had effected partnership desired to continue the family business as partners after the partition of the family. Nothing could be clearer than the language used in sub-clause (1) of cl. (3) of the partnership deed that the partnership shall carry on as successor to the business originally carried on by the H. U. F. of cotton ginners and pressers. Thus there was no factual cessation of business or its discontinuance. All that happened was that previously the owner of the business was the H. U. F. and subsequently the partnership, became the owner. There was merely a change of ownership and the business as such continued. In other words the business was never discontinued so as to attract the provision of S. 25 (3) of the Mysore Act. The judgment of the High Court cannot thus be sustained. The answer given by it in favour of the assessee will have to be discharged and in its place the question referred is answered in favour of the Revenue.10. We may mention a preliminary objection that was raised on behalf of the respondent. It was argued that the matter related to the pre-Constitution period under the Mysore Act by which the Mysore High Court had been constituted as the highest court and no appeal lay to any higher court. The decision of the Mysore High Court, therefore, was final and no appeal could be entertained by this court. We find no force in this objection. By section 3 of the Finance Act 1950, the Indian Act was amended. The following amendment is relevant for our purposes:S. 3 "Amendment of Act XI of 1922 - With effect from 1st day of April, 1950, the following amendments shall be made in the Income tax Act,-(a) for sub-section (2) of section 1 the following sub-section shall be substituted, namely:(2) It extends to the whole of India, except the State of Jammu and Kashmir..............."The effect of S. 13 of the Finance Act dealing with repeals and savings was that the Mysore Act ceased to have any effect except to the extent mentioned in the section.11. In the present case the judgment of the Mysore High Court was delivered on January 4, 1967 and the appeal which has been brought to this court is by leave granted under Article 136 of the Constitution. We are unable to see how under Art. 136 special leave to appeal could not be granted against the judgment of the Mysore High Court when the language of Art. 136 (1) is very wide and expressly covers any judgment etc. passed or made by any court or Tribunal in the territory of India. | 1[ds]It was pointed out that under the Indian Act before it was amended in 1939, S. 25 (3) gave relief in the event of discontinuance. The amendment only introduced a qualification that if there was a succession in respect of which relief was given there should not be any relief upon discontinuance. It did not enlarge or alter the meaning of "discontinuance". In the first case referred to by their Lordships, a company went into voluntary liquidation and the liquidator transferred the business to a new company which continued that business. It was held that the business was not discontinued within the meaning of S. 25 (3) of the Indian Act. (This was before the amendment made in 1939). Macleod C. J. analysed the scheme of the Indian Act and emphasised the fact that under its provisions tax was chargeable on the profits of a business and it made no difference if there was any change in the persons who carried on the business so long as the business was continued. In the next case i. e. Kalumal Shorimal there had been a partition of the H. U. F. The assessee got the family business as its share. The other coparceners relinquished their fights therein and started separate business of their own. The assessee carried on the business under the old name and style. The assessees contention was that the family firm had ceased to exist because the family had disrupted. This was rejected by the High Court on the ground that the business of the family could continue in spite of its disruption. The question really was whether the business was discontinued or not in consequence of the breaking up of the family. It is unnecessary to refer to the third case as a similar principle was laid down therein. Grille C. J., and Niyogi J., discussed elaborately the case law relating to sub-ss. (3) and (4) of S. 25 of the Indian Act in Income tax Appellate Tribunal, Bombay v. Bachraj Nathani of Raipur (1946) 14 ITR 191 = (AIR 1946 Nag 54). The observations made there are pertinent for the purpose of the present case. This is what wasmust be observed that sub section (3) is concerned with business, profession or vocation and sub-s. (4) with person. When an owner of a business dies or transfers his business or when partners dissolve their partnership, there is discontinuance so far as the person dying or transferring or the separating partners are concerned but there may be no discontinuance of the business as such. Thus the word discontinuity is capable of double interpretation according as it is vis-a-vis the owners or vis-a-vis the business. In the former case, the discontinuity is notional or jural and in the latter case, it is real or factual.All the above decision proceed on the footing that the requirement of sub-s. (3) of S. 25 is that the business should be discontinued and not that the person or person who own the business should cease to be the same. The discontinuity as pointed out in Bachraj Nathanis case, (1946) 14 ITR 191 = (AIR 1946 Nag 54) must be real and factual and it has to be of the business and not of its owner or owners of the business.9. A great deal of emphasis has been laid on behalf of the respondent-assessee on the integrity of the business carried on by the H. U. F. having been broken by the disruption of the family and it is claimed that the business of the family must be deemed to have totally ceased or discontinued on such disruption. Reliance has been placed on a number of decisions out of which mention may be made only of S. N. A. S. A. Annamalai Chettiar v. Commr. of Income tax, Madras, (1951) 20 ITR 238 (Mad) in which a H. U. F. consisting of a father and son carried on money lending business under different vilasams. There was a partition in 1939 under which some of he vilasams were allotted to the father and the rest were allotted to the assessee. The Madras High Court held that as the assets of the H. U. F. were split up on partition the family business no longer continued its existence but was terminated and there was, therefore, a discontinuance within the meaning of S. 25 (3) of the Indian Act. It was observed by the court that the mere fact that after continuing the same books of account and the customers of the money lending business were to some extent identical, would not make the business of the father a continuation of the old business when once what was a single unit was split up into various component parts. The parts separated were distinct and separate parts of a unified whole but the unity and integrity between parts were no longer possible unless there was a reunion or partnership. It is apparent that the facts of this case were different and clearly distinguishable from those of the present case. Here apart from the circumstances and facts which have been found and established the partnership deed itself made it clear that the three coparceners who had effected partnership desired to continue the family business as partners after the partition of the family. Nothing could be clearer than the language used in sub-clause (1) of cl. (3) of the partnership deed that the partnership shall carry on as successor to the business originally carried on by the H. U. F. of cotton ginners and pressers. Thus there was no factual cessation of business or its discontinuance. All that happened was that previously the owner of the business was the H. U. F. and subsequently the partnership, became the owner. There was merely a change of ownership and the business as such continued. In other words the business was never discontinued so as to attract the provision of S. 25 (3) of the Mysore Act. The judgment of the High Court cannot thus be sustained. The answer given by it in favour of the assessee will have to be discharged and in its place the question referred is answered in favour of the Revenue.10. We may mention a preliminary objection that was raised on behalf of the respondent. It was argued that the matter related to the pre-Constitution period under the Mysore Act by which the Mysore High Court had been constituted as the highest court and no appeal lay to any higher court. The decision of the Mysore High Court, therefore, was final and no appeal could be entertained by this court. We find no force in this objection.In the present case the judgment of the Mysore High Court was delivered on January 4, 1967 and the appeal which has been brought to this court is by leave granted under Article 136 of the Constitution. We are unable to see how under Art. 136 special leave to appeal could not be granted against the judgment of the Mysore High Court when the language of Art. 136 (1) is very wide and expressly covers any judgment etc. passed or made by any court or Tribunal in the territory of India. | 1 | 3,129 | 1,309 | ### 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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elaborately the case law relating to sub-ss. (3) and (4) of S. 25 of the Indian Act in Income tax Appellate Tribunal, Bombay v. Bachraj Nathani of Raipur (1946) 14 ITR 191 = (AIR 1946 Nag 54). The observations made there are pertinent for the purpose of the present case. This is what was said:"It must be observed that sub section (3) is concerned with business, profession or vocation and sub-s. (4) with person. When an owner of a business dies or transfers his business or when partners dissolve their partnership, there is discontinuance so far as the person dying or transferring or the separating partners are concerned but there may be no discontinuance of the business as such. Thus the word discontinuity is capable of double interpretation according as it is vis-a-vis the owners or vis-a-vis the business. In the former case, the discontinuity is notional or jural and in the latter case, it is real or factual."8. All the above decision proceed on the footing that the requirement of sub-s. (3) of S. 25 is that the business should be discontinued and not that the person or person who own the business should cease to be the same. The discontinuity as pointed out in Bachraj Nathanis case, (1946) 14 ITR 191 = (AIR 1946 Nag 54) must be real and factual and it has to be of the business and not of its owner or owners of the business.9. A great deal of emphasis has been laid on behalf of the respondent-assessee on the integrity of the business carried on by the H. U. F. having been broken by the disruption of the family and it is claimed that the business of the family must be deemed to have totally ceased or discontinued on such disruption. Reliance has been placed on a number of decisions out of which mention may be made only of S. N. A. S. A. Annamalai Chettiar v. Commr. of Income tax, Madras, (1951) 20 ITR 238 (Mad) in which a H. U. F. consisting of a father and son carried on money lending business under different vilasams. There was a partition in 1939 under which some of he vilasams were allotted to the father and the rest were allotted to the assessee. The Madras High Court held that as the assets of the H. U. F. were split up on partition the family business no longer continued its existence but was terminated and there was, therefore, a discontinuance within the meaning of S. 25 (3) of the Indian Act. It was observed by the court that the mere fact that after continuing the same books of account and the customers of the money lending business were to some extent identical, would not make the business of the father a continuation of the old business when once what was a single unit was split up into various component parts. The parts separated were distinct and separate parts of a unified whole but the unity and integrity between parts were no longer possible unless there was a reunion or partnership. It is apparent that the facts of this case were different and clearly distinguishable from those of the present case. Here apart from the circumstances and facts which have been found and established the partnership deed itself made it clear that the three coparceners who had effected partnership desired to continue the family business as partners after the partition of the family. Nothing could be clearer than the language used in sub-clause (1) of cl. (3) of the partnership deed that the partnership shall carry on as successor to the business originally carried on by the H. U. F. of cotton ginners and pressers. Thus there was no factual cessation of business or its discontinuance. All that happened was that previously the owner of the business was the H. U. F. and subsequently the partnership, became the owner. There was merely a change of ownership and the business as such continued. In other words the business was never discontinued so as to attract the provision of S. 25 (3) of the Mysore Act. The judgment of the High Court cannot thus be sustained. The answer given by it in favour of the assessee will have to be discharged and in its place the question referred is answered in favour of the Revenue.10. We may mention a preliminary objection that was raised on behalf of the respondent. It was argued that the matter related to the pre-Constitution period under the Mysore Act by which the Mysore High Court had been constituted as the highest court and no appeal lay to any higher court. The decision of the Mysore High Court, therefore, was final and no appeal could be entertained by this court. We find no force in this objection. By section 3 of the Finance Act 1950, the Indian Act was amended. The following amendment is relevant for our purposes:S. 3 "Amendment of Act XI of 1922 - With effect from 1st day of April, 1950, the following amendments shall be made in the Income tax Act,-(a) for sub-section (2) of section 1 the following sub-section shall be substituted, namely:(2) It extends to the whole of India, except the State of Jammu and Kashmir..............."The effect of S. 13 of the Finance Act dealing with repeals and savings was that the Mysore Act ceased to have any effect except to the extent mentioned in the section.11. In the present case the judgment of the Mysore High Court was delivered on January 4, 1967 and the appeal which has been brought to this court is by leave granted under Article 136 of the Constitution. We are unable to see how under Art. 136 special leave to appeal could not be granted against the judgment of the Mysore High Court when the language of Art. 136 (1) is very wide and expressly covers any judgment etc. passed or made by any court or Tribunal in the territory of India.
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1
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coparceners relinquished their fights therein and started separate business of their own. The assessee carried on the business under the old name and style. The assessees contention was that the family firm had ceased to exist because the family had disrupted. This was rejected by the High Court on the ground that the business of the family could continue in spite of its disruption. The question really was whether the business was discontinued or not in consequence of the breaking up of the family. It is unnecessary to refer to the third case as a similar principle was laid down therein. Grille C. J., and Niyogi J., discussed elaborately the case law relating to sub-ss. (3) and (4) of S. 25 of the Indian Act in Income tax Appellate Tribunal, Bombay v. Bachraj Nathani of Raipur (1946) 14 ITR 191 = (AIR 1946 Nag 54). The observations made there are pertinent for the purpose of the present case. This is what wasmust be observed that sub section (3) is concerned with business, profession or vocation and sub-s. (4) with person. When an owner of a business dies or transfers his business or when partners dissolve their partnership, there is discontinuance so far as the person dying or transferring or the separating partners are concerned but there may be no discontinuance of the business as such. Thus the word discontinuity is capable of double interpretation according as it is vis-a-vis the owners or vis-a-vis the business. In the former case, the discontinuity is notional or jural and in the latter case, it is real or factual.All the above decision proceed on the footing that the requirement of sub-s. (3) of S. 25 is that the business should be discontinued and not that the person or person who own the business should cease to be the same. The discontinuity as pointed out in Bachraj Nathanis case, (1946) 14 ITR 191 = (AIR 1946 Nag 54) must be real and factual and it has to be of the business and not of its owner or owners of the business.9. A great deal of emphasis has been laid on behalf of the respondent-assessee on the integrity of the business carried on by the H. U. F. having been broken by the disruption of the family and it is claimed that the business of the family must be deemed to have totally ceased or discontinued on such disruption. Reliance has been placed on a number of decisions out of which mention may be made only of S. N. A. S. A. Annamalai Chettiar v. Commr. of Income tax, Madras, (1951) 20 ITR 238 (Mad) in which a H. U. F. consisting of a father and son carried on money lending business under different vilasams. There was a partition in 1939 under which some of he vilasams were allotted to the father and the rest were allotted to the assessee. The Madras High Court held that as the assets of the H. U. F. were split up on partition the family business no longer continued its existence but was terminated and there was, therefore, a discontinuance within the meaning of S. 25 (3) of the Indian Act. It was observed by the court that the mere fact that after continuing the same books of account and the customers of the money lending business were to some extent identical, would not make the business of the father a continuation of the old business when once what was a single unit was split up into various component parts. The parts separated were distinct and separate parts of a unified whole but the unity and integrity between parts were no longer possible unless there was a reunion or partnership. It is apparent that the facts of this case were different and clearly distinguishable from those of the present case. Here apart from the circumstances and facts which have been found and established the partnership deed itself made it clear that the three coparceners who had effected partnership desired to continue the family business as partners after the partition of the family. Nothing could be clearer than the language used in sub-clause (1) of cl. (3) of the partnership deed that the partnership shall carry on as successor to the business originally carried on by the H. U. F. of cotton ginners and pressers. Thus there was no factual cessation of business or its discontinuance. All that happened was that previously the owner of the business was the H. U. F. and subsequently the partnership, became the owner. There was merely a change of ownership and the business as such continued. In other words the business was never discontinued so as to attract the provision of S. 25 (3) of the Mysore Act. The judgment of the High Court cannot thus be sustained. The answer given by it in favour of the assessee will have to be discharged and in its place the question referred is answered in favour of the Revenue.10. We may mention a preliminary objection that was raised on behalf of the respondent. It was argued that the matter related to the pre-Constitution period under the Mysore Act by which the Mysore High Court had been constituted as the highest court and no appeal lay to any higher court. The decision of the Mysore High Court, therefore, was final and no appeal could be entertained by this court. We find no force in this objection.In the present case the judgment of the Mysore High Court was delivered on January 4, 1967 and the appeal which has been brought to this court is by leave granted under Article 136 of the Constitution. We are unable to see how under Art. 136 special leave to appeal could not be granted against the judgment of the Mysore High Court when the language of Art. 136 (1) is very wide and expressly covers any judgment etc. passed or made by any court or Tribunal in the territory of India.
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State of Mysore & Another Vs. Syed Mahmood & Others | State Government the High Court refused to quash this seniority list but it directed the State Government to promote Syed Mahmood and Bhao Rao as from the respective dates on which respondents junior to them were promoted as senior statistical assistants and to treat such promotions as effective up to May 3, 1963. The State of Mysore has filed the present appeals from the orders directing the promotion of Syed Mahmood and Bhao Rao after obtaining special leave.2. Promotion to the posts of senior statistical assistants is made from the cadre of junior statistical assistants and progress assistants. Rule 4 (3) (b) of the Mysore State Civil Services General Recruitment Rules, 1957 requires such promotions to be made by selection on the basis of seniority-cum-merit that is seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion. In 1959 the seniority of junior statistical assistants was governed by the seniority list published on January 16, 1958. Syed Mahmood and Bhao Rao were junior statistical assistants. While making selections for promotion to the posts of senior statistical assistants from the cadre of junior statistical assistants in 1959, the State Government was under a duty to consider whether having regard to their seniority and fitness they should be promoted. But without considering their case at all, the State Government promoted junior statistical assistants ranking below them in point of seniority. The promotions were irregularly made and they were, therefore, entitled to ask the State Government to reconsider their case. In the circumstances, the High Court could issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniority and fitness they should have been promoted on the relevant dates when officers junior to them were promoted. Instead of issuing such a writ, the High Court wrongly issued writs directing the State Government to promote them with retrospective effect. The High Court ought not to have issued such writs without giving the State Government an opportunity in the first instance to consider their fitness for promotion in 1959.3. Mr. Javali submitted that Syed Mahmood and Bhao Rao by virtue of their seniority were entitled to promotion at the time when persons junior to them were promoted. The argument overlooks the fact that promotion to the post of senior statistical assistant was based on seniority-cum-merit. In spite of their seniority, officers junior to them could be promoted if they were unfit to discharge the duties of the post. Promotion could not be claimed as a matter of right by virtue of seniority alone.4. Mr. Javali argued that even in the case of promotion based on seniority-cum-merit, an officer is entitled to promotion by virtue of seniority alone, and he relied on the decision in State of Mysore v. H. M. Bellary, 1964-7 SCR 471 = (AIR 1965 SC 868 ). In that case, an officer of the Bombay Government was sent on deputation from his parent department to another department. After long and satisfactory service and a number of promotions in the new department, he was reverted to his parent department and was posted in a lower grade though in the meantime an officer next below him in the parent department had been promoted to a higher grade. The promotion to the higher grade was based on seniority-cum-merit. The Court held that under Rule 50 (b) of the Bombay Civil Services Rules and the circular of the Government of Bombay dated October 31, 1950, an officer on deputation in another department on reversion to his parent department was entitled to be restored to the position he would have occupied in his parent department had he not been deputed. Rule 50 (b) treated the service of an officer on deputation in the new department as equivalent to service in the parent department.As he rendered satisfactory service and was considered fit for obtaining increments and promotions in the new department, he should be deemed to be fit for promotion in the parent department and was entitled to promotion in that department when an officer next below him there was getting promotions based on seniority-cum-merit. In official language, this is the next below rule" under which an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted. In our opinion, this case is entirely distinguishable. It decided that under the relevant service rules the fitness for promotion of an officer on deputation in the new department was equivalent to fitness for promotion in the parent department and the officer was entitled to promotion in the parent department when the officer next below him there was obtaining promotion based on seniority-cum-merit. But it is not an authority for the proposition that the officer on deputation is entitled to promotion in either the new or the parent department as a matter of right by virtue of his seniority alone, or that he should be deemed to be promoted whenever the officer next below him is being promoted.Where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.5. We are of the opinion that the State Government should be directed at this stage to consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959. If on such examination the State Government arbitrarily refuses to promote them, different considerations would arise.The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct if to promote them as from 1959. | 1[ds]As he rendered satisfactory service and was considered fit for obtaining increments and promotions in the new department, he should be deemed to be fit for promotion in the parent department and was entitled to promotion in that department when an officer next below him there was getting promotions based on seniority-cum-merit. In official language, this is the next below rule" under which an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted. In our opinion, this case is entirely distinguishable. It decided that under the relevant service rules the fitness for promotion of an officer on deputation in the new department was equivalent to fitness for promotion in the parent department and the officer was entitled to promotion in the parent department when the officer next below him there was obtaining promotion based on seniority-cum-merit. But it is not an authority for the proposition that the officer on deputation is entitled to promotion in either the new or the parent department as a matter of right by virtue of his seniority alone, or that he should be deemed to be promoted whenever the officer next below him is beingthe promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.5. We are of the opinion that the State Government should be directed at this stage to consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959. If on such examination the State Government arbitrarily refuses to promote them, different considerations would arise.The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct if to promote them as from 1959. | 1 | 1,402 | 373 | ### 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:
State Government the High Court refused to quash this seniority list but it directed the State Government to promote Syed Mahmood and Bhao Rao as from the respective dates on which respondents junior to them were promoted as senior statistical assistants and to treat such promotions as effective up to May 3, 1963. The State of Mysore has filed the present appeals from the orders directing the promotion of Syed Mahmood and Bhao Rao after obtaining special leave.2. Promotion to the posts of senior statistical assistants is made from the cadre of junior statistical assistants and progress assistants. Rule 4 (3) (b) of the Mysore State Civil Services General Recruitment Rules, 1957 requires such promotions to be made by selection on the basis of seniority-cum-merit that is seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion. In 1959 the seniority of junior statistical assistants was governed by the seniority list published on January 16, 1958. Syed Mahmood and Bhao Rao were junior statistical assistants. While making selections for promotion to the posts of senior statistical assistants from the cadre of junior statistical assistants in 1959, the State Government was under a duty to consider whether having regard to their seniority and fitness they should be promoted. But without considering their case at all, the State Government promoted junior statistical assistants ranking below them in point of seniority. The promotions were irregularly made and they were, therefore, entitled to ask the State Government to reconsider their case. In the circumstances, the High Court could issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniority and fitness they should have been promoted on the relevant dates when officers junior to them were promoted. Instead of issuing such a writ, the High Court wrongly issued writs directing the State Government to promote them with retrospective effect. The High Court ought not to have issued such writs without giving the State Government an opportunity in the first instance to consider their fitness for promotion in 1959.3. Mr. Javali submitted that Syed Mahmood and Bhao Rao by virtue of their seniority were entitled to promotion at the time when persons junior to them were promoted. The argument overlooks the fact that promotion to the post of senior statistical assistant was based on seniority-cum-merit. In spite of their seniority, officers junior to them could be promoted if they were unfit to discharge the duties of the post. Promotion could not be claimed as a matter of right by virtue of seniority alone.4. Mr. Javali argued that even in the case of promotion based on seniority-cum-merit, an officer is entitled to promotion by virtue of seniority alone, and he relied on the decision in State of Mysore v. H. M. Bellary, 1964-7 SCR 471 = (AIR 1965 SC 868 ). In that case, an officer of the Bombay Government was sent on deputation from his parent department to another department. After long and satisfactory service and a number of promotions in the new department, he was reverted to his parent department and was posted in a lower grade though in the meantime an officer next below him in the parent department had been promoted to a higher grade. The promotion to the higher grade was based on seniority-cum-merit. The Court held that under Rule 50 (b) of the Bombay Civil Services Rules and the circular of the Government of Bombay dated October 31, 1950, an officer on deputation in another department on reversion to his parent department was entitled to be restored to the position he would have occupied in his parent department had he not been deputed. Rule 50 (b) treated the service of an officer on deputation in the new department as equivalent to service in the parent department.As he rendered satisfactory service and was considered fit for obtaining increments and promotions in the new department, he should be deemed to be fit for promotion in the parent department and was entitled to promotion in that department when an officer next below him there was getting promotions based on seniority-cum-merit. In official language, this is the next below rule" under which an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted. In our opinion, this case is entirely distinguishable. It decided that under the relevant service rules the fitness for promotion of an officer on deputation in the new department was equivalent to fitness for promotion in the parent department and the officer was entitled to promotion in the parent department when the officer next below him there was obtaining promotion based on seniority-cum-merit. But it is not an authority for the proposition that the officer on deputation is entitled to promotion in either the new or the parent department as a matter of right by virtue of his seniority alone, or that he should be deemed to be promoted whenever the officer next below him is being promoted.Where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.5. We are of the opinion that the State Government should be directed at this stage to consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959. If on such examination the State Government arbitrarily refuses to promote them, different considerations would arise.The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct if to promote them as from 1959.
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### Explanation:
As he rendered satisfactory service and was considered fit for obtaining increments and promotions in the new department, he should be deemed to be fit for promotion in the parent department and was entitled to promotion in that department when an officer next below him there was getting promotions based on seniority-cum-merit. In official language, this is the next below rule" under which an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted. In our opinion, this case is entirely distinguishable. It decided that under the relevant service rules the fitness for promotion of an officer on deputation in the new department was equivalent to fitness for promotion in the parent department and the officer was entitled to promotion in the parent department when the officer next below him there was obtaining promotion based on seniority-cum-merit. But it is not an authority for the proposition that the officer on deputation is entitled to promotion in either the new or the parent department as a matter of right by virtue of his seniority alone, or that he should be deemed to be promoted whenever the officer next below him is beingthe promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.5. We are of the opinion that the State Government should be directed at this stage to consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959. If on such examination the State Government arbitrarily refuses to promote them, different considerations would arise.The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct if to promote them as from 1959.
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Central Bureau Of Investigation Vs. K.M.Sharan | on hand, would indeed secure the ends of justice." 31. This court in Zandu Pharmaceutical Works Ltd. & Ors. v. Mohd. Sharaful Haque & Anr. (2005) 1 SCC 122 observed thus:- "It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 32. In Indian Oil Corporation v. NEPC India Ltd. & Ors. (2006) 6 SCC 736 , this court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The court noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The court further observed that "any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged." 33. This Court in the case of Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS & Anr. (2006) 7 SCC 188 has reiterated the legal position. The Court observed that the powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that the decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. 34. Now, the crucial question which arises for our adjudication is whether the case of the respondent falls under any of the categories as enumerated in the celebrated case of Bhajan Lal (supra). On the basis of the material available on record and the allegations levelled against the respondent in the FIR and the charge-sheet, it cannot be concluded that no ingredients of offence under section 120B read with section 193 IPC are present in the instant case.35. At this stage, the High Court in its jurisdiction under section 482 Cr.P.C. was not called upon to embark upon the enquiry whether the allegations in the FIR and the charge-sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These are matters which can be examined only by the concerned court after the entire material is produced before it on a thorough investigation and evidence is led.36. In the impugned judgment, according to the settled legal position, the High Court ought to have critically examined whether the allegations made in the First Information Report and the charge-sheet taken on their face value and accepted in their entirety would prima facie constitute an offence for making out a case against the accused (respondent herein). 37. In order to examine and evaluate the allegations of the FIR and the charge-sheet on this parameter, we deem it imperative to set out sections 193 and 120B of the Indian Penal Code under which the FIR and charge-sheet have been filed. 38. Sections 193 and 120B of the Indian Penal Code read as under:- "193. Punishment for false evidence.—Whoever intentionally gives false evidence in any stage of a judicial proceedings, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine,and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.120B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both." 39. On careful scrutiny and analysis of the allegations incorporated in the FIR and the charge-sheet set out in the preceding paragraphs of this judgment, it is abundantly clear that ingredients of sections 193 and 120B IPC are clearly made out in the instant case setting out a cognizable offence justifying the registration of a case and investigation thereon.40. In our considered view, this case does not fall under any of the categories of cases formulated in Bhajan Lals case (supra) relied upon by the respondent calling for exercise of extraordinary jurisdiction or inherent powers of the court to quash the FIR.41. It would not be appropriate to comment or express any opinion on the truthfulness or veracity of the allegations incorporated in the FIR or the charge-sheet because we would not like the trial Court to be influenced by any of the findings of this Court or the High Court in the trial of this case. All what we can say without any hesitation is that on the basis of the averments and allegations incorporated in the FIR and the charge-sheet, the High Court was not justified in quashing the FIR/charge-sheet while exercising its extraordinary jurisdiction under section 482 of the Code of Criminal Procedure to stifle a legitimate prosecution. | 1[ds]21. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court ought to exercise its extraordinary jurisdiction of quashing the proceedings at any stage.On analysis of this case, in our opinion, it really does not support the case of the respondent. The ratio of the judgment is clear that the extraordinary powers of the court under section 482 Cr.P.C. can be exercised only in exceptional circumstances where all allegations incorporated in the FIR or the complaint do not prime facie constitute any offence or make out a case against thethe basis of the material available on record and the allegations levelled against the respondent in the FIR and the charge-sheet, it cannot be concluded that no ingredients of offence under section 120B read with section 193 IPC are present in the instant case.35. At this stage, the High Court in its jurisdiction under section 482 Cr.P.C. was not called upon to embark upon the enquiry whether the allegations in the FIR and the charge-sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These are matters which can be examined only by the concerned court after the entire material is produced before it on a thorough investigation and evidence is led.36. In the impugned judgment, according to the settled legal position, the High Court ought to have critically examined whether the allegations made in the First Information Report and the charge-sheet taken on their face value and accepted in their entirety would prima facie constitute an offence for making out a case against the accused (respondent herein).On careful scrutiny and analysis of the allegations incorporated in the FIR and the charge-sheet set out in the preceding paragraphs of this judgment, it is abundantly clear that ingredients of sections 193 and 120B IPC are clearly made out in the instant case setting out a cognizable offence justifying the registration of a case and investigation thereon.40. In our considered view, this case does not fall under any of the categories of cases formulated in Bhajan Lals case (supra) relied upon by the respondent calling for exercise of extraordinary jurisdiction or inherent powers of the court to quash the FIR.41. It would not be appropriate to comment or express any opinion on the truthfulness or veracity of the allegations incorporated in the FIR or the charge-sheet because we would not like the trial Court to be influenced by any of the findings of this Court or the High Court in the trial of this case. All what we can say without any hesitation is that on the basis of the averments and allegations incorporated in the FIR and the charge-sheet, the High Court was not justified in quashing the FIR/charge-sheet while exercising its extraordinary jurisdiction under section 482 of the Code of Criminal Procedure to stifle a legitimate prosecution. | 1 | 9,017 | 646 | ### 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:
on hand, would indeed secure the ends of justice." 31. This court in Zandu Pharmaceutical Works Ltd. & Ors. v. Mohd. Sharaful Haque & Anr. (2005) 1 SCC 122 observed thus:- "It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 32. In Indian Oil Corporation v. NEPC India Ltd. & Ors. (2006) 6 SCC 736 , this court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The court noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The court further observed that "any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged." 33. This Court in the case of Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS & Anr. (2006) 7 SCC 188 has reiterated the legal position. The Court observed that the powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that the decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. 34. Now, the crucial question which arises for our adjudication is whether the case of the respondent falls under any of the categories as enumerated in the celebrated case of Bhajan Lal (supra). On the basis of the material available on record and the allegations levelled against the respondent in the FIR and the charge-sheet, it cannot be concluded that no ingredients of offence under section 120B read with section 193 IPC are present in the instant case.35. At this stage, the High Court in its jurisdiction under section 482 Cr.P.C. was not called upon to embark upon the enquiry whether the allegations in the FIR and the charge-sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These are matters which can be examined only by the concerned court after the entire material is produced before it on a thorough investigation and evidence is led.36. In the impugned judgment, according to the settled legal position, the High Court ought to have critically examined whether the allegations made in the First Information Report and the charge-sheet taken on their face value and accepted in their entirety would prima facie constitute an offence for making out a case against the accused (respondent herein). 37. In order to examine and evaluate the allegations of the FIR and the charge-sheet on this parameter, we deem it imperative to set out sections 193 and 120B of the Indian Penal Code under which the FIR and charge-sheet have been filed. 38. Sections 193 and 120B of the Indian Penal Code read as under:- "193. Punishment for false evidence.—Whoever intentionally gives false evidence in any stage of a judicial proceedings, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine,and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.120B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both." 39. On careful scrutiny and analysis of the allegations incorporated in the FIR and the charge-sheet set out in the preceding paragraphs of this judgment, it is abundantly clear that ingredients of sections 193 and 120B IPC are clearly made out in the instant case setting out a cognizable offence justifying the registration of a case and investigation thereon.40. In our considered view, this case does not fall under any of the categories of cases formulated in Bhajan Lals case (supra) relied upon by the respondent calling for exercise of extraordinary jurisdiction or inherent powers of the court to quash the FIR.41. It would not be appropriate to comment or express any opinion on the truthfulness or veracity of the allegations incorporated in the FIR or the charge-sheet because we would not like the trial Court to be influenced by any of the findings of this Court or the High Court in the trial of this case. All what we can say without any hesitation is that on the basis of the averments and allegations incorporated in the FIR and the charge-sheet, the High Court was not justified in quashing the FIR/charge-sheet while exercising its extraordinary jurisdiction under section 482 of the Code of Criminal Procedure to stifle a legitimate prosecution.
### Response:
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21. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court ought to exercise its extraordinary jurisdiction of quashing the proceedings at any stage.On analysis of this case, in our opinion, it really does not support the case of the respondent. The ratio of the judgment is clear that the extraordinary powers of the court under section 482 Cr.P.C. can be exercised only in exceptional circumstances where all allegations incorporated in the FIR or the complaint do not prime facie constitute any offence or make out a case against thethe basis of the material available on record and the allegations levelled against the respondent in the FIR and the charge-sheet, it cannot be concluded that no ingredients of offence under section 120B read with section 193 IPC are present in the instant case.35. At this stage, the High Court in its jurisdiction under section 482 Cr.P.C. was not called upon to embark upon the enquiry whether the allegations in the FIR and the charge-sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These are matters which can be examined only by the concerned court after the entire material is produced before it on a thorough investigation and evidence is led.36. In the impugned judgment, according to the settled legal position, the High Court ought to have critically examined whether the allegations made in the First Information Report and the charge-sheet taken on their face value and accepted in their entirety would prima facie constitute an offence for making out a case against the accused (respondent herein).On careful scrutiny and analysis of the allegations incorporated in the FIR and the charge-sheet set out in the preceding paragraphs of this judgment, it is abundantly clear that ingredients of sections 193 and 120B IPC are clearly made out in the instant case setting out a cognizable offence justifying the registration of a case and investigation thereon.40. In our considered view, this case does not fall under any of the categories of cases formulated in Bhajan Lals case (supra) relied upon by the respondent calling for exercise of extraordinary jurisdiction or inherent powers of the court to quash the FIR.41. It would not be appropriate to comment or express any opinion on the truthfulness or veracity of the allegations incorporated in the FIR or the charge-sheet because we would not like the trial Court to be influenced by any of the findings of this Court or the High Court in the trial of this case. All what we can say without any hesitation is that on the basis of the averments and allegations incorporated in the FIR and the charge-sheet, the High Court was not justified in quashing the FIR/charge-sheet while exercising its extraordinary jurisdiction under section 482 of the Code of Criminal Procedure to stifle a legitimate prosecution.
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SHIVARAJ Vs. RAJENDRA | till the date of realization. The computation of compensation amount towards different heads arrived at by the tribunal is as follows: Compensation Heads Compensation amount 1. Pain and agony Rs. 85,000/- 2. Medical expenses Rs.1,42,324/- 3. Future medical expenses Rs. 50,000/- 4. Loss of income during laid up period Rs. 12,000/- 5. Rest, Nourishment and attendant charges Rs. 5,000/- 6. Loss of future income Rs.5,83,000/- 7. Conveyance Rs. 5,000/- 8. Loss of amenities & discomfort in life Rs. 20,000/- Total Rs.9,02,324/- 6. Feeling aggrieved by the said award, respondent No.2 (insurer) preferred an appeal being M.F.A. No.7662 of 2013 (MV) and the appellant preferred a separate appeal being M.F.A. No.9995 of 2013 (MV) for enhancement of the compensation amount. The High Court disposed of both these appeals by the impugned common judgment and order. The High Court broadly agreed with all other findings given by the tribunal but held that going by the stand taken by the appellant throughout the proceeding and the contemporaneous documents Exhs. P2 to P5, nowhere was it mentioned that the appellant was travelling in a trailer attached to the tractor. The evidence, however, is unambiguous that the appellant travelled in the tractor which was insured only for agriculture purposes and not for carrying goods. No additional insurance was taken in respect of the trailer rather presence of trailer is not shown or demonstrated in any of the documents and there was no evidence to demonstrate that the tractor was attached to a trailer. The tractor could accommodate only one person namely the driver of the tractor and none else. 7. On that finding, the High Court concluded that the appellant travelled in the tractor in breach of policy terms and conditions and therefore, the Insurance Company cannot be made liable to compensate the owner or the claimant. Accordingly, the appeal preferred by the respondent No.2 was allowed by the High Court and the insurer came to be absolved from the liability to pay compensation. While dealing with the appeal for enhancement of the compensation amount filed by the appellant, the High Court noted that the amount arrived at by the tribunal was just and proper and reckoned all the mandatory heads of compensation. As a result, it concluded that the appellant was not entitled for enhanced compensation. 8. The appellant has assailed the said common judgment and order of the High Court by these appeals. We have heard Ms. Kanika for the appellant and Ms. Rekha Chandra Sekhar for the respondent No.2 (insurer). Both the courts have accepted the case of the appellant that the motor accident occurred on 23 rd February, 2010 at about 8:30 a.m. in which the appellant suffered grievous injuries due to the rash and negligent driving of the driver of tractor. Further, both courts have determined permanent disability of 60% to the whole body suffered by the appellant in the accident. 9. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case. 10. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors. 1 , Mangla Ram Vs. Oriental Insurance Co. Ltd. 2 , Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. 3 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. 4 In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the 1 (2004) 3 SCC 297 2 (2018) 5 SCC 656 3 2018 (9) SCALE 310 4 (2017) 4 SCC 796 appellant with liberty to recover the same from the tractor owner (respondent No.1). 11. Reverting to the issue regarding the determination of compensation amount by the tribunal and as affirmed by the High Court, we find that the tribunal had taken into account all the relevant aspects and provided for just and proper compensation amount for different heads as are permissible. The High Court, therefore, was justified in not disturbing the said conclusion of the tribunal. We affirm the view so taken by the High Court. Accordingly, the appeal preferred by the appellant for enhancement of compensation amount does not warrant interference. 12. We may place on record that the appellant did make an unsuccessful attempt to persuade us to take a view that the permanent disability should be reckoned as 67% to the whole body. However, after going through the evidence of the doctor who had treated the appellant and the medical records, we find that the assessment made by the tribunal about the extent of permanent disability at 60% to the whole body seems to be a possible view. We are not inclined to disturb the said finding and also because it has been justly affirmed by the High Court, being concurrent finding of fact. Accordingly, the claim of the appellant for enhancement of compensation amount does not merit interference. | 1[ds]11. Reverting to the issue regarding the determination of compensation amount by the tribunal and as affirmed by the High Court, we find that the tribunal had taken into account all the relevant aspects and provided for just and proper compensation amount for different heads as are permissible. The High Court, therefore, was justified in not disturbing the said conclusion of the tribunal. We affirm the view so taken by the High Court. Accordingly, the appeal preferred by the appellant for enhancement of compensation amount does not warrant interference12. We may place on record that the appellant did make an unsuccessful attempt to persuade us to take a view that the permanent disability should be reckoned as 67% to the whole body. However, after going through the evidence of the doctor who had treated the appellant and the medical records, we find that the assessment made by the tribunal about the extent of permanent disability at 60% to the whole body seems to be a possible view. We are not inclined to disturb the said finding and also because it has been justly affirmed by the High Court, being concurrent finding of fact. Accordingly, the claim of the appellant for enhancement of compensation amount does not merit interference. | 1 | 1,840 | 231 | ### 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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till the date of realization. The computation of compensation amount towards different heads arrived at by the tribunal is as follows: Compensation Heads Compensation amount 1. Pain and agony Rs. 85,000/- 2. Medical expenses Rs.1,42,324/- 3. Future medical expenses Rs. 50,000/- 4. Loss of income during laid up period Rs. 12,000/- 5. Rest, Nourishment and attendant charges Rs. 5,000/- 6. Loss of future income Rs.5,83,000/- 7. Conveyance Rs. 5,000/- 8. Loss of amenities & discomfort in life Rs. 20,000/- Total Rs.9,02,324/- 6. Feeling aggrieved by the said award, respondent No.2 (insurer) preferred an appeal being M.F.A. No.7662 of 2013 (MV) and the appellant preferred a separate appeal being M.F.A. No.9995 of 2013 (MV) for enhancement of the compensation amount. The High Court disposed of both these appeals by the impugned common judgment and order. The High Court broadly agreed with all other findings given by the tribunal but held that going by the stand taken by the appellant throughout the proceeding and the contemporaneous documents Exhs. P2 to P5, nowhere was it mentioned that the appellant was travelling in a trailer attached to the tractor. The evidence, however, is unambiguous that the appellant travelled in the tractor which was insured only for agriculture purposes and not for carrying goods. No additional insurance was taken in respect of the trailer rather presence of trailer is not shown or demonstrated in any of the documents and there was no evidence to demonstrate that the tractor was attached to a trailer. The tractor could accommodate only one person namely the driver of the tractor and none else. 7. On that finding, the High Court concluded that the appellant travelled in the tractor in breach of policy terms and conditions and therefore, the Insurance Company cannot be made liable to compensate the owner or the claimant. Accordingly, the appeal preferred by the respondent No.2 was allowed by the High Court and the insurer came to be absolved from the liability to pay compensation. While dealing with the appeal for enhancement of the compensation amount filed by the appellant, the High Court noted that the amount arrived at by the tribunal was just and proper and reckoned all the mandatory heads of compensation. As a result, it concluded that the appellant was not entitled for enhanced compensation. 8. The appellant has assailed the said common judgment and order of the High Court by these appeals. We have heard Ms. Kanika for the appellant and Ms. Rekha Chandra Sekhar for the respondent No.2 (insurer). Both the courts have accepted the case of the appellant that the motor accident occurred on 23 rd February, 2010 at about 8:30 a.m. in which the appellant suffered grievous injuries due to the rash and negligent driving of the driver of tractor. Further, both courts have determined permanent disability of 60% to the whole body suffered by the appellant in the accident. 9. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case. 10. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors. 1 , Mangla Ram Vs. Oriental Insurance Co. Ltd. 2 , Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. 3 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. 4 In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the 1 (2004) 3 SCC 297 2 (2018) 5 SCC 656 3 2018 (9) SCALE 310 4 (2017) 4 SCC 796 appellant with liberty to recover the same from the tractor owner (respondent No.1). 11. Reverting to the issue regarding the determination of compensation amount by the tribunal and as affirmed by the High Court, we find that the tribunal had taken into account all the relevant aspects and provided for just and proper compensation amount for different heads as are permissible. The High Court, therefore, was justified in not disturbing the said conclusion of the tribunal. We affirm the view so taken by the High Court. Accordingly, the appeal preferred by the appellant for enhancement of compensation amount does not warrant interference. 12. We may place on record that the appellant did make an unsuccessful attempt to persuade us to take a view that the permanent disability should be reckoned as 67% to the whole body. However, after going through the evidence of the doctor who had treated the appellant and the medical records, we find that the assessment made by the tribunal about the extent of permanent disability at 60% to the whole body seems to be a possible view. We are not inclined to disturb the said finding and also because it has been justly affirmed by the High Court, being concurrent finding of fact. Accordingly, the claim of the appellant for enhancement of compensation amount does not merit interference.
### Response:
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### Explanation:
11. Reverting to the issue regarding the determination of compensation amount by the tribunal and as affirmed by the High Court, we find that the tribunal had taken into account all the relevant aspects and provided for just and proper compensation amount for different heads as are permissible. The High Court, therefore, was justified in not disturbing the said conclusion of the tribunal. We affirm the view so taken by the High Court. Accordingly, the appeal preferred by the appellant for enhancement of compensation amount does not warrant interference12. We may place on record that the appellant did make an unsuccessful attempt to persuade us to take a view that the permanent disability should be reckoned as 67% to the whole body. However, after going through the evidence of the doctor who had treated the appellant and the medical records, we find that the assessment made by the tribunal about the extent of permanent disability at 60% to the whole body seems to be a possible view. We are not inclined to disturb the said finding and also because it has been justly affirmed by the High Court, being concurrent finding of fact. Accordingly, the claim of the appellant for enhancement of compensation amount does not merit interference.
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Sadhu Muktajivendasji Guru Ishwar Dasji Vs. Acharya Sri Devendra Prasadji B. Prasadji Pande (Died) by his legal representatives | Hegde, J.1. These appeals are filed by the original plaintiff. They are brought to this court after obtaining special leave from this Court. The only question that arises for decision in these appeals is whether the delay in filing the applications for setting aside the orders of dismissal of the suits for default should be condoned and the two suits instituted by the appellant should be restored to file. The short facts of the case are these. The plaintiff filed two suits before the Civil Judge, Ahmedabad. Some witnesses were examined on behalf of the plaintiff and the suits stood posted for trial on February 3, 1953. On that date the plaintiffs witnesses were not present in Court. The plaintiffs counsel requested for adjournment of the trial of the case. The adjournment asked for was refused. Thereafter the plaintiffs counsel withdrew from the cases and the suits were dismissed for non-prosecution. On the same day the counsel for the plaintiff filed two applications for restoration of the suits. Therein he alleged that the agent of the plaintiff who was in charge of the cases was under the impression that the suits had been posted to a different date and consequently he was not able to get the witnesses. These applications were pending till July 10, 1956. Meanwhile, evidently as a measure of safety, the plaintiff filed two appeals before the District Court, Ahmedabad on March 21, 1953 against the orders dismissing the suits. These appeals were dismissed on July 27, 1955 on the ground that they were not validly instituted. The District Judge came to the conclusion that the counsel for the plaintiff had no authority to institute those appeals as he had withdrawn from the suits. Thereafter the Civil Judge dismissed the applications made by the plaintiff for the restoration of the suits on July 10, 1956 on the ground that those applications were not properly instituted. This ended one chapter in the litigation. Thereafter another chapter began on August 8, 1956. The plaintiff filed two more applications for setting aside the order of the dismissal of the suits and to restore them to file. These applications were filed by the plaintiff himself. It is said that the plaintiff was away from India during the earlier period. Two more appeals were also filed before the District Judge by the plaintiff challenging the order of dismissal made by the Civil Judge on February 3, 1953. The District Judge dismissed these appeals on April 22, 1957. Thereafter the Civil Judge dismissed the applications made on February 22, 1958. As against these orders the plaintiff went up in revision to the High Court. The High Court set aside the orders of the court below and remanded the cases to the trial Court for going into the question whether the delay in filing the applications should be condoned and further if the delay should be condoned whether the suits should be restored to file. By this time the City Civil Court had begun to function in the city of Ahmedabad. Hence, the applications in question stood transferred to that count. The City Civil Judge came to the conclusion that in the circumstances of the case the delay in filing the applications for setting aside the order of dismissal should be condoned and the suits should be restored to file. But in coming to that conclusion he was of the opinion that the only delay he need condone was that upto July 10, 1956 and for the remaining 30 days there is no need to condone as those days are available to the plaintiff for filing the application to set aside the order of dismissal.2. As against the orders of the City Civil Judge the defendant went up in revision to the High Court. The High Court did not disagree with the trial court on the question that there were sufficient grounds to condone the delay. It came to the conclusion that the delay was properly condoned upto July 10, 1956. Differing from the trial Court it came to the conclusion that the plaintiff was not entitled to the remaining 30 days for filing the application to set aside the orders of dismissal. It took the view that under law the plaintiff was not entitled to have another 30 days after July 10, 1956 for filing the applications in question. On this technical view of the matter it reversed the decision of the trial court and dismissed the application and consequently the suits also stood dismissed.3. In our opinion the High Court has taken a highly technical view of the matter. It is clear from the order of the learned trial Judge that he was of the opinion that these were eminently fit cases for condoning the delay in filing the applications for setting aside the orders of dismissal. His view of the law that the plaintiff could have the benefit of 30 days for filing those applications from July 10, 1956, may be right or wrong. We do not propose to go into that question. But one thing is clear from the order of the trial Judge that he did consider that the facts of the case are such as to justify the condonation of delay in filing the applications and we agree with that view. The facts of the case speak for themselves and in our opinion the trial Judge was fully justified in condoning the delay in filing the applications to set aside the order of dismissal. | 1[ds]3. In our opinion the High Court has taken a highly technical view of the matter. It is clear from the order of the learned trial Judge that he was of the opinion that these were eminently fit cases for condoning the delay in filing the applications for setting aside the orders of dismissal. His view of the law that the plaintiff could have the benefit of 30 days for filing those applications from July 10, 1956, may be right or wrong. We do not propose to go into that question. But one thing is clear from the order of the trial Judge that he did consider that the facts of the case are such as to justify the condonation of delay in filing the applications and we agree with that view. The facts of the case speak for themselves and in our opinion the trial Judge was fully justified in condoning the delay in filing the applications to set aside the order of dismissal. | 1 | 980 | 178 | ### Instruction:
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Hegde, J.1. These appeals are filed by the original plaintiff. They are brought to this court after obtaining special leave from this Court. The only question that arises for decision in these appeals is whether the delay in filing the applications for setting aside the orders of dismissal of the suits for default should be condoned and the two suits instituted by the appellant should be restored to file. The short facts of the case are these. The plaintiff filed two suits before the Civil Judge, Ahmedabad. Some witnesses were examined on behalf of the plaintiff and the suits stood posted for trial on February 3, 1953. On that date the plaintiffs witnesses were not present in Court. The plaintiffs counsel requested for adjournment of the trial of the case. The adjournment asked for was refused. Thereafter the plaintiffs counsel withdrew from the cases and the suits were dismissed for non-prosecution. On the same day the counsel for the plaintiff filed two applications for restoration of the suits. Therein he alleged that the agent of the plaintiff who was in charge of the cases was under the impression that the suits had been posted to a different date and consequently he was not able to get the witnesses. These applications were pending till July 10, 1956. Meanwhile, evidently as a measure of safety, the plaintiff filed two appeals before the District Court, Ahmedabad on March 21, 1953 against the orders dismissing the suits. These appeals were dismissed on July 27, 1955 on the ground that they were not validly instituted. The District Judge came to the conclusion that the counsel for the plaintiff had no authority to institute those appeals as he had withdrawn from the suits. Thereafter the Civil Judge dismissed the applications made by the plaintiff for the restoration of the suits on July 10, 1956 on the ground that those applications were not properly instituted. This ended one chapter in the litigation. Thereafter another chapter began on August 8, 1956. The plaintiff filed two more applications for setting aside the order of the dismissal of the suits and to restore them to file. These applications were filed by the plaintiff himself. It is said that the plaintiff was away from India during the earlier period. Two more appeals were also filed before the District Judge by the plaintiff challenging the order of dismissal made by the Civil Judge on February 3, 1953. The District Judge dismissed these appeals on April 22, 1957. Thereafter the Civil Judge dismissed the applications made on February 22, 1958. As against these orders the plaintiff went up in revision to the High Court. The High Court set aside the orders of the court below and remanded the cases to the trial Court for going into the question whether the delay in filing the applications should be condoned and further if the delay should be condoned whether the suits should be restored to file. By this time the City Civil Court had begun to function in the city of Ahmedabad. Hence, the applications in question stood transferred to that count. The City Civil Judge came to the conclusion that in the circumstances of the case the delay in filing the applications for setting aside the order of dismissal should be condoned and the suits should be restored to file. But in coming to that conclusion he was of the opinion that the only delay he need condone was that upto July 10, 1956 and for the remaining 30 days there is no need to condone as those days are available to the plaintiff for filing the application to set aside the order of dismissal.2. As against the orders of the City Civil Judge the defendant went up in revision to the High Court. The High Court did not disagree with the trial court on the question that there were sufficient grounds to condone the delay. It came to the conclusion that the delay was properly condoned upto July 10, 1956. Differing from the trial Court it came to the conclusion that the plaintiff was not entitled to the remaining 30 days for filing the application to set aside the orders of dismissal. It took the view that under law the plaintiff was not entitled to have another 30 days after July 10, 1956 for filing the applications in question. On this technical view of the matter it reversed the decision of the trial court and dismissed the application and consequently the suits also stood dismissed.3. In our opinion the High Court has taken a highly technical view of the matter. It is clear from the order of the learned trial Judge that he was of the opinion that these were eminently fit cases for condoning the delay in filing the applications for setting aside the orders of dismissal. His view of the law that the plaintiff could have the benefit of 30 days for filing those applications from July 10, 1956, may be right or wrong. We do not propose to go into that question. But one thing is clear from the order of the trial Judge that he did consider that the facts of the case are such as to justify the condonation of delay in filing the applications and we agree with that view. The facts of the case speak for themselves and in our opinion the trial Judge was fully justified in condoning the delay in filing the applications to set aside the order of dismissal.
### Response:
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3. In our opinion the High Court has taken a highly technical view of the matter. It is clear from the order of the learned trial Judge that he was of the opinion that these were eminently fit cases for condoning the delay in filing the applications for setting aside the orders of dismissal. His view of the law that the plaintiff could have the benefit of 30 days for filing those applications from July 10, 1956, may be right or wrong. We do not propose to go into that question. But one thing is clear from the order of the trial Judge that he did consider that the facts of the case are such as to justify the condonation of delay in filing the applications and we agree with that view. The facts of the case speak for themselves and in our opinion the trial Judge was fully justified in condoning the delay in filing the applications to set aside the order of dismissal.
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Harish Chandra Vs. State of Uttar Pradesh | been made by the appellant Harish Chandra that he would tell the police where he had put the watch, because it was in the nature of a confession made by the accused person under an inducement proceeding from Ram Murti Singh (PW 6) who was the Head Rakshak of the Railway Protection Force. It has been urged that such a confession fell within the purview of Section 24 of the Evidence Act and could not be admissible even under Section 27 of that Act as it is not an exception to Section. 24. Reference in this connection has been made to Ramkishan Mithanlal Sharma v. State of Bombay (AIR 1955 SC 104 : 1955 SCR 903 : 1955 Cri LJ 196); Delhi Administration v. Balakrishan (AIR 1972 SC 3 : 1972 Cri LJ 1); Emperor v. Taduturu Poligadu (AIR 1940 Mad 12 : 41 Cri LJ 242) and Halsburys Laws of England, third edition, paragraph 860-862. Our attention has been invited to the statements of Ram Murti Singh (PW 6) and Avinash Kumar (PW 1) to show that Ram Murti Singh had told the appellant and Ram Autar that he would release them if they gave the watch and that induced the appellant to say that he would let him know where the watch had been put. Mr. Rana has argued, on the other hand, that the appellant did not say anything to Ram Murti Singh (PW 6) which could be said to amount to a confession within the meaning of Section 24 of the Evidence Act, and that even if what the appellant said was left out of consideration altogether, that would not affect the correctness of his conviction because the parol evidence on the record and the fact that the appellant recovered the watch from the ash heap behind the teastall, were quite sufficient to justify his conviction. 4. It appears there is justification for this argument of Mr. Rana because even if the alleged confessional statement of the appellant is left out of consideration, the other evidence on the record is sufficient to justify his conviction. Appellant Harish Chandra was admittedly a resident of Bareilly, and the evidence on record leaves no room for doubt that he boarded the same compartment in which Avinash Kumar (PW 1) had entered, at Chakarpur. There is also the evidence of Avinash Kumar (PW 1) that, as the train reached Tanakpur railway station and the passengers started to get down, he was relieved of his watch by accused Ram Autar and that when he raised an alarm appellant Harish Chandra gave him a slap and ran away. It is also established by the evidence on record that Avinash Kumar and the Head Rakshak of the Railway Protection Force (PW 6), along with some policemen, made a search and found Harish Chandra and Ram Autar taking tea at a teastall and ultimately appellant Harish Chandra took out the watch from a heap of ash behind the teastall and gave it to the Head Rakshak of the Railway Protection Force. No effective criticism has been levelled against all this evidence of the prosecution, and even appellant Harish Chandra has not found it possible to give any reason why Avinash Kumar (PW 4) should have deposed against him falsely when they were not even known to each other. It would not therefore affect the merits of the case even if the so-called confessional statement of the appellant is left out of consideration altogether. 5. It has next been argued by Mr. Anthony that the recovery of watch had not bearing on the guilt of Harish Chandra because it might also be that he merely knew that his friend Ram Autar had hidden the watch in the heap of ash and he simply took it out and made it over to the police without being a party to the theft. This argument is quite futile because the other satisfactory evidence on the record and the sequence of events are sufficient to prove the participation of appellant Harish Chandra int he crime. We have made a reference to the statement of Avinash Kumar (PW 1) in this connection which the High Court has held to be independent and reliable. 6. Then it has been argued by Mr. Anthony that as appellant Harish Chandra slapped Avinash Kumar (PW 1) after the watch had been stolen by Ram Autar, it could not be said that hurt was caused to Avinash Kumar in order to commit the theft, or in committing the theft, so as to bring the offence within the purview of Section 390, I.P.C. This argument is also unconvincing because, according to Section 390, I.P.C., theft is robbery if in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, evidence in the present case was quite sufficient to show that after Avinash Kumar had been relieved of his watch by accused Ram Autar, he (Avinash Kumar) raised an alarm and appellant Harish Chandra slapped him at that time. This shows that as the train was about to stop at Tanakpur railway station and accused Ram Autar was trying to carry away the stolen watch, appellant Harish Chandra slapped Avinash Kumar in order to enable him to do so. The hurt which was thus caused to Avinash Kumar clearly fell within the purview of Section 390, I.P.C. and we find no justification for the argument that it had no relation to or bearing on the theft which had been committed by accused Ram Autar. 7. It has lastly been argued that the appellant is entitled to acquittal because Ram Murti Singh (PW 6) did not have the authority to investigate the case as he was Head Rakshak of the Railway Protection Force. This argument is also of no avail for the simple reason that there is nothing on the record to show that the Head Rakshak at all investigated the case. | 0[ds]This argument is also unconvincing because, according to Section 390, I.P.C., theft is robbery if in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, evidence in the present case was quite sufficient to show that after Avinash Kumar had been relieved of his watch by accused Ram Autar, he (Avinash Kumar) raised an alarm and appellant Harish Chandra slapped him at that time. This shows that as the train was about to stop at Tanakpur railway station and accused Ram Autar was trying to carry away the stolen watch, appellant Harish Chandra slapped Avinash Kumar in order to enable him to do so. The hurt which was thus caused to Avinash Kumar clearly fell within the purview of Section 390, I.P.C. and we find no justification for the argument that it had no relation to or bearing on the theft which had been committed by accused Ram Autar7. It has lastly been argued that the appellant is entitled to acquittal because Ram Murti Singh (PW 6) did not have the authority to investigate the case as he was Head Rakshak of the Railway Protection Force. This argument is also of no avail for the simple reason that there is nothing on the record to show that the Head Rakshak at all investigated the case. | 0 | 1,592 | 255 | ### Instruction:
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been made by the appellant Harish Chandra that he would tell the police where he had put the watch, because it was in the nature of a confession made by the accused person under an inducement proceeding from Ram Murti Singh (PW 6) who was the Head Rakshak of the Railway Protection Force. It has been urged that such a confession fell within the purview of Section 24 of the Evidence Act and could not be admissible even under Section 27 of that Act as it is not an exception to Section. 24. Reference in this connection has been made to Ramkishan Mithanlal Sharma v. State of Bombay (AIR 1955 SC 104 : 1955 SCR 903 : 1955 Cri LJ 196); Delhi Administration v. Balakrishan (AIR 1972 SC 3 : 1972 Cri LJ 1); Emperor v. Taduturu Poligadu (AIR 1940 Mad 12 : 41 Cri LJ 242) and Halsburys Laws of England, third edition, paragraph 860-862. Our attention has been invited to the statements of Ram Murti Singh (PW 6) and Avinash Kumar (PW 1) to show that Ram Murti Singh had told the appellant and Ram Autar that he would release them if they gave the watch and that induced the appellant to say that he would let him know where the watch had been put. Mr. Rana has argued, on the other hand, that the appellant did not say anything to Ram Murti Singh (PW 6) which could be said to amount to a confession within the meaning of Section 24 of the Evidence Act, and that even if what the appellant said was left out of consideration altogether, that would not affect the correctness of his conviction because the parol evidence on the record and the fact that the appellant recovered the watch from the ash heap behind the teastall, were quite sufficient to justify his conviction. 4. It appears there is justification for this argument of Mr. Rana because even if the alleged confessional statement of the appellant is left out of consideration, the other evidence on the record is sufficient to justify his conviction. Appellant Harish Chandra was admittedly a resident of Bareilly, and the evidence on record leaves no room for doubt that he boarded the same compartment in which Avinash Kumar (PW 1) had entered, at Chakarpur. There is also the evidence of Avinash Kumar (PW 1) that, as the train reached Tanakpur railway station and the passengers started to get down, he was relieved of his watch by accused Ram Autar and that when he raised an alarm appellant Harish Chandra gave him a slap and ran away. It is also established by the evidence on record that Avinash Kumar and the Head Rakshak of the Railway Protection Force (PW 6), along with some policemen, made a search and found Harish Chandra and Ram Autar taking tea at a teastall and ultimately appellant Harish Chandra took out the watch from a heap of ash behind the teastall and gave it to the Head Rakshak of the Railway Protection Force. No effective criticism has been levelled against all this evidence of the prosecution, and even appellant Harish Chandra has not found it possible to give any reason why Avinash Kumar (PW 4) should have deposed against him falsely when they were not even known to each other. It would not therefore affect the merits of the case even if the so-called confessional statement of the appellant is left out of consideration altogether. 5. It has next been argued by Mr. Anthony that the recovery of watch had not bearing on the guilt of Harish Chandra because it might also be that he merely knew that his friend Ram Autar had hidden the watch in the heap of ash and he simply took it out and made it over to the police without being a party to the theft. This argument is quite futile because the other satisfactory evidence on the record and the sequence of events are sufficient to prove the participation of appellant Harish Chandra int he crime. We have made a reference to the statement of Avinash Kumar (PW 1) in this connection which the High Court has held to be independent and reliable. 6. Then it has been argued by Mr. Anthony that as appellant Harish Chandra slapped Avinash Kumar (PW 1) after the watch had been stolen by Ram Autar, it could not be said that hurt was caused to Avinash Kumar in order to commit the theft, or in committing the theft, so as to bring the offence within the purview of Section 390, I.P.C. This argument is also unconvincing because, according to Section 390, I.P.C., theft is robbery if in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, evidence in the present case was quite sufficient to show that after Avinash Kumar had been relieved of his watch by accused Ram Autar, he (Avinash Kumar) raised an alarm and appellant Harish Chandra slapped him at that time. This shows that as the train was about to stop at Tanakpur railway station and accused Ram Autar was trying to carry away the stolen watch, appellant Harish Chandra slapped Avinash Kumar in order to enable him to do so. The hurt which was thus caused to Avinash Kumar clearly fell within the purview of Section 390, I.P.C. and we find no justification for the argument that it had no relation to or bearing on the theft which had been committed by accused Ram Autar. 7. It has lastly been argued that the appellant is entitled to acquittal because Ram Murti Singh (PW 6) did not have the authority to investigate the case as he was Head Rakshak of the Railway Protection Force. This argument is also of no avail for the simple reason that there is nothing on the record to show that the Head Rakshak at all investigated the case.
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This argument is also unconvincing because, according to Section 390, I.P.C., theft is robbery if in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, evidence in the present case was quite sufficient to show that after Avinash Kumar had been relieved of his watch by accused Ram Autar, he (Avinash Kumar) raised an alarm and appellant Harish Chandra slapped him at that time. This shows that as the train was about to stop at Tanakpur railway station and accused Ram Autar was trying to carry away the stolen watch, appellant Harish Chandra slapped Avinash Kumar in order to enable him to do so. The hurt which was thus caused to Avinash Kumar clearly fell within the purview of Section 390, I.P.C. and we find no justification for the argument that it had no relation to or bearing on the theft which had been committed by accused Ram Autar7. It has lastly been argued that the appellant is entitled to acquittal because Ram Murti Singh (PW 6) did not have the authority to investigate the case as he was Head Rakshak of the Railway Protection Force. This argument is also of no avail for the simple reason that there is nothing on the record to show that the Head Rakshak at all investigated the case.
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Standard-Vacuum Refining Company of India Limited Vs. Its Workmen & Others | it has done so.In dealing with this question it may be relevant to bear in mind that industrial adjudication generally does not encourage the employment of contract labour in modern times.As has been observed by the Royal Commission on Labour"whatever the merits of the system in primitive times, it is now desirable, if the management is to discharge completely the complex responsibility laid upon it by law and by equity, that the manager should have full control over the selection, hours of work and payment of the workers". The same opinion has been expressed by several Labour Enquiry Committees appointed in different States.We agree that whenever a dispute is raised by workmen in regard to the employment of contract labour by any employer it would be necessary for the tribunal to examine the merits of the dispute apart from the general consideration that contract labour should not be encouraged, and that in a given case the decision should rest not merely on theoretical or abstract objections to contract labour but also on the terms and conditions on which contract labour is employed and the grievance made by the employees in respect thereof.As in other matters of industrial adjudication so in the case of contract labour theoretical or academic considerations may be relevant but their importance should not be over-estimated. Let us then consider the contract labour system in the present case. 11. The contract in this case related to four matters. But the reference is confined to one only, viz., cleaning maintenance work at the refinery including premises and plant and we shall deal with that only. So far as this work is concerned, it is incidental to the manufacturing process and is necessary for it and of a perennial nature which must be done every day. Such work is generally be done every day. Such work is generally done by workmen in the regular employ of the employer and there should be no difficulty in having regular workmen for this kind of work. The matter would be different if the work was of intermittent or temporary nature or was so little that it would not be possible to employ full time workmen for the purpose. Under the circumstances the order of the tribunal appears to be just and there are no good reasons for interfering with it. 12. Our attention in this connection was drawn to D. Macropollo and Co. (Private) Ltd. v. D. Macropollo and Co. (Private) Ltd. Employees Union, AIR 1958 SC 1012 M, and it was urged that the tribunal should not have interfered with the managements manner of having its work done in the most economical and convenient way that it thought proper. It was pointed out that this was not a case where the contract system was a camouflage and the workmen of the contractor were really the workmen of the company.It may be accepted that the contractor in the present case is an independent person and system is genuine and there is no question of the company carrying on this work itself and camouflaging it as if it was done through contractors in order to pay less to the workmen. But the fact that the contract in this case is a bona fide contract would not necessarily mean that it should not be touched by the industrial tribunals.If the contract has been mala fide and a cloak for suppressing the fact that the workmen were really the workmen of the company, the tribunal would have been justified in ordering the company to take over the entire body of workmen and treat it as its own workmen. But because the contract in this case was bona fide the tribunal has not ordered the company to take over the entire body of workmen. It has left to it to decide for itself how many workmen it should employ and on what terms and has merely directed that when selection is being made preference should be given to the workmen employed by the present contractor. In Macropollo case, AIR 1958 SC 1012 , this Court held that the reorganisation had been adopted by the employer for reasons of economy and convenience and was bona fide. In that case the main business of the concern was the selling agency of various cigarette manufacturing concerns. Before 1946 the concern used to employ distributors for the purpose and these distributors used to employ salesmen. In 1946 there were communal riots in Calcutta and therefore the concern took over the salesmen in its direct employment in order to reorganise them on communal basis in the then prevailing circumstances. In 1954 the concern decided to close down its own outdoor sales department and revert to the distributor system. It was in that context that certain workmen had to be retrenched, and this Court held that the reorganisation scheme adopted in 1954 for reasons of economy and convenience was bona fide and if it resulted in retrenchment that was inevitable. These facts would show that in that case there was reorganisation of the business resulting in retrenchment. In the present case no such things arises and the only question for decision is whether the work which is perennial and must go on from day to day and which is incidental and necessary for the work of the refinery and which is sufficient to employ a considerable number of whole-time workmen and which is being done in most concerns through regular workmen should be allowed to be done by contractors. Considering the nature of the work and the conditions of service in the present case we are of opinion that the tribunals decision is right and no interference is called for, except that the date should now be changed, for such a direction cannot be put into force with retrospective effect from November 1, 1958. It appears that a few months remain before the present contract will come to an end. We think that for these few months the present system may continue. | 0[ds]The first part thus refers to the factum of a real and substantial dispute, the second part to the parties to the dispute and the third to the subject-matter of the dispute. The contention of the learned Solicitor-General is two-fold in this connection, namely, (i) that there is no real or substantial dispute between the company and the respondents, and (ii) that the subject-matter of the dispute is such that it cannot come within the terms of the definition in S. 2(k)7. The first submission can be disposed of shortly. There is undoubtedly a real and substantial dispute between the company and the respondents on the question of the employment of contract-labour for the work of the company. The fact that the respondents who have raised this dispute are not employed on contract basis will not make the dispute any the less a real or substantial dispute between them and the company as to the manner in which the work of the company should be carried on. The dispute in this case is that the company should employ workmen directly and not through contractors in carrying on its work and this dispute is undoubtedly real and substantial even though the regular workmen (i. e. the respondents) who have raised it are not employed on contract labourThus out of the three ingredients of S. 2 (k) the first is satisfied; the second also is satisfied because the dispute is between the company and the respondents;it is the third ingredient which really calls for determination in the light of the decision in Dimakuchi case, 1958 SCR 1156 : (AIR 1958 SC 353 )There can be no doubt that there is community of interest in this case between the respondents and the workmen of Ramji Gordhan and Company. They belong to the same class and they do the work of the same employer and it is possible for the company to give the relief which the respondents are claiming. The respondents have in our opinion also a substantial interest in the subject matter of the dispute, namely, the abolition of the contract system in doing work of this kindWe may, however, mention that the test laid down is that the workmen espousing the cause should have substantial interest in the subject matter of the dispute, and it was only when illustrating the practical application of the test that this Court used the words "may prejudicially affect their interest"We do not think it necessary to go into this aspect of the matter as we have already indicated that prejudicial effect is only one of the illustrations of the practical application of the test laid down in Dimakuchi case, 1958 SCR 1156 : (AIR 1958 SC 353 ), viz., substantial interest in the sense that the class to which the aggrieved party belongs is substantially affected thereby.It seems to us therefore that the respondents have a community of interest with the workmen of Ramji Gordhan and Company who are in effect working for the same employer. They have also a substantial interest in the subject-matter of the dispute in the sense that the class to which they belong (namely workmen) is substantially affected thereby. Finally the company can give relief in the matter. We are therefore of opinion that all the ingredients of S. 2 (k) as interpreted in Dimakuchi case, 1958 SCR 1156 : (AIR 1958 SC 353 ), are present in this case and the dispute between the parties is an industrial dispute and the reference was competentAs in other matters of industrial adjudication so in the case of contract labour theoretical or academic considerations may be relevant but their importance should not be over-estimated11. The contract in this case related to four matters. But the reference is confined to one only, viz., cleaning maintenance work at the refinery including premises and plant and we shall deal with that only. So far as this work is concerned, it is incidental to the manufacturing process and is necessary for it and of a perennial nature which must be done every day. Such work is generally be done every day. Such work is generally done by workmen in the regular employ of the employer and there should be no difficulty in having regular workmen for this kind of work. The matter would be different if the work was of intermittent or temporary nature or was so little that it would not be possible to employ full time workmen for the purpose. Under the circumstances the order of the tribunal appears to be just and there are no good reasons for interfering with itIt may be accepted that the contractor in the present case is an independent person and system is genuine and there is no question of the company carrying on this work itself and camouflaging it as if it was done through contractors in order to pay less to the workmen. But the fact that the contract in this case is a bona fide contract would not necessarily mean that it should not be touched by the industrial tribunals.If the contract has been mala fide and a cloak for suppressing the fact that the workmen were really the workmen of the company, the tribunal would have been justified in ordering the company to take over the entire body of workmen and treat it as its own workmen. But because the contract in this case was bona fide the tribunal has not ordered the company to take over the entire body of workmen. It has left to it to decide for itself how many workmen it should employ and on what terms and has merely directed that when selection is being made preference should be given to the workmen employed by the present contractIn the present case no such things arises and the only question for decision is whether the work which is perennial and must go on from day to day and which is incidental and necessary for the work of the refinery and which is sufficient to employ a considerable number of whole-time workmen and which is being done in most concerns through regular workmen should be allowed to be done by contractors. Considering the nature of the work and the conditions of service in the present case we are of opinion that the tribunals decision is right and no interference is called for, except that the date should now be changed, for such a direction cannot be put into force with retrospective effect from November 1, 1958. It appears that a few months remain before the present contract will come to an end. We think that for these few months the present system may continue. | 0 | 3,701 | 1,191 | ### Instruction:
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it has done so.In dealing with this question it may be relevant to bear in mind that industrial adjudication generally does not encourage the employment of contract labour in modern times.As has been observed by the Royal Commission on Labour"whatever the merits of the system in primitive times, it is now desirable, if the management is to discharge completely the complex responsibility laid upon it by law and by equity, that the manager should have full control over the selection, hours of work and payment of the workers". The same opinion has been expressed by several Labour Enquiry Committees appointed in different States.We agree that whenever a dispute is raised by workmen in regard to the employment of contract labour by any employer it would be necessary for the tribunal to examine the merits of the dispute apart from the general consideration that contract labour should not be encouraged, and that in a given case the decision should rest not merely on theoretical or abstract objections to contract labour but also on the terms and conditions on which contract labour is employed and the grievance made by the employees in respect thereof.As in other matters of industrial adjudication so in the case of contract labour theoretical or academic considerations may be relevant but their importance should not be over-estimated. Let us then consider the contract labour system in the present case. 11. The contract in this case related to four matters. But the reference is confined to one only, viz., cleaning maintenance work at the refinery including premises and plant and we shall deal with that only. So far as this work is concerned, it is incidental to the manufacturing process and is necessary for it and of a perennial nature which must be done every day. Such work is generally be done every day. Such work is generally done by workmen in the regular employ of the employer and there should be no difficulty in having regular workmen for this kind of work. The matter would be different if the work was of intermittent or temporary nature or was so little that it would not be possible to employ full time workmen for the purpose. Under the circumstances the order of the tribunal appears to be just and there are no good reasons for interfering with it. 12. Our attention in this connection was drawn to D. Macropollo and Co. (Private) Ltd. v. D. Macropollo and Co. (Private) Ltd. Employees Union, AIR 1958 SC 1012 M, and it was urged that the tribunal should not have interfered with the managements manner of having its work done in the most economical and convenient way that it thought proper. It was pointed out that this was not a case where the contract system was a camouflage and the workmen of the contractor were really the workmen of the company.It may be accepted that the contractor in the present case is an independent person and system is genuine and there is no question of the company carrying on this work itself and camouflaging it as if it was done through contractors in order to pay less to the workmen. But the fact that the contract in this case is a bona fide contract would not necessarily mean that it should not be touched by the industrial tribunals.If the contract has been mala fide and a cloak for suppressing the fact that the workmen were really the workmen of the company, the tribunal would have been justified in ordering the company to take over the entire body of workmen and treat it as its own workmen. But because the contract in this case was bona fide the tribunal has not ordered the company to take over the entire body of workmen. It has left to it to decide for itself how many workmen it should employ and on what terms and has merely directed that when selection is being made preference should be given to the workmen employed by the present contractor. In Macropollo case, AIR 1958 SC 1012 , this Court held that the reorganisation had been adopted by the employer for reasons of economy and convenience and was bona fide. In that case the main business of the concern was the selling agency of various cigarette manufacturing concerns. Before 1946 the concern used to employ distributors for the purpose and these distributors used to employ salesmen. In 1946 there were communal riots in Calcutta and therefore the concern took over the salesmen in its direct employment in order to reorganise them on communal basis in the then prevailing circumstances. In 1954 the concern decided to close down its own outdoor sales department and revert to the distributor system. It was in that context that certain workmen had to be retrenched, and this Court held that the reorganisation scheme adopted in 1954 for reasons of economy and convenience was bona fide and if it resulted in retrenchment that was inevitable. These facts would show that in that case there was reorganisation of the business resulting in retrenchment. In the present case no such things arises and the only question for decision is whether the work which is perennial and must go on from day to day and which is incidental and necessary for the work of the refinery and which is sufficient to employ a considerable number of whole-time workmen and which is being done in most concerns through regular workmen should be allowed to be done by contractors. Considering the nature of the work and the conditions of service in the present case we are of opinion that the tribunals decision is right and no interference is called for, except that the date should now be changed, for such a direction cannot be put into force with retrospective effect from November 1, 1958. It appears that a few months remain before the present contract will come to an end. We think that for these few months the present system may continue.
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of the company. The fact that the respondents who have raised this dispute are not employed on contract basis will not make the dispute any the less a real or substantial dispute between them and the company as to the manner in which the work of the company should be carried on. The dispute in this case is that the company should employ workmen directly and not through contractors in carrying on its work and this dispute is undoubtedly real and substantial even though the regular workmen (i. e. the respondents) who have raised it are not employed on contract labourThus out of the three ingredients of S. 2 (k) the first is satisfied; the second also is satisfied because the dispute is between the company and the respondents;it is the third ingredient which really calls for determination in the light of the decision in Dimakuchi case, 1958 SCR 1156 : (AIR 1958 SC 353 )There can be no doubt that there is community of interest in this case between the respondents and the workmen of Ramji Gordhan and Company. They belong to the same class and they do the work of the same employer and it is possible for the company to give the relief which the respondents are claiming. The respondents have in our opinion also a substantial interest in the subject matter of the dispute, namely, the abolition of the contract system in doing work of this kindWe may, however, mention that the test laid down is that the workmen espousing the cause should have substantial interest in the subject matter of the dispute, and it was only when illustrating the practical application of the test that this Court used the words "may prejudicially affect their interest"We do not think it necessary to go into this aspect of the matter as we have already indicated that prejudicial effect is only one of the illustrations of the practical application of the test laid down in Dimakuchi case, 1958 SCR 1156 : (AIR 1958 SC 353 ), viz., substantial interest in the sense that the class to which the aggrieved party belongs is substantially affected thereby.It seems to us therefore that the respondents have a community of interest with the workmen of Ramji Gordhan and Company who are in effect working for the same employer. They have also a substantial interest in the subject-matter of the dispute in the sense that the class to which they belong (namely workmen) is substantially affected thereby. Finally the company can give relief in the matter. We are therefore of opinion that all the ingredients of S. 2 (k) as interpreted in Dimakuchi case, 1958 SCR 1156 : (AIR 1958 SC 353 ), are present in this case and the dispute between the parties is an industrial dispute and the reference was competentAs in other matters of industrial adjudication so in the case of contract labour theoretical or academic considerations may be relevant but their importance should not be over-estimated11. The contract in this case related to four matters. But the reference is confined to one only, viz., cleaning maintenance work at the refinery including premises and plant and we shall deal with that only. So far as this work is concerned, it is incidental to the manufacturing process and is necessary for it and of a perennial nature which must be done every day. Such work is generally be done every day. Such work is generally done by workmen in the regular employ of the employer and there should be no difficulty in having regular workmen for this kind of work. The matter would be different if the work was of intermittent or temporary nature or was so little that it would not be possible to employ full time workmen for the purpose. Under the circumstances the order of the tribunal appears to be just and there are no good reasons for interfering with itIt may be accepted that the contractor in the present case is an independent person and system is genuine and there is no question of the company carrying on this work itself and camouflaging it as if it was done through contractors in order to pay less to the workmen. But the fact that the contract in this case is a bona fide contract would not necessarily mean that it should not be touched by the industrial tribunals.If the contract has been mala fide and a cloak for suppressing the fact that the workmen were really the workmen of the company, the tribunal would have been justified in ordering the company to take over the entire body of workmen and treat it as its own workmen. But because the contract in this case was bona fide the tribunal has not ordered the company to take over the entire body of workmen. It has left to it to decide for itself how many workmen it should employ and on what terms and has merely directed that when selection is being made preference should be given to the workmen employed by the present contractIn the present case no such things arises and the only question for decision is whether the work which is perennial and must go on from day to day and which is incidental and necessary for the work of the refinery and which is sufficient to employ a considerable number of whole-time workmen and which is being done in most concerns through regular workmen should be allowed to be done by contractors. Considering the nature of the work and the conditions of service in the present case we are of opinion that the tribunals decision is right and no interference is called for, except that the date should now be changed, for such a direction cannot be put into force with retrospective effect from November 1, 1958. It appears that a few months remain before the present contract will come to an end. We think that for these few months the present system may continue.
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State Of Gujarat & Another Vs. Sankalchand Khodidas Patel(Dead) By L.Rs | the letter that the State shall, on that basis, contribute Rs. 45, 980/- and that the expenditure on that account would be debitable to the head mentioned in the letter and would be met from the grants which had been sanctioned i n the budget. Rameshchandra Jethalals statement about the government resolution to that effect, has not been shaken in cross-examination. It was therefore quite sufficient to prove that the Government did not go back upon that decision an d that the sanction did not lapse with the expiry of the year. It is another matter that, because of the protracted litigation, it may have become necessary for the authorities concerned to obtain a fresh order of allocation of the funds for the payment of the governments contribution of Rs. 45, 980/- in pursuance of its decision contained in Ex. 54, but there is nothing on the record to show that the decision ceased to be operative after it had been made, or was ever withdrawn. We do not therefore find anything on the record which could justify the High Courts finding that that sanction or resolution was withdrawn, rescinded or abandoned at any time.6. It appears that the High Court arrived at its finding about the abandonment for the further reason that the agreement Ex. 104 was executed by the cooperative society concerned on June 17, 1960. It is however not disputed before us that the agreement was obtained under the impression that the land had been acquired for a company; under Part VII of the Act. But this was not so because it had been made quite clear in the notification Ex. 58, which was issued under section 4 of the Act, that the acquisition was for a "public purpose" namely, for the construction of houses for New Sarvodaya Co-operative Housing Society Ltd. and there was nothing to show that-the acquisition was for any company. The notification under section 6 of the Act was also to the same effect, and in that notification it was stated at four important places that the land was needed for the "public purpose" specified in column No. 4 thereof. There was therefore nothing in the two notifications to show that the notification was for a company, and there was no justification for arriving at a contrary decision merely because of the execution of agreement Ex. 104 by the Society under a mistaken impression.The High Court has gone on to the State that as the words "or at the expense of a local body or corporation or company as the case may be were not scored off from the notification under section 6 of the Act. the language of the notification supported its finding that the acquisition was for a company, and not for a public purpose. It is true that the unnecessary words were not scored off, but the very fact that it was stated at as many as four places in that very notification that the acquisition was for a public purpose, was sufficient to show that the omission was inadvertent and could not justify the finding that the tend was not acquired for a public purpose but for a company.7. The High Court has made a reference to paragraph 9 of the written statement also in support of its finding against the defendant. Here again the High Court failed to appreciate that that averment was made in reply to the plaintiffs contention in paragraph 6 of the plaint on a question of law regarding the making of contribution out of public revenues or funds controlled or managed by a local authority. It wag in that connection that the defendant stated in paragraph 9 of the written statement that the acquiring body has agreed to pay the amount of compensation when asked for to the plaintiff". There is nothing in the averment to show that the payment wag to be made by the Co-operative Society and not by the State Government. The High Court lost sight of the fact that the "acquiring body" was the State, and could not be the Co-operative Society or-any company.8. It could thus appear that the High Court committed the aforesaid illegalities and misread the evidence on record in setting aside the finding of the Trial Court in favour of the defendant. It may be that the amount of compensation, which was to be paid by the State, Government on account of compensation to be awarded for acquiring the property out of the public revenues, was not paid, but there can be no doubt that, as has been stated, a decision had been taken that it was to be so paid by the Government as required by the second proviso to sub-section (1) of section 6 of the Act. As we have stated, the actual payment was not made because of the protracted litigation, but the State Governments anxiety to acquire the land for the public purpose could well be appreciated from the fact that it has adhered to its intention to acquire the land According to law, and to make its contribution towards the compensation, as and when necessary. The fact that the State has preferred the present appeal also goes to show that it has not abandoned its intention to make the acquisition on payment of a part of the compensation out of public revenues. It may also be mentioned that Mr. S. T. Desai appearing on behalf of the State has categorically stated at the Bar that the State Government will contribute Rs. 45, 980/-, from the public revenues, towards compensation at the appropriate time. The position would no doubt have been different if it had been shown that the Government had abandoned the intention to do so or had decided not to pay any part of the compensation out of the public revenues, for then the requirement of the second proviso to sub-section (1) of section 6 would not have been fulfilled but, as has been shown, this was really not so. | 1[ds]We have gone through the pleadings of the parties and the points on which they were at issue in the trial court.a plea was not taken in the Trial Court that the defendant State abandoned its intention to pay a part of the compensation, to be awarded for the property wholly or partly out of public revenues. It was therefore not permissible for the High Court to decide the controversy on a plea which was not taken at all and which was not the subject matter of any issue at the trial. There is nothing in the re cord to show that the parties knew that the question of abandonment of the original intention was a point for trial, or that they had any opportunity to lead their evidence in regard to it and availed of that opportunity. Our attention has in fact been invited by Mr. Desai, on behalf of the appellant, to the six contentions which were raised by counsel for the plaintiff in the High Court, but none of them dealt with the question of abandonment. The High Court therefore committed an error of law in deciding the appeal on the finding of abandonment of the original intention of the State Government to pay a part of the, compensation to be awarded to the plaintiff for the acquisition.Even otherwise, we find that there was no real basis for the Courts finding about the abandonment of the intention of the State Government to pay a part of the compensation. The High Court arrived at its finding on the basis of the documentary and oral evidence referred to b y it in the judgment but, here again, we find that it committed obvious errors of law for which its finding of fact cannot be sustained and has to be setHigh Court has, in this connection, referred to the "first fact" that even though the award of compensation under section 16 was ready for publication as early as 1961, it was not published because the amount of subsidy in respect of which the Government "had declared its intention as evidenced by Ex. 54 had not been placed at the, disposal of the Land Acquisition Officer" or the Registrar of Co- operative Societies. Now in so far as the question of non- publication of the award is concerned, , it will be sufficient to say that the plaintiff did not ba se his claim on that basis, so that the defendants had no opportunity to explain why the award was not published over a long period of time. It has however been clearly established on the record, and was within the notice of the High Court, tha t the suit was filed on February 8, 1961, and soon after the publication of the notice under section 6 on August 13, 1960, an order was made by the trial court restraining the dependents, their agents and officers from disturbing and obstructing the possession of the plaintiff and from taking over possession of the suit land etc. No. useful purpose could therefore be served by notifying the award and there was no justification for arriving at the finding of "abandonment" simply because of the "non-publication" of the award.We have also gone through the evidence of the parties and we fins that the statement of Rameshchandra Jethalal Mehta, who was the concerned Senior Assistant in the Industries and Co-operative department, and letter Ex. 54 of the State Government, make it quite clear that the State Government had taken a clear decision that it will contribute towards the cost of acquisition of the land in question at the rate of Rs. 51- per square yard. In fact it was clearly stated in the letter that the State shall, on that basis, contribute Rs. 45, 980/- and that the expenditure on that account would be debitable to the head mentioned in the letter and would be met from the grants which had been sanctioned i n the budget. Rameshchandra Jethalals statement about the government resolution to that effect, has not been shaken in cross-examination. It was therefore quite sufficient to prove that the Government did not go back upon that decision an d that the sanction did not lapse with the expiry of the year. It is another matter that, because of the protracted litigation, it may have become necessary for the authorities concerned to obtain a fresh order of allocation of the funds for the payment of the governments contribution of Rs. 45, 980/- in pursuance of its decision contained in Ex. 54, but there is nothing on the record to show that the decision ceased to be operative after it had been made, or was ever withdrawn. We do not therefore find anything on the record which could justify the High Courts finding that that sanction or resolution was withdrawn, rescinded or abandoned at anyappears that the High Court arrived at its finding about the abandonment for the further reason that the agreement Ex. 104 was executed by the cooperative society concerned on June 17, 1960. It is however not disputed before us that the agreement was obtained under the impression that the land had been acquired for a company; under Part VII of the Act. But this was not so because it had been made quite clear in the notification Ex. 58, which was issued under section 4 of the Act, that the acquisition was for a "public purpose" namely, for the construction of houses for New Sarvodaya Co-operative Housing Society Ltd. and there was nothing to show that-the acquisition was for any company. The notification under section 6 of the Act was also to the same effect, and in that notification it was stated at four important places that the land was needed for the "public purpose" specified in column No. 4 thereof. There was therefore nothing in the two notifications to show that the notification was for a company, and there was no justification for arriving at a contrary decision merely because of the execution of agreement Ex. 104 by the Society under a mistaken impression.The High Court has gone on to the State that as the words "or at the expense of a local body or corporation or company as the case may be were not scored off from the notification under section 6 of the Act. the language of the notification supported its finding that the acquisition was for a company, and not for a public purpose. It is true that the unnecessary words were not scored off, but the very fact that it was stated at as many as four places in that very notification that the acquisition was for a public purpose, was sufficient to show that the omission was inadvertent and could not justify the finding that the tend was not acquired for a public purpose but for aHigh Court has made a reference to paragraph 9 of the written statement also in support of its finding against the defendant. Here again the High Court failed to appreciate that that averment was made in reply to the plaintiffs contention in paragraph 6 of the plaint on a question of law regarding the making of contribution out of public revenues or funds controlled or managed by a local authority. It wag in that connection that the defendant stated in paragraph 9 of the written statement that the acquiring body has agreed to pay the amount of compensation when asked for to the plaintiff". There is nothing in the averment to show that the payment wag to be made by the Co-operative Society and not by the State Government. The High Court lost sight of the fact that the "acquiring body" was the State, and could not be the Co-operative Society or-anycould thus appear that the High Court committed the aforesaid illegalities and misread the evidence on record in setting aside the finding of the Trial Court in favour of the defendant. It may be that the amount of compensation, which was to be paid by the State, Government on account of compensation to be awarded for acquiring the property out of the public revenues, was not paid, but there can be no doubt that, as has been stated, a decision had been taken that it was to be so paid by the Government as required by the second proviso to sub-section (1) of section 6 of the Act. As we have stated, the actual payment was not made because of the protracted litigation, but the State Governments anxiety to acquire the land for the public purpose could well be appreciated from the fact that it has adhered to its intention to acquire the land According to law, and to make its contribution towards the compensation, as and when necessary. The fact that the State has preferred the present appeal also goes to show that it has not abandoned its intention to make the acquisition on payment of a part of the compensation out of public revenues. It may also be mentioned that Mr. S. T. Desai appearing on behalf of the State has categorically stated at the Bar that the State Government will contribute Rs. 45, 980/-, from the public revenues, towards compensation at the appropriate time. The position would no doubt have been different if it had been shown that the Government had abandoned the intention to do so or had decided not to pay any part of the compensation out of the public revenues, for then the requirement of the second proviso to sub-section (1) of section 6 would not have been fulfilled but, as has been shown, this was really not so. | 1 | 2,368 | 1,736 | ### Instruction:
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the letter that the State shall, on that basis, contribute Rs. 45, 980/- and that the expenditure on that account would be debitable to the head mentioned in the letter and would be met from the grants which had been sanctioned i n the budget. Rameshchandra Jethalals statement about the government resolution to that effect, has not been shaken in cross-examination. It was therefore quite sufficient to prove that the Government did not go back upon that decision an d that the sanction did not lapse with the expiry of the year. It is another matter that, because of the protracted litigation, it may have become necessary for the authorities concerned to obtain a fresh order of allocation of the funds for the payment of the governments contribution of Rs. 45, 980/- in pursuance of its decision contained in Ex. 54, but there is nothing on the record to show that the decision ceased to be operative after it had been made, or was ever withdrawn. We do not therefore find anything on the record which could justify the High Courts finding that that sanction or resolution was withdrawn, rescinded or abandoned at any time.6. It appears that the High Court arrived at its finding about the abandonment for the further reason that the agreement Ex. 104 was executed by the cooperative society concerned on June 17, 1960. It is however not disputed before us that the agreement was obtained under the impression that the land had been acquired for a company; under Part VII of the Act. But this was not so because it had been made quite clear in the notification Ex. 58, which was issued under section 4 of the Act, that the acquisition was for a "public purpose" namely, for the construction of houses for New Sarvodaya Co-operative Housing Society Ltd. and there was nothing to show that-the acquisition was for any company. The notification under section 6 of the Act was also to the same effect, and in that notification it was stated at four important places that the land was needed for the "public purpose" specified in column No. 4 thereof. There was therefore nothing in the two notifications to show that the notification was for a company, and there was no justification for arriving at a contrary decision merely because of the execution of agreement Ex. 104 by the Society under a mistaken impression.The High Court has gone on to the State that as the words "or at the expense of a local body or corporation or company as the case may be were not scored off from the notification under section 6 of the Act. the language of the notification supported its finding that the acquisition was for a company, and not for a public purpose. It is true that the unnecessary words were not scored off, but the very fact that it was stated at as many as four places in that very notification that the acquisition was for a public purpose, was sufficient to show that the omission was inadvertent and could not justify the finding that the tend was not acquired for a public purpose but for a company.7. The High Court has made a reference to paragraph 9 of the written statement also in support of its finding against the defendant. Here again the High Court failed to appreciate that that averment was made in reply to the plaintiffs contention in paragraph 6 of the plaint on a question of law regarding the making of contribution out of public revenues or funds controlled or managed by a local authority. It wag in that connection that the defendant stated in paragraph 9 of the written statement that the acquiring body has agreed to pay the amount of compensation when asked for to the plaintiff". There is nothing in the averment to show that the payment wag to be made by the Co-operative Society and not by the State Government. The High Court lost sight of the fact that the "acquiring body" was the State, and could not be the Co-operative Society or-any company.8. It could thus appear that the High Court committed the aforesaid illegalities and misread the evidence on record in setting aside the finding of the Trial Court in favour of the defendant. It may be that the amount of compensation, which was to be paid by the State, Government on account of compensation to be awarded for acquiring the property out of the public revenues, was not paid, but there can be no doubt that, as has been stated, a decision had been taken that it was to be so paid by the Government as required by the second proviso to sub-section (1) of section 6 of the Act. As we have stated, the actual payment was not made because of the protracted litigation, but the State Governments anxiety to acquire the land for the public purpose could well be appreciated from the fact that it has adhered to its intention to acquire the land According to law, and to make its contribution towards the compensation, as and when necessary. The fact that the State has preferred the present appeal also goes to show that it has not abandoned its intention to make the acquisition on payment of a part of the compensation out of public revenues. It may also be mentioned that Mr. S. T. Desai appearing on behalf of the State has categorically stated at the Bar that the State Government will contribute Rs. 45, 980/-, from the public revenues, towards compensation at the appropriate time. The position would no doubt have been different if it had been shown that the Government had abandoned the intention to do so or had decided not to pay any part of the compensation out of the public revenues, for then the requirement of the second proviso to sub-section (1) of section 6 would not have been fulfilled but, as has been shown, this was really not so.
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square yard. In fact it was clearly stated in the letter that the State shall, on that basis, contribute Rs. 45, 980/- and that the expenditure on that account would be debitable to the head mentioned in the letter and would be met from the grants which had been sanctioned i n the budget. Rameshchandra Jethalals statement about the government resolution to that effect, has not been shaken in cross-examination. It was therefore quite sufficient to prove that the Government did not go back upon that decision an d that the sanction did not lapse with the expiry of the year. It is another matter that, because of the protracted litigation, it may have become necessary for the authorities concerned to obtain a fresh order of allocation of the funds for the payment of the governments contribution of Rs. 45, 980/- in pursuance of its decision contained in Ex. 54, but there is nothing on the record to show that the decision ceased to be operative after it had been made, or was ever withdrawn. We do not therefore find anything on the record which could justify the High Courts finding that that sanction or resolution was withdrawn, rescinded or abandoned at anyappears that the High Court arrived at its finding about the abandonment for the further reason that the agreement Ex. 104 was executed by the cooperative society concerned on June 17, 1960. It is however not disputed before us that the agreement was obtained under the impression that the land had been acquired for a company; under Part VII of the Act. But this was not so because it had been made quite clear in the notification Ex. 58, which was issued under section 4 of the Act, that the acquisition was for a "public purpose" namely, for the construction of houses for New Sarvodaya Co-operative Housing Society Ltd. and there was nothing to show that-the acquisition was for any company. The notification under section 6 of the Act was also to the same effect, and in that notification it was stated at four important places that the land was needed for the "public purpose" specified in column No. 4 thereof. There was therefore nothing in the two notifications to show that the notification was for a company, and there was no justification for arriving at a contrary decision merely because of the execution of agreement Ex. 104 by the Society under a mistaken impression.The High Court has gone on to the State that as the words "or at the expense of a local body or corporation or company as the case may be were not scored off from the notification under section 6 of the Act. the language of the notification supported its finding that the acquisition was for a company, and not for a public purpose. It is true that the unnecessary words were not scored off, but the very fact that it was stated at as many as four places in that very notification that the acquisition was for a public purpose, was sufficient to show that the omission was inadvertent and could not justify the finding that the tend was not acquired for a public purpose but for aHigh Court has made a reference to paragraph 9 of the written statement also in support of its finding against the defendant. Here again the High Court failed to appreciate that that averment was made in reply to the plaintiffs contention in paragraph 6 of the plaint on a question of law regarding the making of contribution out of public revenues or funds controlled or managed by a local authority. It wag in that connection that the defendant stated in paragraph 9 of the written statement that the acquiring body has agreed to pay the amount of compensation when asked for to the plaintiff". There is nothing in the averment to show that the payment wag to be made by the Co-operative Society and not by the State Government. The High Court lost sight of the fact that the "acquiring body" was the State, and could not be the Co-operative Society or-anycould thus appear that the High Court committed the aforesaid illegalities and misread the evidence on record in setting aside the finding of the Trial Court in favour of the defendant. It may be that the amount of compensation, which was to be paid by the State, Government on account of compensation to be awarded for acquiring the property out of the public revenues, was not paid, but there can be no doubt that, as has been stated, a decision had been taken that it was to be so paid by the Government as required by the second proviso to sub-section (1) of section 6 of the Act. As we have stated, the actual payment was not made because of the protracted litigation, but the State Governments anxiety to acquire the land for the public purpose could well be appreciated from the fact that it has adhered to its intention to acquire the land According to law, and to make its contribution towards the compensation, as and when necessary. The fact that the State has preferred the present appeal also goes to show that it has not abandoned its intention to make the acquisition on payment of a part of the compensation out of public revenues. It may also be mentioned that Mr. S. T. Desai appearing on behalf of the State has categorically stated at the Bar that the State Government will contribute Rs. 45, 980/-, from the public revenues, towards compensation at the appropriate time. The position would no doubt have been different if it had been shown that the Government had abandoned the intention to do so or had decided not to pay any part of the compensation out of the public revenues, for then the requirement of the second proviso to sub-section (1) of section 6 would not have been fulfilled but, as has been shown, this was really not so.
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Collector of Customs, Calcutta & Another Vs. G. Dass & Co. & Others | or decreased. Neither a strict nor a liberal construction is called for, we should give the Sections a fair construction. 3. The unamended S. 86 permitted the delivery of a bill of entry to the Customs Collector by the owner of the goods "on the landing thereof from the importing ship". The Collector could not accept the bill of entry before the landing of the goods. Until the landing, there could be no delivery of the bill of entry to the Collector. Where, as in this case, the bill of entry was submitted to the Collector before the landing and kept by him in his custody, it would be treated as delivered to him on the date of the landing. This is because the bill of entry could be delivered to the Collector under the Section on the landing of the goods and not earlier. If the consignment covered by the bill of entry consisted of several packages and the landing was spread over several days, the date of the landing of the last package would be the date of the landing, and this date would be deemed to be the date of the delivery of the bill of entry to the Collector. 4. The unamended S. 37 provided that the rate of duty applicable to any imported goods would be the rate in force "on the date on which the bill of entry thereof is delivered to the Customs Collector under S. 86."The Explanation to the unamended S. 37 provided that "a bill of entry shall, for the purposed of this Section, be deemed to be delivered when it is first presented to the proper officer of Customs". The Explanation created the fiction that the presentation to the proper office of Customs would be deemed to be delivery to the Customs Collector; but the fiction went no further. The bill of entry could be delivered under S. 86 upon and not before the landing of the goods. Therefore, in a case where a bill of entry was presented to the proper officer of Customs before the landing of the goods and was kept by the officer, the date of the landing of the goods must be deemed to be the date of delivery of the bill of entry to the Customs Collector within the meaning of S. 37, and the rate of duty chargeable on the imported goods must be the rate in force on that date. 5. Condition No. 2 of the relevant bills of entry provided that for the purposes of S. 37 they would be deemed to be delivered on the date on which the order for inward entry would be passed. This condition could not override the provisions of Ss. 37 and 86.Under those Sections, no date earlier than the date of the landing of the goods could be treated as the date of delivery of the bill of entry to the Customs Collector. The rate of duty leviable on the imported goods must be determined with reference to Ss. 37 and 86 and not by reference to condition No. 2 of the bill of entry. Under the Sea Customs Act,1878, as it stood before the amendment, the contesting respondents were, therefore, liable to pay duty at the rate in force on or after April 30, 1955, i.e., at the rate of 12 annas per lb. only. 6. Sections 37 and 86 of the Sea Customs Act were amended by Act XXI of 1955. Under the amended S. 86, the bill of entry may be delivered to the Customs Collector after the delivery of the manifest by the master of the importing vessel, and under Explanation (b) to the amended S. 37, a bill of entry delivered in anticipation of the arrival of the vessel will be deemed to be delivered on the date on which the order for inward entry is passed. It might be suggested that the landing of the goods was completed on May 7, 1955 and, therefore, the bills of entry were not effectively delivered while the unamended Act was in force, and consequently, the rate of duty should be determined by reference to the amended Act, and by Explanation (b) to the amended S. 37, the rate of duty chargeable on the goods would be the rate in force on April 27, 1955, the date on which the order for inward entry of the importing vessel was passed. But we are of the opinion that the appeals must be decided on the footing that the rate of duty chargeable on the goods should be determined by reference to the provisions of the unamended Act. The case was argued in the Courts below and in this Court on that footing alone. Even if the appellant were to raise this new point, we would not be inclined to entertain it. Moreover, though the respondents had alleged that the goods were landed on or about May 7, 1955, this allegation was not admitted by the appellant, and D. N. Sinha, J., recorded the finding that the landing of the goods was completed before May 7, 1955, that is to say, before the amending Act XXI of 1955 came into force. Furthermore, the amending Act is not retrospective, and it would seem that Explanation (b) to the amended S. 37 would not apply to a bill of entry presented before the amending Act in anticipation of the arrival of the importing vessel. 7. We have, therefore, come to the conclusion that the contesting respondents were liable to pay the reduced duty of 12 annas per lb., and they are entitled to the refund of the excess duty paid by them. 8. One of the question mooted before the High Court was whether the High Court in its writ jurisdiction under Art. 226 of the Constitution had power to pass an order of refund of money. The High Court answered the question in the affirmative. The correctness of this finding was not challenged before us. | 0[ds]2. The appeals were argued in the Courts below and before us on the footing that the rate of duty applicable to the goods must be determined by reference to the Sea Customs Act (VIII of 1878), as it stood before its amendment by Act XXI of 1955, and we must decide the appeals on that footing. The decision of the appeals turns on the construction of the unamended Ss. 37 and 86. It is a matter of accident that the rate of import duty was decreased instead of being increased on April 30, 1955. The relevant Sections should receive the same interpretation whether the rate of duty be increased or decreased. Neither a strict nor a liberal construction is called for, we should give the Sections a fair constructionIt might be suggested that the landing of the goods was completed on May 7, 1955 and, therefore, the bills of entry were not effectively delivered while the unamended Act was in force, and consequently, the rate of duty should be determined by reference to the amended Act, and by Explanation (b) to the amended S. 37, the rate of duty chargeable on the goods would be the rate in force on April 27, 1955, the date on which the order for inward entry of the importing vessel was passed. But we are of the opinion that the appeals must be decided on the footing that the rate of duty chargeable on the goods should be determined by reference to the provisions of the unamended Act. The case was argued in the Courts below and in this Court on that footing alone. Even if the appellant were to raise this new point, we would not be inclined to entertain it. Moreover, though the respondents had alleged that the goods were landed on or about May 7, 1955, this allegation was not admitted by the appellant, and D. N.Sinha,, recorded the finding that the landing of the goods was completed before May 7, 1955, that is to say, before the amending Act XXI of 1955 came into force. Furthermore, the amending Act is not retrospective, and it would seem that Explanation (b) to the amended S. 37 would not apply to a bill of entry presented before the amending Act in anticipation of the arrival of the importing vessel7. We have, therefore, come to the conclusion that the contesting respondents were liable to pay the reduced duty of 12 annas per lb., and they are entitled to the refund of the excess duty paid by them8. One of the question mooted before the High Court was whether the High Court in its writ jurisdiction under Art. 226 of the Constitution had power to pass an order of refund of money. The High Court answered the question in the affirmative. The correctness of this finding was not challenged before usIn C. A. No. 664 of 196312. In this appeal the Collector of Customs assails the order of the Division Bench on two grounds only; the first is that the Calcutta High Court had no jurisdiction to issue a writ to the Government of India because the order passed by the Collector of Customs merged in the order of the Government of India made at New Delhi and the order of the Government of India could not be challenged by a petition filed in. This case arose before the amendment of Art. 226. Although this point was taken in the Return it does not appear to have been argued at any stage in the High Court, because neither Mr. Justice Sinha nor the Division Bench considered it. If this point had been taken it would have been noticed at the very forefront of the two orders. As the learned counsel could not state that the point was urged, we did not permit it to be raised13. The second ground on which the order is challenged is that the interpretation of the relevant provisions of the Sea Customs Act by the Division Bench is erroneous and that the better view was expressed by the learned single Judge.To appreciate the point in controversy I shall refer to the provisions of the Sea Customs Act as they were before the amendment in May, 1955 and thereafterThis seems to prescribe that the date of delivery was not the actual date, that is to say, the 26th of April, but the date on which the order for entry inwards was passed, that is to say, April 27. Mr. Justice Sinha observed that this made no difference to the case because whether import duty is calculated as on April 26 or as on April 27, the old rate would be applicable and the order of the Assistant Collector of Customs was right in the circumstances of this case. The Divisional Bench, on the other hand, held that the Explanation to S. 37 did not apply to the case because under S. 37 the rate of duty applicable to any goods imported would be the rate in force on the date on which the bill of entry thereof is delivered under S. 86, that is, on the landing of the goods as stated in S. 86. Therefore, the rate applicable must be the rate in force on the date the goods were landed. There is nothing to show when this consignment was landed. The petition stated that the consignment was landed on or about May 7, 1955. This was not specifically denied and another date suggested. Mr. Justice D. N. Sinha stated, in narrating the facts, that the consignment was landed before the 7th but I do not find any support for this observation16. The Explanation and S. 86 between them cause some difficulty and lead to confusion. This was perhaps sought to be remedied by including another deeming provision in the Bill of Entry which ran somewhat counter to the fiction created by S. 37. The statute created a fiction under which the first presentation of the bill of entry was the crucial date. Section 86 said that the bill of entry must be prepared on the landing of the goods. The condition in the bill of entry for consumption created a fiction under which the crucial date was the date on which the order for entry inwards was made. It is obvious that these two dates might not be the same, and in fact they are not so here, and a question might well have arisen which was to prevail. Fortunately, it has not arisen because the duty on the 26th and 27th April was the same and by the recent amendments of S. 37 and S. 86 the need for Cl. 2 in the bill of entry for consumption has disappearedAs the vessel cannot now pass the prescribed point till the manifest is delivered and the bill of entry can only be handed after the manifest is delivered the delivery of the manifest and not the landing of the goods is the crucial fact. Under the new explanation to S. 37 the earliest date will be the date of the order of the entry inwards and thereafter the date on which the bill of entry is actually first presented. The need for the second clause in the bill of entry disappears17. I shall now attempt to construe Ss. 37 and 86 as they were prior to these amendments. There are two fundamental facts which must be borne in mind when construing them. The first is that an explanation must be accepted according to its own terms. An explanation seeks to explain a particular proposition, and it stands to reason that explaining the explanation by referring to other provisions may not be open. The explanation which is added to S. 37, is intended to explain that Section, and this leads to the second fundamental fact, namely, that the explanation lays down the exact point of time when the bill entry can be taken to be delivered "for the purposes of the Section". The purpose of the Section is that duty is calculated at the rate in force when the bill of entry is delivered under S. 86. Section 86 does not lay down that the bill of entry may be delivered only after the goods are landed. The owner of the goods must make entry in the bill of entry of goods for home consumption or warehousing on the landing of the goods, and hand over the bill of entry in duplicate to the Customs Collector. In other words, the bill of entry must, in any event, be handed in when the goods are landed. That is the normal mode of doing the act. The practice, however, appears to have grown to prepare such bills of entry in advance of the landing of goods and to clear the claim for import duty betimes so as to make the goods ready for clearance. To make the date certain for purpose of calculation of duty it was provided that the first presentation to the proper officer of Customs would be the crucial date for levy of duty and determination of the rate thereof. The reference to S. 86 in S. 37 does not reappoint a different date for the purpose of calculation of duty. The presentation of bill of entry will still be the decisive date whether it is presented before the landing of the goods or after they are landed. To hold otherwise would mean that the explanation cannot function at all unless the bill of entry is presented after the goods have landed. This would lead to the result that there would be no point of time by reference to which duty can be calculated in a case such as this. To assume that the bill of entry was presented after the goods were landed would be to go against both law and fact. The bill of entry was first presented on the 26th April and the order for entry inwards was 27th April under the explanation to S. 37, as it originally stood, the crucial date for calculation of duty would be the 26th. Under Cl. 2 of the bill of entry it would be the 27th. The rate applicable would be Re. 1 per lb18. If the original S. 86 is intended to alter the date from the 26th (under the original explanation to S. 37) to a date after the landing of the goods we get into this difficulty. Are we to take the crucial date to be 30th April (when the landing began) or the 7th May (when the landing was completed), or any of the intermediate dates ? On May 7, the amendments to S. 37 explanation and S. 86 became law and they take one back to the 27th as the crucial date. Are the goods landed from the 30th to the 6th subject to the duty at the rate of Re. 1 per lb. and those landed on the 7th at Re.0 per lb., or is the whole consignment subject to the higher or the lower rate ? I can see no answer to these questions19. To avoid such an impossible result the explanation must be read and construed on its own terms and must not be made a new explanation with the aid of S. 86.As the bill of entry was presented on the 26th April, 1955, it could either be treated as presented on that date under the Explanation to S. 37 or on the 27th April 1955 under Cl. 2 in the bill of entry for home consumption if it could be held applicable, a point I do not decide. But it could not be held to have been presented on any of the dates from April 30 to May 7 during which the goods were landed because there is no provision under which another date can be fixed either actually or even fictionally once the bill of entry is presented and the fiction in the explanation to S. 37 applies. It may be contended that under my construction of the Sections the bill of entry may be presented at any timesay six months before. The short answer to that is the bill entry is intimately connected with the Masters manifest and before the passing of the Prior Entry Manifest Order, 1957 (7th September 1957 C. B. R. Notification No.) under the new S. 54A the manifest could not be delivered in anticipation of the arrival of the vesselThe recent changes enable the manifest to be delivered not more than 15 days earlier and the new explanation to S. 37 makes the delivery of the bill of entry or the date of the orders for the entry of the vessel the crucial datesand the new S. 86 which allows the bill of entry to be presented after the manifest is again overborne by the explanation in much the same way as the reference to theg of the goods in the former S. 8620. On the whole I am satisfied that the duty leviable was that in force on the 26th or 27th April 1955, that is to say, Re. 1 per pound. | 0 | 1,576 | 2,365 | ### 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:
or decreased. Neither a strict nor a liberal construction is called for, we should give the Sections a fair construction. 3. The unamended S. 86 permitted the delivery of a bill of entry to the Customs Collector by the owner of the goods "on the landing thereof from the importing ship". The Collector could not accept the bill of entry before the landing of the goods. Until the landing, there could be no delivery of the bill of entry to the Collector. Where, as in this case, the bill of entry was submitted to the Collector before the landing and kept by him in his custody, it would be treated as delivered to him on the date of the landing. This is because the bill of entry could be delivered to the Collector under the Section on the landing of the goods and not earlier. If the consignment covered by the bill of entry consisted of several packages and the landing was spread over several days, the date of the landing of the last package would be the date of the landing, and this date would be deemed to be the date of the delivery of the bill of entry to the Collector. 4. The unamended S. 37 provided that the rate of duty applicable to any imported goods would be the rate in force "on the date on which the bill of entry thereof is delivered to the Customs Collector under S. 86."The Explanation to the unamended S. 37 provided that "a bill of entry shall, for the purposed of this Section, be deemed to be delivered when it is first presented to the proper officer of Customs". The Explanation created the fiction that the presentation to the proper office of Customs would be deemed to be delivery to the Customs Collector; but the fiction went no further. The bill of entry could be delivered under S. 86 upon and not before the landing of the goods. Therefore, in a case where a bill of entry was presented to the proper officer of Customs before the landing of the goods and was kept by the officer, the date of the landing of the goods must be deemed to be the date of delivery of the bill of entry to the Customs Collector within the meaning of S. 37, and the rate of duty chargeable on the imported goods must be the rate in force on that date. 5. Condition No. 2 of the relevant bills of entry provided that for the purposes of S. 37 they would be deemed to be delivered on the date on which the order for inward entry would be passed. This condition could not override the provisions of Ss. 37 and 86.Under those Sections, no date earlier than the date of the landing of the goods could be treated as the date of delivery of the bill of entry to the Customs Collector. The rate of duty leviable on the imported goods must be determined with reference to Ss. 37 and 86 and not by reference to condition No. 2 of the bill of entry. Under the Sea Customs Act,1878, as it stood before the amendment, the contesting respondents were, therefore, liable to pay duty at the rate in force on or after April 30, 1955, i.e., at the rate of 12 annas per lb. only. 6. Sections 37 and 86 of the Sea Customs Act were amended by Act XXI of 1955. Under the amended S. 86, the bill of entry may be delivered to the Customs Collector after the delivery of the manifest by the master of the importing vessel, and under Explanation (b) to the amended S. 37, a bill of entry delivered in anticipation of the arrival of the vessel will be deemed to be delivered on the date on which the order for inward entry is passed. It might be suggested that the landing of the goods was completed on May 7, 1955 and, therefore, the bills of entry were not effectively delivered while the unamended Act was in force, and consequently, the rate of duty should be determined by reference to the amended Act, and by Explanation (b) to the amended S. 37, the rate of duty chargeable on the goods would be the rate in force on April 27, 1955, the date on which the order for inward entry of the importing vessel was passed. But we are of the opinion that the appeals must be decided on the footing that the rate of duty chargeable on the goods should be determined by reference to the provisions of the unamended Act. The case was argued in the Courts below and in this Court on that footing alone. Even if the appellant were to raise this new point, we would not be inclined to entertain it. Moreover, though the respondents had alleged that the goods were landed on or about May 7, 1955, this allegation was not admitted by the appellant, and D. N. Sinha, J., recorded the finding that the landing of the goods was completed before May 7, 1955, that is to say, before the amending Act XXI of 1955 came into force. Furthermore, the amending Act is not retrospective, and it would seem that Explanation (b) to the amended S. 37 would not apply to a bill of entry presented before the amending Act in anticipation of the arrival of the importing vessel. 7. We have, therefore, come to the conclusion that the contesting respondents were liable to pay the reduced duty of 12 annas per lb., and they are entitled to the refund of the excess duty paid by them. 8. One of the question mooted before the High Court was whether the High Court in its writ jurisdiction under Art. 226 of the Constitution had power to pass an order of refund of money. The High Court answered the question in the affirmative. The correctness of this finding was not challenged before us.
### Response:
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### Explanation:
the bill of entry is actually first presented. The need for the second clause in the bill of entry disappears17. I shall now attempt to construe Ss. 37 and 86 as they were prior to these amendments. There are two fundamental facts which must be borne in mind when construing them. The first is that an explanation must be accepted according to its own terms. An explanation seeks to explain a particular proposition, and it stands to reason that explaining the explanation by referring to other provisions may not be open. The explanation which is added to S. 37, is intended to explain that Section, and this leads to the second fundamental fact, namely, that the explanation lays down the exact point of time when the bill entry can be taken to be delivered "for the purposes of the Section". The purpose of the Section is that duty is calculated at the rate in force when the bill of entry is delivered under S. 86. Section 86 does not lay down that the bill of entry may be delivered only after the goods are landed. The owner of the goods must make entry in the bill of entry of goods for home consumption or warehousing on the landing of the goods, and hand over the bill of entry in duplicate to the Customs Collector. In other words, the bill of entry must, in any event, be handed in when the goods are landed. That is the normal mode of doing the act. The practice, however, appears to have grown to prepare such bills of entry in advance of the landing of goods and to clear the claim for import duty betimes so as to make the goods ready for clearance. To make the date certain for purpose of calculation of duty it was provided that the first presentation to the proper officer of Customs would be the crucial date for levy of duty and determination of the rate thereof. The reference to S. 86 in S. 37 does not reappoint a different date for the purpose of calculation of duty. The presentation of bill of entry will still be the decisive date whether it is presented before the landing of the goods or after they are landed. To hold otherwise would mean that the explanation cannot function at all unless the bill of entry is presented after the goods have landed. This would lead to the result that there would be no point of time by reference to which duty can be calculated in a case such as this. To assume that the bill of entry was presented after the goods were landed would be to go against both law and fact. The bill of entry was first presented on the 26th April and the order for entry inwards was 27th April under the explanation to S. 37, as it originally stood, the crucial date for calculation of duty would be the 26th. Under Cl. 2 of the bill of entry it would be the 27th. The rate applicable would be Re. 1 per lb18. If the original S. 86 is intended to alter the date from the 26th (under the original explanation to S. 37) to a date after the landing of the goods we get into this difficulty. Are we to take the crucial date to be 30th April (when the landing began) or the 7th May (when the landing was completed), or any of the intermediate dates ? On May 7, the amendments to S. 37 explanation and S. 86 became law and they take one back to the 27th as the crucial date. Are the goods landed from the 30th to the 6th subject to the duty at the rate of Re. 1 per lb. and those landed on the 7th at Re.0 per lb., or is the whole consignment subject to the higher or the lower rate ? I can see no answer to these questions19. To avoid such an impossible result the explanation must be read and construed on its own terms and must not be made a new explanation with the aid of S. 86.As the bill of entry was presented on the 26th April, 1955, it could either be treated as presented on that date under the Explanation to S. 37 or on the 27th April 1955 under Cl. 2 in the bill of entry for home consumption if it could be held applicable, a point I do not decide. But it could not be held to have been presented on any of the dates from April 30 to May 7 during which the goods were landed because there is no provision under which another date can be fixed either actually or even fictionally once the bill of entry is presented and the fiction in the explanation to S. 37 applies. It may be contended that under my construction of the Sections the bill of entry may be presented at any timesay six months before. The short answer to that is the bill entry is intimately connected with the Masters manifest and before the passing of the Prior Entry Manifest Order, 1957 (7th September 1957 C. B. R. Notification No.) under the new S. 54A the manifest could not be delivered in anticipation of the arrival of the vesselThe recent changes enable the manifest to be delivered not more than 15 days earlier and the new explanation to S. 37 makes the delivery of the bill of entry or the date of the orders for the entry of the vessel the crucial datesand the new S. 86 which allows the bill of entry to be presented after the manifest is again overborne by the explanation in much the same way as the reference to theg of the goods in the former S. 8620. On the whole I am satisfied that the duty leviable was that in force on the 26th or 27th April 1955, that is to say, Re. 1 per pound.
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National Insurance Co.Ltd Vs. Kimlibai | Division Bench of the High Court of Madhya Pradesh, Indore Bench, was proper or not. 11. On appreciation of evidence available on record, the Tribunal awarded a total amount of Rs.2,32,762/- together with interest at the rate of 9% against the appellant and respondent nos.9, 10 and 11 herein. The said figure was arrived at on the basis that the deceased was earning Rs.84/- per day and adding certain expenses towards conventional heads and then applying the multiplier of 15. 12. Feeling aggrieved by the said award and order passed by the Tribunal on 20th February 2004, an appeal was carried under Section 173 of the Act to the High Court. 13. In appeal, the High Court came to the conclusion that it can safely be assumed that deceased Vir Singh, who was working as carpenter before his death in the year 1997, must be earning Rs.100/- per day. Thus, his monthly income would be Rs.3,000/-. Keeping in mind the large family of dependents, as mentioned hereinabove, i.e., the widow, sons, daughter and aged parents, in all 8 persons, 1/4th of the total income so arrived at, was directed to be deducted towards the amount which the deceased would have spent on himself and the multiplier of 17 was applied. Thus, the High Court awarded compensation of Rs.4,59,000/-. The High Court awarded an additional lump sum amount of Rs.25,000/- under various conventional heads thereby making a total compensation of Rs.4,84,000/- with further stipulation that the enhanced sum would carry interest at the rate of 6% p.a. from the date of the application till its realisation. 14. Appellant-insurance company is in appeal challenging the impugned award and order primarily on the following two grounds : (i) that the amount enhanced by the High Court is excessive and exorbitant, more so, without there being any basis, it has been assessed that deceased could have earned Rs.100/- per day; and (ii) that deduction of only 1/4th towards his personal expenses from his total income has wrongly been allowed and it should have been 1/3rd of his total income. 15. In the light of the aforesaid, we have heard Ms. Pankaj Bala Verma, learned counsel appearing for the appellant-insurance company; Mr. Vikas Mehta, learned counsel appearing for respondent nos.1 to 8; and Mr. T.N. Singh, learned counsel appearing for respondent nos.9 to 11. 16. It could not be disputed before us that deceased was working as a carpenter. Thus, obviously working as such, even in the year 1997 he could have comfortably earned Rs.100/- per day. This has also been admitted by P.W.3 with whom the deceased was employed that he was being paid Rs.100/- per day. Even if we assume that he was working only for six months in a year as carpenter and for remaining six months he was working in his own field, that would not materially affect his income. While he was working in his own field, he was contributing to augment his income and thereby was saving Rs.100/- per day on the labour that he would have spent, if he had not worked himself. Thus, looking to the matter from that angle, it is clear that he would have continued to earn Rs.100/- per day, whether he worked as a carpenter or in his own field. 17. As far as application of proper multiplier is concerned, looking to the age of the deceased and that of the widow, in our opinion, multiplier of 17 which has been applied by the High Court is proper and does not call for interference. 18. Thus, the first question is answered against the appellant. 19. As far as question no.2 is concerned, it stands proved that deceased had left behind a large family to be looked after, who all were dependents on his income. To reiterate, his widow, sons, daughter and aged parents - total 8 members in the family. 20. Keeping in mind the family background, the High Court has deducted 1/4th amount as the amount which the deceased would have spent on himself. In our opinion, the High Court committed no error in deducting only 1/4th amount from the total income of the deceased towards the expenses which would have been incurred on himself. It has also been held so in a recent judgment of this Court in Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 : 30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in U.P.SRTC v. Trilok Chandra (1996) 4 SCC 362 , the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. It was further held in para 48 of the said judgment as under: 48. The appellants next contended that having regard to the fact that the family of the deceased consisted of 8 members including himself and as the entire family was dependent on him, the deduction on account of personal and living expenses of the deceased should be neither the standard one-third, nor one-fourth as assessed by the High Court, but one-eighth. We agree with the contention that the deduction on account of personal living expenses cannot be at a fixed one-third in all cases (unless the calculation is under Section 163-A read with the Second Schedule to the MV Act). The percentage of deduction on account of personal and living expenses can certainly vary with reference to the number of dependant members in the family. But as noticed earlier, the personal living expenses of the deceased need not exactly correspond to the number of dependants. | 0[ds]17. As far as application of proper multiplier is concerned, looking to the age of the deceased and that of the widow, in our opinion, multiplier of 17 which has been applied by the High Court is proper and does not call for interference18. Thus, the first question is answered against the appellant19. As far as question no.2 is concerned, it stands proved that deceased had left behind a large family to be looked after, who all were dependents on his income. To reiterate, his widow, sons, daughter and aged parents - total 8 members in the family20. Keeping in mind the family background, the High Court has deducted 1/4th amount as the amount which the deceased would have spent on himself. In our opinion, the High Court committed no error in deducting only 1/4th amount from the total income of the deceased towards the expenses which would have been incurred on himself. It has also been held so in a recent judgment of this Court in Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 :are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six | 0 | 1,600 | 281 | ### 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:
Division Bench of the High Court of Madhya Pradesh, Indore Bench, was proper or not. 11. On appreciation of evidence available on record, the Tribunal awarded a total amount of Rs.2,32,762/- together with interest at the rate of 9% against the appellant and respondent nos.9, 10 and 11 herein. The said figure was arrived at on the basis that the deceased was earning Rs.84/- per day and adding certain expenses towards conventional heads and then applying the multiplier of 15. 12. Feeling aggrieved by the said award and order passed by the Tribunal on 20th February 2004, an appeal was carried under Section 173 of the Act to the High Court. 13. In appeal, the High Court came to the conclusion that it can safely be assumed that deceased Vir Singh, who was working as carpenter before his death in the year 1997, must be earning Rs.100/- per day. Thus, his monthly income would be Rs.3,000/-. Keeping in mind the large family of dependents, as mentioned hereinabove, i.e., the widow, sons, daughter and aged parents, in all 8 persons, 1/4th of the total income so arrived at, was directed to be deducted towards the amount which the deceased would have spent on himself and the multiplier of 17 was applied. Thus, the High Court awarded compensation of Rs.4,59,000/-. The High Court awarded an additional lump sum amount of Rs.25,000/- under various conventional heads thereby making a total compensation of Rs.4,84,000/- with further stipulation that the enhanced sum would carry interest at the rate of 6% p.a. from the date of the application till its realisation. 14. Appellant-insurance company is in appeal challenging the impugned award and order primarily on the following two grounds : (i) that the amount enhanced by the High Court is excessive and exorbitant, more so, without there being any basis, it has been assessed that deceased could have earned Rs.100/- per day; and (ii) that deduction of only 1/4th towards his personal expenses from his total income has wrongly been allowed and it should have been 1/3rd of his total income. 15. In the light of the aforesaid, we have heard Ms. Pankaj Bala Verma, learned counsel appearing for the appellant-insurance company; Mr. Vikas Mehta, learned counsel appearing for respondent nos.1 to 8; and Mr. T.N. Singh, learned counsel appearing for respondent nos.9 to 11. 16. It could not be disputed before us that deceased was working as a carpenter. Thus, obviously working as such, even in the year 1997 he could have comfortably earned Rs.100/- per day. This has also been admitted by P.W.3 with whom the deceased was employed that he was being paid Rs.100/- per day. Even if we assume that he was working only for six months in a year as carpenter and for remaining six months he was working in his own field, that would not materially affect his income. While he was working in his own field, he was contributing to augment his income and thereby was saving Rs.100/- per day on the labour that he would have spent, if he had not worked himself. Thus, looking to the matter from that angle, it is clear that he would have continued to earn Rs.100/- per day, whether he worked as a carpenter or in his own field. 17. As far as application of proper multiplier is concerned, looking to the age of the deceased and that of the widow, in our opinion, multiplier of 17 which has been applied by the High Court is proper and does not call for interference. 18. Thus, the first question is answered against the appellant. 19. As far as question no.2 is concerned, it stands proved that deceased had left behind a large family to be looked after, who all were dependents on his income. To reiterate, his widow, sons, daughter and aged parents - total 8 members in the family. 20. Keeping in mind the family background, the High Court has deducted 1/4th amount as the amount which the deceased would have spent on himself. In our opinion, the High Court committed no error in deducting only 1/4th amount from the total income of the deceased towards the expenses which would have been incurred on himself. It has also been held so in a recent judgment of this Court in Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 : 30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in U.P.SRTC v. Trilok Chandra (1996) 4 SCC 362 , the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. It was further held in para 48 of the said judgment as under: 48. The appellants next contended that having regard to the fact that the family of the deceased consisted of 8 members including himself and as the entire family was dependent on him, the deduction on account of personal and living expenses of the deceased should be neither the standard one-third, nor one-fourth as assessed by the High Court, but one-eighth. We agree with the contention that the deduction on account of personal living expenses cannot be at a fixed one-third in all cases (unless the calculation is under Section 163-A read with the Second Schedule to the MV Act). The percentage of deduction on account of personal and living expenses can certainly vary with reference to the number of dependant members in the family. But as noticed earlier, the personal living expenses of the deceased need not exactly correspond to the number of dependants.
### Response:
0
### Explanation:
17. As far as application of proper multiplier is concerned, looking to the age of the deceased and that of the widow, in our opinion, multiplier of 17 which has been applied by the High Court is proper and does not call for interference18. Thus, the first question is answered against the appellant19. As far as question no.2 is concerned, it stands proved that deceased had left behind a large family to be looked after, who all were dependents on his income. To reiterate, his widow, sons, daughter and aged parents - total 8 members in the family20. Keeping in mind the family background, the High Court has deducted 1/4th amount as the amount which the deceased would have spent on himself. In our opinion, the High Court committed no error in deducting only 1/4th amount from the total income of the deceased towards the expenses which would have been incurred on himself. It has also been held so in a recent judgment of this Court in Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 :are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six
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Geeta Sukhdeo Gawit Vs. Indian Oil Corporation Limited (Marketing Division) and Others | any transfer of occupancy has been made in contravention of sub¬section (1), he shall declare the transfer to be invalid, and thereupon, the occupancy together with the standing crops thereon, if any, shall vest in the State Government free of all encumbrances and shall be disposed of in such, manner as the State Government may, from time to time direct. (6) Where an occupancy vested in the State Government under sub-section (5) is to be disposed of, the Collector shall give notice in writing to the tribal transferor requiring him to state within 90 days from the date of receipt of such notice whether or not he is willing to purchase the land. If such tribal transferor agrees to purchase the occupancy, then the occupancy may be granted to him if he pays the prescribed purchase price and undertakes to cultivate the land personally; so however that the total land held by such tribal transferor, whether as owner or tenant, does not as far as possible exceed an economic holding.Explanation :¬ For the purpose of this section, the expression "economic holding" means 6.48 hectares (16 acres) of jirayat land or 3.24 hectares (8 acres) of seasonally irrigated land, or paddy or rice land, or 1.62 hectares (4 acres) of perennially irrigated land, and where the laud held by any person consists of two or more kinds of land, the economic holding shall be determined on the basis of one hectare of perennially irrigated land being equal to 2 hectares of seasonally irrigated land or paddy or rice land or 4 hectares of jiray at land.5. The learned counsel for the petitioner submitted that the aforesaid provision shows that in ordinary course, the transfer of the land of tribal to non-tribal is not possible and this circumstance is sufficient to hold that it was not firm offer. The aforesaid provision shows that conveyance/transfer is prohibited under certain circumstances and if the lease would be of the period extending five years, the approval of the State Government will be required for it. The provision itself shows that after following some procedure, the State Government can give approval for such lease. In view of this possibility, it cannot be said that respondent no.3 could not have made available the required land for running the petrol pump. The consent can be treated as agreement to give land on lease and it is not prohibited by Section 36¬A.6. After rejection of the objection dated 03.09.2013 the petitioner rushed to the Court and filed the proceeding on 31.10.2013. This Court granted interim relief on 12.03.2014 and parties were directed to maintain status¬quo. The learned counsel for the respondent No.1¬ company submitted that due to order of status-quo made by this Court, further procedure could not be followed and the Company could not issue letter of intent. He drew the attention of this Court to the conditions mentioning firm offer of land and other ancillary conditions and they are as under :¬"(b) Firm Offer of LandIn addition to land covered under para (a) above, applicants also have the option to offer land with firm offer of land from land owners. Such offer from land owners should be in the form of notarized affidavit giving details of land, khasra/khatauni number, name of village/location, ownership details etc.NOTE :(i) However, if an applicant, after selection on the above basis, is unable to provide the land indicated in the application within a period of TWO months from the date of letter of Intent (LOI), IOC will have the right to cancel the allotment of dealership made to the applicant. The suitability of the Land will be decided by IOC. In this case IOC will provide all fixed facilities at its cost at the site so taken from the applicant on purchase/long term lease basis. However, there is no commitment from IOC for taking the offered Land from the applicant.(ii) Wherever IOCL has advertised that it also expects the applicant to provide suitable land at the advertised location to IOCL on sale/long lease, their willingness to transfer such land to the oil company should be clearly indicated in the application format under para 12(d). Considering the location of the land from the point of view of suitability from technical and commercial angle and rates applicable to IOCL, applicants willing to transfer the land on ownership/long term lease to IOCL would be considered. However, there is no commitment from IOCL for taking the offered land from the applicant.(iii) Documents For Offered LandThe applicant should furnish at least one of the following document (in support of ownership) which should have been issued/revalidated on or after date of advertisement: (i) Khasra/Khatuni or any equivalent revenue document or Certificate from revenue offical confirming the status of ownership of the land. Or (ii) Registered sale deed/ Registered lease deed or any other type of ownership transfer deed/document in favour of applicant.iv) Copy of the lease agreement or allotment letter issued by Government/Semi-Government/Autonomous bodies like DDA, NOIDA, HUDA etc will be considered for ownership of land offered.(v) In addition to documents in para (iii) and (iv) above, following additional documents are also required, as applicable.table(vi) Land document will be sent to District Magistrate/District Collector for verification of title for ownership of land before considering land for evaluation.7. The aforesaid provisions also show that time of two months needs to be given to selected candidate to provide the land indicated in the application. Considering the possibility of giving approval by the State Government, as mentioned in Section 36(A) of the Maharashtra Land Revenue Code, this Court holds that it was necessary for the Company to issue letter of intent first and give time of two months to the selected candidate. Unless that step is taken, it cannot be said in a such case that it was not a ‘ firm offer. Only that kind of interpretation is possible in view of the aforesaid provision of the Maharashtra Land Revenue Code and the provision of conditions made in the brochure. | 0[ds]The aforesaid provision shows that conveyance/transfer is prohibited under certain circumstances and if the lease would be of the period extending five years, the approval of the State Government will be required for it. The provision itself shows that after following some procedure, the State Government can give approval for such lease. In view of this possibility, it cannot be said that respondent no.3 could not have made available the required land for running the petrol pump. The consent can be treated as agreement to give land on lease and it is not prohibited by Section 36¬A.The aforesaid provisions also show that time of two months needs to be given to selected candidate to provide the land indicated in the application. Considering the possibility of giving approval by the State Government, as mentioned in Section 36(A) of the Maharashtra Land Revenue Code, this Court holds that it was necessary for the Company to issue letter of intent first and give time of two months to the selected candidate. Unless that step is taken, it cannot be said in a such case that it was not a ‘ firm offer. Only that kind of interpretation is possible in view of the aforesaid provision of the Maharashtra Land Revenue Code and the provision of conditions made in the brochure. | 0 | 1,793 | 239 | ### 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 transfer of occupancy has been made in contravention of sub¬section (1), he shall declare the transfer to be invalid, and thereupon, the occupancy together with the standing crops thereon, if any, shall vest in the State Government free of all encumbrances and shall be disposed of in such, manner as the State Government may, from time to time direct. (6) Where an occupancy vested in the State Government under sub-section (5) is to be disposed of, the Collector shall give notice in writing to the tribal transferor requiring him to state within 90 days from the date of receipt of such notice whether or not he is willing to purchase the land. If such tribal transferor agrees to purchase the occupancy, then the occupancy may be granted to him if he pays the prescribed purchase price and undertakes to cultivate the land personally; so however that the total land held by such tribal transferor, whether as owner or tenant, does not as far as possible exceed an economic holding.Explanation :¬ For the purpose of this section, the expression "economic holding" means 6.48 hectares (16 acres) of jirayat land or 3.24 hectares (8 acres) of seasonally irrigated land, or paddy or rice land, or 1.62 hectares (4 acres) of perennially irrigated land, and where the laud held by any person consists of two or more kinds of land, the economic holding shall be determined on the basis of one hectare of perennially irrigated land being equal to 2 hectares of seasonally irrigated land or paddy or rice land or 4 hectares of jiray at land.5. The learned counsel for the petitioner submitted that the aforesaid provision shows that in ordinary course, the transfer of the land of tribal to non-tribal is not possible and this circumstance is sufficient to hold that it was not firm offer. The aforesaid provision shows that conveyance/transfer is prohibited under certain circumstances and if the lease would be of the period extending five years, the approval of the State Government will be required for it. The provision itself shows that after following some procedure, the State Government can give approval for such lease. In view of this possibility, it cannot be said that respondent no.3 could not have made available the required land for running the petrol pump. The consent can be treated as agreement to give land on lease and it is not prohibited by Section 36¬A.6. After rejection of the objection dated 03.09.2013 the petitioner rushed to the Court and filed the proceeding on 31.10.2013. This Court granted interim relief on 12.03.2014 and parties were directed to maintain status¬quo. The learned counsel for the respondent No.1¬ company submitted that due to order of status-quo made by this Court, further procedure could not be followed and the Company could not issue letter of intent. He drew the attention of this Court to the conditions mentioning firm offer of land and other ancillary conditions and they are as under :¬"(b) Firm Offer of LandIn addition to land covered under para (a) above, applicants also have the option to offer land with firm offer of land from land owners. Such offer from land owners should be in the form of notarized affidavit giving details of land, khasra/khatauni number, name of village/location, ownership details etc.NOTE :(i) However, if an applicant, after selection on the above basis, is unable to provide the land indicated in the application within a period of TWO months from the date of letter of Intent (LOI), IOC will have the right to cancel the allotment of dealership made to the applicant. The suitability of the Land will be decided by IOC. In this case IOC will provide all fixed facilities at its cost at the site so taken from the applicant on purchase/long term lease basis. However, there is no commitment from IOC for taking the offered Land from the applicant.(ii) Wherever IOCL has advertised that it also expects the applicant to provide suitable land at the advertised location to IOCL on sale/long lease, their willingness to transfer such land to the oil company should be clearly indicated in the application format under para 12(d). Considering the location of the land from the point of view of suitability from technical and commercial angle and rates applicable to IOCL, applicants willing to transfer the land on ownership/long term lease to IOCL would be considered. However, there is no commitment from IOCL for taking the offered land from the applicant.(iii) Documents For Offered LandThe applicant should furnish at least one of the following document (in support of ownership) which should have been issued/revalidated on or after date of advertisement: (i) Khasra/Khatuni or any equivalent revenue document or Certificate from revenue offical confirming the status of ownership of the land. Or (ii) Registered sale deed/ Registered lease deed or any other type of ownership transfer deed/document in favour of applicant.iv) Copy of the lease agreement or allotment letter issued by Government/Semi-Government/Autonomous bodies like DDA, NOIDA, HUDA etc will be considered for ownership of land offered.(v) In addition to documents in para (iii) and (iv) above, following additional documents are also required, as applicable.table(vi) Land document will be sent to District Magistrate/District Collector for verification of title for ownership of land before considering land for evaluation.7. The aforesaid provisions also show that time of two months needs to be given to selected candidate to provide the land indicated in the application. Considering the possibility of giving approval by the State Government, as mentioned in Section 36(A) of the Maharashtra Land Revenue Code, this Court holds that it was necessary for the Company to issue letter of intent first and give time of two months to the selected candidate. Unless that step is taken, it cannot be said in a such case that it was not a ‘ firm offer. Only that kind of interpretation is possible in view of the aforesaid provision of the Maharashtra Land Revenue Code and the provision of conditions made in the brochure.
### Response:
0
### Explanation:
The aforesaid provision shows that conveyance/transfer is prohibited under certain circumstances and if the lease would be of the period extending five years, the approval of the State Government will be required for it. The provision itself shows that after following some procedure, the State Government can give approval for such lease. In view of this possibility, it cannot be said that respondent no.3 could not have made available the required land for running the petrol pump. The consent can be treated as agreement to give land on lease and it is not prohibited by Section 36¬A.The aforesaid provisions also show that time of two months needs to be given to selected candidate to provide the land indicated in the application. Considering the possibility of giving approval by the State Government, as mentioned in Section 36(A) of the Maharashtra Land Revenue Code, this Court holds that it was necessary for the Company to issue letter of intent first and give time of two months to the selected candidate. Unless that step is taken, it cannot be said in a such case that it was not a ‘ firm offer. Only that kind of interpretation is possible in view of the aforesaid provision of the Maharashtra Land Revenue Code and the provision of conditions made in the brochure.
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Commissioner Of Income Tax,Bombay Vs. M/S. Alcock Ashdown & Co. Ltd. and M/S. Filtrone India Ltd | section 84 read with rule 19(1) of the Rules only envisages that the particular asset should have been a form of capital put into the business during the relevant accounting period and does not refer to the actual use made of any particular asset during that period. The emphasis placed by counsel for the Revenue on rule 19(6) of the Rules has no relevance since reference to rule 19(6) is called for only in cases where the average cost in relation to an asset arises for considerationOn examining the rival pleas, we are of the view that the reasoning and conclusion of the High Court does not call for any interference. Section 84(1) of the Income-tax Act is very clear. It affords relief to an assessee as provided therein the moment the capital is employed in the under taking. The section does not state or specify that the asset should be actually used or utilised. After adverting to the interpretation placed by the House of Lords on similar or kindred words that occurred in the Finance Act (England) and also the decision of the Madras High Court in Jayaram Mills Ltd. v. CEPT wherein similar words were construed with reference to the Excess Profits Tax Act, a Division Bench of the Calcutta High Court in CIT v. Indian Oxygen Ltd. at pages 119 and 120, laid down the law, with reference to section 84 and rule 19 of the Income-tax Rules, thus Only in the computation of the value of the assets, acquired at or after the commencing date of the computation period, it is necessary to determine their average cost during the entire accounting period and for that purpose only the actual user of the assets in the business becomes relevant. It is quite clear from the rule that if an asset is acquired prior to the commencement of the accounting period the question of its user or non-user is entirely immaterial. Whether such an asset is used or not, it will still be included in the capital employed in the business Looking at the position from another point of view it appears to us that the moment capital is utilised for the purposes of acquiring any asset for a business, such capital becomes employed in the business. Whether the asset itself is actually used in the business or not, so far as the capital is concerned, it continues to be employed in the businessOur view as aforesaid finds support from the observations of the majority of the law Lords in the case of Birmingham Small Arms Co. Ltd. (HL). The Madras High Court has taken the same view in the case of Jayaram Mills Ltd. 8. In the decision under appeal (Alcocks case), the Bombay High Court has followed the above Calcutta decision. 9. Construing the words capital employed in the undertaking, a Bench of the Karnataka High Court in Ravi Machine Tools (P.) Ltd. v. CIT stated the law thus: Section 80J refers to capital employed in an industrial undertaking and not the user of any asset as such. The company acquires an asset for its undertaking and the capital employed in the undertaking is the amount paid to acquire that asset. The user or non-user of the assets so acquired is immaterial for the computation of the benefit under section 80J. This is the view that was taken by the High Court of Calcutta in CIT v. Indian Oxygen Ltd. and also of the High Court of Madras in Jayaram Mills Ltd. v. CEPT. In Indian Oxygens case, after referring to the observations of the House or Lords in the case of Birmingham Small Arms Co. Ltd. it was held, 120 (Cal) .... it appears to us that the moment capital is utilised for the purposes of acquiring any asset for a business, such capital becomes employed in the business. Whether the asset itself is actually used in the business or not, so far as the capital is concerned, it continues to be employed in the business. We entirely agree with this enunciation... * 10. We find that the Bombay High Court has consistently followed the decision in CIT v. Alcock Ashdown and Co. Ltd., the decision under appeal in the subsequent cases - see CIT v. Boehringer Knoll Ltd. (Bom); CIT v. Hindustan Polymers Ltd. (Bom); CIT v. Advani Oerlikon Pvt. Ltd. (Bom); CIT v. Indian Smelting and Refining Co. Ltd. (Bom); CIT v. Elpro International Ltd. (Bom) and CIT v. Century Spinning and Manufacturing Co. Ltd. (Bom). The other High Courts have also followed either one or more or all of the decisions reported in CIT v. Indian Oxygen Ltd. (Cal); Ravi Machine Tools (P.) Ltd. v. CIT (Kar) and the decision under appeal, CIT v. Alcock Ashdown and Co. Ltd. (Bom) - see CIT v. Cibatul Ltd. (Guj); CIT v. Mohan Meakin Breweries Ltd. (HP); Periyar Chemicals Ltd. v. CIT (Ker); CIT v. Sundaram Industries Ltd. (Mad); CIT v. Southern Agrifurane Industries Ltd. 1988 (179) ITR 371 (P & H). Our attention was not invited to any decision taking a contrary viewIn our opinion, the law laid down in Indian Oxygen Ltd.s case (Cal) and followed in the decision under appeal, Alcock Ashdown and Co.s case (Bom) and other cases referred to above represents the correct law on the subject. We are of the opinion that the moment an asset is acquired or purchased for the purpose of the business, it is capital employed, though the asset as such is not actually utilised or used during the accounting year. In the chain of events, the earliest act or event is the purchase or acquisition of the asset. That by itself entitles the assessee to get the relief. The employment of the capital is done or over. The subsequent or later events, including the actual user of the asset, have nothing to do in the matter. In this view, the judgment under appeal merits on interference. The appeal is accordingly dismissed with costs 11. | 0[ds]The emphasis placed by counsel for the Revenue on rule 19(6) of the Rules has no relevance since reference to rule 19(6) is called for only in cases where the average cost in relation to an asset arises for considerationOn examining the rival pleas, we are of the view that the reasoning and conclusion of the High Court does not call for any interference. Section 84(1) of the Income-tax Act is very clear. It affords relief to an assessee as provided therein the moment the capital is employed in the under taking. The section does not state or specify that the asset should be actually used or utilised. After adverting to the interpretation placed by the House of Lords on similar or kindred words that occurred in the Finance Act (England) and also the decision of the Madras High Court in Jayaram Mills Ltd. v. CEPT wherein similar words were construed with reference to the Excess Profits Tax Act, a Division Bench of the Calcutta High Court in CIT v. Indian Oxygen Ltd. at pages 119 and 120, laid down the law, with reference to section 84 and rule 19 of the Income-tax Rules, thusIn our opinion, the law laid down in Indian Oxygen Ltd.s case (Cal) and followed in the decision under appeal, Alcock Ashdown and Co.s case (Bom) and other cases referred to above represents the correct law on the subject. We are of the opinion that the moment an asset is acquired or purchased for the purpose of the business, it is capital employed, though the asset as such is not actually utilised or used during the accounting year. In the chain of events, the earliest act or event is the purchase or acquisition of the asset. That by itself entitles the assessee to get the relief. The employment of the capital is done or over. The subsequent or later events, including the actual user of the asset, have nothing to do in the matter. In this view, the judgment under appeal merits on interference. | 0 | 2,664 | 381 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
section 84 read with rule 19(1) of the Rules only envisages that the particular asset should have been a form of capital put into the business during the relevant accounting period and does not refer to the actual use made of any particular asset during that period. The emphasis placed by counsel for the Revenue on rule 19(6) of the Rules has no relevance since reference to rule 19(6) is called for only in cases where the average cost in relation to an asset arises for considerationOn examining the rival pleas, we are of the view that the reasoning and conclusion of the High Court does not call for any interference. Section 84(1) of the Income-tax Act is very clear. It affords relief to an assessee as provided therein the moment the capital is employed in the under taking. The section does not state or specify that the asset should be actually used or utilised. After adverting to the interpretation placed by the House of Lords on similar or kindred words that occurred in the Finance Act (England) and also the decision of the Madras High Court in Jayaram Mills Ltd. v. CEPT wherein similar words were construed with reference to the Excess Profits Tax Act, a Division Bench of the Calcutta High Court in CIT v. Indian Oxygen Ltd. at pages 119 and 120, laid down the law, with reference to section 84 and rule 19 of the Income-tax Rules, thus Only in the computation of the value of the assets, acquired at or after the commencing date of the computation period, it is necessary to determine their average cost during the entire accounting period and for that purpose only the actual user of the assets in the business becomes relevant. It is quite clear from the rule that if an asset is acquired prior to the commencement of the accounting period the question of its user or non-user is entirely immaterial. Whether such an asset is used or not, it will still be included in the capital employed in the business Looking at the position from another point of view it appears to us that the moment capital is utilised for the purposes of acquiring any asset for a business, such capital becomes employed in the business. Whether the asset itself is actually used in the business or not, so far as the capital is concerned, it continues to be employed in the businessOur view as aforesaid finds support from the observations of the majority of the law Lords in the case of Birmingham Small Arms Co. Ltd. (HL). The Madras High Court has taken the same view in the case of Jayaram Mills Ltd. 8. In the decision under appeal (Alcocks case), the Bombay High Court has followed the above Calcutta decision. 9. Construing the words capital employed in the undertaking, a Bench of the Karnataka High Court in Ravi Machine Tools (P.) Ltd. v. CIT stated the law thus: Section 80J refers to capital employed in an industrial undertaking and not the user of any asset as such. The company acquires an asset for its undertaking and the capital employed in the undertaking is the amount paid to acquire that asset. The user or non-user of the assets so acquired is immaterial for the computation of the benefit under section 80J. This is the view that was taken by the High Court of Calcutta in CIT v. Indian Oxygen Ltd. and also of the High Court of Madras in Jayaram Mills Ltd. v. CEPT. In Indian Oxygens case, after referring to the observations of the House or Lords in the case of Birmingham Small Arms Co. Ltd. it was held, 120 (Cal) .... it appears to us that the moment capital is utilised for the purposes of acquiring any asset for a business, such capital becomes employed in the business. Whether the asset itself is actually used in the business or not, so far as the capital is concerned, it continues to be employed in the business. We entirely agree with this enunciation... * 10. We find that the Bombay High Court has consistently followed the decision in CIT v. Alcock Ashdown and Co. Ltd., the decision under appeal in the subsequent cases - see CIT v. Boehringer Knoll Ltd. (Bom); CIT v. Hindustan Polymers Ltd. (Bom); CIT v. Advani Oerlikon Pvt. Ltd. (Bom); CIT v. Indian Smelting and Refining Co. Ltd. (Bom); CIT v. Elpro International Ltd. (Bom) and CIT v. Century Spinning and Manufacturing Co. Ltd. (Bom). The other High Courts have also followed either one or more or all of the decisions reported in CIT v. Indian Oxygen Ltd. (Cal); Ravi Machine Tools (P.) Ltd. v. CIT (Kar) and the decision under appeal, CIT v. Alcock Ashdown and Co. Ltd. (Bom) - see CIT v. Cibatul Ltd. (Guj); CIT v. Mohan Meakin Breweries Ltd. (HP); Periyar Chemicals Ltd. v. CIT (Ker); CIT v. Sundaram Industries Ltd. (Mad); CIT v. Southern Agrifurane Industries Ltd. 1988 (179) ITR 371 (P & H). Our attention was not invited to any decision taking a contrary viewIn our opinion, the law laid down in Indian Oxygen Ltd.s case (Cal) and followed in the decision under appeal, Alcock Ashdown and Co.s case (Bom) and other cases referred to above represents the correct law on the subject. We are of the opinion that the moment an asset is acquired or purchased for the purpose of the business, it is capital employed, though the asset as such is not actually utilised or used during the accounting year. In the chain of events, the earliest act or event is the purchase or acquisition of the asset. That by itself entitles the assessee to get the relief. The employment of the capital is done or over. The subsequent or later events, including the actual user of the asset, have nothing to do in the matter. In this view, the judgment under appeal merits on interference. The appeal is accordingly dismissed with costs 11.
### Response:
0
### Explanation:
The emphasis placed by counsel for the Revenue on rule 19(6) of the Rules has no relevance since reference to rule 19(6) is called for only in cases where the average cost in relation to an asset arises for considerationOn examining the rival pleas, we are of the view that the reasoning and conclusion of the High Court does not call for any interference. Section 84(1) of the Income-tax Act is very clear. It affords relief to an assessee as provided therein the moment the capital is employed in the under taking. The section does not state or specify that the asset should be actually used or utilised. After adverting to the interpretation placed by the House of Lords on similar or kindred words that occurred in the Finance Act (England) and also the decision of the Madras High Court in Jayaram Mills Ltd. v. CEPT wherein similar words were construed with reference to the Excess Profits Tax Act, a Division Bench of the Calcutta High Court in CIT v. Indian Oxygen Ltd. at pages 119 and 120, laid down the law, with reference to section 84 and rule 19 of the Income-tax Rules, thusIn our opinion, the law laid down in Indian Oxygen Ltd.s case (Cal) and followed in the decision under appeal, Alcock Ashdown and Co.s case (Bom) and other cases referred to above represents the correct law on the subject. We are of the opinion that the moment an asset is acquired or purchased for the purpose of the business, it is capital employed, though the asset as such is not actually utilised or used during the accounting year. In the chain of events, the earliest act or event is the purchase or acquisition of the asset. That by itself entitles the assessee to get the relief. The employment of the capital is done or over. The subsequent or later events, including the actual user of the asset, have nothing to do in the matter. In this view, the judgment under appeal merits on interference.
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Kamal Pathak Vs. District Magistrate, Burdwan & Others | Bhagwati, J.1. The District Magistrate, Burdwan, by an order dated 29th August, 1972 made under sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971, directed that the petitioner be detained on the ground that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it was necessary to detain him. The grounds on which the order of detention was based referred to two incidents of theft, one on 25th May, 1972 and the other on 12th June, 1972. It appears from the affidavit in reply filed by the District Magistrate that in respect of these two incidents Hirapur case No, 16, dated 27th May, 1972 and Hirapur Case No. 23, dated 24 th June, 1972 were registered and though the name of the petitioner was not mentioned in the first information report, his participation in these incidents was revealed in the course of investigation. The police tried to arrest the petitioner in connection with these two cases, but the petitioner could not be arrested as he was absconding. There was evidence against the petitioner showing his complicity in respect of these two incidents, but the witnesses were not willing to come forward to give evidence for fear of safety of their lives and the police were, therefore, constrained to drop the cases against the petitioner. The first case was dropped on 11th August, 1972, while the other was dropped on 30th August 1972. It was in these circumstances that the District Magistrate passed the order dated 29th August, 1972 directing detention of the petitioner. Pursuant to the order of detention the petitioner was arrested on 3rd September, 1972, and the grounds of detention were served on him. The formalities required by the Act were thereafter complied with within the prescribed time limits and the order of detention was ultimately confirmed by the State Government,2. The only ground on which the petitioner challenged the validity of the order of detention was based on the following averment made in paragraph 7 of the affidavit in reply filed by the District Magistrate:"the said detenu was ultimately discharged from the cases on the prayer of the Police from the said cases not because there was no evidence against him but because this detenu being a dangerous person witnesses were afraid to depose against him."The argument of the petitioner was that there must have been some material before the District Magistrate from which he inferred that the petitioner was a dangerous person and since this material was not disclosed to the petitioner, he was denied an opportunity of making effective representation and the order of detention was therefore, invalid. This argument is wholly without force. There is nothing on the record to show that there was before the District Magistrate any material other than the grounds of detention served on the petitioner. The District Magistrate did not rely on the circumstance that the petitioner was a dangerous person for the purpose of reaching his subjective satisfaction as regards the necessity for the detention of the petitioner. He referred to the fact of the petitioner being a dangerous person in his affidavit in reply merely by way of giving a reason why the witnesses were not willing to come forward to give evidence against him. That was not a circumstance taken into account by him for the purpose of arriving at his subjective satisfaction. In any event, the two incidents set out in the grounds of detention clearly suggested that the petitioner was a dangerous person. No inference could, therefore, be drawn that there was any other material before the District Magistrate which was not disclosed to the petitioner. | 0[ds]2. The only ground on which the petitioner challenged the validity of the order of detention was based on the following averment made in paragraph 7 of the affidavit in reply filed by the District Magistrate:"the said detenu was ultimately discharged from the cases on the prayer of the Police from the said cases not because there was no evidence against him but because this detenu being a dangerous person witnesses were afraid to depose against him."The argument of the petitioner was that there must have been some material before the District Magistrate from which he inferred that the petitioner was a dangerous person and since this material was not disclosed to the petitioner, he was denied an opportunity of making effective representation and the order of detention was therefore, invalid. This argument is wholly without force. There is nothing on the record to show that there was before the District Magistrate any material other than the grounds of detention served on the petitioner. The District Magistrate did not rely on the circumstance that the petitioner was a dangerous person for the purpose of reaching his subjective satisfaction as regards the necessity for the detention of the petitioner. He referred to the fact of the petitioner being a dangerous person in his affidavit in reply merely by way of giving a reason why the witnesses were not willing to come forward to give evidence against him. That was not a circumstance taken into account by him for the purpose of arriving at his subjective satisfaction. In any event, the two incidents set out in the grounds of detention clearly suggested that the petitioner was a dangerous person. No inference could, therefore, be drawn that there was any other material before the District Magistrate which was not disclosed to the petitioner. | 0 | 682 | 324 | ### 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:
Bhagwati, J.1. The District Magistrate, Burdwan, by an order dated 29th August, 1972 made under sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971, directed that the petitioner be detained on the ground that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it was necessary to detain him. The grounds on which the order of detention was based referred to two incidents of theft, one on 25th May, 1972 and the other on 12th June, 1972. It appears from the affidavit in reply filed by the District Magistrate that in respect of these two incidents Hirapur case No, 16, dated 27th May, 1972 and Hirapur Case No. 23, dated 24 th June, 1972 were registered and though the name of the petitioner was not mentioned in the first information report, his participation in these incidents was revealed in the course of investigation. The police tried to arrest the petitioner in connection with these two cases, but the petitioner could not be arrested as he was absconding. There was evidence against the petitioner showing his complicity in respect of these two incidents, but the witnesses were not willing to come forward to give evidence for fear of safety of their lives and the police were, therefore, constrained to drop the cases against the petitioner. The first case was dropped on 11th August, 1972, while the other was dropped on 30th August 1972. It was in these circumstances that the District Magistrate passed the order dated 29th August, 1972 directing detention of the petitioner. Pursuant to the order of detention the petitioner was arrested on 3rd September, 1972, and the grounds of detention were served on him. The formalities required by the Act were thereafter complied with within the prescribed time limits and the order of detention was ultimately confirmed by the State Government,2. The only ground on which the petitioner challenged the validity of the order of detention was based on the following averment made in paragraph 7 of the affidavit in reply filed by the District Magistrate:"the said detenu was ultimately discharged from the cases on the prayer of the Police from the said cases not because there was no evidence against him but because this detenu being a dangerous person witnesses were afraid to depose against him."The argument of the petitioner was that there must have been some material before the District Magistrate from which he inferred that the petitioner was a dangerous person and since this material was not disclosed to the petitioner, he was denied an opportunity of making effective representation and the order of detention was therefore, invalid. This argument is wholly without force. There is nothing on the record to show that there was before the District Magistrate any material other than the grounds of detention served on the petitioner. The District Magistrate did not rely on the circumstance that the petitioner was a dangerous person for the purpose of reaching his subjective satisfaction as regards the necessity for the detention of the petitioner. He referred to the fact of the petitioner being a dangerous person in his affidavit in reply merely by way of giving a reason why the witnesses were not willing to come forward to give evidence against him. That was not a circumstance taken into account by him for the purpose of arriving at his subjective satisfaction. In any event, the two incidents set out in the grounds of detention clearly suggested that the petitioner was a dangerous person. No inference could, therefore, be drawn that there was any other material before the District Magistrate which was not disclosed to the petitioner.
### Response:
0
### Explanation:
2. The only ground on which the petitioner challenged the validity of the order of detention was based on the following averment made in paragraph 7 of the affidavit in reply filed by the District Magistrate:"the said detenu was ultimately discharged from the cases on the prayer of the Police from the said cases not because there was no evidence against him but because this detenu being a dangerous person witnesses were afraid to depose against him."The argument of the petitioner was that there must have been some material before the District Magistrate from which he inferred that the petitioner was a dangerous person and since this material was not disclosed to the petitioner, he was denied an opportunity of making effective representation and the order of detention was therefore, invalid. This argument is wholly without force. There is nothing on the record to show that there was before the District Magistrate any material other than the grounds of detention served on the petitioner. The District Magistrate did not rely on the circumstance that the petitioner was a dangerous person for the purpose of reaching his subjective satisfaction as regards the necessity for the detention of the petitioner. He referred to the fact of the petitioner being a dangerous person in his affidavit in reply merely by way of giving a reason why the witnesses were not willing to come forward to give evidence against him. That was not a circumstance taken into account by him for the purpose of arriving at his subjective satisfaction. In any event, the two incidents set out in the grounds of detention clearly suggested that the petitioner was a dangerous person. No inference could, therefore, be drawn that there was any other material before the District Magistrate which was not disclosed to the petitioner.
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Babu Kuttan R. Pillai Vs. State Of Maharashtra | noon the deceased Sanjay Patil telephoned Tambe and inquired from him as to what he was going to do about the payment and then Tambe replied that he will be leaving office at about 2.00 p.m. for Pali Hill. Sanjay Patil cautioned him that he should not make any haste and he should wait for his call so that he will take necessary instructions from his boss i.e. Amar Naik. At about 2.00 p.m. on that day there was a telephone call from Sanjay Patil telling that Tambe should not meet him at the "Nakshatra Building" site but instead he should meet him near the Ceaser Palace Hotel. This telephonic conversion was tape-recorded. Tambe was instructed on telephone that his man shall carry a white plastic bag containing the amount of Rs. 5 lacs and shall wait near the entrance gate of Ceaser Palace Hotel and the person coming to collect the said bag will introduce himself as "Me Rawancha Manus Hai". Tambe informed to the DCP all these happenings and handed over the tape in which the telephonic conversation was recorded by him. The DCP had made the arrangements to keep a regular watch near the building site. PW-1 Sunil Deshmukh was deployed to wait in cognito near the gate of the Ceaser Palace Hotel and to carry the white plastic bag containing bundles of papers which would give an appearance like the bundles of current notes. The other officers, who were also in cognito, had taken their position at strategic points near the hotel. At about 4.05 p.m. Sunil Deshmukh noticed that one red coloured Marunti van halted in front of the Ceaser Palace Hotel. He noticed three persons getting down from the said van. Those three persons were coming in this direction, and the van went ahead 50 to 60 feets and halted there. The deceased Sanjay Patil and the accused No. 7 Bapu Sidhram Gaikwad got down from the said van and accused No. 6 Mohamed Ismail was sitting on the driver seat in the van. The three accused persons i.e. accused No. 1 Babu Kuttan Pillai, accused No. 2 Umesh @ Babu Bhatt and the absconding accused Ramchandra Negi approached PW-1. He enquired from PW-1 about his identity and when PW-1 replied that he has been sent by Tambe Sahib. PW-1 Sunil Deshmukh then asked that person "who are you" (Tum Kaun Hai) and then the accused No. 2 Umesh Bhatt told him that "Hum Rawan Ke Aadmi Hai" . Thereafter accused No. 1 Babu Kuttan extended his hand towards PW-1 who delivered the bag to him. At this juncture the police officers who were standing nearby in cognito rushed to the place and surrounded the three persons. When the police officers were trying to overpower them the deceased Sanjay Patil @ Avinsash Amanna and the accused No. 7 Bapu Sidhram Gaikwad came forward with revolvers in their hands and threatened the police party by saying they should leave their men or else the policemen will be killed. Saying so they fired in the direction of the police party. At this point PW-1 took out his revolver and pointed it in the direction of the accused and told him "we are all policemen and you should throw away your revolvers else we fill fire." Even then the accused persons fired some rounds in the direction of the police party, then PW-1 and one other officer tried to rush towards them but they sat in the said Maruti van and sped away from the place.6. After the situation claimed down, the police drew the panchnames Ex.22 in presence of some witnesses and conducted personal search of the three culprits. On such search accused No. 1 Babu Kuttan Pillai was found to possess the plastic bag containing the paper bundles (Art. 1), accused No. 2 Umesh Bhatt was found to possess a big Rampuri knife which was hidden at the waist under the pant by left side.7. After completion of investigation the police submitted the charge-sheet. The three persons at the spot were remanded to the police custody. Subsequently, the other accused persons were also arrested. They were put to test identification parade. The learned trial Judge on appreciation of the evidence on record convicted accused No. 1 Babu Kuttan Ramkrishna Pillai and the accused No. 2 Umesh @ Babu Purshottam Bhatt for the office punishable under Section 395 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment of 5 years and to pay a fine of Rs. 500, in default of payment of fine to undergo further Rigorous Imprisonment for 6 months. They were also convicted under Section 120B of the IPC but no separate sentence was passed. They were acquitted of the other offences with which they were charged. The remaining accused persons i.e. accused Nos. 3, 4, 5, 6 and 7 were acquitted of all the charges framed against them. Accused Nos. 1 and 2 have filed this appeal assailing the judgment passed by the Designated Court at Brihan Mumbai, convicting/sentencing them as above. 8. On a reading of the judgment under challenge, we find that the learned trial Judge has considered the entire case led by the prosecution in great detail and after discussing the charges framed against the appellants under Sections 3(2), 3(3) and 3(5) of TADA Act, rejected the prosecution case on that count. Thereafter the learned trial Judge in paragraph 17 onwards considered the question of what offence was made out against the appellants. After a detailed discussion of the relevant evidence placed by the prosecution and after examining it in the light of the contentions on behalf of the defence, the learned trial Judge believed the testimony of PW-1-Sunil Deshmukh, PW-7-Tambe and PW-9-L.J. Kamble and came to hold that the appellants are guilty of the offence of criminal conspiracy punishable under Section 120-B and the offence of dacoity punishable under Section 395 IPC and convicted them thereunder and imposed the punishable as noted earlier. | 1[ds]8. On a reading of the judgment under challenge, we find that the learned trial Judge has considered the entire case led by the prosecution in great detail and after discussing the charges framed against the appellants under Sections 3(2), 3(3) and 3(5) of TADA Act, rejected the prosecution case on that count. Thereafter the learned trial Judge in paragraph 17 onwards considered the question of what offence was made out against the appellants. After a detailed discussion of the relevant evidence placed by the prosecution and after examining it in the light of the contentions on behalf of the defence, the learned trial Judge believed the testimony ofKamble and came to hold that the appellants are guilty of the offence of criminal conspiracy punishable under Sectionand the offence of dacoity punishable under Section 395 IPC and convicted them thereunder and imposed the punishable as noted earlier.9. We have perused the evidence of these witnesses. We do not find that the appreciation of evidence made by the learned trial Judge suffers from any illegality nor can findings recorded by him be said to be perverse. The learned trial Judge has given cogent reasons for accepting the evidence led by the prosecution against the appellants and for rejecting the contentions raised by the defence. We are not satisfied that the judgment of the learned trial Judge calls for interference by this Court.On a reading of the judgment under challenge, we find that the learned trial Judge has considered the entire case led by the prosecution in great detail and after discussing the charges framed against the appellants under Sections 3(2), 3(3) and 3(5) of TADA Act, rejected the prosecution case on that count. Thereafter the learned trial Judge in paragraph 17 onwards considered the question of what offence was made out against the appellants. After a detailed discussion of the relevant evidence placed by the prosecution and after examining it in the light of the contentions on behalf of the defence, the learned trial Judge believed the testimony ofe and came to hold that the appellants are guilty of the offence of criminal conspiracy punishable under Sectionand the offence of dacoity punishable under Section 395 IPC and convicted them thereunder and imposed the punishable as noted earlier. | 1 | 2,024 | 416 | ### 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:
noon the deceased Sanjay Patil telephoned Tambe and inquired from him as to what he was going to do about the payment and then Tambe replied that he will be leaving office at about 2.00 p.m. for Pali Hill. Sanjay Patil cautioned him that he should not make any haste and he should wait for his call so that he will take necessary instructions from his boss i.e. Amar Naik. At about 2.00 p.m. on that day there was a telephone call from Sanjay Patil telling that Tambe should not meet him at the "Nakshatra Building" site but instead he should meet him near the Ceaser Palace Hotel. This telephonic conversion was tape-recorded. Tambe was instructed on telephone that his man shall carry a white plastic bag containing the amount of Rs. 5 lacs and shall wait near the entrance gate of Ceaser Palace Hotel and the person coming to collect the said bag will introduce himself as "Me Rawancha Manus Hai". Tambe informed to the DCP all these happenings and handed over the tape in which the telephonic conversation was recorded by him. The DCP had made the arrangements to keep a regular watch near the building site. PW-1 Sunil Deshmukh was deployed to wait in cognito near the gate of the Ceaser Palace Hotel and to carry the white plastic bag containing bundles of papers which would give an appearance like the bundles of current notes. The other officers, who were also in cognito, had taken their position at strategic points near the hotel. At about 4.05 p.m. Sunil Deshmukh noticed that one red coloured Marunti van halted in front of the Ceaser Palace Hotel. He noticed three persons getting down from the said van. Those three persons were coming in this direction, and the van went ahead 50 to 60 feets and halted there. The deceased Sanjay Patil and the accused No. 7 Bapu Sidhram Gaikwad got down from the said van and accused No. 6 Mohamed Ismail was sitting on the driver seat in the van. The three accused persons i.e. accused No. 1 Babu Kuttan Pillai, accused No. 2 Umesh @ Babu Bhatt and the absconding accused Ramchandra Negi approached PW-1. He enquired from PW-1 about his identity and when PW-1 replied that he has been sent by Tambe Sahib. PW-1 Sunil Deshmukh then asked that person "who are you" (Tum Kaun Hai) and then the accused No. 2 Umesh Bhatt told him that "Hum Rawan Ke Aadmi Hai" . Thereafter accused No. 1 Babu Kuttan extended his hand towards PW-1 who delivered the bag to him. At this juncture the police officers who were standing nearby in cognito rushed to the place and surrounded the three persons. When the police officers were trying to overpower them the deceased Sanjay Patil @ Avinsash Amanna and the accused No. 7 Bapu Sidhram Gaikwad came forward with revolvers in their hands and threatened the police party by saying they should leave their men or else the policemen will be killed. Saying so they fired in the direction of the police party. At this point PW-1 took out his revolver and pointed it in the direction of the accused and told him "we are all policemen and you should throw away your revolvers else we fill fire." Even then the accused persons fired some rounds in the direction of the police party, then PW-1 and one other officer tried to rush towards them but they sat in the said Maruti van and sped away from the place.6. After the situation claimed down, the police drew the panchnames Ex.22 in presence of some witnesses and conducted personal search of the three culprits. On such search accused No. 1 Babu Kuttan Pillai was found to possess the plastic bag containing the paper bundles (Art. 1), accused No. 2 Umesh Bhatt was found to possess a big Rampuri knife which was hidden at the waist under the pant by left side.7. After completion of investigation the police submitted the charge-sheet. The three persons at the spot were remanded to the police custody. Subsequently, the other accused persons were also arrested. They were put to test identification parade. The learned trial Judge on appreciation of the evidence on record convicted accused No. 1 Babu Kuttan Ramkrishna Pillai and the accused No. 2 Umesh @ Babu Purshottam Bhatt for the office punishable under Section 395 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment of 5 years and to pay a fine of Rs. 500, in default of payment of fine to undergo further Rigorous Imprisonment for 6 months. They were also convicted under Section 120B of the IPC but no separate sentence was passed. They were acquitted of the other offences with which they were charged. The remaining accused persons i.e. accused Nos. 3, 4, 5, 6 and 7 were acquitted of all the charges framed against them. Accused Nos. 1 and 2 have filed this appeal assailing the judgment passed by the Designated Court at Brihan Mumbai, convicting/sentencing them as above. 8. On a reading of the judgment under challenge, we find that the learned trial Judge has considered the entire case led by the prosecution in great detail and after discussing the charges framed against the appellants under Sections 3(2), 3(3) and 3(5) of TADA Act, rejected the prosecution case on that count. Thereafter the learned trial Judge in paragraph 17 onwards considered the question of what offence was made out against the appellants. After a detailed discussion of the relevant evidence placed by the prosecution and after examining it in the light of the contentions on behalf of the defence, the learned trial Judge believed the testimony of PW-1-Sunil Deshmukh, PW-7-Tambe and PW-9-L.J. Kamble and came to hold that the appellants are guilty of the offence of criminal conspiracy punishable under Section 120-B and the offence of dacoity punishable under Section 395 IPC and convicted them thereunder and imposed the punishable as noted earlier.
### Response:
1
### Explanation:
8. On a reading of the judgment under challenge, we find that the learned trial Judge has considered the entire case led by the prosecution in great detail and after discussing the charges framed against the appellants under Sections 3(2), 3(3) and 3(5) of TADA Act, rejected the prosecution case on that count. Thereafter the learned trial Judge in paragraph 17 onwards considered the question of what offence was made out against the appellants. After a detailed discussion of the relevant evidence placed by the prosecution and after examining it in the light of the contentions on behalf of the defence, the learned trial Judge believed the testimony ofKamble and came to hold that the appellants are guilty of the offence of criminal conspiracy punishable under Sectionand the offence of dacoity punishable under Section 395 IPC and convicted them thereunder and imposed the punishable as noted earlier.9. We have perused the evidence of these witnesses. We do not find that the appreciation of evidence made by the learned trial Judge suffers from any illegality nor can findings recorded by him be said to be perverse. The learned trial Judge has given cogent reasons for accepting the evidence led by the prosecution against the appellants and for rejecting the contentions raised by the defence. We are not satisfied that the judgment of the learned trial Judge calls for interference by this Court.On a reading of the judgment under challenge, we find that the learned trial Judge has considered the entire case led by the prosecution in great detail and after discussing the charges framed against the appellants under Sections 3(2), 3(3) and 3(5) of TADA Act, rejected the prosecution case on that count. Thereafter the learned trial Judge in paragraph 17 onwards considered the question of what offence was made out against the appellants. After a detailed discussion of the relevant evidence placed by the prosecution and after examining it in the light of the contentions on behalf of the defence, the learned trial Judge believed the testimony ofe and came to hold that the appellants are guilty of the offence of criminal conspiracy punishable under Sectionand the offence of dacoity punishable under Section 395 IPC and convicted them thereunder and imposed the punishable as noted earlier.
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Mohammad Sadiq and Ors Vs. State of Uttar Pradesh and Ors | movable and immovable, belonging to a society registered under this Act, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society by their proper title. 6. Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion : Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary of the trustees thereof, if on an application to the governing body some other officer or person be not nominated to be the defendant. Section 7 provides for non-abatement of suits or proceedings and the continuance of such suits or proceedings in the name of or against the successor of the person by or against whom the suit was brought. Section 8 says that if a judgment is recovered against a person or officer named on behalf of the society, such judgment shall not be put in force against the property, movable or immovable, or against the body of such person or officer, but against the property of the society. Section 10 provides that in certain circumstances mentioned therein a member of the society may be sued by the society; but if the defendant shall be successful in any such suit brought at the instance of the society and shall be adjudged to recover his costs, he may elect to proceed to recover the same from the officer in whose name the suit was brought, or from the society. Sections 13 and 14 provide for dissolution of societies and the consequences of such dissolution. These provisions have also an important bearing on the questions before us and are quoted in full. 13. Any number not less than three-fifths of the members of any society may determine that it shall be dissolved, and thereupon it shall be dissolved forthwith, or at the time then agreed upon, and all necessary steps shall be taken for the disposal and settlement of the property of the society, its claims and liabilities, according to the rules of the said society applicable thereto, if any, and, if not then as the governing body shall find expedient, provided that, in the event of any dispute arising among the said governing body or the members of the society, the adjustment of its affairs shall be referred to the principal court of Original civil jurisdiction of the district in which the chief building of the society is situate, and the Court shall make such order in the matter as it shall deem requisite : Provided that no society shall be dissolved unless three-fifths of the members shall have expressed a wish for such dissolution by their votes delivered in person, or by proxy, at a general meeting convened for the purpose : Provided that whenever any Government is a member of, or a contributor to, or otherwise interested in any society registered under this Act, such society shall not be dissolved, without the consent of the Government of the State of registration. 14. If upon the dissolution of any society registered under this Act there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of the dissolution, or, in default thereof, by such Court as aforesaid : Provided, however, that this clause shall not apply to any society which shall have been founded or established by the contributions of shareholders in the nature of a Joint Stock Company. 8. The other crucial question is whether the Absorption Rules applied to IERT. The relevant provisions in the rules read as follows: In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules to provide for the absorption in Government Service of the retrenched employees of the Government or of Public Corporations. THE UTTAR PRADESH ABSORPTION OF RETRENCHED EMPLOYEES OF GOVERNMENT OR PUBLIC CORPORATIONS IN GOVERNMENT SERVICE RULES, 1991. xx xx xx xx 2(b) Public Corporation means a body corporate established or constituted by or under any Uttar Pradesh Act expect a University of local authority constituted for the purpose of Local Self Government and includes a government Company within the meaning of Section 617 of the Companies Act, 1956 in which the State Government has prepondering interest. 2(c) Retrenched Employees means a person who was appointed on a post under the Government or a public corporation on or before October 1, 1986 in accordance with the procedure laid down for recruitment to the post and was continuously working in any post under the Government or such corporation up to date of his retrenchment due to reduction in, or winding up of, any establishment or the Government of the Public Corporation, as the case may be and in respect of whom a certificate of being retrenched employees has been issued by his appointing authority. 9. A bare reading of the provisions makes the positions clear that in order to bring application of the Rules the public corporation has to be a body corporate established or constituted by or under any Uttar Pradesh Act. The fundamental requirement is that the corporation should have been constituted by or under any Uttar Pradesh Act. Undisputedly, the Societies Act is a Central Act. 10. | 0[ds]9. A bare reading of the provisions makes the positions clear that in order to bring application of the Rules the public corporation has to be a body corporate established or constituted by or under any Uttar Pradesh Actfundamental requirement is that the corporation should have been constituted by or under any Uttar Pradesh Act. Undisputedly, the Societies Act is a Central Act. | 0 | 2,668 | 71 | ### 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:
movable and immovable, belonging to a society registered under this Act, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society by their proper title. 6. Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion : Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary of the trustees thereof, if on an application to the governing body some other officer or person be not nominated to be the defendant. Section 7 provides for non-abatement of suits or proceedings and the continuance of such suits or proceedings in the name of or against the successor of the person by or against whom the suit was brought. Section 8 says that if a judgment is recovered against a person or officer named on behalf of the society, such judgment shall not be put in force against the property, movable or immovable, or against the body of such person or officer, but against the property of the society. Section 10 provides that in certain circumstances mentioned therein a member of the society may be sued by the society; but if the defendant shall be successful in any such suit brought at the instance of the society and shall be adjudged to recover his costs, he may elect to proceed to recover the same from the officer in whose name the suit was brought, or from the society. Sections 13 and 14 provide for dissolution of societies and the consequences of such dissolution. These provisions have also an important bearing on the questions before us and are quoted in full. 13. Any number not less than three-fifths of the members of any society may determine that it shall be dissolved, and thereupon it shall be dissolved forthwith, or at the time then agreed upon, and all necessary steps shall be taken for the disposal and settlement of the property of the society, its claims and liabilities, according to the rules of the said society applicable thereto, if any, and, if not then as the governing body shall find expedient, provided that, in the event of any dispute arising among the said governing body or the members of the society, the adjustment of its affairs shall be referred to the principal court of Original civil jurisdiction of the district in which the chief building of the society is situate, and the Court shall make such order in the matter as it shall deem requisite : Provided that no society shall be dissolved unless three-fifths of the members shall have expressed a wish for such dissolution by their votes delivered in person, or by proxy, at a general meeting convened for the purpose : Provided that whenever any Government is a member of, or a contributor to, or otherwise interested in any society registered under this Act, such society shall not be dissolved, without the consent of the Government of the State of registration. 14. If upon the dissolution of any society registered under this Act there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of the dissolution, or, in default thereof, by such Court as aforesaid : Provided, however, that this clause shall not apply to any society which shall have been founded or established by the contributions of shareholders in the nature of a Joint Stock Company. 8. The other crucial question is whether the Absorption Rules applied to IERT. The relevant provisions in the rules read as follows: In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules to provide for the absorption in Government Service of the retrenched employees of the Government or of Public Corporations. THE UTTAR PRADESH ABSORPTION OF RETRENCHED EMPLOYEES OF GOVERNMENT OR PUBLIC CORPORATIONS IN GOVERNMENT SERVICE RULES, 1991. xx xx xx xx 2(b) Public Corporation means a body corporate established or constituted by or under any Uttar Pradesh Act expect a University of local authority constituted for the purpose of Local Self Government and includes a government Company within the meaning of Section 617 of the Companies Act, 1956 in which the State Government has prepondering interest. 2(c) Retrenched Employees means a person who was appointed on a post under the Government or a public corporation on or before October 1, 1986 in accordance with the procedure laid down for recruitment to the post and was continuously working in any post under the Government or such corporation up to date of his retrenchment due to reduction in, or winding up of, any establishment or the Government of the Public Corporation, as the case may be and in respect of whom a certificate of being retrenched employees has been issued by his appointing authority. 9. A bare reading of the provisions makes the positions clear that in order to bring application of the Rules the public corporation has to be a body corporate established or constituted by or under any Uttar Pradesh Act. The fundamental requirement is that the corporation should have been constituted by or under any Uttar Pradesh Act. Undisputedly, the Societies Act is a Central Act. 10.
### Response:
0
### Explanation:
9. A bare reading of the provisions makes the positions clear that in order to bring application of the Rules the public corporation has to be a body corporate established or constituted by or under any Uttar Pradesh Actfundamental requirement is that the corporation should have been constituted by or under any Uttar Pradesh Act. Undisputedly, the Societies Act is a Central Act.
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Commissioner of Income Tax, Ujjain Vs. M/s. Dawoodi Bohara Jamat | section 11, the eligibility for claiming exemption ought to be tested on the touchstone of the provisions of section 13. In the instant case, it being established that the respondent-trust is a public charitable and religious trust eligible for claiming exemption under Section 11, it becomes relevant to test it on the anvil of Section 13. 43. Thus, the second issue which arises for our consideration and decision is, whet her the respondent-trust is a charitable and religious trust only for the purposes of a particular community and therefore, not eligible for exemption under Section 11 of the Act in view of provisions of Section 13 (1)(b) of the Act. 44. In the instant case, the Tribunal has found on facts after analysing the objects of the trust that the respondent-trust is a public religious trust and its objects are solely religious in nature and being of the opinion that Section 13 (l)(b) is solely meant for charitable trust for particular community, negated the possibility of applicability of Section 13 (1)(b) of the Act at the outset. The High Court has also confirmed the aforesaid view in appeal and observed that Section 13 (1)(b) would only be applicable in case of income of the trust for charitable purpose established for benefit of a particular religious community. In our considered view, the said view may not be the correct interpretation of the provision. 45. From the phraseology in clause (b) of section 13 (1), it could be inferred that the Legislature intended to include only the trusts established for charitable purposes. That however does not mean that if a trust is a composite one, that is one for both religious and charitable purposes, then it would not be covered by clause (b). What is intended to be excluded from being eligible for exemption under Section 11 is a trust for charitable purpose which is established for the benefit of any particular religious community or caste. 46. Such trusts with composite objects would not be expelled out of the purview of Section 13 (1)(b) per se. The Section requires it to be established that such charitable purpose is not for the benefit of a particular religious community or caste. That is to say, it needs to be examined whether such religious-charitable activity carried on by the trust only benefits a certain particular religious community or class or serves across the communities and for society at large. (Sole Trustee, Loka Shikshana Trust v. CIT, (1975) 101 ITR 234 (SC)). The section of community sought to be benefited must be either sufficiently defined or identifiable by a common quality of a public or impersonal nature. (CIT v. Andhra Chamber of Commerce, 55 ITR 722) . 47. This Court in CIT v. Palghat Shadi Mahal Trust, (2002) 9 SCC 685 the muslim residents of Kerala constituted a trust "for the purpose of constructing and establishing at Palghat-a-Shadi Mahal and other institutions for the educational, social and economic advancement of the Muslims and for religious and charitable objects recognised by Muslim law ..." and later clarified that the proceeds would be utilized for the benefit for public at large and upon this basis, the trust made a claim for exemption from tax under Section 11. This Court held that the resolution clarifying the object would not validly amend the object of the trust-deed and since the object confined the benefit to only muslim community, it would be covered by the restriction under Section 13 (1)(b) of the Act even though it functioned for public benefit. Thus, therein the object sufficiently defined or expressly stated beneficiary class and restricted the activities of the trust to a specific community. 48. Further, in State of Kerala v. M.P. Shanti Verma Jain, (1998) 5 SCC 63 this Court has held that propagation of religion and restriction of benefits of activities of trust in its objects to the said community would render the trust as ineligible for claiming exemption under similar provisions of Kerala Agricultural Income Tax Act, 1950. The Court observed as follows: "...The Deed of Trust and the rules run into more than thirty pages out of which six pages of the Trust Deed narrate the philosophy of Jain Dharma. The objects of the Trust clearly show that the Trust is meant for propagation of Jain religion and rendering help to the followers of Jain religion. Even medical aid and similar facilities are to be rendered to persons devoted to Jain religion and to non-Jains if suffering from ailments but the medical aid could be given to them only if any member of the families managing the Trust, shows sympathy and is interested in their treatment. The Tribunal, in our opinion, was right in its conclusion that the dominant purpose of the Trust in the present case was propagation of Jain religion and to serve its followers and any part of agricultural income of the Trust spent in the State of Kerala also could not be treated as allowable item of the expenses." 49. In the present case, the objects of the respondent-trust are based on religion tenets under Quran according to religious faith of Islam. We have already noticed that the perusal of the objects and purposes of the respondent-trust would clearly demonstrate that the activities of the trust though boll charitable and religious are not exclusively meant for a particular religious community The objects, as explained in the preceding paragraphs, do not channel the benefits to any community if not the Dawoodi Bohn Community and thus, would not fall under the provisions of Section 13 (1)(b) of the Act.50. In that view of the matter, we are of the considered opinion that the respondent-trust is a charitable and religious trust which does not benefit any specific religious community and therefore, it cannot be held that Section 13 (1)(b) of the Act would be attracted to the respondent-trust and thereby, it would be eligible to claim exemption under Section 11 of the Act. 51. In the result, the | 0[ds]49. In the present case, the objects of the respondent-trust are based on religion tenets under Quran according to religious faith of Islam. We have already noticed that the perusal of the objects and purposes of the respondent-trust would clearly demonstrate that the activities of the trust though boll charitable and religious are not exclusively meant for a particular religious community The objects, as explained in the preceding paragraphs, do not channel the benefits to any community if not the Dawoodi Bohn Community and thus, would not fall under the provisions of Section 13 (1)(b) of the Act.50. In that view of the matter, we are of the considered opinion that the respondent-trust is a charitable and religious trust which does not benefit any specific religious community and therefore, it cannot be held that Section 13 (1)(b) of the Act would be attracted to the respondent-trust and thereby, it would be eligible to claim exemption under Section 11 of the Act. | 0 | 7,566 | 187 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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section 11, the eligibility for claiming exemption ought to be tested on the touchstone of the provisions of section 13. In the instant case, it being established that the respondent-trust is a public charitable and religious trust eligible for claiming exemption under Section 11, it becomes relevant to test it on the anvil of Section 13. 43. Thus, the second issue which arises for our consideration and decision is, whet her the respondent-trust is a charitable and religious trust only for the purposes of a particular community and therefore, not eligible for exemption under Section 11 of the Act in view of provisions of Section 13 (1)(b) of the Act. 44. In the instant case, the Tribunal has found on facts after analysing the objects of the trust that the respondent-trust is a public religious trust and its objects are solely religious in nature and being of the opinion that Section 13 (l)(b) is solely meant for charitable trust for particular community, negated the possibility of applicability of Section 13 (1)(b) of the Act at the outset. The High Court has also confirmed the aforesaid view in appeal and observed that Section 13 (1)(b) would only be applicable in case of income of the trust for charitable purpose established for benefit of a particular religious community. In our considered view, the said view may not be the correct interpretation of the provision. 45. From the phraseology in clause (b) of section 13 (1), it could be inferred that the Legislature intended to include only the trusts established for charitable purposes. That however does not mean that if a trust is a composite one, that is one for both religious and charitable purposes, then it would not be covered by clause (b). What is intended to be excluded from being eligible for exemption under Section 11 is a trust for charitable purpose which is established for the benefit of any particular religious community or caste. 46. Such trusts with composite objects would not be expelled out of the purview of Section 13 (1)(b) per se. The Section requires it to be established that such charitable purpose is not for the benefit of a particular religious community or caste. That is to say, it needs to be examined whether such religious-charitable activity carried on by the trust only benefits a certain particular religious community or class or serves across the communities and for society at large. (Sole Trustee, Loka Shikshana Trust v. CIT, (1975) 101 ITR 234 (SC)). The section of community sought to be benefited must be either sufficiently defined or identifiable by a common quality of a public or impersonal nature. (CIT v. Andhra Chamber of Commerce, 55 ITR 722) . 47. This Court in CIT v. Palghat Shadi Mahal Trust, (2002) 9 SCC 685 the muslim residents of Kerala constituted a trust "for the purpose of constructing and establishing at Palghat-a-Shadi Mahal and other institutions for the educational, social and economic advancement of the Muslims and for religious and charitable objects recognised by Muslim law ..." and later clarified that the proceeds would be utilized for the benefit for public at large and upon this basis, the trust made a claim for exemption from tax under Section 11. This Court held that the resolution clarifying the object would not validly amend the object of the trust-deed and since the object confined the benefit to only muslim community, it would be covered by the restriction under Section 13 (1)(b) of the Act even though it functioned for public benefit. Thus, therein the object sufficiently defined or expressly stated beneficiary class and restricted the activities of the trust to a specific community. 48. Further, in State of Kerala v. M.P. Shanti Verma Jain, (1998) 5 SCC 63 this Court has held that propagation of religion and restriction of benefits of activities of trust in its objects to the said community would render the trust as ineligible for claiming exemption under similar provisions of Kerala Agricultural Income Tax Act, 1950. The Court observed as follows: "...The Deed of Trust and the rules run into more than thirty pages out of which six pages of the Trust Deed narrate the philosophy of Jain Dharma. The objects of the Trust clearly show that the Trust is meant for propagation of Jain religion and rendering help to the followers of Jain religion. Even medical aid and similar facilities are to be rendered to persons devoted to Jain religion and to non-Jains if suffering from ailments but the medical aid could be given to them only if any member of the families managing the Trust, shows sympathy and is interested in their treatment. The Tribunal, in our opinion, was right in its conclusion that the dominant purpose of the Trust in the present case was propagation of Jain religion and to serve its followers and any part of agricultural income of the Trust spent in the State of Kerala also could not be treated as allowable item of the expenses." 49. In the present case, the objects of the respondent-trust are based on religion tenets under Quran according to religious faith of Islam. We have already noticed that the perusal of the objects and purposes of the respondent-trust would clearly demonstrate that the activities of the trust though boll charitable and religious are not exclusively meant for a particular religious community The objects, as explained in the preceding paragraphs, do not channel the benefits to any community if not the Dawoodi Bohn Community and thus, would not fall under the provisions of Section 13 (1)(b) of the Act.50. In that view of the matter, we are of the considered opinion that the respondent-trust is a charitable and religious trust which does not benefit any specific religious community and therefore, it cannot be held that Section 13 (1)(b) of the Act would be attracted to the respondent-trust and thereby, it would be eligible to claim exemption under Section 11 of the Act. 51. In the result, the
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0
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49. In the present case, the objects of the respondent-trust are based on religion tenets under Quran according to religious faith of Islam. We have already noticed that the perusal of the objects and purposes of the respondent-trust would clearly demonstrate that the activities of the trust though boll charitable and religious are not exclusively meant for a particular religious community The objects, as explained in the preceding paragraphs, do not channel the benefits to any community if not the Dawoodi Bohn Community and thus, would not fall under the provisions of Section 13 (1)(b) of the Act.50. In that view of the matter, we are of the considered opinion that the respondent-trust is a charitable and religious trust which does not benefit any specific religious community and therefore, it cannot be held that Section 13 (1)(b) of the Act would be attracted to the respondent-trust and thereby, it would be eligible to claim exemption under Section 11 of the Act.
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The River Steam Navigation Co., Lt.D Vs. Shyam Sundar Tea Co., Ltd | and to enter into contracts of carriage of goods from these points to places on the Steamer Service routes. It appears clear from the evidence adduced in this case that for such carriage the tea gardens make requests to the appellants to arrange for carriage to the Steamer station and the companies invariably comply with such requests.Their own witness, the Joint Agent at Dibrugarh, has said in this connection We always try to give facilities to the interior tea gardens and to all customers whenever they require any help. He has not said a single word as to requests of any customers for arrangements of carriage from Dillibari Ghat having been refused. Indeed, when one remembers that it is by getting the custom from these interior tea gardens, not all of which are situated on or , near the main stream of the Brahmputra that the companies are able to get sufficient cargo for their steamers, it was only natural that they would accept goods for carriage from places away from the main stream as indiscriminately as they do for carriage from stations on the main steamer route. 10. The defendants witness Mohammad Abdulla who is their Ghat Supervisor at Desangmukh has stated that the Steamer Company bears expenses of the clearance of the rivers to make them navigable. Such conduct is consistent only with the case that the companies are anxious to receive whatever cargo they get for carriage from places on the river Desang and other tributaries to stations on the main steamer route for further carriage on the steamer route. The service on these tributaries can therefore be reasonably described as a feeder service for the main route and the admitted public profession for indiscriminate carriage of the goods of every person on the main route cannot but attach to the service on these feeder routes also. 11. Against all this, Mr. Mukherjee pressed for our consideration three circumstances: (i) that the rate for carriage from Dillibari was not a fixed rate; (ii) that there was no regular service but boats were supplied only on requisition; and (iii) that the carriage was made without profit.Nothing turns on the third fact-assuming that it has been established-that carriage from Dillibari to Desangmukh is made without profit. If this is actually the case it is obvious that the defendants deliberately do this as a part of their business so as to attract good business on the main steamer service route where they hope to make sufficient profits to make up for the loss in feeder service. 12. The circumstance that there was no regular service but boats were supplied only on requisition is also wholly irrelevant for ascertaining whether there was a public profession to carry indiscriminately. Even if there was a regular service, there might not be a profession to carry indiscriminately ; whereas even if there was such a profession it would not necessarily happen that regular service should be maintained. If, as the evidence appears to establish, the companies were ready to supply boats whenever requested, without picking and choosing, that would be sufficient public profession to act as a common carrier. Nor is the fact that there was no fixed rate for carriage of goods from Dillibari to Desangmukh of any assistance to the appellants contention that they were not common carriers, for the law does not require that a common carrier must have one and the same rate for all goods. The law was stated thus by Blackburn J. in G. W. Ry. Co., v. Sutton ((1869) L.R., 4 H.L. 226 at. 237.) : There was nothing in the common law to hinder a carrier from carrying for favoured individuals at an unreasonably low rate, or even gratis. All that the law required was, that he shouldnot charge any more than was reasonable. 13. The requirement of equality of charges, as pointed out by Prof. Otto Kahn-Fre-und in the law of Carriage by Inland Transport (3rd Edition) at P. 190, in so far as it existed, was entirely the creation of statute while the common law regards inequality as nothing more than possible evidence of unreasonableness.That there was no fixed charge for carriage from Dillibari can not therefore be any reason to think that appellants were not common carriers in respect carriage from Dillibari. The next argument of Mr. Mukherjee was almost an argument of despair. He points out that there was a Forwarding Note (Ex. B) executed by the plaintiff in respect of the journey from Desangmukh to Calcutta and there was a special contract there limiting the carriers liability. If the appellants were really common carriers in respect of the carriage from Dillibari, is it conceivable, he asks, that there would not be a similar Forwarding Note covering the carriage from Dillibari to Desangmukh? That however is a totally wrong approach to the problem. A common carrier may restrict his liability by special contract. But the absence of a special contract cannot show that he is not a common carrier. The fact that the appellants did not, take care to make a special contract in respect of carriage from Dillibari is therefore wholly irrelevant. 14. On a consideration of the entire evidence therefore we are of opinion that the appellants did profess by their. conduct, even if not by any public notice, that they would carry goods indiscriminately for all those who ask for such carriage from Dillibari to various places on their main steamer route. They were thus common carriers in respect of the carriage of the plaintiffs goods from Dillibari. 15. A last contention was raised, again, on the Forwarding Note. It was urged. that in any case this should be interpreted as covering the carriage from Dillibari also. In terms the Forwarding Note was limited to the contract of carriage as from Desangmukh to Calcutta. By no method of construction of the document can it be- extended to the journey from Dillibari.All the contentions raised in the appeal therefore fail. | 0[ds]Apart from the fact that such a case that Macneill and Company used to carry on an independent boat service business to Desangmukh was not made in the plaint, we are satisfied that there is nothing that would justify us to depart from the well established practice of this Court not to interfere with eoncurrent findings of facts, of the Trial Court and the first court of appeal. We may however indicate that having been taken through the evidence we have no hesitation in stating our agreement with that finding, viz., that the plaintiff delivered the tea chests in question to the defendants at Dillibari Ghat for carriage therefrom. We see no reason also to interfere with the High Courts findings that the plaintiff has not been able to establish its case of any negligence on the part of the defendants agentsThis is goods authority for the appellants contention that the more fact that they are engaged in the transport of goods from certain places on their Steamer Service to other places does not necessarily justify the conclusion that whatever carriage they may undertake elsewhere is also done as a common carrier. It is therefore necessary to examine the nature of the public profession made by the appellants with regard to the carriage of goods from Dillibari Ghat. It is true, as pointed out by the appellants counsel that there is no public notice, as there is in respect of places on the Steamer Service route, with regard to carriage from Dillibari Ghat. It is legitimate however to consider in this connection the usual conduct of the appellant companies in connection with carriage from Dillibari Ghat and other surrounding circumstances. It has to be noticed that tea gardens which supply the bulk of the companies cargo traffic for its despatch steamers find it convenient and economical to bring, their goods to the nearest point on some river and to enter into contracts of carriage of goods from these points to places on the Steamer Service routes. It appears clear from the evidence adduced in this case that for such carriage the tea gardens make requests to the appellants to arrange for carriage to the Steamer station and the companies invariably comply with such requestsIf this is actually the case it is obvious that the defendants deliberately do this as a part of their business so as to attract good business on the main steamer service route where they hope to make sufficient profits to make up for the loss in feeder serviceThe circumstance that there was no regular service but boats were supplied only on requisition is also wholly irrelevant for ascertaining whether there was a public profession to carry indiscriminately. Even if there was a regular service, there might not be a profession to carry indiscriminately ; whereas even if there was such a profession it would not necessarily happen that regular service should be maintained. If, as the evidence appears to establish, the companies were ready to supply boats whenever requested, without picking and choosing, that would be sufficient public profession to act as a common carrier. Nor is the fact that there was no fixed rate for carriage of goods from Dillibari to Desangmukh of any assistance to the appellants contention that they were not common carriers, for the law does not require that a common carrier must have one and the same rate for all goods.All that the law required was, that he shouldnot charge any more than was reasonableThat there was no fixed charge for carriage from Dillibari can not therefore be any reason to think that appellants were not common carriers in respect carriage from DillibariIf the appellants were really common carriers in respect of the carriage from Dillibari, is it conceivable, he asks, that there would not be a similar Forwarding Note covering the carriage from Dillibari to Desangmukh? That however is a totally wrong approach to the problem. A common carrier may restrict his liability by special contract. But the absence of a special contract cannot show that he is not a common carrier. The fact that the appellants did not, take care to make a special contract in respect of carriage from Dillibari is therefore wholly irrelevantOn a consideration of the entire evidence therefore we are of opinion that the appellants did profess by their. conduct, even if not by any public notice, that they would carry goods indiscriminately for all those who ask for such carriage from Dillibari to various places on their main steamer route. They were thus common carriers in respect of the carriage of the plaintiffs goods from DillibariIn terms the Forwarding Note was limited to the contract of carriage as from Desangmukh to Calcutta. By no method of construction of the document can it be- extended to the journey from Dillibari.All the contentions raised in the appeal therefore fail. | 0 | 3,041 | 857 | ### 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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and to enter into contracts of carriage of goods from these points to places on the Steamer Service routes. It appears clear from the evidence adduced in this case that for such carriage the tea gardens make requests to the appellants to arrange for carriage to the Steamer station and the companies invariably comply with such requests.Their own witness, the Joint Agent at Dibrugarh, has said in this connection We always try to give facilities to the interior tea gardens and to all customers whenever they require any help. He has not said a single word as to requests of any customers for arrangements of carriage from Dillibari Ghat having been refused. Indeed, when one remembers that it is by getting the custom from these interior tea gardens, not all of which are situated on or , near the main stream of the Brahmputra that the companies are able to get sufficient cargo for their steamers, it was only natural that they would accept goods for carriage from places away from the main stream as indiscriminately as they do for carriage from stations on the main steamer route. 10. The defendants witness Mohammad Abdulla who is their Ghat Supervisor at Desangmukh has stated that the Steamer Company bears expenses of the clearance of the rivers to make them navigable. Such conduct is consistent only with the case that the companies are anxious to receive whatever cargo they get for carriage from places on the river Desang and other tributaries to stations on the main steamer route for further carriage on the steamer route. The service on these tributaries can therefore be reasonably described as a feeder service for the main route and the admitted public profession for indiscriminate carriage of the goods of every person on the main route cannot but attach to the service on these feeder routes also. 11. Against all this, Mr. Mukherjee pressed for our consideration three circumstances: (i) that the rate for carriage from Dillibari was not a fixed rate; (ii) that there was no regular service but boats were supplied only on requisition; and (iii) that the carriage was made without profit.Nothing turns on the third fact-assuming that it has been established-that carriage from Dillibari to Desangmukh is made without profit. If this is actually the case it is obvious that the defendants deliberately do this as a part of their business so as to attract good business on the main steamer service route where they hope to make sufficient profits to make up for the loss in feeder service. 12. The circumstance that there was no regular service but boats were supplied only on requisition is also wholly irrelevant for ascertaining whether there was a public profession to carry indiscriminately. Even if there was a regular service, there might not be a profession to carry indiscriminately ; whereas even if there was such a profession it would not necessarily happen that regular service should be maintained. If, as the evidence appears to establish, the companies were ready to supply boats whenever requested, without picking and choosing, that would be sufficient public profession to act as a common carrier. Nor is the fact that there was no fixed rate for carriage of goods from Dillibari to Desangmukh of any assistance to the appellants contention that they were not common carriers, for the law does not require that a common carrier must have one and the same rate for all goods. The law was stated thus by Blackburn J. in G. W. Ry. Co., v. Sutton ((1869) L.R., 4 H.L. 226 at. 237.) : There was nothing in the common law to hinder a carrier from carrying for favoured individuals at an unreasonably low rate, or even gratis. All that the law required was, that he shouldnot charge any more than was reasonable. 13. The requirement of equality of charges, as pointed out by Prof. Otto Kahn-Fre-und in the law of Carriage by Inland Transport (3rd Edition) at P. 190, in so far as it existed, was entirely the creation of statute while the common law regards inequality as nothing more than possible evidence of unreasonableness.That there was no fixed charge for carriage from Dillibari can not therefore be any reason to think that appellants were not common carriers in respect carriage from Dillibari. The next argument of Mr. Mukherjee was almost an argument of despair. He points out that there was a Forwarding Note (Ex. B) executed by the plaintiff in respect of the journey from Desangmukh to Calcutta and there was a special contract there limiting the carriers liability. If the appellants were really common carriers in respect of the carriage from Dillibari, is it conceivable, he asks, that there would not be a similar Forwarding Note covering the carriage from Dillibari to Desangmukh? That however is a totally wrong approach to the problem. A common carrier may restrict his liability by special contract. But the absence of a special contract cannot show that he is not a common carrier. The fact that the appellants did not, take care to make a special contract in respect of carriage from Dillibari is therefore wholly irrelevant. 14. On a consideration of the entire evidence therefore we are of opinion that the appellants did profess by their. conduct, even if not by any public notice, that they would carry goods indiscriminately for all those who ask for such carriage from Dillibari to various places on their main steamer route. They were thus common carriers in respect of the carriage of the plaintiffs goods from Dillibari. 15. A last contention was raised, again, on the Forwarding Note. It was urged. that in any case this should be interpreted as covering the carriage from Dillibari also. In terms the Forwarding Note was limited to the contract of carriage as from Desangmukh to Calcutta. By no method of construction of the document can it be- extended to the journey from Dillibari.All the contentions raised in the appeal therefore fail.
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Apart from the fact that such a case that Macneill and Company used to carry on an independent boat service business to Desangmukh was not made in the plaint, we are satisfied that there is nothing that would justify us to depart from the well established practice of this Court not to interfere with eoncurrent findings of facts, of the Trial Court and the first court of appeal. We may however indicate that having been taken through the evidence we have no hesitation in stating our agreement with that finding, viz., that the plaintiff delivered the tea chests in question to the defendants at Dillibari Ghat for carriage therefrom. We see no reason also to interfere with the High Courts findings that the plaintiff has not been able to establish its case of any negligence on the part of the defendants agentsThis is goods authority for the appellants contention that the more fact that they are engaged in the transport of goods from certain places on their Steamer Service to other places does not necessarily justify the conclusion that whatever carriage they may undertake elsewhere is also done as a common carrier. It is therefore necessary to examine the nature of the public profession made by the appellants with regard to the carriage of goods from Dillibari Ghat. It is true, as pointed out by the appellants counsel that there is no public notice, as there is in respect of places on the Steamer Service route, with regard to carriage from Dillibari Ghat. It is legitimate however to consider in this connection the usual conduct of the appellant companies in connection with carriage from Dillibari Ghat and other surrounding circumstances. It has to be noticed that tea gardens which supply the bulk of the companies cargo traffic for its despatch steamers find it convenient and economical to bring, their goods to the nearest point on some river and to enter into contracts of carriage of goods from these points to places on the Steamer Service routes. It appears clear from the evidence adduced in this case that for such carriage the tea gardens make requests to the appellants to arrange for carriage to the Steamer station and the companies invariably comply with such requestsIf this is actually the case it is obvious that the defendants deliberately do this as a part of their business so as to attract good business on the main steamer service route where they hope to make sufficient profits to make up for the loss in feeder serviceThe circumstance that there was no regular service but boats were supplied only on requisition is also wholly irrelevant for ascertaining whether there was a public profession to carry indiscriminately. Even if there was a regular service, there might not be a profession to carry indiscriminately ; whereas even if there was such a profession it would not necessarily happen that regular service should be maintained. If, as the evidence appears to establish, the companies were ready to supply boats whenever requested, without picking and choosing, that would be sufficient public profession to act as a common carrier. Nor is the fact that there was no fixed rate for carriage of goods from Dillibari to Desangmukh of any assistance to the appellants contention that they were not common carriers, for the law does not require that a common carrier must have one and the same rate for all goods.All that the law required was, that he shouldnot charge any more than was reasonableThat there was no fixed charge for carriage from Dillibari can not therefore be any reason to think that appellants were not common carriers in respect carriage from DillibariIf the appellants were really common carriers in respect of the carriage from Dillibari, is it conceivable, he asks, that there would not be a similar Forwarding Note covering the carriage from Dillibari to Desangmukh? That however is a totally wrong approach to the problem. A common carrier may restrict his liability by special contract. But the absence of a special contract cannot show that he is not a common carrier. The fact that the appellants did not, take care to make a special contract in respect of carriage from Dillibari is therefore wholly irrelevantOn a consideration of the entire evidence therefore we are of opinion that the appellants did profess by their. conduct, even if not by any public notice, that they would carry goods indiscriminately for all those who ask for such carriage from Dillibari to various places on their main steamer route. They were thus common carriers in respect of the carriage of the plaintiffs goods from DillibariIn terms the Forwarding Note was limited to the contract of carriage as from Desangmukh to Calcutta. By no method of construction of the document can it be- extended to the journey from Dillibari.All the contentions raised in the appeal therefore fail.
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Mohammad Hussain Gulam Mohammadand Another Vs. The State Of Bombay And Another | 29 of AIR):"Now, a very curious situation was disclosed to us by Mr. Joshi. No market has been established under S. 5 of the Act and therefore S. 5A has not come into operation. The result is this that the Market Committee cannot issue licences under S. 5A to traders, commission agents, etc., to operate in the market. In the absence of a market being established under S. 5 and the absence of licences being issued under S. 5A licences can only be issued by the State Government under the proviso to S. 4A (2). But the rules show that licences have been issued by the Market Committee and not by the State Government. It is difficult to understand how either the Government or the Market Committee came to the conclusion that the Market Committee was authorised to issue licences without S. 5 and S. 5A being brought into force. Mr. Joshi suggests that the Market Committee acts as a delegate of the State Government and the authority to issue licences has been delegated by the State Government. It is rather difficult to accept this contention."Having said this, the learned Chief Justice went on to observe that as there was no such challenge in the petition itself, therefore whether the challenge could be sustained or not, it was not open to the petitioners before him to make that challenge. That observation was made with respect to another market area but the same, we understand, applies to the present case. It appears that after that observation of the Bombay High Court, the State Government on August 11, 1955 issued a notification No. PMA 7055, dated August 1, 1955, directing the Agricultural Produce Market Committee Ahmedabad to establish a market in the market area for which the said committee had been established. But there is nothing in the affidavit of the respondents to show that after this direction was issued on August 11, 1955, the market committee took any steps to establish a market by making recommendations to the Commissioner to establish a principal market yard or sub-market yards under S. 4A of the Act. As a matter of fact, the principal market yard was already there from before this direction given in 1955 and has continued. Even in the case of the sub-market yard established at Kalupur in 1959 there is nothing in the notification issued by the Commissioner on January 16,1959, to show that he was doing so in pursuance of the desire of the market committee and on its recommendation. We should have thought that if the market committee had requested the Commissioner to establish a sub-market yard and recommended Kalupur as the place for it, the notification should have shown that the Commissioner was acting at the desire of the market committee and on its recommendation. In any case, even if the notification did not show this, it was the duty of the respondents, when this question was specifically raised in para. 25 of the petition, to state when the State Government directed the market committee to establish the market and what steps the market committee took in that behalf after such direction. But in para. 24 of the counter-affidavit filed on behalf of the respondents all that is stated is that"with reference to paragraph 25 of the petition, I crave leave to refer. to S. 5A of the Act for ascertaining its contents true meaning and legal effect. I deny all the allegations, contentions and submissions contained in paragraph 25 of the petition as are contrary to or inconsistent with what is stated herein as if they were specifically set out herein and traversed."We must say that this is a most curious way of meeting the allegations made on behalf of the petitioners that no direction as required by S. 5AA of the Act has been ever given to the market committee to establish a market and no steps were ever taken by the market committee in pursuance of such a direction to establish a market. The notification No. PMA 7055 which was produced before its during the course of arguments seems in the circumstances to have been an empty formality which was observed in view of the observations of the Bombay High Court in Bapubhai Ratachchand Shahs case, ILR (1955) Bom 870 : ((S) AIR 1956 Bom 21 ). It seems to use that the curious situation which the Bombay High Court noticed as far back as March, 1955 still continues with respect to the market in this case and no proper steps have been taken in law even after the formal direction made by notification No. PMA 7055 in August 1955 to establish a market. It is true that in fact the State Government before the amendment of 1954 and the Commissioner after that amendment have established a principal market and a sub-market yard for this market area, but there is nothing to show in the case of the principal market yard that it was established at the instance of the market committee on a direction given by the State Government as required by S. 5 of the Act as it was before the amendment of 1954 or that the sub-market yard at Kalupur which was established in 1959 was so established at the instance of the market committee. In the circumstances the curious situation that was noticed with respect to another market area by Chagla C. J., is there with respect to the Ahmedabad market area and the Ahmedabad market, with the result that the market committee cannot issue licences under S. 5A of the Act and exercise such other powers as may be exercisable on the establishment of a market under the law. In the result therefore the petition must be allowed and the market committee forbidden to enforce any of the provisions of the Act, the rules and the bye-laws with respect to the market until a market is properly established under S. 5AA. No other point has been urged before us. | 0[ds]We are of opinion that there is no force in this contention. The Madras Act which dealt with commercial crops specified certain crops as commercial crops in the definition section and added that the words "commercial crop used in that Act would include any other crop or product. notified by the State Government in the Fort St. George Gazette as a commercial crop for the purposes of that Act. In view of this inclusive definition of "commercial crop" in the Madras Act, it was open to the State Government under that Act to include any crop within the meaning of the words "commercial crop" which was regulated by that Act. The Act had a schedule when it was originally passed in which certain crops were included. The State Government was however given the power to add to or amend or cancel any of the items mentioned in the Schedule by S. 29. It is true therefore that under the Act it is open to the State Government to bring any crop other than those specified originally in the Schedule within its regulatory provisions; but the fact that it is possible to bring any crop within the regulatory provisions of the Act by amendment of the Schedule would not necessarily make the Act an unreasonable restriction on the exercise of the fundamental right guaranteed under Art. 19(1)(g). As we have already pointed out, the definition of the words "commercial crop" in the Madras Act was also wide enough to bring any crop which the State Government considered fit to be included as a commercial crop for the purposes of that Act. There is thus in our opinion no difference in the ambit of the Madras Act and of the Act. Besides we see no reason why a crop which can be dealt with on a commercial scale should not be brought under the regulatory provisions of the Act. Section 4(2A) makes it clear that the Act does not apply to the purchase or sale of specified agricultural produce, if the producer of such produce is himself its seller and the purchaser is a person who purchases such produce for his own private use or if such agricultural produce is sold to such person by way of a retail sale. Thus it is clear from this exception that the provisions of the Act do not apply to retail sale and are confined to what may be called wholesale trade in the crops regulated thereunder. This would suggest that the Act also deals with commercial crops in the same way is the Madras Act, for the notion of wholesale trade implies that the crop dealt with therein is a commercial crop. There is thus no distinction so far as the main provisions are concerned between the Act and the Madras Act, and for the reasons that have been elaborately considered in Arunachala Nadars case, 1959 Supp (1) SCR 92: (AIR 1959 SC 300 )we are of opinion that Ss. 4, 4A, 5, 5A and 5AA of the Act are constitutional and intra vires and do not impose unreasonable restrictions on the right to carry on trade in the agricultural produce regulated under theis true that S. 19 itself does not provide for any criterion for determining which crop shall be put into the Schedule or which shall be taken out therefrom but the guidance is in our opinion writ large in the various provisions of the Act itself.As we have already pointed out, the scheme of the Act is to leave out of account retail sale altogether; it deals with what may be called wholesale trade and this in our opinion provides ample guidance to the State Government when it comes to decide whether a particular agricultural produce should be added to, or taken out of the Schedule.The State Government will have to consider in each case whether the volume of trade in the produce is of such a nature as to give rise to wholesale trade. If it comes to this conclusion it may add that produce to the Schedule. On the other hand if it comes to the conclusion that the production of a particular produce included in the Schedule has fallen and can be no longer a subject-matter of wholesale trade it may take out that produce from thesame considerations in our opinion apply to S. 29 of the Act and the power is given to the State Government to add to, or amend, or cancel any of the items of the agricultural produce specified in the Schedule in accordance with the local conditions prevailing in different parts of the State in pursuance of the legislative policy which is apparent on the face of the Act. Therefore, in enacting S. 29, the Legislature had not stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and policy of the Act. We therefore reject the contention that S. 29 of the Act gives uncontrolled power to the State Government and is thereforethe circumstances it cannot be held that the fee charged for services rendered by the market committee in connection with the enforcement of the various provisions of the Act and the provisions for various facilities in the various markets established by it, is in the nature of sales tax. It is true that the fee is calculated on the amount of produce bought and sold but that in our opinion is only a method of realising fees for the facilities provided by the committee. The attack on S. 11 must thereforepetitioners in their application have not specifically said that there is no provision for refund and in the circumstances all that we need say is that R. 54 will be valid if proper provision for refund is made in the bye-laws with respect to the produce brought into the market on which fees have been charged but which has been taken back because it is not sold, for then it would only be a method of levying the fee permitted under S. 11.In the connected petition Yograj Shankersingh Parihar v. The State of Bombay (57 of 1957) which was heard along with this petition there was an attack on R. 53; but the attack was confined to the fee being analogous to a sales-tax and there was no ground taken that the fee could not be levied under R. 53 because the maxima had not been specified in the Rules. However, it is not in dispute in this case that maximum has not been specified in any rule and R. 53 itself leaves it open to the market committee to prescribe such rates as may be specified in the bye-laws. We have already said that it would not be possible for the market committee to prescribe any fees under S. 11 through bye-laws till the State Government prescribes the maximum under S. 11. As no such maximum has been prescribed in the Rules, the contention that fees which are being charged under the bye-laws for the purposes of S. 11 are ultra vires of that section, mustState Government cannot practically abdicate that power as it seems to have done under R. 53 by leaving it to the Committee to fix any rates it likes. We are therefore of opinion that unless the State Government fixes the maxima by rule it is not open to the committee to fix any fees at all and the construction urged on behalf of the respondent is notpower of the market committee to grant licences under S. 5A arises only after a market is established and is confined to operation in the market. Rule 65 therefore in our opinion when it authorises the market committee to grant a licence for doing business in any market area goes beyond the power conferred on the market committee by S. 5A and entrenched on life power of the Commissioner under the proviso to S. 4.(2). It must therefore be struck down as ultra vires of the provisions in S. 5A read with the proviso to S. 4(2). Rule 66 which is incidental would fall along with ruleseems to us that rules 65 and 67 as they are framed show a confusion in the mind of the rule making authority. It would have been enough if the Rules had been confined to grant of licences for operation in the market for under the law as soon as the market area is declared and a market is established S.4(2) comes into force and no place in the said area can be used for the purchase and sale of any agricultural produce except as provided by S. 5A.It seems to us therefore that the intention probably was to confine the issue of licences under rules 65 and 67 to markets which the market committee has the power to do where a market is established under S. 5A; but the two rules as drafted refer to the market area and not to the market and must therefore be held to be beyond the power granted to the market committee under S.the circumstances the curious situation that was noticed with respect to another market area by Chagla C. J., is there with respect to the Ahmedabad market area and the Ahmedabad market, with the result that the market committee cannot issue licences under S. 5A of the Act and exercise such other powers as may be exercisable on the establishment of a market under the law. In the result therefore the petition must be allowed and the market committee forbidden to enforce any of the provisions of the Act, the rules and the bye-laws with respect to the market until a market is properly established under S. 5AA. No other point has been urged beforeseems to use that the curious situation which the Bombay High Court noticed as far back as March, 1955 still continues with respect to the market in this case and no proper steps have been taken in law even after the formal direction made by notification No. PMA 7055 in August 1955 to establish a market. It is true that in fact the State Government before the amendment of 1954 and the Commissioner after that amendment have established a principal market and a sub-market yard for this market area, but there is nothing to show in the case of the principal market yard that it was established at the instance of the market committee on a direction given by the State Government as required by S. 5 of the Act as it was before the amendment of 1954 or that the sub-market yard at Kalupur which was established in 1959 was so established at the instance of the market committee. | 0 | 6,999 | 1,902 | ### 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:
29 of AIR):"Now, a very curious situation was disclosed to us by Mr. Joshi. No market has been established under S. 5 of the Act and therefore S. 5A has not come into operation. The result is this that the Market Committee cannot issue licences under S. 5A to traders, commission agents, etc., to operate in the market. In the absence of a market being established under S. 5 and the absence of licences being issued under S. 5A licences can only be issued by the State Government under the proviso to S. 4A (2). But the rules show that licences have been issued by the Market Committee and not by the State Government. It is difficult to understand how either the Government or the Market Committee came to the conclusion that the Market Committee was authorised to issue licences without S. 5 and S. 5A being brought into force. Mr. Joshi suggests that the Market Committee acts as a delegate of the State Government and the authority to issue licences has been delegated by the State Government. It is rather difficult to accept this contention."Having said this, the learned Chief Justice went on to observe that as there was no such challenge in the petition itself, therefore whether the challenge could be sustained or not, it was not open to the petitioners before him to make that challenge. That observation was made with respect to another market area but the same, we understand, applies to the present case. It appears that after that observation of the Bombay High Court, the State Government on August 11, 1955 issued a notification No. PMA 7055, dated August 1, 1955, directing the Agricultural Produce Market Committee Ahmedabad to establish a market in the market area for which the said committee had been established. But there is nothing in the affidavit of the respondents to show that after this direction was issued on August 11, 1955, the market committee took any steps to establish a market by making recommendations to the Commissioner to establish a principal market yard or sub-market yards under S. 4A of the Act. As a matter of fact, the principal market yard was already there from before this direction given in 1955 and has continued. Even in the case of the sub-market yard established at Kalupur in 1959 there is nothing in the notification issued by the Commissioner on January 16,1959, to show that he was doing so in pursuance of the desire of the market committee and on its recommendation. We should have thought that if the market committee had requested the Commissioner to establish a sub-market yard and recommended Kalupur as the place for it, the notification should have shown that the Commissioner was acting at the desire of the market committee and on its recommendation. In any case, even if the notification did not show this, it was the duty of the respondents, when this question was specifically raised in para. 25 of the petition, to state when the State Government directed the market committee to establish the market and what steps the market committee took in that behalf after such direction. But in para. 24 of the counter-affidavit filed on behalf of the respondents all that is stated is that"with reference to paragraph 25 of the petition, I crave leave to refer. to S. 5A of the Act for ascertaining its contents true meaning and legal effect. I deny all the allegations, contentions and submissions contained in paragraph 25 of the petition as are contrary to or inconsistent with what is stated herein as if they were specifically set out herein and traversed."We must say that this is a most curious way of meeting the allegations made on behalf of the petitioners that no direction as required by S. 5AA of the Act has been ever given to the market committee to establish a market and no steps were ever taken by the market committee in pursuance of such a direction to establish a market. The notification No. PMA 7055 which was produced before its during the course of arguments seems in the circumstances to have been an empty formality which was observed in view of the observations of the Bombay High Court in Bapubhai Ratachchand Shahs case, ILR (1955) Bom 870 : ((S) AIR 1956 Bom 21 ). It seems to use that the curious situation which the Bombay High Court noticed as far back as March, 1955 still continues with respect to the market in this case and no proper steps have been taken in law even after the formal direction made by notification No. PMA 7055 in August 1955 to establish a market. It is true that in fact the State Government before the amendment of 1954 and the Commissioner after that amendment have established a principal market and a sub-market yard for this market area, but there is nothing to show in the case of the principal market yard that it was established at the instance of the market committee on a direction given by the State Government as required by S. 5 of the Act as it was before the amendment of 1954 or that the sub-market yard at Kalupur which was established in 1959 was so established at the instance of the market committee. In the circumstances the curious situation that was noticed with respect to another market area by Chagla C. J., is there with respect to the Ahmedabad market area and the Ahmedabad market, with the result that the market committee cannot issue licences under S. 5A of the Act and exercise such other powers as may be exercisable on the establishment of a market under the law. In the result therefore the petition must be allowed and the market committee forbidden to enforce any of the provisions of the Act, the rules and the bye-laws with respect to the market until a market is properly established under S. 5AA. No other point has been urged before us.
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essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and policy of the Act. We therefore reject the contention that S. 29 of the Act gives uncontrolled power to the State Government and is thereforethe circumstances it cannot be held that the fee charged for services rendered by the market committee in connection with the enforcement of the various provisions of the Act and the provisions for various facilities in the various markets established by it, is in the nature of sales tax. It is true that the fee is calculated on the amount of produce bought and sold but that in our opinion is only a method of realising fees for the facilities provided by the committee. The attack on S. 11 must thereforepetitioners in their application have not specifically said that there is no provision for refund and in the circumstances all that we need say is that R. 54 will be valid if proper provision for refund is made in the bye-laws with respect to the produce brought into the market on which fees have been charged but which has been taken back because it is not sold, for then it would only be a method of levying the fee permitted under S. 11.In the connected petition Yograj Shankersingh Parihar v. The State of Bombay (57 of 1957) which was heard along with this petition there was an attack on R. 53; but the attack was confined to the fee being analogous to a sales-tax and there was no ground taken that the fee could not be levied under R. 53 because the maxima had not been specified in the Rules. However, it is not in dispute in this case that maximum has not been specified in any rule and R. 53 itself leaves it open to the market committee to prescribe such rates as may be specified in the bye-laws. We have already said that it would not be possible for the market committee to prescribe any fees under S. 11 through bye-laws till the State Government prescribes the maximum under S. 11. As no such maximum has been prescribed in the Rules, the contention that fees which are being charged under the bye-laws for the purposes of S. 11 are ultra vires of that section, mustState Government cannot practically abdicate that power as it seems to have done under R. 53 by leaving it to the Committee to fix any rates it likes. We are therefore of opinion that unless the State Government fixes the maxima by rule it is not open to the committee to fix any fees at all and the construction urged on behalf of the respondent is notpower of the market committee to grant licences under S. 5A arises only after a market is established and is confined to operation in the market. Rule 65 therefore in our opinion when it authorises the market committee to grant a licence for doing business in any market area goes beyond the power conferred on the market committee by S. 5A and entrenched on life power of the Commissioner under the proviso to S. 4.(2). It must therefore be struck down as ultra vires of the provisions in S. 5A read with the proviso to S. 4(2). Rule 66 which is incidental would fall along with ruleseems to us that rules 65 and 67 as they are framed show a confusion in the mind of the rule making authority. It would have been enough if the Rules had been confined to grant of licences for operation in the market for under the law as soon as the market area is declared and a market is established S.4(2) comes into force and no place in the said area can be used for the purchase and sale of any agricultural produce except as provided by S. 5A.It seems to us therefore that the intention probably was to confine the issue of licences under rules 65 and 67 to markets which the market committee has the power to do where a market is established under S. 5A; but the two rules as drafted refer to the market area and not to the market and must therefore be held to be beyond the power granted to the market committee under S.the circumstances the curious situation that was noticed with respect to another market area by Chagla C. J., is there with respect to the Ahmedabad market area and the Ahmedabad market, with the result that the market committee cannot issue licences under S. 5A of the Act and exercise such other powers as may be exercisable on the establishment of a market under the law. In the result therefore the petition must be allowed and the market committee forbidden to enforce any of the provisions of the Act, the rules and the bye-laws with respect to the market until a market is properly established under S. 5AA. No other point has been urged beforeseems to use that the curious situation which the Bombay High Court noticed as far back as March, 1955 still continues with respect to the market in this case and no proper steps have been taken in law even after the formal direction made by notification No. PMA 7055 in August 1955 to establish a market. It is true that in fact the State Government before the amendment of 1954 and the Commissioner after that amendment have established a principal market and a sub-market yard for this market area, but there is nothing to show in the case of the principal market yard that it was established at the instance of the market committee on a direction given by the State Government as required by S. 5 of the Act as it was before the amendment of 1954 or that the sub-market yard at Kalupur which was established in 1959 was so established at the instance of the market committee.
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Usha K. Pillaiv. Raj K. Srinivas and Others Vs. Union of India and Others | been divided into to clauses (a) and (b). Clause (a) uses the expression may to indicate that the matter is left to the discretion of the Court to put questions to the accused at any stage of the inquiry or trial whereas clause (b) uses the expression shall to convey that it is mandatory for the Court to examine the accused after the witnesses for the prosecution have been examined before he is called on for his defence. The proviso is a new provision which came to be added to sub-section (1) with a view to enabling the Court to dispense with the examination of the accused under clause (b) in a summons case if the Court has already dispensed with his personal attendance at an earlier point of time. Therefore, if the Court on completion of the prosecution evidence finds that there are certain circumstances appearing in the evidence against the accused, the Court is obliged by clause (b) to question the accused before he is called on for his defence. This provision is general in nature and applies to all inquiries and trials under the Code. The purpose of the said provision is to give the accused an opportunity to explain the circumstances appearing against him in evidence tendered by the prosecution so that the said explanation can be weighed vis-a-vis the prosecution evidence before the Court reaches its conclusion in that behalf. It is thus clear on a plain reading of Section 313(1) of the Code. that the Court is empowered by clause (a) to question the accused at any stage of the inquiry or trial while clause (b) obligates the Court to question the accused before he enters his defence on any circumstance appearing in the prosecution evidence against him. The section incorporates a rule of audi alteram partem and is actually intended for the benefit of the accused person 4. The newly added proviso is in the nature of an exception to clause (b) of sub-Section (1) of Section 313 of the Code. It applies to a summons-case; it states no uncertain terms that in a summons-case where the Court has dispensed with the personal attendance of the accused it would be open to the Court to dispense with the examination of the accused under clause (b) of Section 313(1) of the Code. Even in cases where the personal presence of the accused has been dispensed with under Section 205(1) or Section 317 of the Code the Magistrate can dispense with the mandatory requirement of clause (b) only in a summons-case i.e. a case other than a warrant-case. This is clear on a plain reading of the definitions of a summon-case in Section 2(w) and a warrant - case in Section 2(x) of the Code. A warrant case is defined as one relating to an offence punishable with death, imprisonment for a term exceeding two years it is a warrant-case and not a summons-case. Therefore, even in cases where the Court has dispensed with the personal attendance of the accused under Section 205(1) or Section 317 of the Code, the Court cannot dispense with the examination of the accused and under clause (b) of Section 313 of the Code because such examination is mandatory. If the accused is a company or a juridical person it may be open to examine the person conversant with the facts of the case. It would thus appear that the mandate of Section 313(1)(b) demands that the accused person, if not a company or other juridical person, must be personally examined to explain the incriminating circumstances appearing against him in the prosecution evidence and the examination of his lawyer would not be sufficient compliance with the mandate of said provision 5. A similar question arose for consideration in Bibhuti Bhusan Das Gupta v. State of W. B. under the provisions of the old Code. In that case this court noticed that the accused was not personally examined under Section 342 of the Code. It was submitted that the trial was vitiated as the accused was not personally examined as required by Section 342 of the old Code. The said argument was sough to be repelled on the ground that the examination of the pleader was sufficient compliance with the said provision since the pleader was authorised to appear on behalf of the accused and do all acts which the accused could personally do. Dealing with this submission this Court on a reading of Section 342 pointed out that the privilege of making a statement under that section is personal to the accused and the requirement cannot be satisfied by examining his pleader in his place. The right of the pleader to represent the accused does not extend to the pleader answering questions under Section 342 in place of the accused person. The submission that such a view will cause inconvenience and harassment to the accused was also repelled in the following words "We are not impressed with the argument that an accused person will suffer inconvenience and harassment if the Court cannot dispense with his attendance for purposes of Section 342. The examination under the section becomes necessary when at the close of the prosecution evidence the magistrate finds that here are incriminating circumstances requiring an explanation by the accused." * Proceeding further this Court observed as under "There are exceptional cases when an examination of the accused personally under Section 342 is no necessary or possible. Where the accused is a company or other juridical person it cannot be examined personally. It may be that the Court may then examine a director or some other agent on its behalf." * It is another matter that in that case this Court did no interfere with the conviction and sentence on the ground that the non-examination of the accused had not caused any prejudice and in the absence of material showing prejudice the conviction and sentence could be sustained by virtue of old Section 537 (Section 465 of the new Code) | 1[ds]5. A similar question arose for consideration in Bibhuti Bhusan Das Gupta v. State of W. B. under the provisions of the old Code. In that case this court noticed that the accused was not personally examined under Section 342 of the Code. It was submitted that the trial was vitiated as the accused was not personally examined as required by Section 342 of the old Code. The said argument was sough to be repelled on the ground that the examination of the pleader was sufficient compliance with the said provision since the pleader was authorised to appear on behalf of the accused and do all acts which the accused could personally do. Dealing with this submission this Court on a reading of Section 342 pointed out that the privilege of making a statement under that section is personal to the accused and the requirement cannot be satisfied by examining his pleader in his place. The right of the pleader to represent the accused does not extend to the pleader answering questions under Section 342 in place of the accused person. The submission that such a view will cause inconvenience and harassment to the accused was also repelled in the following words"We are not impressed with the argument that an accused person will suffer inconvenience and harassment if the Court cannot dispense with his attendance for purposes of Section 342. The examination under the section becomes necessary when at the close of the prosecution evidence the magistrate finds that here are incriminating circumstances requiring an explanation by the accused." *Proceeding further this Court observed as under"There are exceptional cases when an examination of the accused personally under Section 342 is no necessary or possible. Where the accused is a company or other juridical person it cannot be examined personally. It may be that the Court may then examine a director or some other agent on its behalf." *It is another matter that in that case this Court did no interfere with the conviction and sentence on the ground that the non-examination of the accused had not caused any prejudice and in the absence of material showing prejudice the conviction and sentence could be sustained by virtue of old Section 537 (Section 465 of the new Code) | 1 | 2,367 | 405 | ### 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:
been divided into to clauses (a) and (b). Clause (a) uses the expression may to indicate that the matter is left to the discretion of the Court to put questions to the accused at any stage of the inquiry or trial whereas clause (b) uses the expression shall to convey that it is mandatory for the Court to examine the accused after the witnesses for the prosecution have been examined before he is called on for his defence. The proviso is a new provision which came to be added to sub-section (1) with a view to enabling the Court to dispense with the examination of the accused under clause (b) in a summons case if the Court has already dispensed with his personal attendance at an earlier point of time. Therefore, if the Court on completion of the prosecution evidence finds that there are certain circumstances appearing in the evidence against the accused, the Court is obliged by clause (b) to question the accused before he is called on for his defence. This provision is general in nature and applies to all inquiries and trials under the Code. The purpose of the said provision is to give the accused an opportunity to explain the circumstances appearing against him in evidence tendered by the prosecution so that the said explanation can be weighed vis-a-vis the prosecution evidence before the Court reaches its conclusion in that behalf. It is thus clear on a plain reading of Section 313(1) of the Code. that the Court is empowered by clause (a) to question the accused at any stage of the inquiry or trial while clause (b) obligates the Court to question the accused before he enters his defence on any circumstance appearing in the prosecution evidence against him. The section incorporates a rule of audi alteram partem and is actually intended for the benefit of the accused person 4. The newly added proviso is in the nature of an exception to clause (b) of sub-Section (1) of Section 313 of the Code. It applies to a summons-case; it states no uncertain terms that in a summons-case where the Court has dispensed with the personal attendance of the accused it would be open to the Court to dispense with the examination of the accused under clause (b) of Section 313(1) of the Code. Even in cases where the personal presence of the accused has been dispensed with under Section 205(1) or Section 317 of the Code the Magistrate can dispense with the mandatory requirement of clause (b) only in a summons-case i.e. a case other than a warrant-case. This is clear on a plain reading of the definitions of a summon-case in Section 2(w) and a warrant - case in Section 2(x) of the Code. A warrant case is defined as one relating to an offence punishable with death, imprisonment for a term exceeding two years it is a warrant-case and not a summons-case. Therefore, even in cases where the Court has dispensed with the personal attendance of the accused under Section 205(1) or Section 317 of the Code, the Court cannot dispense with the examination of the accused and under clause (b) of Section 313 of the Code because such examination is mandatory. If the accused is a company or a juridical person it may be open to examine the person conversant with the facts of the case. It would thus appear that the mandate of Section 313(1)(b) demands that the accused person, if not a company or other juridical person, must be personally examined to explain the incriminating circumstances appearing against him in the prosecution evidence and the examination of his lawyer would not be sufficient compliance with the mandate of said provision 5. A similar question arose for consideration in Bibhuti Bhusan Das Gupta v. State of W. B. under the provisions of the old Code. In that case this court noticed that the accused was not personally examined under Section 342 of the Code. It was submitted that the trial was vitiated as the accused was not personally examined as required by Section 342 of the old Code. The said argument was sough to be repelled on the ground that the examination of the pleader was sufficient compliance with the said provision since the pleader was authorised to appear on behalf of the accused and do all acts which the accused could personally do. Dealing with this submission this Court on a reading of Section 342 pointed out that the privilege of making a statement under that section is personal to the accused and the requirement cannot be satisfied by examining his pleader in his place. The right of the pleader to represent the accused does not extend to the pleader answering questions under Section 342 in place of the accused person. The submission that such a view will cause inconvenience and harassment to the accused was also repelled in the following words "We are not impressed with the argument that an accused person will suffer inconvenience and harassment if the Court cannot dispense with his attendance for purposes of Section 342. The examination under the section becomes necessary when at the close of the prosecution evidence the magistrate finds that here are incriminating circumstances requiring an explanation by the accused." * Proceeding further this Court observed as under "There are exceptional cases when an examination of the accused personally under Section 342 is no necessary or possible. Where the accused is a company or other juridical person it cannot be examined personally. It may be that the Court may then examine a director or some other agent on its behalf." * It is another matter that in that case this Court did no interfere with the conviction and sentence on the ground that the non-examination of the accused had not caused any prejudice and in the absence of material showing prejudice the conviction and sentence could be sustained by virtue of old Section 537 (Section 465 of the new Code)
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5. A similar question arose for consideration in Bibhuti Bhusan Das Gupta v. State of W. B. under the provisions of the old Code. In that case this court noticed that the accused was not personally examined under Section 342 of the Code. It was submitted that the trial was vitiated as the accused was not personally examined as required by Section 342 of the old Code. The said argument was sough to be repelled on the ground that the examination of the pleader was sufficient compliance with the said provision since the pleader was authorised to appear on behalf of the accused and do all acts which the accused could personally do. Dealing with this submission this Court on a reading of Section 342 pointed out that the privilege of making a statement under that section is personal to the accused and the requirement cannot be satisfied by examining his pleader in his place. The right of the pleader to represent the accused does not extend to the pleader answering questions under Section 342 in place of the accused person. The submission that such a view will cause inconvenience and harassment to the accused was also repelled in the following words"We are not impressed with the argument that an accused person will suffer inconvenience and harassment if the Court cannot dispense with his attendance for purposes of Section 342. The examination under the section becomes necessary when at the close of the prosecution evidence the magistrate finds that here are incriminating circumstances requiring an explanation by the accused." *Proceeding further this Court observed as under"There are exceptional cases when an examination of the accused personally under Section 342 is no necessary or possible. Where the accused is a company or other juridical person it cannot be examined personally. It may be that the Court may then examine a director or some other agent on its behalf." *It is another matter that in that case this Court did no interfere with the conviction and sentence on the ground that the non-examination of the accused had not caused any prejudice and in the absence of material showing prejudice the conviction and sentence could be sustained by virtue of old Section 537 (Section 465 of the new Code)
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Trilochan Mishra Etc Vs. State Of Orissa & Ors | against the interest of the Government working a monopoly business. The provision for appointment of additional agents and additional purchasers are not per se bad. The exigency of business may require such appointments. Further we find ourselves unable to appreciate the points sought to be made on the basis that some of the agents were nominees or relations of the purchasers. We do not see how this can affect the scheme of State monopoly. An agent had to purchase Kendu leaves from growers at prices fixed by the Government under Section 4 (1) and he had to deliver processed Kendu leaves to such persons as were to be directed by the Forest Officers. He was to be entitled to various charges including(l) a fixed sum per bag of processed leaves towards costs incurred for collecting the leaves, storage, transport, packing and other charges, and(2) remuneration at the rate fixed for each bag of processed leaves which he secured by selection or purchase.He had also to pay collection charges to persons for collecting the leaves from Government forests and lands as may be specified in writing by the Government. It may be that on the actual rates fixed by Government the agents could not secure much profit. It is also possible that purchasers would rather deal with agents who carried out the processing and storing business in a manner which was conducive to production of good finished products than with strangers whose business methods were not known to them. But by itself such a course of dealing could not affect the interest of a Government running the monopoly business.13. In the counter affidavits filed herein there is a denial by the Minister concerned and by Radha Mohan Mishra that any suggestion was ever made to any of the petitioners that they would have to pay Rs 10/for each bag if they wanted their tenders accepted. On the face of this we are not in a position to hold that the grievance of the petitioners as regards choice of persons as purchasers who were willing to contribute to party funds has been proved.14. With regard to the appointment of additional agents the counter affidavits show that only the State Forest Corporation had been appointed such an agent. It goes without saying that the appointment of such a corporation as an additional agent can in no way detract from Government monopoly. The counter affidavits also show that no additional purchasers had been appointed.15. With regard to the grievance that in some cases the bids of persons making the highest tenders were not accepted, the facts are that persons who had made lower bids were asked to raise their bids to the highest offered before the same were accepted. Thus there was no loss to Government and merely because the Government preferred one tenderer to another no complaint can be entertained. Government certainly has a right to enter into a contract with a person well known to it and specially one who has faithfully performed his contracts in the past in preference to an undesirable or unsuitable or untried person. Moreover, Government is not bound to accept the highest tender but may accept a lower one in case it thinks that the person offering the lower tender is on an overall consideration to be preferred to the higher tenderer.16. We may in this connection refer to the manner in which the contracts current at the time of the filing of the petition had been settled. The counter affidavit on behalf of the State of Orissa shows that forest and other lands, producing Kendu leaves were divided into 180 units for the years 1969, 1970 and 1971. Three units out of these were reserved for the Orissa Forest Corporation; the remaining 177 units for the public tender. Out of these 167 units were settled at the highest prices offered. 139 out of 167 were settled in favour of persons who actually made the highest tenders. 29 units were settled at the highest prices offered but in favour of other tenderers on considerations such as past experience, clean past records, etc. One unit was settled by negotiation at a price higher than the highest tender received. In the case of 5 units persons who had offered inflated and speculative prices did not turn up and the units were settled with the next best tenderers. In the case of one unit on the highest tenderer withdrawing his tender it was settled in favour of another tenderer who was to pay the next highest price. In the case of another unit the highest tenderer who had been a defaulter in the previous year had his tender rejected and the unit was settled in favour of the tenderer who had offered the next highest price. In the case of one unit on the highest tenderer failing to furnish a bank guarantee it was settled in favour of the next highest tenderer. In the case of still another unit the claims of the sole tenderer who had filed a forged bank guarantee was not considered and the unit was settled by negotiation at the highest available price. Lastly in the case of six units no tenders had been received and these were settled by negotiation at the best available prices. The five writ petitions concerned only seven units in respect of which tenders of the petitioners had not been accepted.17. In our view, the counter affidavit showing the manner in which the units were disposed of completely demolishes suggestions of fraudulent preference of one tenderer to another. As the petitioners have not been able to satisfy us that the amendments effected in 1969 either in the Act or in the. rules are against the exercise of a monopoly in the business of Kendu leaves by the Government of Orissa and as they have further failed to make out any case of arbitrary or male fide action on the part of the State authorities, the Petitions must be dismissed with costs. | 0[ds]12. We are not satisfied that there can be any legitimate grievance against the amendment of the Act and the promulgation of new rules set forth above. They all appear to be necessary to enable the Government to control the business in Kendu leaves effectively. Nothing was shown to us as to how any of these provisions in form G for the appointment of agents and form I for the appointment of additional agents worked against the interest of the Government working a monopoly business. The provision for appointment of additional agents and additional purchasers are not per se bad. The exigency of business may require such appointments. Further we find ourselves unable to appreciate the points sought to be made on the basis that some of the agents were nominees or relations of the purchasers. We do not see how this can affect the scheme of State monopoly. An agent had to purchase Kendu leaves from growers at prices fixed by the Government under Section 4 (1) and he had to deliver processed Kendu leaves to such persons as were to be directed by the Forest Officers. He was to be entitled to various charges including(l) a fixed sum per bag of processed leaves towards costs incurred for collecting the leaves, storage, transport, packing and other charges, and(2) remuneration at the rate fixed for each bag of processed leaves which he secured by selection or purchase.He had also to pay collection charges to persons for collecting the leaves from Government forests and lands as may be specified in writing by the Government. It may be that on the actual rates fixed by Government the agents could not secure much profit. It is also possible that purchasers would rather deal with agents who carried out the processing and storing business in a manner which was conducive to production of good finished products than with strangers whose business methods were not known to them. But by itself such a course of dealing could not affect the interest of a Government running the monopoly business.13. In the counter affidavits filed herein there is a denial by the Minister concerned and by Radha Mohan Mishra that any suggestion was ever made to any of the petitioners that they would have to pay Rs 10/for each bag if they wanted their tenders accepted. On the face of this we are not in a position to hold that the grievance of the petitioners as regards choice of persons as purchasers who were willing to contribute to party funds has been proved.14. With regard to the appointment of additional agents the counter affidavits show that only the State Forest Corporation had been appointed such an agent. It goes without saying that the appointment of such a corporation as an additional agent can in no way detract from Government monopoly. The counter affidavits also show that no additional purchasers had been appointed.15. With regard to the grievance that in some cases the bids of persons making the highest tenders were not accepted, the facts are that persons who had made lower bids were asked to raise their bids to the highest offered before the same were accepted. Thus there was no loss to Government and merely because the Government preferred one tenderer to another no complaint can be entertained. Government certainly has a right to enter into a contract with a person well known to it and specially one who has faithfully performed his contracts in the past in preference to an undesirable or unsuitable or untried person. Moreover, Government is not bound to accept the highest tender but may accept a lower one in case it thinks that the person offering the lower tender is on an overall consideration to be preferred to the higher tenderer.16. We may in this connection refer to the manner in which the contracts current at the time of the filing of the petition had been settled. The counter affidavit on behalf of the State of Orissa shows that forest and other lands, producing Kendu leaves were divided into 180 units for the years 1969, 1970 and 1971. Three units out of these were reserved for the Orissa Forest Corporation; the remaining 177 units for the public tender. Out of these 167 units were settled at the highest prices offered. 139 out of 167 were settled in favour of persons who actually made the highest tenders. 29 units were settled at the highest prices offered but in favour of other tenderers on considerations such as past experience, clean past records, etc. One unit was settled by negotiation at a price higher than the highest tender received. In the case of 5 units persons who had offered inflated and speculative prices did not turn up and the units were settled with the next best tenderers. In the case of one unit on the highest tenderer withdrawing his tender it was settled in favour of another tenderer who was to pay the next highest price. In the case of another unit the highest tenderer who had been a defaulter in the previous year had his tender rejected and the unit was settled in favour of the tenderer who had offered the next highest price. In the case of one unit on the highest tenderer failing to furnish a bank guarantee it was settled in favour of the next highest tenderer. In the case of still another unit the claims of the sole tenderer who had filed a forged bank guarantee was not considered and the unit was settled by negotiation at the highest available price. Lastly in the case of six units no tenders had been received and these were settled by negotiation at the best available prices. The five writ petitions concerned only seven units in respect of which tenders of the petitioners had not been accepted.17. In our view, the counter affidavit showing the manner in which the units were disposed of completely demolishes suggestions of fraudulent preference of one tenderer to another. As the petitioners have not been able to satisfy us that the amendments effected in 1969 either in the Act or in the. rules are against the exercise of a monopoly in the business of Kendu leaves by the Government of Orissa and as they have further failed to make out any case of arbitrary or male fide action on the part of the State authorities, the Petitions must be dismissed with costs. | 0 | 5,342 | 1,139 | ### Instruction:
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against the interest of the Government working a monopoly business. The provision for appointment of additional agents and additional purchasers are not per se bad. The exigency of business may require such appointments. Further we find ourselves unable to appreciate the points sought to be made on the basis that some of the agents were nominees or relations of the purchasers. We do not see how this can affect the scheme of State monopoly. An agent had to purchase Kendu leaves from growers at prices fixed by the Government under Section 4 (1) and he had to deliver processed Kendu leaves to such persons as were to be directed by the Forest Officers. He was to be entitled to various charges including(l) a fixed sum per bag of processed leaves towards costs incurred for collecting the leaves, storage, transport, packing and other charges, and(2) remuneration at the rate fixed for each bag of processed leaves which he secured by selection or purchase.He had also to pay collection charges to persons for collecting the leaves from Government forests and lands as may be specified in writing by the Government. It may be that on the actual rates fixed by Government the agents could not secure much profit. It is also possible that purchasers would rather deal with agents who carried out the processing and storing business in a manner which was conducive to production of good finished products than with strangers whose business methods were not known to them. But by itself such a course of dealing could not affect the interest of a Government running the monopoly business.13. In the counter affidavits filed herein there is a denial by the Minister concerned and by Radha Mohan Mishra that any suggestion was ever made to any of the petitioners that they would have to pay Rs 10/for each bag if they wanted their tenders accepted. On the face of this we are not in a position to hold that the grievance of the petitioners as regards choice of persons as purchasers who were willing to contribute to party funds has been proved.14. With regard to the appointment of additional agents the counter affidavits show that only the State Forest Corporation had been appointed such an agent. It goes without saying that the appointment of such a corporation as an additional agent can in no way detract from Government monopoly. The counter affidavits also show that no additional purchasers had been appointed.15. With regard to the grievance that in some cases the bids of persons making the highest tenders were not accepted, the facts are that persons who had made lower bids were asked to raise their bids to the highest offered before the same were accepted. Thus there was no loss to Government and merely because the Government preferred one tenderer to another no complaint can be entertained. Government certainly has a right to enter into a contract with a person well known to it and specially one who has faithfully performed his contracts in the past in preference to an undesirable or unsuitable or untried person. Moreover, Government is not bound to accept the highest tender but may accept a lower one in case it thinks that the person offering the lower tender is on an overall consideration to be preferred to the higher tenderer.16. We may in this connection refer to the manner in which the contracts current at the time of the filing of the petition had been settled. The counter affidavit on behalf of the State of Orissa shows that forest and other lands, producing Kendu leaves were divided into 180 units for the years 1969, 1970 and 1971. Three units out of these were reserved for the Orissa Forest Corporation; the remaining 177 units for the public tender. Out of these 167 units were settled at the highest prices offered. 139 out of 167 were settled in favour of persons who actually made the highest tenders. 29 units were settled at the highest prices offered but in favour of other tenderers on considerations such as past experience, clean past records, etc. One unit was settled by negotiation at a price higher than the highest tender received. In the case of 5 units persons who had offered inflated and speculative prices did not turn up and the units were settled with the next best tenderers. In the case of one unit on the highest tenderer withdrawing his tender it was settled in favour of another tenderer who was to pay the next highest price. In the case of another unit the highest tenderer who had been a defaulter in the previous year had his tender rejected and the unit was settled in favour of the tenderer who had offered the next highest price. In the case of one unit on the highest tenderer failing to furnish a bank guarantee it was settled in favour of the next highest tenderer. In the case of still another unit the claims of the sole tenderer who had filed a forged bank guarantee was not considered and the unit was settled by negotiation at the highest available price. Lastly in the case of six units no tenders had been received and these were settled by negotiation at the best available prices. The five writ petitions concerned only seven units in respect of which tenders of the petitioners had not been accepted.17. In our view, the counter affidavit showing the manner in which the units were disposed of completely demolishes suggestions of fraudulent preference of one tenderer to another. As the petitioners have not been able to satisfy us that the amendments effected in 1969 either in the Act or in the. rules are against the exercise of a monopoly in the business of Kendu leaves by the Government of Orissa and as they have further failed to make out any case of arbitrary or male fide action on the part of the State authorities, the Petitions must be dismissed with costs.
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against the interest of the Government working a monopoly business. The provision for appointment of additional agents and additional purchasers are not per se bad. The exigency of business may require such appointments. Further we find ourselves unable to appreciate the points sought to be made on the basis that some of the agents were nominees or relations of the purchasers. We do not see how this can affect the scheme of State monopoly. An agent had to purchase Kendu leaves from growers at prices fixed by the Government under Section 4 (1) and he had to deliver processed Kendu leaves to such persons as were to be directed by the Forest Officers. He was to be entitled to various charges including(l) a fixed sum per bag of processed leaves towards costs incurred for collecting the leaves, storage, transport, packing and other charges, and(2) remuneration at the rate fixed for each bag of processed leaves which he secured by selection or purchase.He had also to pay collection charges to persons for collecting the leaves from Government forests and lands as may be specified in writing by the Government. It may be that on the actual rates fixed by Government the agents could not secure much profit. It is also possible that purchasers would rather deal with agents who carried out the processing and storing business in a manner which was conducive to production of good finished products than with strangers whose business methods were not known to them. But by itself such a course of dealing could not affect the interest of a Government running the monopoly business.13. In the counter affidavits filed herein there is a denial by the Minister concerned and by Radha Mohan Mishra that any suggestion was ever made to any of the petitioners that they would have to pay Rs 10/for each bag if they wanted their tenders accepted. On the face of this we are not in a position to hold that the grievance of the petitioners as regards choice of persons as purchasers who were willing to contribute to party funds has been proved.14. With regard to the appointment of additional agents the counter affidavits show that only the State Forest Corporation had been appointed such an agent. It goes without saying that the appointment of such a corporation as an additional agent can in no way detract from Government monopoly. The counter affidavits also show that no additional purchasers had been appointed.15. With regard to the grievance that in some cases the bids of persons making the highest tenders were not accepted, the facts are that persons who had made lower bids were asked to raise their bids to the highest offered before the same were accepted. Thus there was no loss to Government and merely because the Government preferred one tenderer to another no complaint can be entertained. Government certainly has a right to enter into a contract with a person well known to it and specially one who has faithfully performed his contracts in the past in preference to an undesirable or unsuitable or untried person. Moreover, Government is not bound to accept the highest tender but may accept a lower one in case it thinks that the person offering the lower tender is on an overall consideration to be preferred to the higher tenderer.16. We may in this connection refer to the manner in which the contracts current at the time of the filing of the petition had been settled. The counter affidavit on behalf of the State of Orissa shows that forest and other lands, producing Kendu leaves were divided into 180 units for the years 1969, 1970 and 1971. Three units out of these were reserved for the Orissa Forest Corporation; the remaining 177 units for the public tender. Out of these 167 units were settled at the highest prices offered. 139 out of 167 were settled in favour of persons who actually made the highest tenders. 29 units were settled at the highest prices offered but in favour of other tenderers on considerations such as past experience, clean past records, etc. One unit was settled by negotiation at a price higher than the highest tender received. In the case of 5 units persons who had offered inflated and speculative prices did not turn up and the units were settled with the next best tenderers. In the case of one unit on the highest tenderer withdrawing his tender it was settled in favour of another tenderer who was to pay the next highest price. In the case of another unit the highest tenderer who had been a defaulter in the previous year had his tender rejected and the unit was settled in favour of the tenderer who had offered the next highest price. In the case of one unit on the highest tenderer failing to furnish a bank guarantee it was settled in favour of the next highest tenderer. In the case of still another unit the claims of the sole tenderer who had filed a forged bank guarantee was not considered and the unit was settled by negotiation at the highest available price. Lastly in the case of six units no tenders had been received and these were settled by negotiation at the best available prices. The five writ petitions concerned only seven units in respect of which tenders of the petitioners had not been accepted.17. In our view, the counter affidavit showing the manner in which the units were disposed of completely demolishes suggestions of fraudulent preference of one tenderer to another. As the petitioners have not been able to satisfy us that the amendments effected in 1969 either in the Act or in the. rules are against the exercise of a monopoly in the business of Kendu leaves by the Government of Orissa and as they have further failed to make out any case of arbitrary or male fide action on the part of the State authorities, the Petitions must be dismissed with costs.
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Pentakota Srirakulu Vs. The Co-Operative Marketing Society Ltd | submitted that there was an enquiry under S. 38 preceding the suppression and that in consequence the condition was fulfilled. It is true that there was an enquiry conducted into the affairs of the Society under S. 38, but that by itself is not sufficient. It has further to be proved that the facts alleged in the claim, and on which it is based, were disclosed at that enquiry. This can be proved or established only if the enquiry report which was submitted to the Registrar was placed before the Court and the facts disclosed therein corresponded with the facts alleged in the statement of claim. Mr. Ram Reddy admitted that the enquiry report was not before the Court and is not in the record of these proceedings. It is not, therefore, possible to say that there is correspondence between the facts disclosed in that report as a result of the enquiry under S. 38 and those found in the Statement of claim which was referred by the Registrar to the Deputy Registrar for arbitration under S. 51. The case must, therefore, be held not to fall under S. 49 of the Act. There can be no doubt that if S. 49 does not apply, subject to the other argument about illegality to which we shall advert, the order of the Registrar proceeding under S. 51 is not open to objection. This first point, therefore, has to be rejected.6. The next contention of learned Counsel was that the dispute about the retention of money belonging to the Society by the appellant was not "a dispute touching the business of the Society." The argument was that the expression "business of the society" included only what was legally permissible. In so far as it impinges on the third point urged by learned Counsel activity out of which the claim against the appellant was alleged to arise involved a contravention of the Gur Control Order it was not "a dispute touching the business of the society". We are unable to agree with this submission. In so far as it impinges on the third point urged by learned Counsel based on the maxim ex turpi causa non oritur actio we shall deal with it in considering that submission. But that apart, we do not see any basis for the argument that the claim made before the arbitrator was not a dispute touching the business of the Society. It could not be disputed that the sale of the produce belonging to the members of the Society was part of the business of the Society and then the charging of commission for those sales and the crediting of the Societys accounts with that commission would equally be the business of the Society. Apart, therefore, from the question of illegality raised by reason of the sale being at prices in excess of the controlled price, it is not capable of argument that the failure on the part of the appellant to credit to the Society the full amount of commission due on the sales effected by him on behalf of the Society and the resistance by him of that demand, would not be a dispute touching the business of the Society. This objection is clearly without substance and must be rejected.7. The last of the points urged by learned Counsel was that the transaction of sale which gave rise to the commission alleged to be improperly retained was illegal and that therefore the Society could not, in law, make a claim on the basis of such an illegal transaction. We see no substance in this point either. No illegality attached to the contract between the appellant and the Society; that was perfectly legal. It arose out of his position as the President of the Society and he was, in law, bound to account for the moneys he received on behalf of the Society. The fact that he entered into illegal transactions would have no bearing on the right of the Society to make the claim for an account of the commission due to the Society which he unjustly withheld. We consider the reasoning of the learned Judges of the Division Bench rejecting this argument to be correct. Moreover this matter has been examined by this Court in a decision reported as Kedar Nath Motani v. Prahlad Rai, 1960-1 SCR 861 : (AIR 1960 SC 213 ) and in view of this decision learned Counsel for the appellant did not himself press this point very seriously.8. Before parting with this case, however, there is one matter to which it is necessary to advert. The learned Judges, after allowing the appeal of the Society, stated in their judgment:"Lastly, we must observe that this Court is averse to lend its helping hand to persons who want to defraud others. Even assuming that any error of law, was committed by tribunals, that would not be a ground for invoking the extraordinary jurisdiction of this Court under Art. 226 of the Constitution, when it is not in furtherance of justice but tends to encourage dishonestly."9. Mr. Ram Reddy pointed out to us that the correctness of the allegations made in the claim filed before the arbitrator has yet to be decided and there was, therefore, no justification for the learned Judges assuming that the facts stated therein were proved and that the appellant had been guilty of fraud or dishonesty in his conduct of the business of the Society. We see force in this complaint of learned Counsel. In the circumstances, we would add that, having regard to the stage at which the matter was before the Court, the learned Judges were in error in making these observations. It is clear that they did not intend to prejudice the appellant in his defence before the Deputy Registrar in the arbitration proceedings under S. 51 of the Act but it is possible that it might have such an effect. What we have said earlier must suffice to dispel any such apprehension or effect. | 0[ds]This argument, however, proceeds on ignoring one further essential requisite for the application of S. 49 (1). Besides the two factors to which learned Counsel referred and which we have just set out, there is also another condition which has to be satisfied before S. 49(1) could be attracted. The facts giving rise to the charge have to be disclosed in the course of an audit under S. 37 or an enquiry under S. 38 or an inspection under S. 39 or on the winding up of theis not, therefore, possible to say that there is correspondence between the facts disclosed in that report as a result of the enquiry under S. 38 and those found in the Statement of claim which was referred by the Registrar to the Deputy Registrar for arbitration under S. 51. The case must, therefore, be held not to fall under S. 49 of the Act. There can be no doubt that if S. 49 does not apply, subject to the other argument about illegality to which we shall advert, the order of the Registrar proceeding under S. 51 is not open to objection. This first point, therefore, has to beare unable to agree with this submission. In so far as it impinges on the third point urged by learned Counsel based on the maxim ex turpi causa non oritur actio we shall deal with it in considering that submission. But that apart, we do not see any basis for the argument that the claim made before the arbitrator was not a dispute touching the business of the Society. It could not be disputed that the sale of the produce belonging to the members of the Society was part of the business of the Society and then the charging of commission for those sales and the crediting of the Societys accounts with that commission would equally be the business of the Society. Apart, therefore, from the question of illegality raised by reason of the sale being at prices in excess of the controlled price, it is not capable of argument that the failure on the part of the appellant to credit to the Society the full amount of commission due on the sales effected by him on behalf of the Society and the resistance by him of that demand, would not be a dispute touching the business of the Society. This objection is clearly without substance and must besee no substance in this point either. No illegality attached to the contract between the appellant and the Society; that was perfectly legal. It arose out of his position as the President of the Society and he was, in law, bound to account for the moneys he received on behalf of the Society. The fact that he entered into illegal transactions would have no bearing on the right of the Society to make the claim for an account of the commission due to the Society which he unjustly withheld. We consider the reasoning of the learned Judges of the Division Bench rejecting this argument to besee force in this complaint of learned Counsel. In the circumstances, we would add that, having regard to the stage at which the matter was before the Court, the learned Judges were in error in making these observations. It is clear that they did not intend to prejudice the appellant in his defence before the Deputy Registrar in the arbitration proceedings under S. 51 of the Act but it is possible that it might have such an effect. What we have said earlier must suffice to dispel any such apprehension ors not, therefore, possible to say that there is correspondence between the facts disclosed in that report as a result of the enquiry under S. 38 and those found in the Statement of claim which was referred by the Registrar to the Deputy Registrar for arbitration under S. 51. The case must, therefore, be held not to fall under S. 49 of the Act. There can be no doubt that if S. 49 does not apply, subject to the other argument about illegality to which we shall advert, the order of the Registrar proceeding under S. 51 is not open to objection. This first point, therefore, has to bee unable to agree with this submission. In so far as it impinges on the third point urged by learned Counsel based on the maxim ex turpi causa non oritur actio we shall deal with it in considering that submission. But that apart, we do not see any basis for the argument that the claim made before the arbitrator was not a dispute touching the business of the Society. It could not be disputed that the sale of the produce belonging to the members of the Society was part of the business of the Society and then the charging of commission for those sales and the crediting of the Societys accounts with that commission would equally be the business of the Society. Apart, therefore, from the question of illegality raised by reason of the sale being at prices in excess of the controlled price, it is not capable of argument that the failure on the part of the appellant to credit to the Society the full amount of commission due on the sales effected by him on behalf of the Society and the resistance by him of that demand, would not be a dispute touching the business of the Society. This objection is clearly without substance and must bee force in this complaint of learned Counsel. In the circumstances, we would add that, having regard to the stage at which the matter was before the Court, the learned Judges were in error in making these observations. It is clear that they did not intend to prejudice the appellant in his defence before the Deputy Registrar in the arbitration proceedings under S. 51 of the Act but it is possible that it might have such an effect. What we have said earlier must suffice to dispel any such apprehension or | 0 | 3,229 | 1,080 | ### Instruction:
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submitted that there was an enquiry under S. 38 preceding the suppression and that in consequence the condition was fulfilled. It is true that there was an enquiry conducted into the affairs of the Society under S. 38, but that by itself is not sufficient. It has further to be proved that the facts alleged in the claim, and on which it is based, were disclosed at that enquiry. This can be proved or established only if the enquiry report which was submitted to the Registrar was placed before the Court and the facts disclosed therein corresponded with the facts alleged in the statement of claim. Mr. Ram Reddy admitted that the enquiry report was not before the Court and is not in the record of these proceedings. It is not, therefore, possible to say that there is correspondence between the facts disclosed in that report as a result of the enquiry under S. 38 and those found in the Statement of claim which was referred by the Registrar to the Deputy Registrar for arbitration under S. 51. The case must, therefore, be held not to fall under S. 49 of the Act. There can be no doubt that if S. 49 does not apply, subject to the other argument about illegality to which we shall advert, the order of the Registrar proceeding under S. 51 is not open to objection. This first point, therefore, has to be rejected.6. The next contention of learned Counsel was that the dispute about the retention of money belonging to the Society by the appellant was not "a dispute touching the business of the Society." The argument was that the expression "business of the society" included only what was legally permissible. In so far as it impinges on the third point urged by learned Counsel activity out of which the claim against the appellant was alleged to arise involved a contravention of the Gur Control Order it was not "a dispute touching the business of the society". We are unable to agree with this submission. In so far as it impinges on the third point urged by learned Counsel based on the maxim ex turpi causa non oritur actio we shall deal with it in considering that submission. But that apart, we do not see any basis for the argument that the claim made before the arbitrator was not a dispute touching the business of the Society. It could not be disputed that the sale of the produce belonging to the members of the Society was part of the business of the Society and then the charging of commission for those sales and the crediting of the Societys accounts with that commission would equally be the business of the Society. Apart, therefore, from the question of illegality raised by reason of the sale being at prices in excess of the controlled price, it is not capable of argument that the failure on the part of the appellant to credit to the Society the full amount of commission due on the sales effected by him on behalf of the Society and the resistance by him of that demand, would not be a dispute touching the business of the Society. This objection is clearly without substance and must be rejected.7. The last of the points urged by learned Counsel was that the transaction of sale which gave rise to the commission alleged to be improperly retained was illegal and that therefore the Society could not, in law, make a claim on the basis of such an illegal transaction. We see no substance in this point either. No illegality attached to the contract between the appellant and the Society; that was perfectly legal. It arose out of his position as the President of the Society and he was, in law, bound to account for the moneys he received on behalf of the Society. The fact that he entered into illegal transactions would have no bearing on the right of the Society to make the claim for an account of the commission due to the Society which he unjustly withheld. We consider the reasoning of the learned Judges of the Division Bench rejecting this argument to be correct. Moreover this matter has been examined by this Court in a decision reported as Kedar Nath Motani v. Prahlad Rai, 1960-1 SCR 861 : (AIR 1960 SC 213 ) and in view of this decision learned Counsel for the appellant did not himself press this point very seriously.8. Before parting with this case, however, there is one matter to which it is necessary to advert. The learned Judges, after allowing the appeal of the Society, stated in their judgment:"Lastly, we must observe that this Court is averse to lend its helping hand to persons who want to defraud others. Even assuming that any error of law, was committed by tribunals, that would not be a ground for invoking the extraordinary jurisdiction of this Court under Art. 226 of the Constitution, when it is not in furtherance of justice but tends to encourage dishonestly."9. Mr. Ram Reddy pointed out to us that the correctness of the allegations made in the claim filed before the arbitrator has yet to be decided and there was, therefore, no justification for the learned Judges assuming that the facts stated therein were proved and that the appellant had been guilty of fraud or dishonesty in his conduct of the business of the Society. We see force in this complaint of learned Counsel. In the circumstances, we would add that, having regard to the stage at which the matter was before the Court, the learned Judges were in error in making these observations. It is clear that they did not intend to prejudice the appellant in his defence before the Deputy Registrar in the arbitration proceedings under S. 51 of the Act but it is possible that it might have such an effect. What we have said earlier must suffice to dispel any such apprehension or effect.
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ignoring one further essential requisite for the application of S. 49 (1). Besides the two factors to which learned Counsel referred and which we have just set out, there is also another condition which has to be satisfied before S. 49(1) could be attracted. The facts giving rise to the charge have to be disclosed in the course of an audit under S. 37 or an enquiry under S. 38 or an inspection under S. 39 or on the winding up of theis not, therefore, possible to say that there is correspondence between the facts disclosed in that report as a result of the enquiry under S. 38 and those found in the Statement of claim which was referred by the Registrar to the Deputy Registrar for arbitration under S. 51. The case must, therefore, be held not to fall under S. 49 of the Act. There can be no doubt that if S. 49 does not apply, subject to the other argument about illegality to which we shall advert, the order of the Registrar proceeding under S. 51 is not open to objection. This first point, therefore, has to beare unable to agree with this submission. In so far as it impinges on the third point urged by learned Counsel based on the maxim ex turpi causa non oritur actio we shall deal with it in considering that submission. But that apart, we do not see any basis for the argument that the claim made before the arbitrator was not a dispute touching the business of the Society. It could not be disputed that the sale of the produce belonging to the members of the Society was part of the business of the Society and then the charging of commission for those sales and the crediting of the Societys accounts with that commission would equally be the business of the Society. Apart, therefore, from the question of illegality raised by reason of the sale being at prices in excess of the controlled price, it is not capable of argument that the failure on the part of the appellant to credit to the Society the full amount of commission due on the sales effected by him on behalf of the Society and the resistance by him of that demand, would not be a dispute touching the business of the Society. This objection is clearly without substance and must besee no substance in this point either. No illegality attached to the contract between the appellant and the Society; that was perfectly legal. It arose out of his position as the President of the Society and he was, in law, bound to account for the moneys he received on behalf of the Society. The fact that he entered into illegal transactions would have no bearing on the right of the Society to make the claim for an account of the commission due to the Society which he unjustly withheld. We consider the reasoning of the learned Judges of the Division Bench rejecting this argument to besee force in this complaint of learned Counsel. In the circumstances, we would add that, having regard to the stage at which the matter was before the Court, the learned Judges were in error in making these observations. It is clear that they did not intend to prejudice the appellant in his defence before the Deputy Registrar in the arbitration proceedings under S. 51 of the Act but it is possible that it might have such an effect. What we have said earlier must suffice to dispel any such apprehension ors not, therefore, possible to say that there is correspondence between the facts disclosed in that report as a result of the enquiry under S. 38 and those found in the Statement of claim which was referred by the Registrar to the Deputy Registrar for arbitration under S. 51. The case must, therefore, be held not to fall under S. 49 of the Act. There can be no doubt that if S. 49 does not apply, subject to the other argument about illegality to which we shall advert, the order of the Registrar proceeding under S. 51 is not open to objection. This first point, therefore, has to bee unable to agree with this submission. In so far as it impinges on the third point urged by learned Counsel based on the maxim ex turpi causa non oritur actio we shall deal with it in considering that submission. But that apart, we do not see any basis for the argument that the claim made before the arbitrator was not a dispute touching the business of the Society. It could not be disputed that the sale of the produce belonging to the members of the Society was part of the business of the Society and then the charging of commission for those sales and the crediting of the Societys accounts with that commission would equally be the business of the Society. Apart, therefore, from the question of illegality raised by reason of the sale being at prices in excess of the controlled price, it is not capable of argument that the failure on the part of the appellant to credit to the Society the full amount of commission due on the sales effected by him on behalf of the Society and the resistance by him of that demand, would not be a dispute touching the business of the Society. This objection is clearly without substance and must bee force in this complaint of learned Counsel. In the circumstances, we would add that, having regard to the stage at which the matter was before the Court, the learned Judges were in error in making these observations. It is clear that they did not intend to prejudice the appellant in his defence before the Deputy Registrar in the arbitration proceedings under S. 51 of the Act but it is possible that it might have such an effect. What we have said earlier must suffice to dispel any such apprehension or
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Superintendent Of Post Offices Etc. Etc Vs. P.K. Rajamma Etc. Etc | in disregard of the provisions of Article 311 (2). It was held that "having regard to the existing system of his recruitment, employment and functions", he was "a servant and a holder of a civil post under the State", and therefore entitled to the protection of Article 311 (2). This Court observed :"................a civil post means a post not connected with defence and outside the regular civil services. A post is a service or employment. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the States right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration."A post, it was explained, exists apart from the holder of the post. "A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of person appointed to the post." Turning now to the rules by which the respondents were admittedly governed. It appears that they contain elaborate provisions controlling the appointment, leave, termination of services, nature of penalties, procedure for imposing penalties and other matters relating to the conduct and service of these extra departmental agents. There is a schedule annexed to the rules naming the appointing authorities in respect of each category of employees. Rule 5 states that the employees governed by these rules shall be entitled to such leave as may be determined by the Government from time to time and provides that if an employee fails to resume duty on the expiry of the maximum period of leave admissible and granted to him or if an employee who is granted leave is absent from duty for any period exceeding the limit upto which he could have been granted leave, he shall be removed from the service unless the Government decides otherwise in the exceptional circumstances of any particular case. The services of employees who had not put in more than three years. continuous service are liable to be terminated at any time under Rule 6 for unsatisfactory work or for any administrative reason. The rules also indicate the nature of penalties which may be imposed on an employee and the procedure for imposing them. A right of appeal is provided against an order imposing any of the penalties on the employee. Various other conditions of service are also provided in these rules.4. It is thus clear that an extra departmental agent is not a casual worker but he holds a post under the administrative control of the State. It is apparent from the rules that the employment of an extra departmental agent is in a post which exists "apart from" the person who happens to fill it at any particular time. Though such a post is outside the regular civil services, there is no. doubt it is a post under the State. The tests of a civil post laid down by this Court in Kanak Chandra Duttas case (supra) are clearly satisfied in the case of the extra departmental agents.5. For the appellants it is contended that the relationship between the postal authorities and the extra departmental agents is not of master and servant, but really of principal and agent. The difference between the relations of master & servant & principal and agent was pointed out by this Court in Lakshminarayan Ram Gopal v. Govt. of Hyderabad, (1955) 1 SCR 393 : (AIR 1954 SC 364 ). On p. 401 of the report 1955-1 SCR : (at p. 367 of AIR 1954 SC) the following lines from Halsburys Laws of England (Hailsham Edition) Vol. 1, at page 193. Art. 345 were quoted with approval in explaining the difference :"An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master. and is bound to conform to all reasonable orders given him in the course of his work : an independent contractor, on the other hand. is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result. An agent. Though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal. is not subject in its exercise to the direct control or supervision of the principal. An agent. as such is not a servant is generally for some purposes his masters implied agent the extent of the agency depending upon the duties or position of the servant."The rules make it clear that these extra departmental agents work under the direct control and supervision of the authorities who obviously have the right to control the manner in which they must carry out their duties. There can be no. doubt therefore that the relationship between the postal authorities and the extra departmental agents is one of master and servant. Reliance was placed on behalf of the appellants on two decisions, one of the Orissa High Court Venkata Swamy v. Supdt., Post Offices, AIR 1957 Orissa 112 and the other of the Madras High Court V. Subbaravalu v. Supdt. of Post Offices, AIR 1961 Mad 166 . The Judgments in these cases were rendered before the elaborate rules governing the conduct and service of these extra departmental agents were brought into operation in 1964. We do not therefore think an examination of these two decisions will be relevant or useful for disposing of the appeals before us. | 0[ds]4. It is thus clear that an extra departmental agent is not a casual worker but he holds a post under the administrative control of the State. It is apparent from the rules that the employment of an extra departmental agent is in a post which exists "apart from" the person who happens to fill it at any particular time. Though such a post is outside the regular civil services, there is no. doubt it is a post under the State. The tests of a civil post laid down by this Court in Kanak Chandra Duttas case (supra) are clearly satisfied in the case of the extra departmentalrules make it clear that these extra departmental agents work under the direct control and supervision of the authorities who obviously have the right to control the manner in which they must carry out their duties. There can be no. doubt therefore that the relationship between the postal authorities and the extra departmental agents is one of master and servant.do not therefore think an examination of these two decisions will be relevant or useful for disposing of the appeals before us. | 0 | 1,476 | 205 | ### Instruction:
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in disregard of the provisions of Article 311 (2). It was held that "having regard to the existing system of his recruitment, employment and functions", he was "a servant and a holder of a civil post under the State", and therefore entitled to the protection of Article 311 (2). This Court observed :"................a civil post means a post not connected with defence and outside the regular civil services. A post is a service or employment. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the States right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration."A post, it was explained, exists apart from the holder of the post. "A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of person appointed to the post." Turning now to the rules by which the respondents were admittedly governed. It appears that they contain elaborate provisions controlling the appointment, leave, termination of services, nature of penalties, procedure for imposing penalties and other matters relating to the conduct and service of these extra departmental agents. There is a schedule annexed to the rules naming the appointing authorities in respect of each category of employees. Rule 5 states that the employees governed by these rules shall be entitled to such leave as may be determined by the Government from time to time and provides that if an employee fails to resume duty on the expiry of the maximum period of leave admissible and granted to him or if an employee who is granted leave is absent from duty for any period exceeding the limit upto which he could have been granted leave, he shall be removed from the service unless the Government decides otherwise in the exceptional circumstances of any particular case. The services of employees who had not put in more than three years. continuous service are liable to be terminated at any time under Rule 6 for unsatisfactory work or for any administrative reason. The rules also indicate the nature of penalties which may be imposed on an employee and the procedure for imposing them. A right of appeal is provided against an order imposing any of the penalties on the employee. Various other conditions of service are also provided in these rules.4. It is thus clear that an extra departmental agent is not a casual worker but he holds a post under the administrative control of the State. It is apparent from the rules that the employment of an extra departmental agent is in a post which exists "apart from" the person who happens to fill it at any particular time. Though such a post is outside the regular civil services, there is no. doubt it is a post under the State. The tests of a civil post laid down by this Court in Kanak Chandra Duttas case (supra) are clearly satisfied in the case of the extra departmental agents.5. For the appellants it is contended that the relationship between the postal authorities and the extra departmental agents is not of master and servant, but really of principal and agent. The difference between the relations of master & servant & principal and agent was pointed out by this Court in Lakshminarayan Ram Gopal v. Govt. of Hyderabad, (1955) 1 SCR 393 : (AIR 1954 SC 364 ). On p. 401 of the report 1955-1 SCR : (at p. 367 of AIR 1954 SC) the following lines from Halsburys Laws of England (Hailsham Edition) Vol. 1, at page 193. Art. 345 were quoted with approval in explaining the difference :"An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master. and is bound to conform to all reasonable orders given him in the course of his work : an independent contractor, on the other hand. is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result. An agent. Though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal. is not subject in its exercise to the direct control or supervision of the principal. An agent. as such is not a servant is generally for some purposes his masters implied agent the extent of the agency depending upon the duties or position of the servant."The rules make it clear that these extra departmental agents work under the direct control and supervision of the authorities who obviously have the right to control the manner in which they must carry out their duties. There can be no. doubt therefore that the relationship between the postal authorities and the extra departmental agents is one of master and servant. Reliance was placed on behalf of the appellants on two decisions, one of the Orissa High Court Venkata Swamy v. Supdt., Post Offices, AIR 1957 Orissa 112 and the other of the Madras High Court V. Subbaravalu v. Supdt. of Post Offices, AIR 1961 Mad 166 . The Judgments in these cases were rendered before the elaborate rules governing the conduct and service of these extra departmental agents were brought into operation in 1964. We do not therefore think an examination of these two decisions will be relevant or useful for disposing of the appeals before us.
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4. It is thus clear that an extra departmental agent is not a casual worker but he holds a post under the administrative control of the State. It is apparent from the rules that the employment of an extra departmental agent is in a post which exists "apart from" the person who happens to fill it at any particular time. Though such a post is outside the regular civil services, there is no. doubt it is a post under the State. The tests of a civil post laid down by this Court in Kanak Chandra Duttas case (supra) are clearly satisfied in the case of the extra departmentalrules make it clear that these extra departmental agents work under the direct control and supervision of the authorities who obviously have the right to control the manner in which they must carry out their duties. There can be no. doubt therefore that the relationship between the postal authorities and the extra departmental agents is one of master and servant.do not therefore think an examination of these two decisions will be relevant or useful for disposing of the appeals before us.
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AZGAR BARID (D) BY LRS. AND OTHERS Vs. MAZAMBI @ PYAREMABI AND OTHERS | after the death of his first wife Noorbi, Mohiyuddin Pasha had married Mazambi @ Pyarembi- plaintiff No.3 and plaintiff Nos.4 to 8 were born out of the said wedlock. While arriving at such a finding, the trial court has relied on oral as well as documentary evidence. The trial court further came to a finding that from the judgment passed in an earlier suit for partition i.e. O.S. No.514/1961, it was clear that Mohiyuddin Pasha as well as the appellant herein--defendant No.1 had taken a specific stand in O.S. No.514/1961 that the said Mehar Deed was a nominal one and was never acted upon. It was also contended in the said suit that the properties were never handed over to the first wife Noorbi and that it was created with a view to avoid the share to the first son Rahaman Barid. 25. These findings of fact were reversed by the First Appellate Court. The First Appellate Court held that plaintiff No.3 had failed to prove that she was married to Mohiyuddin Pasha, since she had failed to produce any documentary evidence in support thereof. It further held that plaintiff Nos.4 to 8 had failed to establish that they were the children of deceased Mohiyuddin Pasha. It was held that neither plaintiff No.3 nor plaintiff Nos.4 to 8 were entitled to any share in the suit schedule properties. Insofar as plaintiff Nos.1 and 2 are concerned, the First Appellate Court held that since they were claiming through Rahaman Barid, who died in 1945 i.e. prior to Mohiyuddin Pasha, who died in 1964, they are also not entitled to any share in the suit schedule properties. 26. While holding that the finding of the First Appellate Court that Mazambi @ Pyarembi--plaintiff No.3 was not married to Mohiyuddin Pasha was erroneous in law, the High Court has mainly relied on the oral as well as the documentary evidence. 27. Syed Ahmed Ali--PW--1, who was aged 75 years at the time of giving evidence, was the brother of Noorbi, first wife of Mohiyuddin Pasha. As such, he was a maternal uncle of the appellant herein--defendant No.1. He has clearly and emphatically deposed that Mohiyuddin Pasha had two wives i.e. Noorbi and Mazambi @ Pyarembi. He has further deposed that after the death of his sister Noorbi, Mohiyuddin Pashaa took Mazambi @ Pyarembi as his second wife. He has also specifically deposed that he has attended the marriage of Mazambi @ Pyarembi--plaintiff No.3 with Mohiyuddin Pasha. The High Court found that in spite of searching cross- examination, nothing came on record to discard the evidence of PW--1. It was further found that the evidence of PW--1 was supported by Nabi Sab--PW--2, who was also an independent witness. Appenna--PW--3, who was also an independent witness, supported the case of the plaintiffs. 28. The High Court found that the voluminous documents of evidence including the birth certificates of plaintiff Nos.4 to 8, the transfer certificates issued by the Government Higher Primary School, Thadigol and Higher Primary Boys School, Thadigol, established that plaintiff Nos.4 to 8 were the children born to Mohiyuddin Pasha through Mazambi @ Pyarembi. We are of the view that, the High Court rightly interfered with the findings as recorded by the First Appellate Court, inasmuch as the First Appellate Court was not justified in reversing the findings of the trial court in that regard which were based on proper appreciation of evidence. We are of the view that the First Appellate Court had failed in appreciating the evidence in correct perspective. The High Court was justified in reversing the same. 29. Similarly, the High Court found that the Mehar Deed in favour of deceased Noorbi, first wife of Mohiyuddin Pasha, was a nominal one and was not acted upon and the reversal of the findings of the trial court by the First Appellate Court in that regard, was erroneous. It will be relevant to note that the trial court, on the basis of the proceedings in the earlier suit for partition i.e. O.S. No.514/1961, had found that in the said suit for partition, deceased Mohiyuddin Pasha was defendant No.1, whereas the appellant herein--defendant No.1 was defendant No.2. In the said suit, the case pleaded by them was that the first son of Noorbi and Mohiyuddin Pasha, namely Rahaman Barid, was demanding separate share in the properties and was residing separately. It was therefore contended by them in their respective written statements that to avoid any share in the suit schedule properties, deceased Mohiyuddin Pasha had created the Mehar Deed in favour of his first wife Noorbi. The High Court found that in view of the findings arrived in the said O.S. No.514/1961, which were based on the admission of Mohiyuddin Pasha and the appellant herein--defendant No.1 herein, it was not open for the appellant herein--defendant No.1 again to contend that the properties belonged to Noorbi exclusively as they were given to her in Mehar. The High Court further found that the appellant herein--defendant No.1 himself had produced the judgment in O.S. No.514/1961 at Ex.D-16 and relied upon the same for opposing the present suit for partition. 30. It could thus clearly be seen that in the present case, the First Appellate Court had reversed the findings recorded by the trial court which were based upon correct appreciation of evidence. The High Court has given sound and cogent reasons as to why an interference with the findings of the First Appellate Court was required. We also find that the First Appellate Court has failed to take into consideration the voluminous oral as well as documentary evidence, on the basis of which the trial court had recorded its findings. The findings as recorded by the First Appellate Court are based on conjectures and surmises. As such, we are of the considered view that the perverse approach of the First Appellate Court in arriving at the findings would give rise to a substantial question of law, thereby justifying the High Court to interfere with the same. | 0[ds]This Court in the cases of Bhagwan Swaroop and Others v. Mool Chand and Others (1983) 2 SCC 132 and Dr. P. Nalla Thampy Thera v. B.L. Shanker and Others 1984 (Supp) SCC 631, has held that in a suit for partition, the position of the plaintiff and the defendant can be interchangeable. Each party adopts the same position with the other parties. It has been further held that so long as the suit is pending, a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can ask for being transposed as a defendant.13. This Court in the case of Chandramohan Ramchandra Patil and Others v. Bapu Koyappa Patil (Dead) Through LRs and Others (2003) 3 SCC 552, has held thus:14. Order 41 Rule 4 of the Code enables reversal of the decree by the court in appeal at the instance of one or some of the plaintiffs appealing and it can do so in favour of even non--appealing plaintiffs. As a necessary consequence such reversal of the decree can be against the interest of the defendants vis-à- vis non--appealing plaintiffs. Order 41 Rule 4 has to be read with Order 41 Rule 33. Order 41 Rule 33 empowers the appellate court to do complete justice between the parties by passing such order or decree which ought to have been passed or made although not all the parties affected by the decree had appealed.15. In our opinion, therefore, the appellate court by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code could grant relief even to the non- appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. In such a situation, it is not open to urge on behalf of the defendants that the decree of dismissal of suit passed by the trial court had become final inter se between the non--appealing plaintiffs and the defendants.14. In that view of the matter, we find that the contention raised on behalf of the appellant with regard to plaintiff Nos.4 to 8 being not entitled to relief in the second appeal on the ground that they have not challenged the judgment and decree of the trial court before the First Appellate Court, is not sustainable. As held by this Court in the case of Chandramohan Ramchandra Patil (supra), the trial court could grant relief even to the non--appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. Merely because the trial court had not granted relief in favour of plaintiff Nos.4 to 8, would not come in their way in the High Court allowing their claim.16. In this respect, it will be relevant to refer to the following observations of this Court in the case of Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and Others (2010) 13 SCC 216 :27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non- consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604 ] ; Karnataka Board of Wakf v. Anjuman-E- Ismail Madris-Un-Niswan [(1999) 6 SCC 343 : AIR 1999 SC 3067 ] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740 : AIR 2010 SC 2679 ] .)28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685 ] .)18. Recently, this Court in the case of K.N. Nagarajappa and Others v. H. Narasimha Reddy 2021 SCC OnLine SC 694, to which one of us (L.N. Rao, J.) was a party, has observed thus:17. In a recent judgment of this court, Narayan Sitaramji Badwaik (Dead) Through Lrs. v. Bisaram 2021 SCC OnLine SC 319, this court observed as follows, in the context of High Courts jurisdiction to appreciate factual issues under Section 103 IPC:11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure.18. In the opinion of this court, in the present case, the High Court recorded sound and convincing reasons why the first appellate courts judgment required interference. These were entirely based upon the evidence led by the parties on the record. The appreciation of evidence by the first appellate court was on the basis of it having overlooked material facts, such as appreciation of documentary and oral evidence led before the trial court, that the execution of Ex.D-3 was denied……27. Syed Ahmed Ali--PW--1, who was aged 75 years at the time of giving evidence, was the brother of Noorbi, first wife of Mohiyuddin Pasha. As such, he was a maternal uncle of the appellant herein--defendant No.1. He has clearly and emphatically deposed that Mohiyuddin Pasha had two wives i.e. Noorbi and Mazambi @ Pyarembi. He has further deposed that after the death of his sister Noorbi, Mohiyuddin Pashaa took Mazambi @ Pyarembi as his second wife. He has also specifically deposed that he has attended the marriage of Mazambi @ Pyarembi--plaintiff No.3 with Mohiyuddin Pasha. The High Court found that in spite of searching cross- examination, nothing came on record to discard the evidence of PW--1. It was further found that the evidence of PW--1 was supported by Nabi Sab--PW--2, who was also an independent witness. Appenna--PW--3, who was also an independent witness, supported the case of the plaintiffs.28. The High Court found that the voluminous documents of evidence including the birth certificates of plaintiff Nos.4 to 8, the transfer certificates issued by the Government Higher Primary School, Thadigol and Higher Primary Boys School, Thadigol, established that plaintiff Nos.4 to 8 were the children born to Mohiyuddin Pasha through Mazambi @ Pyarembi. We are of the view that, the High Court rightly interfered with the findings as recorded by the First Appellate Court, inasmuch as the First Appellate Court was not justified in reversing the findings of the trial court in that regard which were based on proper appreciation of evidence. We are of the view that the First Appellate Court had failed in appreciating the evidence in correct perspective. The High Court was justified in reversing the same.29. Similarly, the High Court found that the Mehar Deed in favour of deceased Noorbi, first wife of Mohiyuddin Pasha, was a nominal one and was not acted upon and the reversal of the findings of the trial court by the First Appellate Court in that regard, was erroneous. It will be relevant to note that the trial court, on the basis of the proceedings in the earlier suit for partition i.e. O.S. No.514/1961, had found that in the said suit for partition, deceased Mohiyuddin Pasha was defendant No.1, whereas the appellant herein--defendant No.1 was defendant No.2. In the said suit, the case pleaded by them was that the first son of Noorbi and Mohiyuddin Pasha, namely Rahaman Barid, was demanding separate share in the properties and was residing separately. It was therefore contended by them in their respective written statements that to avoid any share in the suit schedule properties, deceased Mohiyuddin Pasha had created the Mehar Deed in favour of his first wife Noorbi. The High Court found that in view of the findings arrived in the said O.S. No.514/1961, which were based on the admission of Mohiyuddin Pasha and the appellant herein--defendant No.1 herein, it was not open for the appellant herein--defendant No.1 again to contend that the properties belonged to Noorbi exclusively as they were given to her in Mehar. The High Court further found that the appellant herein--defendant No.1 himself had produced the judgment in O.S. No.514/1961 at Ex.D-16 and relied upon the same for opposing the present suit for partition.30. It could thus clearly be seen that in the present case, the First Appellate Court had reversed the findings recorded by the trial court which were based upon correct appreciation of evidence. The High Court has given sound and cogent reasons as to why an interference with the findings of the First Appellate Court was required. We also find that the First Appellate Court has failed to take into consideration the voluminous oral as well as documentary evidence, on the basis of which the trial court had recorded its findings. The findings as recorded by the First Appellate Court are based on conjectures and surmises. As such, we are of the considered view that the perverse approach of the First Appellate Court in arriving at the findings would give rise to a substantial question of law, thereby justifying the High Court to interfere with the same. | 0 | 4,054 | 1,915 | ### Instruction:
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after the death of his first wife Noorbi, Mohiyuddin Pasha had married Mazambi @ Pyarembi- plaintiff No.3 and plaintiff Nos.4 to 8 were born out of the said wedlock. While arriving at such a finding, the trial court has relied on oral as well as documentary evidence. The trial court further came to a finding that from the judgment passed in an earlier suit for partition i.e. O.S. No.514/1961, it was clear that Mohiyuddin Pasha as well as the appellant herein--defendant No.1 had taken a specific stand in O.S. No.514/1961 that the said Mehar Deed was a nominal one and was never acted upon. It was also contended in the said suit that the properties were never handed over to the first wife Noorbi and that it was created with a view to avoid the share to the first son Rahaman Barid. 25. These findings of fact were reversed by the First Appellate Court. The First Appellate Court held that plaintiff No.3 had failed to prove that she was married to Mohiyuddin Pasha, since she had failed to produce any documentary evidence in support thereof. It further held that plaintiff Nos.4 to 8 had failed to establish that they were the children of deceased Mohiyuddin Pasha. It was held that neither plaintiff No.3 nor plaintiff Nos.4 to 8 were entitled to any share in the suit schedule properties. Insofar as plaintiff Nos.1 and 2 are concerned, the First Appellate Court held that since they were claiming through Rahaman Barid, who died in 1945 i.e. prior to Mohiyuddin Pasha, who died in 1964, they are also not entitled to any share in the suit schedule properties. 26. While holding that the finding of the First Appellate Court that Mazambi @ Pyarembi--plaintiff No.3 was not married to Mohiyuddin Pasha was erroneous in law, the High Court has mainly relied on the oral as well as the documentary evidence. 27. Syed Ahmed Ali--PW--1, who was aged 75 years at the time of giving evidence, was the brother of Noorbi, first wife of Mohiyuddin Pasha. As such, he was a maternal uncle of the appellant herein--defendant No.1. He has clearly and emphatically deposed that Mohiyuddin Pasha had two wives i.e. Noorbi and Mazambi @ Pyarembi. He has further deposed that after the death of his sister Noorbi, Mohiyuddin Pashaa took Mazambi @ Pyarembi as his second wife. He has also specifically deposed that he has attended the marriage of Mazambi @ Pyarembi--plaintiff No.3 with Mohiyuddin Pasha. The High Court found that in spite of searching cross- examination, nothing came on record to discard the evidence of PW--1. It was further found that the evidence of PW--1 was supported by Nabi Sab--PW--2, who was also an independent witness. Appenna--PW--3, who was also an independent witness, supported the case of the plaintiffs. 28. The High Court found that the voluminous documents of evidence including the birth certificates of plaintiff Nos.4 to 8, the transfer certificates issued by the Government Higher Primary School, Thadigol and Higher Primary Boys School, Thadigol, established that plaintiff Nos.4 to 8 were the children born to Mohiyuddin Pasha through Mazambi @ Pyarembi. We are of the view that, the High Court rightly interfered with the findings as recorded by the First Appellate Court, inasmuch as the First Appellate Court was not justified in reversing the findings of the trial court in that regard which were based on proper appreciation of evidence. We are of the view that the First Appellate Court had failed in appreciating the evidence in correct perspective. The High Court was justified in reversing the same. 29. Similarly, the High Court found that the Mehar Deed in favour of deceased Noorbi, first wife of Mohiyuddin Pasha, was a nominal one and was not acted upon and the reversal of the findings of the trial court by the First Appellate Court in that regard, was erroneous. It will be relevant to note that the trial court, on the basis of the proceedings in the earlier suit for partition i.e. O.S. No.514/1961, had found that in the said suit for partition, deceased Mohiyuddin Pasha was defendant No.1, whereas the appellant herein--defendant No.1 was defendant No.2. In the said suit, the case pleaded by them was that the first son of Noorbi and Mohiyuddin Pasha, namely Rahaman Barid, was demanding separate share in the properties and was residing separately. It was therefore contended by them in their respective written statements that to avoid any share in the suit schedule properties, deceased Mohiyuddin Pasha had created the Mehar Deed in favour of his first wife Noorbi. The High Court found that in view of the findings arrived in the said O.S. No.514/1961, which were based on the admission of Mohiyuddin Pasha and the appellant herein--defendant No.1 herein, it was not open for the appellant herein--defendant No.1 again to contend that the properties belonged to Noorbi exclusively as they were given to her in Mehar. The High Court further found that the appellant herein--defendant No.1 himself had produced the judgment in O.S. No.514/1961 at Ex.D-16 and relied upon the same for opposing the present suit for partition. 30. It could thus clearly be seen that in the present case, the First Appellate Court had reversed the findings recorded by the trial court which were based upon correct appreciation of evidence. The High Court has given sound and cogent reasons as to why an interference with the findings of the First Appellate Court was required. We also find that the First Appellate Court has failed to take into consideration the voluminous oral as well as documentary evidence, on the basis of which the trial court had recorded its findings. The findings as recorded by the First Appellate Court are based on conjectures and surmises. As such, we are of the considered view that the perverse approach of the First Appellate Court in arriving at the findings would give rise to a substantial question of law, thereby justifying the High Court to interfere with the same.
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the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685 ] .)18. Recently, this Court in the case of K.N. Nagarajappa and Others v. H. Narasimha Reddy 2021 SCC OnLine SC 694, to which one of us (L.N. Rao, J.) was a party, has observed thus:17. In a recent judgment of this court, Narayan Sitaramji Badwaik (Dead) Through Lrs. v. Bisaram 2021 SCC OnLine SC 319, this court observed as follows, in the context of High Courts jurisdiction to appreciate factual issues under Section 103 IPC:11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure.18. In the opinion of this court, in the present case, the High Court recorded sound and convincing reasons why the first appellate courts judgment required interference. These were entirely based upon the evidence led by the parties on the record. The appreciation of evidence by the first appellate court was on the basis of it having overlooked material facts, such as appreciation of documentary and oral evidence led before the trial court, that the execution of Ex.D-3 was denied……27. Syed Ahmed Ali--PW--1, who was aged 75 years at the time of giving evidence, was the brother of Noorbi, first wife of Mohiyuddin Pasha. As such, he was a maternal uncle of the appellant herein--defendant No.1. He has clearly and emphatically deposed that Mohiyuddin Pasha had two wives i.e. Noorbi and Mazambi @ Pyarembi. He has further deposed that after the death of his sister Noorbi, Mohiyuddin Pashaa took Mazambi @ Pyarembi as his second wife. He has also specifically deposed that he has attended the marriage of Mazambi @ Pyarembi--plaintiff No.3 with Mohiyuddin Pasha. The High Court found that in spite of searching cross- examination, nothing came on record to discard the evidence of PW--1. It was further found that the evidence of PW--1 was supported by Nabi Sab--PW--2, who was also an independent witness. Appenna--PW--3, who was also an independent witness, supported the case of the plaintiffs.28. The High Court found that the voluminous documents of evidence including the birth certificates of plaintiff Nos.4 to 8, the transfer certificates issued by the Government Higher Primary School, Thadigol and Higher Primary Boys School, Thadigol, established that plaintiff Nos.4 to 8 were the children born to Mohiyuddin Pasha through Mazambi @ Pyarembi. We are of the view that, the High Court rightly interfered with the findings as recorded by the First Appellate Court, inasmuch as the First Appellate Court was not justified in reversing the findings of the trial court in that regard which were based on proper appreciation of evidence. We are of the view that the First Appellate Court had failed in appreciating the evidence in correct perspective. The High Court was justified in reversing the same.29. Similarly, the High Court found that the Mehar Deed in favour of deceased Noorbi, first wife of Mohiyuddin Pasha, was a nominal one and was not acted upon and the reversal of the findings of the trial court by the First Appellate Court in that regard, was erroneous. It will be relevant to note that the trial court, on the basis of the proceedings in the earlier suit for partition i.e. O.S. No.514/1961, had found that in the said suit for partition, deceased Mohiyuddin Pasha was defendant No.1, whereas the appellant herein--defendant No.1 was defendant No.2. In the said suit, the case pleaded by them was that the first son of Noorbi and Mohiyuddin Pasha, namely Rahaman Barid, was demanding separate share in the properties and was residing separately. It was therefore contended by them in their respective written statements that to avoid any share in the suit schedule properties, deceased Mohiyuddin Pasha had created the Mehar Deed in favour of his first wife Noorbi. The High Court found that in view of the findings arrived in the said O.S. No.514/1961, which were based on the admission of Mohiyuddin Pasha and the appellant herein--defendant No.1 herein, it was not open for the appellant herein--defendant No.1 again to contend that the properties belonged to Noorbi exclusively as they were given to her in Mehar. The High Court further found that the appellant herein--defendant No.1 himself had produced the judgment in O.S. No.514/1961 at Ex.D-16 and relied upon the same for opposing the present suit for partition.30. It could thus clearly be seen that in the present case, the First Appellate Court had reversed the findings recorded by the trial court which were based upon correct appreciation of evidence. The High Court has given sound and cogent reasons as to why an interference with the findings of the First Appellate Court was required. We also find that the First Appellate Court has failed to take into consideration the voluminous oral as well as documentary evidence, on the basis of which the trial court had recorded its findings. The findings as recorded by the First Appellate Court are based on conjectures and surmises. As such, we are of the considered view that the perverse approach of the First Appellate Court in arriving at the findings would give rise to a substantial question of law, thereby justifying the High Court to interfere with the same.
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Union Of India & Ors Vs. J. Ahmed | service beyond 1st August, 1962. The order next in succession is of 1st September, 1962. This order is again made by the State of Assam. The State Government had no power to retain a member of the service for a period exceeding six months in the aggregate after the date of his normal retirement. The maximum period for which retention could be ordered by the State Government being thus six months, the respondent would have retired from service on 1st August, 1962. Even if an order had been made by the State Government to retain the respondent in service it would be without jurisdiction and the order in fact was made on 1st September, 1962. Now, undoubtedly under Rule 19(1)(b) the Central Government has power to retain a member of the service in service after the date of retirement for any period beyond six months. But in this connection it may be pointed out that no such order appears to have been made by the Central Government. All the subsequent orders were made by the Government of Assam. Such orders made by the Government of Assam would not have the effect of retaining the respondent in service beyond a period of six months from the date of his normal retirement. That being the maximum period, the State Government had no power to retain the respondent in service. If the State Government could not retain him in service beyond 1st August, 1962, it could not continue the inquiry thereafter. This position seems to be clearly established by the decision of this Court in State of Assam v. Padma Ram Borah, A.I.R. 1965 S.C. 473. In that case the State Government had made an order to retain the Government servant in service up to the end of March 31, 1961. Subsequent order extending the period was made on 9th May, 1961. This Court held that according to the earlier order of the State Government itself the service of the Government servant had come to an end on March 31, 1961 and the State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before March 31, 1961. It is thus clear that the retention of the respondent in service by order of the State Government not made before the retirement taking place on 1st August, 1962 and the State Government not having the power to retain the respondent, a member of the Indian Administrative service, beyond a period of six months, the respondent could not be said to have continued in service so that in inquiry could be continued against him. 15. Mr. Naunit Lal, however, contended that sub-rule (2) of Rule 16 clearly provides that a member of the service under suspension on a charge of misconduct shall not be required or permitted to retire from the service until the enquiry into the charges against him is concluded and a final order is passed. It is in the context of Sub-rule (2) of Rule 16 that the question of the nature of the proceedings held against the respondent assumed importance. If the inquiry was on a charge of misconduct, the respondent could be retained in service until the inquiry into the charges against him was concluded and a final order was made. But before Sub-rule (2) of Rule 16 would be attracted it must be shown that the member of the service was under suspension on a charge of misconduct and an inquiry was being conducted against him. As pointed out earlier, no misconduct as one would understand that word in the context of disciplinary proceeding was alleged against the respondent. There was an inquiry but before Sub-rule (2) of Rule 16 is attracted, it had to be an inquiry on a charge of misconduct. What is alleged is not misconduct as the word is understood in service jurisprudence in the context of disciplinary proceedings. Therefore, it could not be said that an inquiry on a charge of misconduct was being held against the respondent and Sub-rule (2) of Rule 16 would thus be attracted and he would be deemed to have been retained in service till the inquiry was concluded. 16. It thus appears crystal clear that there was no case stricto sensu for a disciplinary proceeding against the respondent. In fact the inquiry was held to be established that the respondent was not fit to hold a responsible post. The respondent was actually retiring from service and there was no question of his any more holding a responsible position. Yet not only the inquiry was initiated but he was retained in service beyond the date of his moral retirement till the final order was made on 11th October, 1963 when he was removed from the India Administrative Service. It appears that there was large scale disturbances in the State. There followed the usual search for a scapegoat and the respondent came handy. Some charges were framed none of which could constitute misconduct in law. Some charges were mere surmises. Substance of the allegations was that he was not a very efficient officer and lacked the quality of leadership and was deficient in the faculty of decision-making. These deficiencies in capacity would not constitute misconduct. If the respondent were a young man and was to continue in the post for a long period, such an inquiry may be made whether he should be retained in the responsible post. He may or may not be retained but to retain him in service beyond the period of his normal retirement with a view to punishing him was wholly unjustified. The High Court was, therefore, right in coming to the conclusion that the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void. | 0[ds]It is thus clear that the retention of the respondent in service by order of the State Government not made before the retirement taking place on 1st August, 1962 and the State Government not having the power to retain the respondent, a member of the Indian Administrative service, beyond a period of six months, the respondent could not be said to have continued in service so that in inquiry could be continued against himIt is in the context of Sub-rule (2) of Rule 16 that the question of the nature of the proceedings held against the respondent assumed importance. If the inquiry was on a charge of misconduct, the respondent could be retained in service until the inquiry into the charges against him was concluded and a final order was made. But before Sub-rule (2) of Rule 16 would be attracted it must be shown that the member of the service was under suspension on a charge of misconduct and an inquiry was being conducted against him. As pointed out earlier, no misconduct as one would understand that word in the context of disciplinary proceeding was alleged against the respondent. There was an inquiry but before Sub-rule (2) of Rule 16 is attracted, it had to be an inquiry on a charge of misconduct. What is alleged is not misconduct as the word is understood in service jurisprudence in the context of disciplinary proceedings. Therefore, it could not be said that an inquiry on a charge of misconduct was being held against the respondent and Sub-rule (2) of Rule 16 would thus be attracted and he would be deemed to have been retained in service till the inquiry was concluded16. It thus appears crystal clear that there was no case stricto sensu for a disciplinary proceeding against the respondent. In fact the inquiry was held to be established that the respondent was not fit to hold a responsible post. The respondent was actually retiring from service and there was no question of his any more holding a responsible position. Yet not only the inquiry was initiated but he was retained in service beyond the date of his moral retirement till the final order was made on 11th October, 1963 when he was removed from the India Administrative Service. It appears that there was large scale disturbances in the State. There followed the usual search for a scapegoat and the respondent came handy. Some charges were framed none of which could constitute misconduct in law. Some charges were mere surmises. Substance of the allegations was that he was not a very efficient officer and lacked the quality of leadership and was deficient in the faculty of decision-making. These deficiencies in capacity would not constitute misconduct. If the respondent were a young man and was to continue in the post for a long period, such an inquiry may be made whether he should be retained in the responsible post. He may or may not be retained but to retain him in service beyond the period of his normal retirement with a view to punishing him was wholly unjustified. The High Court was, therefore, right in coming to the conclusion that the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void. | 0 | 5,459 | 602 | ### 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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service beyond 1st August, 1962. The order next in succession is of 1st September, 1962. This order is again made by the State of Assam. The State Government had no power to retain a member of the service for a period exceeding six months in the aggregate after the date of his normal retirement. The maximum period for which retention could be ordered by the State Government being thus six months, the respondent would have retired from service on 1st August, 1962. Even if an order had been made by the State Government to retain the respondent in service it would be without jurisdiction and the order in fact was made on 1st September, 1962. Now, undoubtedly under Rule 19(1)(b) the Central Government has power to retain a member of the service in service after the date of retirement for any period beyond six months. But in this connection it may be pointed out that no such order appears to have been made by the Central Government. All the subsequent orders were made by the Government of Assam. Such orders made by the Government of Assam would not have the effect of retaining the respondent in service beyond a period of six months from the date of his normal retirement. That being the maximum period, the State Government had no power to retain the respondent in service. If the State Government could not retain him in service beyond 1st August, 1962, it could not continue the inquiry thereafter. This position seems to be clearly established by the decision of this Court in State of Assam v. Padma Ram Borah, A.I.R. 1965 S.C. 473. In that case the State Government had made an order to retain the Government servant in service up to the end of March 31, 1961. Subsequent order extending the period was made on 9th May, 1961. This Court held that according to the earlier order of the State Government itself the service of the Government servant had come to an end on March 31, 1961 and the State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before March 31, 1961. It is thus clear that the retention of the respondent in service by order of the State Government not made before the retirement taking place on 1st August, 1962 and the State Government not having the power to retain the respondent, a member of the Indian Administrative service, beyond a period of six months, the respondent could not be said to have continued in service so that in inquiry could be continued against him. 15. Mr. Naunit Lal, however, contended that sub-rule (2) of Rule 16 clearly provides that a member of the service under suspension on a charge of misconduct shall not be required or permitted to retire from the service until the enquiry into the charges against him is concluded and a final order is passed. It is in the context of Sub-rule (2) of Rule 16 that the question of the nature of the proceedings held against the respondent assumed importance. If the inquiry was on a charge of misconduct, the respondent could be retained in service until the inquiry into the charges against him was concluded and a final order was made. But before Sub-rule (2) of Rule 16 would be attracted it must be shown that the member of the service was under suspension on a charge of misconduct and an inquiry was being conducted against him. As pointed out earlier, no misconduct as one would understand that word in the context of disciplinary proceeding was alleged against the respondent. There was an inquiry but before Sub-rule (2) of Rule 16 is attracted, it had to be an inquiry on a charge of misconduct. What is alleged is not misconduct as the word is understood in service jurisprudence in the context of disciplinary proceedings. Therefore, it could not be said that an inquiry on a charge of misconduct was being held against the respondent and Sub-rule (2) of Rule 16 would thus be attracted and he would be deemed to have been retained in service till the inquiry was concluded. 16. It thus appears crystal clear that there was no case stricto sensu for a disciplinary proceeding against the respondent. In fact the inquiry was held to be established that the respondent was not fit to hold a responsible post. The respondent was actually retiring from service and there was no question of his any more holding a responsible position. Yet not only the inquiry was initiated but he was retained in service beyond the date of his moral retirement till the final order was made on 11th October, 1963 when he was removed from the India Administrative Service. It appears that there was large scale disturbances in the State. There followed the usual search for a scapegoat and the respondent came handy. Some charges were framed none of which could constitute misconduct in law. Some charges were mere surmises. Substance of the allegations was that he was not a very efficient officer and lacked the quality of leadership and was deficient in the faculty of decision-making. These deficiencies in capacity would not constitute misconduct. If the respondent were a young man and was to continue in the post for a long period, such an inquiry may be made whether he should be retained in the responsible post. He may or may not be retained but to retain him in service beyond the period of his normal retirement with a view to punishing him was wholly unjustified. The High Court was, therefore, right in coming to the conclusion that the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void.
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It is thus clear that the retention of the respondent in service by order of the State Government not made before the retirement taking place on 1st August, 1962 and the State Government not having the power to retain the respondent, a member of the Indian Administrative service, beyond a period of six months, the respondent could not be said to have continued in service so that in inquiry could be continued against himIt is in the context of Sub-rule (2) of Rule 16 that the question of the nature of the proceedings held against the respondent assumed importance. If the inquiry was on a charge of misconduct, the respondent could be retained in service until the inquiry into the charges against him was concluded and a final order was made. But before Sub-rule (2) of Rule 16 would be attracted it must be shown that the member of the service was under suspension on a charge of misconduct and an inquiry was being conducted against him. As pointed out earlier, no misconduct as one would understand that word in the context of disciplinary proceeding was alleged against the respondent. There was an inquiry but before Sub-rule (2) of Rule 16 is attracted, it had to be an inquiry on a charge of misconduct. What is alleged is not misconduct as the word is understood in service jurisprudence in the context of disciplinary proceedings. Therefore, it could not be said that an inquiry on a charge of misconduct was being held against the respondent and Sub-rule (2) of Rule 16 would thus be attracted and he would be deemed to have been retained in service till the inquiry was concluded16. It thus appears crystal clear that there was no case stricto sensu for a disciplinary proceeding against the respondent. In fact the inquiry was held to be established that the respondent was not fit to hold a responsible post. The respondent was actually retiring from service and there was no question of his any more holding a responsible position. Yet not only the inquiry was initiated but he was retained in service beyond the date of his moral retirement till the final order was made on 11th October, 1963 when he was removed from the India Administrative Service. It appears that there was large scale disturbances in the State. There followed the usual search for a scapegoat and the respondent came handy. Some charges were framed none of which could constitute misconduct in law. Some charges were mere surmises. Substance of the allegations was that he was not a very efficient officer and lacked the quality of leadership and was deficient in the faculty of decision-making. These deficiencies in capacity would not constitute misconduct. If the respondent were a young man and was to continue in the post for a long period, such an inquiry may be made whether he should be retained in the responsible post. He may or may not be retained but to retain him in service beyond the period of his normal retirement with a view to punishing him was wholly unjustified. The High Court was, therefore, right in coming to the conclusion that the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void.
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Sitaram Vs. Radhey Shyam Vishnav & Others | Raj Act, 1994 and the issue arose with regard to the interpretation of the provisions contained in the Rajasthan Panchayati Raj Election Rules, 1994 (for short, "the 1994 Rules"). Rule 81(2) of the 1994 Rules provides that no petition shall be deemed to have been presented under the election rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security deposit for the costs of the opposite party. In the said case, the election petition was filed on 28.02.2015 but costs were not deposited along with the petition and the same were deposited on 12.03.2015. It was contended before the learned single Judge that the election petitioner had submitted the challan/tender for the deposit on 28.02.2015 itself but the Election Tribunal had not passed any order for depositing the costs with the treasury and, therefore, the same could not have been deposited on that day and the deposit was made after the order was passed. The learned single Judge took note of Rule 85 of the Election Rules which provides that the procedure provided in the CPC with regard to suits is made applicable in so far as can be made applicable and came to hold that if the deposit exceeds Rs. 25/-, the same can only be deposited in the treasury if an order is passed by the Court or by the Munsarim or the Reader of the Court concerned, as the case may be.35. In this regard, Mr. Singh has placed reliance on an earlier decision of the Rajasthan High Court in Gulab Singh v. The Munsif and Judicial Magistrate 1st Class and others, In the said case, the learned single Judge was dealing with the security deposit as provided under Rule 79(2) & (3) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960. In the said case, the deposit was made subsequently. It was contended that the same was fatal to the case as the provision is mandatory. Rule 79(2) of the said Rules read as follows:-"79(2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security for the costs of the opposite party."36. The learned single Judge placed reliance on Charan Lal Sahu (II) (supra) and came to hold that Rule 79(2) in relation to the deposit of the security along with the petition is mandatory and since on facts it is not in dispute that on 21st February, 1978 when the election petition was filed, it was not presented along with a deposit of L50/- as required for the costs of the opposite party, the legal and logical consequences would be that the election petition could not be deemed to have been presented under the Rules as per the mandate of Rule 79(2) of the Rajasthan Panchayat and Nyaya Panchayat (Election) Rules,1960. Being of this view, the learned single Judge opined that there was no valid election petition before the Election Tribunal.37. The discussion hereinabove can be categorized into three compartments. First, the deposit is mandatory and the mode of deposit is directory; second, the non-deposit will entail dismissal and irregular deposit is curable and third, in other areas like verification, signature of parties, service of copy, etc., the principle of substantial compliance or the doctrine of curability will apply. In the case at hand, Rule 3(5)(d) commands that the election petition shall be accompanied by the treasury challan. The word used in the Rule is `accompanied and the term `accompany means to co-exist or go along. There cannot be a separation or segregation. The election petition has to be accompanied by the treasury challan and with the treasury challan, as has been understood by this Court, there has to be a deposit in the treasury. The 2012 Rules, when understood appropriately, also convey that there has to be deposit in the treasury. Once the election petition is presented without the treasury challan, the decisions of this Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra) pertaining to non-deposit will have full applicability. The principle stated in M. Karunanidhi (supra), K. Kamaraja Nadar (supra), Chandrika Prasad Tripathi (supra) and other decisions will not get attracted. The interpretation placed on the 1986 Rules by the learned single Judge in Ashok Kumar (supra) cannot be treated to lay down the correct law. We arrive at the said conclusion as we do not find that there is really any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking permission at the time of presenting an election petition. Permission, if any, may be sought earlier. Such was the case in Bajrang Lal v. Kanhaiya Lal and others, where the election petition was submitted on 31.8.2005 and an application was submitted before the court below on 30.8.2005 under Section 53 of the Act of 1959 with the signature of the advocate and an order was passed by the court on the same application itself on 30.8.2005 allowing the advocate to deposit the security amount under Section 53 of the Act of 1959 for election petition. The election petition was submitted on 31.8.2005. In such a fact situation, the High Court found that there was compliance with the provision.38. Mr. Jain would submit that this is not an incurable defect as the deposit has been made within the period of limitation. The said submission leaves us unimpressed inasmuch as Rule 7 leaves no option to the Judge but to dismiss the petition. Thus, regard being had to the language employed in both the Rules, we are obligated to hold that the deposit of treasury challan which means deposit of the requisite amount in treasury at the time of presentation of the election petition is mandatory. Therefore, the inevitable conclusion is that no valid election petition was presented. In such a situation, the learned Additional District Judge was bound in law to reject the election petition. | 1[ds]Mr. Jain, learned senior counsel appearing for the 1st respondent, has advanced the contention with regard to substantialcompliance. To bolster the said submission, immense inspiration has been drawn from aBench decision in Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria and others,. On a perusal of the aforesaid dictum, we are inclined to state that the aforesaid decision has to be distinguished on the principle laid down by this Court in Charan Lal Sahu (I) (supra).The discussion hereinabove can be categorized into three compartments. First, the deposit is mandatory and the mode of deposit is directory; second, thewill entail dismissal and irregular deposit is curable and third, in other areas like verification, signature of parties, service of copy, etc., the principle of substantial compliance or the doctrine of curability will apply. In the case at hand, Rule 3(5)(d) commands that the election petition shall be accompanied by the treasury challan. The word used in the Rule is `accompanied and the term `accompany means toor go along. There cannot be a separation or segregation. The election petition has to be accompanied by the treasury challan and with the treasury challan, as has been understood by this Court, there has to be a deposit in the treasury. The 2012 Rules, when understood appropriately, also convey that there has to be deposit in the treasury. Once the election petition is presented without the treasury challan, the decisions of this Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra) pertaining towill have full applicability. The principle stated in M. Karunanidhi (supra), K. Kamaraja Nadar (supra), Chandrika Prasad Tripathi (supra) and other decisions will not get attracted. The interpretation placed on the 1986 Rules by the learned single Judge in Ashok Kumar (supra) cannot be treated to lay down the correct law. We arrive at the said conclusion as we do not find that there is really any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking permission at the time of presenting an election petition. Permission, if any, may be sought earlier.Mr. Jain would submit that this is not an incurable defect as the deposit has been made within the period of limitation. The said submission leaves us unimpressed inasmuch as Rule 7 leaves no option to the Judge but to dismiss the petition. Thus, regard being had to the language employed in both the Rules, we are obligated to hold that the deposit of treasury challan which means deposit of the requisite amount in treasury at the time of presentation of the election petition is mandatory. Therefore, the inevitable conclusion is that no valid election petition was presented. In such a situation, the learned Additional District Judge was bound in law to reject the election petition. | 1 | 9,458 | 540 | ### 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:
Raj Act, 1994 and the issue arose with regard to the interpretation of the provisions contained in the Rajasthan Panchayati Raj Election Rules, 1994 (for short, "the 1994 Rules"). Rule 81(2) of the 1994 Rules provides that no petition shall be deemed to have been presented under the election rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security deposit for the costs of the opposite party. In the said case, the election petition was filed on 28.02.2015 but costs were not deposited along with the petition and the same were deposited on 12.03.2015. It was contended before the learned single Judge that the election petitioner had submitted the challan/tender for the deposit on 28.02.2015 itself but the Election Tribunal had not passed any order for depositing the costs with the treasury and, therefore, the same could not have been deposited on that day and the deposit was made after the order was passed. The learned single Judge took note of Rule 85 of the Election Rules which provides that the procedure provided in the CPC with regard to suits is made applicable in so far as can be made applicable and came to hold that if the deposit exceeds Rs. 25/-, the same can only be deposited in the treasury if an order is passed by the Court or by the Munsarim or the Reader of the Court concerned, as the case may be.35. In this regard, Mr. Singh has placed reliance on an earlier decision of the Rajasthan High Court in Gulab Singh v. The Munsif and Judicial Magistrate 1st Class and others, In the said case, the learned single Judge was dealing with the security deposit as provided under Rule 79(2) & (3) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960. In the said case, the deposit was made subsequently. It was contended that the same was fatal to the case as the provision is mandatory. Rule 79(2) of the said Rules read as follows:-"79(2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security for the costs of the opposite party."36. The learned single Judge placed reliance on Charan Lal Sahu (II) (supra) and came to hold that Rule 79(2) in relation to the deposit of the security along with the petition is mandatory and since on facts it is not in dispute that on 21st February, 1978 when the election petition was filed, it was not presented along with a deposit of L50/- as required for the costs of the opposite party, the legal and logical consequences would be that the election petition could not be deemed to have been presented under the Rules as per the mandate of Rule 79(2) of the Rajasthan Panchayat and Nyaya Panchayat (Election) Rules,1960. Being of this view, the learned single Judge opined that there was no valid election petition before the Election Tribunal.37. The discussion hereinabove can be categorized into three compartments. First, the deposit is mandatory and the mode of deposit is directory; second, the non-deposit will entail dismissal and irregular deposit is curable and third, in other areas like verification, signature of parties, service of copy, etc., the principle of substantial compliance or the doctrine of curability will apply. In the case at hand, Rule 3(5)(d) commands that the election petition shall be accompanied by the treasury challan. The word used in the Rule is `accompanied and the term `accompany means to co-exist or go along. There cannot be a separation or segregation. The election petition has to be accompanied by the treasury challan and with the treasury challan, as has been understood by this Court, there has to be a deposit in the treasury. The 2012 Rules, when understood appropriately, also convey that there has to be deposit in the treasury. Once the election petition is presented without the treasury challan, the decisions of this Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra) pertaining to non-deposit will have full applicability. The principle stated in M. Karunanidhi (supra), K. Kamaraja Nadar (supra), Chandrika Prasad Tripathi (supra) and other decisions will not get attracted. The interpretation placed on the 1986 Rules by the learned single Judge in Ashok Kumar (supra) cannot be treated to lay down the correct law. We arrive at the said conclusion as we do not find that there is really any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking permission at the time of presenting an election petition. Permission, if any, may be sought earlier. Such was the case in Bajrang Lal v. Kanhaiya Lal and others, where the election petition was submitted on 31.8.2005 and an application was submitted before the court below on 30.8.2005 under Section 53 of the Act of 1959 with the signature of the advocate and an order was passed by the court on the same application itself on 30.8.2005 allowing the advocate to deposit the security amount under Section 53 of the Act of 1959 for election petition. The election petition was submitted on 31.8.2005. In such a fact situation, the High Court found that there was compliance with the provision.38. Mr. Jain would submit that this is not an incurable defect as the deposit has been made within the period of limitation. The said submission leaves us unimpressed inasmuch as Rule 7 leaves no option to the Judge but to dismiss the petition. Thus, regard being had to the language employed in both the Rules, we are obligated to hold that the deposit of treasury challan which means deposit of the requisite amount in treasury at the time of presentation of the election petition is mandatory. Therefore, the inevitable conclusion is that no valid election petition was presented. In such a situation, the learned Additional District Judge was bound in law to reject the election petition.
### Response:
1
### Explanation:
Mr. Jain, learned senior counsel appearing for the 1st respondent, has advanced the contention with regard to substantialcompliance. To bolster the said submission, immense inspiration has been drawn from aBench decision in Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria and others,. On a perusal of the aforesaid dictum, we are inclined to state that the aforesaid decision has to be distinguished on the principle laid down by this Court in Charan Lal Sahu (I) (supra).The discussion hereinabove can be categorized into three compartments. First, the deposit is mandatory and the mode of deposit is directory; second, thewill entail dismissal and irregular deposit is curable and third, in other areas like verification, signature of parties, service of copy, etc., the principle of substantial compliance or the doctrine of curability will apply. In the case at hand, Rule 3(5)(d) commands that the election petition shall be accompanied by the treasury challan. The word used in the Rule is `accompanied and the term `accompany means toor go along. There cannot be a separation or segregation. The election petition has to be accompanied by the treasury challan and with the treasury challan, as has been understood by this Court, there has to be a deposit in the treasury. The 2012 Rules, when understood appropriately, also convey that there has to be deposit in the treasury. Once the election petition is presented without the treasury challan, the decisions of this Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra) pertaining towill have full applicability. The principle stated in M. Karunanidhi (supra), K. Kamaraja Nadar (supra), Chandrika Prasad Tripathi (supra) and other decisions will not get attracted. The interpretation placed on the 1986 Rules by the learned single Judge in Ashok Kumar (supra) cannot be treated to lay down the correct law. We arrive at the said conclusion as we do not find that there is really any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking permission at the time of presenting an election petition. Permission, if any, may be sought earlier.Mr. Jain would submit that this is not an incurable defect as the deposit has been made within the period of limitation. The said submission leaves us unimpressed inasmuch as Rule 7 leaves no option to the Judge but to dismiss the petition. Thus, regard being had to the language employed in both the Rules, we are obligated to hold that the deposit of treasury challan which means deposit of the requisite amount in treasury at the time of presentation of the election petition is mandatory. Therefore, the inevitable conclusion is that no valid election petition was presented. In such a situation, the learned Additional District Judge was bound in law to reject the election petition.
|
M/S. Jai Beverages Pvt. Ltd Vs. State Of J.&K. | the investment was to the tune of over Rs.27 crores by 30th September, 2000. 34. It will be seen from the Memorandum of Understanding that the appellant was to start manufacture of soft beverages in the existing built up accommodation by the end of March, 2000 and complete the minimum capital investment of Rs. 25 crores or more latest by 30th September, 2000. Mr. Rohtagi, learned senior counsel appearing on behalf of the State, also could not dispute the fact that the appellant had invested a sum of Rs.27.11 crores as on September 30, 2000. This fact is admitted in the order of the Director, Industries and Commerce dated December 12, 2000 which declared the appellant as a "prestigious unit". It also appears from the same order that the matter had been examined by the General Manager, District Industries Center, Jammu and J&K State Industrial Development Corporation Ltd. This was also supported by a certificate issued by the Chartered Accountants of the appellant which had been authenticated by the General Manager, District Industries Center, Jammu. This is also apparent from the two certificates issued by the General Manager, District Industries Center, Jammu and J&K State Industrial Development Corporation Ltd. as also from the communication dated April 25, 2000 of the Industries and Commerce Department recommending that SRO be issued permitting the appellant to avail of incentives as a "prestigious unit" from the date of commercial production. Thus it would appear that the Government took a conscious decision to permit the appellant to complete the minimum capital investment of Rs. 25 crores latest by September 30, 2000. It also appears from the letter of the Industries and Commerce Department dated April 25, 2000 that while discussing the proposal of the appellant it was felt that a liberal view needs to be taken of the policy to the extent that if the investment of Rs. 25 cores or more materializes within the maximum period of 6 months from the date of commercial production, the appellant should be given the benefits of the incentives. This proposal had the approval of the Finance department as also the approval of the Cabinet, which did not consider it as a departure from the policy announced. 35. All these facts, therefore, lead to the only conclusion that having considered its new Industrial Policy, and having considered the proposal made by the appellant, the Government took a conscious decision to grant the package of incentives to the industrial unit being set up by the appellant provided it went into commercial production by the end of March 2000 and made the necessary investment of Rs. 25 crores or more on or before September 30, 2000. The documents and material on record disclose that the Government took this decision after full discussion on all aspects of the matter, and in particular by reference to the date by which the appellant was required to invest Rs.25 crores in the industrial unit being set up by it. The State cannot be permitted to ignore its own conscious decision to permit the appellant to invest a sum of Rs. 25 crores or more by September 30, 2000. The appellant acted on the basis of the decision taken by the State Government and incorporated in the Memorandum of Understanding. The fact that Rs.25 crores was invested by September 30, 2000 was not disputed in the several counter-affidavits filed before the High Court. In view of the voluminous evidence on record the State cannot dispute the fact that over Rs.27 crores was invested by the prescribed date i.e. by September 30, 2000. In this background, the State cannot be allowed to say that the incentives cannot be extended to the industrial unit set up by the appellant because the amount of Rs.25 crores or more was not invested by the date the unit went into commercial production, though the amount of Rs.27 crores was invested within the period prescribed by the Government as incorporated in the Memorandum of Understanding. 36. We, therefore, find no substance in the objection of learned senior counsel appearing on behalf of the State of Jammu and Kashmir that the appellant had not fulfilled the requirement of making the investment of Rs.25 crores or more by the date it went into commercial production. As we have noticed the Government itself was of the view that within the framework of the policy formulated by it, it was permissible to prescribe a time schedule within which the investment of Rs.25 crores or more was to be made. Accordingly it required the appellant to invest a sum of Rs.25 crores or more before September 30, 2000 which the appellant did. We have also not been shown anything in the Policy or in the Notifications issued pursuant thereto, prescribing any date for the capital investment of Rs.25 crores or that within the framework of the policy, the State Government was not entitled to prescribe a date by which the investment of Rs.25 crores or more should be made. 37. In view of our findings that the negative list concept does not apply to prestigious industrial units and that the industrial unit set up by the appellant fulfilled all the conditions laid down in the Governments new Industrial Policy and the notifications issued in connection therewith, it must be held that the appellant is entitled to the package of benefits promised by the new Industrial Policy of the State of Jammu & Kashmir read with various notifications issued pursuant thereto. 38. The question as to whether the certificates issued by the SIDCO or by the Department of Industries and Commerce are valid, or whether the declaration made by the Industries and Commerce Directorate by its order dated December 12, 2000 declaring the appellant a "prestigious unit" is binding on the State Government, has no significance. The appellant having fulfilled all the conditions which it was required to fulfil is entitled to the benefits promised to "prestigious units" under the States new Industrial Policy (1998- 2003). 39. | 1[ds]All these facts, therefore, lead to the only conclusion that having considered its new Industrial Policy, and having considered the proposal made by the appellant, the Government took a conscious decision to grant the package of incentives to the industrial unit being set up by the appellant provided it went into commercial production by the end of March 2000 and made the necessary investment of Rs. 25 crores or more on or before September 30, 2000. The documents and material on record disclose that the Government took this decision after full discussion on all aspects of the matter, and in particular by reference to the date by which the appellant was required to invest Rs.25 crores in the industrial unit being set up by it. The State cannot be permitted to ignore its own conscious decision to permit the appellant to invest a sum of Rs. 25 crores or more by September 30, 2000. The appellant acted on the basis of the decision taken by the State Government and incorporated in the Memorandum of Understanding. The fact that Rs.25 crores was invested by September 30, 2000 was not disputed in the several counter-affidavits filed before the High Court. In view of the voluminous evidence on record the State cannot dispute the fact that over Rs.27 crores was invested by the prescribed date i.e. by September 30, 2000. In this background, the State cannot be allowed to say that the incentives cannot be extended to the industrial unit set up by the appellant because the amount of Rs.25 crores or more was not invested by the date the unit went into commercial production, though the amount of Rs.27 crores was invested within the period prescribed by the Government as incorporated in the Memorandum oftherefore, find no substance in the objection of learned senior counsel appearing on behalf of the State of Jammu and Kashmir that the appellant had not fulfilled the requirement of making the investment of Rs.25 crores or more by the date it went into commercial production. As we have noticed the Government itself was of the view that within the framework of the policy formulated by it, it was permissible to prescribe a time schedule within which the investment of Rs.25 crores or more was to be made. Accordingly it required the appellant to invest a sum of Rs.25 crores or more before September 30, 2000 which the appellant did. We have also not been shown anything in the Policy or in the Notifications issued pursuant thereto, prescribing any date for the capital investment of Rs.25 crores or that within the framework of the policy, the State Government was not entitled to prescribe a date by which the investment of Rs.25 crores or more should beview of our findings that the negative list concept does not apply to prestigious industrial units and that the industrial unit set up by the appellant fulfilled all the conditions laid down in the Governments new Industrial Policy and the notifications issued in connection therewith, it must be held that the appellant is entitled to the package of benefits promised by the new Industrial Policy of the State of Jammu & Kashmir read with various notifications issued pursuantquestion as to whether the certificates issued by the SIDCO or by the Department of Industries and Commerce are valid, or whether the declaration made by the Industries and Commerce Directorate by its order dated December 12, 2000 declaring the appellant a "prestigious unit" is binding on the State Government, has no significance. The appellant having fulfilled all the conditions which it was required to fulfil is entitled to the benefits promised to "prestigious units" under the States new Industrial Policy (1998- 2003). | 1 | 7,913 | 665 | ### 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 investment was to the tune of over Rs.27 crores by 30th September, 2000. 34. It will be seen from the Memorandum of Understanding that the appellant was to start manufacture of soft beverages in the existing built up accommodation by the end of March, 2000 and complete the minimum capital investment of Rs. 25 crores or more latest by 30th September, 2000. Mr. Rohtagi, learned senior counsel appearing on behalf of the State, also could not dispute the fact that the appellant had invested a sum of Rs.27.11 crores as on September 30, 2000. This fact is admitted in the order of the Director, Industries and Commerce dated December 12, 2000 which declared the appellant as a "prestigious unit". It also appears from the same order that the matter had been examined by the General Manager, District Industries Center, Jammu and J&K State Industrial Development Corporation Ltd. This was also supported by a certificate issued by the Chartered Accountants of the appellant which had been authenticated by the General Manager, District Industries Center, Jammu. This is also apparent from the two certificates issued by the General Manager, District Industries Center, Jammu and J&K State Industrial Development Corporation Ltd. as also from the communication dated April 25, 2000 of the Industries and Commerce Department recommending that SRO be issued permitting the appellant to avail of incentives as a "prestigious unit" from the date of commercial production. Thus it would appear that the Government took a conscious decision to permit the appellant to complete the minimum capital investment of Rs. 25 crores latest by September 30, 2000. It also appears from the letter of the Industries and Commerce Department dated April 25, 2000 that while discussing the proposal of the appellant it was felt that a liberal view needs to be taken of the policy to the extent that if the investment of Rs. 25 cores or more materializes within the maximum period of 6 months from the date of commercial production, the appellant should be given the benefits of the incentives. This proposal had the approval of the Finance department as also the approval of the Cabinet, which did not consider it as a departure from the policy announced. 35. All these facts, therefore, lead to the only conclusion that having considered its new Industrial Policy, and having considered the proposal made by the appellant, the Government took a conscious decision to grant the package of incentives to the industrial unit being set up by the appellant provided it went into commercial production by the end of March 2000 and made the necessary investment of Rs. 25 crores or more on or before September 30, 2000. The documents and material on record disclose that the Government took this decision after full discussion on all aspects of the matter, and in particular by reference to the date by which the appellant was required to invest Rs.25 crores in the industrial unit being set up by it. The State cannot be permitted to ignore its own conscious decision to permit the appellant to invest a sum of Rs. 25 crores or more by September 30, 2000. The appellant acted on the basis of the decision taken by the State Government and incorporated in the Memorandum of Understanding. The fact that Rs.25 crores was invested by September 30, 2000 was not disputed in the several counter-affidavits filed before the High Court. In view of the voluminous evidence on record the State cannot dispute the fact that over Rs.27 crores was invested by the prescribed date i.e. by September 30, 2000. In this background, the State cannot be allowed to say that the incentives cannot be extended to the industrial unit set up by the appellant because the amount of Rs.25 crores or more was not invested by the date the unit went into commercial production, though the amount of Rs.27 crores was invested within the period prescribed by the Government as incorporated in the Memorandum of Understanding. 36. We, therefore, find no substance in the objection of learned senior counsel appearing on behalf of the State of Jammu and Kashmir that the appellant had not fulfilled the requirement of making the investment of Rs.25 crores or more by the date it went into commercial production. As we have noticed the Government itself was of the view that within the framework of the policy formulated by it, it was permissible to prescribe a time schedule within which the investment of Rs.25 crores or more was to be made. Accordingly it required the appellant to invest a sum of Rs.25 crores or more before September 30, 2000 which the appellant did. We have also not been shown anything in the Policy or in the Notifications issued pursuant thereto, prescribing any date for the capital investment of Rs.25 crores or that within the framework of the policy, the State Government was not entitled to prescribe a date by which the investment of Rs.25 crores or more should be made. 37. In view of our findings that the negative list concept does not apply to prestigious industrial units and that the industrial unit set up by the appellant fulfilled all the conditions laid down in the Governments new Industrial Policy and the notifications issued in connection therewith, it must be held that the appellant is entitled to the package of benefits promised by the new Industrial Policy of the State of Jammu & Kashmir read with various notifications issued pursuant thereto. 38. The question as to whether the certificates issued by the SIDCO or by the Department of Industries and Commerce are valid, or whether the declaration made by the Industries and Commerce Directorate by its order dated December 12, 2000 declaring the appellant a "prestigious unit" is binding on the State Government, has no significance. The appellant having fulfilled all the conditions which it was required to fulfil is entitled to the benefits promised to "prestigious units" under the States new Industrial Policy (1998- 2003). 39.
### Response:
1
### Explanation:
All these facts, therefore, lead to the only conclusion that having considered its new Industrial Policy, and having considered the proposal made by the appellant, the Government took a conscious decision to grant the package of incentives to the industrial unit being set up by the appellant provided it went into commercial production by the end of March 2000 and made the necessary investment of Rs. 25 crores or more on or before September 30, 2000. The documents and material on record disclose that the Government took this decision after full discussion on all aspects of the matter, and in particular by reference to the date by which the appellant was required to invest Rs.25 crores in the industrial unit being set up by it. The State cannot be permitted to ignore its own conscious decision to permit the appellant to invest a sum of Rs. 25 crores or more by September 30, 2000. The appellant acted on the basis of the decision taken by the State Government and incorporated in the Memorandum of Understanding. The fact that Rs.25 crores was invested by September 30, 2000 was not disputed in the several counter-affidavits filed before the High Court. In view of the voluminous evidence on record the State cannot dispute the fact that over Rs.27 crores was invested by the prescribed date i.e. by September 30, 2000. In this background, the State cannot be allowed to say that the incentives cannot be extended to the industrial unit set up by the appellant because the amount of Rs.25 crores or more was not invested by the date the unit went into commercial production, though the amount of Rs.27 crores was invested within the period prescribed by the Government as incorporated in the Memorandum oftherefore, find no substance in the objection of learned senior counsel appearing on behalf of the State of Jammu and Kashmir that the appellant had not fulfilled the requirement of making the investment of Rs.25 crores or more by the date it went into commercial production. As we have noticed the Government itself was of the view that within the framework of the policy formulated by it, it was permissible to prescribe a time schedule within which the investment of Rs.25 crores or more was to be made. Accordingly it required the appellant to invest a sum of Rs.25 crores or more before September 30, 2000 which the appellant did. We have also not been shown anything in the Policy or in the Notifications issued pursuant thereto, prescribing any date for the capital investment of Rs.25 crores or that within the framework of the policy, the State Government was not entitled to prescribe a date by which the investment of Rs.25 crores or more should beview of our findings that the negative list concept does not apply to prestigious industrial units and that the industrial unit set up by the appellant fulfilled all the conditions laid down in the Governments new Industrial Policy and the notifications issued in connection therewith, it must be held that the appellant is entitled to the package of benefits promised by the new Industrial Policy of the State of Jammu & Kashmir read with various notifications issued pursuantquestion as to whether the certificates issued by the SIDCO or by the Department of Industries and Commerce are valid, or whether the declaration made by the Industries and Commerce Directorate by its order dated December 12, 2000 declaring the appellant a "prestigious unit" is binding on the State Government, has no significance. The appellant having fulfilled all the conditions which it was required to fulfil is entitled to the benefits promised to "prestigious units" under the States new Industrial Policy (1998- 2003).
|
SUBIR BOSE Vs. INSPECTOR OF FACTORIES | INDU MALHOTRA, J.1. The appellant – Mr. Subir Bose, was the Managing Director of M/s. Berger Paints India Ltd. (the ‘Company ? for short) and resident of Kolkatta at the time of the offence..2. On April 28, 2006 at about 11:20 hours fire had broken out at the factory premises of the company located at IDC Kundaim, Goa. There was no causality except that one Shri Tulsidas Dutta Palkar – a worker, had sustained minor injuries and was taken to hospital and discharged after treatment on the same day.3. On 28 th June, 2006, Inspector of Factories, Altinho, Panaji, Goa filed a private complaint in discharge of official duties under Section 92 of the Factories Act, 1948 ( ?Factories Act ? for short) against the appellant – Managing Director of the Company, as the occupier, and Shri S.M. Lahiri – the Manager of the Company. The allegations were that the company had been using the factory premises situated at Kundaim Industrial Estate, Kundaim, Goa without proper licence/permission which was in contravention of Goa Factories Rules, 1945. It was also alleged that the accused has failed to take adequate measures to prevent explosion or ignition of inflammable substances as required under Sections 37 and 38 of the Factories Act. 4. Having heard learned counsel for the appellant, who was the Managing Director, we were not inclined to interfere with the impugned order, which has affirmed the order taking cognizance for an offence under Section 92 of the Factories Act as, prima facie, it does appear that the factory premises situated at Kundaim Industrial Estate, Kundaim, Goa was functioning without a licence/permission. The contention of the appellant that the factory premises was in the process of closure of its and operations would be a factual assertion made by the defence. This would require to be proved and established. However, on the question whether adequate measures were taken to prevent explosion or ignition of inflammable substance is concerned, learned counsel for the appellant has referred to, with some merit, the closure report filed by the Police in FIR No. 110 of 2006 under Sections 285 and 336 of the IPC registered against Shri S.M. Lahiri – Factory Manager, Shri Jayanta Bhattacharya – the Production Manager, Shri Bikas Pukait – the Shift-in-Charge, and Shri Tulsidas Datta Palkar – the worker. Interestingly, Shri Tulsidas Datta Palkar was the person who had sustained minor injuries and was taken to hospital and discharged on the same day after administering first aid. The closure report was filed stating that it was an unfit case for filing of charge sheet as criminal charges were not made out. The report was based on the opinion of the Additional Public Prosecutor and was accepted by the Judicial Magistrate (First Class), Ponda, who is also the Magistrate who has taken cognizance of the offence under Section 92 of the Factories Act. The complaint refers to violation of Sections 37 and 38 of the Factories Act, albeit without giving specific particulars and details. Hence, to this extent, the complaint is vague and does not disclose a specific violation. 5. The learned counsel for the appellant, on instructions, has stated that the appellant would plead guilty and bring the litigation to a quietus by paying the maximum amount of fine that can be imposed. The prayer made was that punishment of imprisonment may not be imposed as the appellant is now more than 70 years of age, and at that time the company had six factories and more than eighty depots all over India. The appellant was at the relevant time a permanent resident of Kolkatta. Relegating the appellant to the trial Court would not serve any purpose and cause delay. 6. We are, in the peculiar facts of the present case, inclined to accept the prayer noticing the fact that in the present case Shri Tulsidas Datta Palkar – the worker, who was himself, as per the FIR, one of the accused, had suffered minor injuries and was discharged from the hospital on the same day. The occurrence relates to the year 2006, the present appellant is now over 70 years of age, and the trial itself would take years before it is decided. | 1[ds]4. Having heard learned counsel for the appellant, who was the Managing Director, we were not inclined to interfere with the impugned order, which has affirmed the order taking cognizance for an offence under Section 92 of the Factories Act as, prima facie, it does appear that the factory premises situated at Kundaim Industrial Estate, Kundaim, Goa was functioning without a licence/permission. The contention of the appellant that the factory premises was in the process of closure of its and operations would be a factual assertion made by the defence. This would require to be proved andclosure report was filed stating that it was an unfit case for filing of charge sheet as criminal charges were not made out. The report was based on the opinion of the Additional Public Prosecutor and was accepted by the Judicial Magistrate (First Class), Ponda, who is also the Magistrate who has taken cognizance of the offence under Section 92 of the Factories Act. The complaint refers to violation of Sections 37 and 38 of the Factories Act, albeit without giving specific particulars and details. Hence, to this extent, the complaint is vague and does not disclose a specific violation.We are, in the peculiar facts of the present case, inclined to accept the prayer noticing the fact that in the present case Shri Tulsidas Datta Palkar – the worker, who was himself, as per the FIR, one of the accused, had suffered minor injuries and was discharged from the hospital on the same day. The occurrence relates to the year 2006, the present appellant is now over 70 years of age, and the trial itself would take years before it is decided. | 1 | 786 | 312 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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INDU MALHOTRA, J.1. The appellant – Mr. Subir Bose, was the Managing Director of M/s. Berger Paints India Ltd. (the ‘Company ? for short) and resident of Kolkatta at the time of the offence..2. On April 28, 2006 at about 11:20 hours fire had broken out at the factory premises of the company located at IDC Kundaim, Goa. There was no causality except that one Shri Tulsidas Dutta Palkar – a worker, had sustained minor injuries and was taken to hospital and discharged after treatment on the same day.3. On 28 th June, 2006, Inspector of Factories, Altinho, Panaji, Goa filed a private complaint in discharge of official duties under Section 92 of the Factories Act, 1948 ( ?Factories Act ? for short) against the appellant – Managing Director of the Company, as the occupier, and Shri S.M. Lahiri – the Manager of the Company. The allegations were that the company had been using the factory premises situated at Kundaim Industrial Estate, Kundaim, Goa without proper licence/permission which was in contravention of Goa Factories Rules, 1945. It was also alleged that the accused has failed to take adequate measures to prevent explosion or ignition of inflammable substances as required under Sections 37 and 38 of the Factories Act. 4. Having heard learned counsel for the appellant, who was the Managing Director, we were not inclined to interfere with the impugned order, which has affirmed the order taking cognizance for an offence under Section 92 of the Factories Act as, prima facie, it does appear that the factory premises situated at Kundaim Industrial Estate, Kundaim, Goa was functioning without a licence/permission. The contention of the appellant that the factory premises was in the process of closure of its and operations would be a factual assertion made by the defence. This would require to be proved and established. However, on the question whether adequate measures were taken to prevent explosion or ignition of inflammable substance is concerned, learned counsel for the appellant has referred to, with some merit, the closure report filed by the Police in FIR No. 110 of 2006 under Sections 285 and 336 of the IPC registered against Shri S.M. Lahiri – Factory Manager, Shri Jayanta Bhattacharya – the Production Manager, Shri Bikas Pukait – the Shift-in-Charge, and Shri Tulsidas Datta Palkar – the worker. Interestingly, Shri Tulsidas Datta Palkar was the person who had sustained minor injuries and was taken to hospital and discharged on the same day after administering first aid. The closure report was filed stating that it was an unfit case for filing of charge sheet as criminal charges were not made out. The report was based on the opinion of the Additional Public Prosecutor and was accepted by the Judicial Magistrate (First Class), Ponda, who is also the Magistrate who has taken cognizance of the offence under Section 92 of the Factories Act. The complaint refers to violation of Sections 37 and 38 of the Factories Act, albeit without giving specific particulars and details. Hence, to this extent, the complaint is vague and does not disclose a specific violation. 5. The learned counsel for the appellant, on instructions, has stated that the appellant would plead guilty and bring the litigation to a quietus by paying the maximum amount of fine that can be imposed. The prayer made was that punishment of imprisonment may not be imposed as the appellant is now more than 70 years of age, and at that time the company had six factories and more than eighty depots all over India. The appellant was at the relevant time a permanent resident of Kolkatta. Relegating the appellant to the trial Court would not serve any purpose and cause delay. 6. We are, in the peculiar facts of the present case, inclined to accept the prayer noticing the fact that in the present case Shri Tulsidas Datta Palkar – the worker, who was himself, as per the FIR, one of the accused, had suffered minor injuries and was discharged from the hospital on the same day. The occurrence relates to the year 2006, the present appellant is now over 70 years of age, and the trial itself would take years before it is decided.
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4. Having heard learned counsel for the appellant, who was the Managing Director, we were not inclined to interfere with the impugned order, which has affirmed the order taking cognizance for an offence under Section 92 of the Factories Act as, prima facie, it does appear that the factory premises situated at Kundaim Industrial Estate, Kundaim, Goa was functioning without a licence/permission. The contention of the appellant that the factory premises was in the process of closure of its and operations would be a factual assertion made by the defence. This would require to be proved andclosure report was filed stating that it was an unfit case for filing of charge sheet as criminal charges were not made out. The report was based on the opinion of the Additional Public Prosecutor and was accepted by the Judicial Magistrate (First Class), Ponda, who is also the Magistrate who has taken cognizance of the offence under Section 92 of the Factories Act. The complaint refers to violation of Sections 37 and 38 of the Factories Act, albeit without giving specific particulars and details. Hence, to this extent, the complaint is vague and does not disclose a specific violation.We are, in the peculiar facts of the present case, inclined to accept the prayer noticing the fact that in the present case Shri Tulsidas Datta Palkar – the worker, who was himself, as per the FIR, one of the accused, had suffered minor injuries and was discharged from the hospital on the same day. The occurrence relates to the year 2006, the present appellant is now over 70 years of age, and the trial itself would take years before it is decided.
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Biram Prakash & Others Vs. Narendra Dass & Others | had originally purchased almost the whole of the building. There was no response from the Akhara and therefore the Committee of Trustees resolved on May 30, 1945 to negotiate a sale with respondents 3 and 4. Ultimately respondents 3 and 4 agreed to purchase a much smaller portion of the Dharamshala for the amount of Rs. 1,50,300 payable to the Akhara. On June 14, 1945 respondents 1 and 2 executed the sale deed in favour of respondents 3 and 4 and they recited in the course of this document that the transaction was entered into in the interest of the Math because the entire building of the Dharamshala would be lost to the Math for ever if the transaction with respondents 3 and 4 was not concluded and the amount, Rs. 1,50,300 was not deposited in the High Court within the time granted. It is recited in the sale deed that by alienating a portion of the building for Rs. 1,50,300 in favour of respondents 3 and 4 a sufficient portion of the property would be saved for the gaddi and the gaddi will be benefited. In this state of facts it is clear that the sale deed dated June 14, 1945 in favour of respondents 3 and 4 was supported by legal necessity, for otherwise the portion of the Dharamshala which was saved by means of the sale deed would have been lost irrevocably to the trust.8. In Prosunno Kumari Debya v. Golab Chand Baboo, (1874-75) 2 Ind App; 145 (PC) it was observed by the Judicial Committee that notwithstanding that property devoted to religious purposes is, as a rule, inalienable, it is competent for a sebait to incurdebts and borrow money for the service of the idol and preservation of its property, to the extent to which there is an existing necessity for so doing, his power in that respect being analogous to that possessed by the manager for an infant heir.In Hunooman Persaud Panday v. Mt. Babooee Mundraj Koonweree, (1856) 6 moo Ind App 393 at p. 423 (PC) Lord Justice Knight Bruce observed:"The power of the manager for an infant heir to charge an estate not his own is, under the Hindu , law, a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. But where, in the particular instance the charge is one that a prudent owner would mark in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded. But, of course, if that danger arises or has been arisen from any misconduct to which the lender is or has been a party, he cannot taken advantage of his own wrong to support a charge in his own favour against the heir grounded on a necessity which his own wrong has helped to cause. Therefore the lender in this case, unless he is shewn to have acted mala fide, will not be affected, though it be shown that with better management the estate might have been kept free from debt.In Niladri Sahu v. Mahant Chaturbhuj Das, 53 Ind App 253: (AIR 1926 PC 112 ) the mahant of a math mortgaged certain of the endowed properties at 1 per cent per mensem in order to discharge loans at 2 per cent per mensem which were an accumulating burden upon the endowment, he also covenanted personally to pay. The original loans had been incurred mainly for the purpose of constructing pakka buildings for the accommodation of wealthy devotees visiting the math, and in part for the ordinary expenses of the worship. In a suit to enforce the mortgage against the mahant personally and against the mortgaged property, in which suit the mahant failed either to give evidence or to produce the books of the math it was held by the Judicial Committee that the mortgage was for necessity so as to be within the power of the mahant, even if the original loans had been incurred recklessly and not for the benefit of the math, which however was not shown to have been the case. At p. 267 (of Ind App): (at p. 118 of AIR) Lord Atkinson states:"Even if the building scheme of the defendant had been reckless, inconsistent, unsound and liable to fail, which has not been proved, what drove him to borrow this money Rs. 25,000 on mortgage, to pay old debts, and so be relieved of the oppressive burden which the exorbitant rate of interest at which these earlier loans were made imposed upon him? It was the high rate of interest, which he was already bound to pay, that was the necessary and immediate cause of his giving this mortgage, though the remote cause of it was the getting into debt by the building operation, In their Lordships view the principle of the case above mentioned applies to this case.9. In testing, therefore, the question of legal necessity for the impugned transaction regard must be paid to the actual pressure on the estate, the immediate danger to be averted or the benefit to be conferred upon the trust estate. Applying the test in the present case, we are satisfied that the transaction of sale dated June 14, 1945 in favour of respondents 3 and 4 was beneficial to the gaddi of Shanter Shah and the finding of the lower courts on this point is correct.10. On behalf of the respondents Nos. 3 and 4 Mr. Viswanatha Sastri contended that the decision of the High Court on the issue of res judicata was not correct. We are, however, satisfied that the High Court was right in taking the view for the reasons given by it that the decision in suit No. 3 of 1943 did not operate as res judicata. | 0[ds]We do not think there is any warrant for accepting this argument.Both the lower courts have concurrently found that the Dharamshala at Hardwar was not independent of the endowment of Gaddi Shanter Shah but that it was only a part of the property of the Mahant of Shanter Shah. In our opinion, the finding of the lower courts is supported by adequate evidence. It is the admitted position that Baba Bakhat Mal was the founder of Gaddi Shanter Shah which was a Math intended for the initiation of disciples into the mysteries of the Udasi cult and for imparting spiritual knowledge of the Udasi cult. Exhibit 14 is a copy of a proceeding under Act II of 1819 and Act III ofview of this evidence we are of opinion that both the lower courts have rightly found that the Dharamshala at Hardwar was not a separate endowment but was a part and parcel of the Gaddi Shanter Shah. We are of the opinion that Mr. Purshottam Tricumdas has been unable to make good his submission on this aspect of theappears that Mahant Pooran Das resigned the Gaddi of Shanter Shah and Narendra Das was installed as Mahant in his place. In the interest of the Gaddi Mahant Narendra Das appointed a committee of trustees to advise him in the management of the affairs of the trust. The committee of trustees was appointed in pursuance of an agreement dated July 27, 1944. The committee consisted of eight leading Mahants of the Udasi sect and the committee was constituted to safeguard the interest of the trust and to place the management of its affairs on a satisfactory hasis. After the High Courts order dated April 30, 1945 efforts were made by Mahant Narendra Das and the committee of trustees appointed by him to persuade the Akhara to take a smaller portion of the Dharamshala for the same amount, but their afforts were fruitless. The committee of trustees and Mahant Narendra Das had meetings on April 15, 1945 and April 30, 1945 to consider the matter. After the Akhara refused the offer of the committee of trustees, respondents 3 and 4 were approached by the committee and were persuaded to take a much smaller portion of the building of Dharamshala for the same amount. It was in these circumstances that respondents1 and 2 executed the sale deed on June 14, 1945 in favour of respondents 3 and 4 for the portion of the Dharamshala mentioned in that document for a consideration of Rs.very object of a Math is to maintain a competent line of religious teachers for propagating and disseminating the religious doctrines of a particular order or sect. In the eye of law there cannot be a Math without a lawfully appointed Mathadhipati as its spiritual head. For the proper functioning of a Math, it is also essential that the rightful Mahant should be in control and possession of the property belonging to the Math. Where, therefore, a lawful Mathadhipati is kept out of the possession of the endowed property by a trespasser asserting a hostile claim, there is a hostile title asserted in the litigation against the Math itself. In the litigation in suit No. 135 of 1915 filed by Sital Das the expenses incurred by the mahant must therefore be held to have been incurred in repelling a hostile attack on the trust property.Similarly, in suit No. 70 of 1925 filed by Anand Prakash against Saheb Das which was decided in favour of the latter, the expenses incurred by Mahant Saheb Das must be held to have been incurred in repelling a hostile attack on the trust property. This conclusion is also borne out by the circumstance that none of the succeeding Mahants challenged the validity of the mortgage transaction and by the other circumstance that the Akhara being the high command of the Udasi sect proceeded on the basis that the cost of the litigation was a legitimate charge on the Mathare accordingly of opinion that the mortgage deed dated June 1, 1933 executed by Saheb Das is supported by legal necessity. It is equally manifest that the sale deed dated June 14, 1945 in favour of respondents 3 and 4 executed to satisfy the mortgage decree obtained by the Akhara is supported by legal necessity and is a valid transaction. We accordingly reject the argument of Mr. Purshottam Tricumdas on this part of the case.In this state of facts it is clear that the sale deed dated June 14, 1945 in favour of respondents 3 and 4 was supported by legal necessity, for otherwise the portion of the Dharamshala which was saved by means of the sale deed would have been lost irrevocably to the trust.In testing, therefore, the question of legal necessity for the impugned transaction regard must be paid to the actual pressure on the estate, the immediate danger to be averted or the benefit to be conferred upon the trust estate. Applying the test in the present case, we are satisfied that the transaction of sale dated June 14, 1945 in favour of respondents 3 and 4 was beneficial to the gaddi of Shanter Shah and the finding of the lower courts on this point isare, however, satisfied that the High Court was right in taking the view for the reasons given by it that the decision in suit No. 3 of 1943 did not operate as res judicata. | 0 | 5,087 | 957 | ### Instruction:
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had originally purchased almost the whole of the building. There was no response from the Akhara and therefore the Committee of Trustees resolved on May 30, 1945 to negotiate a sale with respondents 3 and 4. Ultimately respondents 3 and 4 agreed to purchase a much smaller portion of the Dharamshala for the amount of Rs. 1,50,300 payable to the Akhara. On June 14, 1945 respondents 1 and 2 executed the sale deed in favour of respondents 3 and 4 and they recited in the course of this document that the transaction was entered into in the interest of the Math because the entire building of the Dharamshala would be lost to the Math for ever if the transaction with respondents 3 and 4 was not concluded and the amount, Rs. 1,50,300 was not deposited in the High Court within the time granted. It is recited in the sale deed that by alienating a portion of the building for Rs. 1,50,300 in favour of respondents 3 and 4 a sufficient portion of the property would be saved for the gaddi and the gaddi will be benefited. In this state of facts it is clear that the sale deed dated June 14, 1945 in favour of respondents 3 and 4 was supported by legal necessity, for otherwise the portion of the Dharamshala which was saved by means of the sale deed would have been lost irrevocably to the trust.8. In Prosunno Kumari Debya v. Golab Chand Baboo, (1874-75) 2 Ind App; 145 (PC) it was observed by the Judicial Committee that notwithstanding that property devoted to religious purposes is, as a rule, inalienable, it is competent for a sebait to incurdebts and borrow money for the service of the idol and preservation of its property, to the extent to which there is an existing necessity for so doing, his power in that respect being analogous to that possessed by the manager for an infant heir.In Hunooman Persaud Panday v. Mt. Babooee Mundraj Koonweree, (1856) 6 moo Ind App 393 at p. 423 (PC) Lord Justice Knight Bruce observed:"The power of the manager for an infant heir to charge an estate not his own is, under the Hindu , law, a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. But where, in the particular instance the charge is one that a prudent owner would mark in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded. But, of course, if that danger arises or has been arisen from any misconduct to which the lender is or has been a party, he cannot taken advantage of his own wrong to support a charge in his own favour against the heir grounded on a necessity which his own wrong has helped to cause. Therefore the lender in this case, unless he is shewn to have acted mala fide, will not be affected, though it be shown that with better management the estate might have been kept free from debt.In Niladri Sahu v. Mahant Chaturbhuj Das, 53 Ind App 253: (AIR 1926 PC 112 ) the mahant of a math mortgaged certain of the endowed properties at 1 per cent per mensem in order to discharge loans at 2 per cent per mensem which were an accumulating burden upon the endowment, he also covenanted personally to pay. The original loans had been incurred mainly for the purpose of constructing pakka buildings for the accommodation of wealthy devotees visiting the math, and in part for the ordinary expenses of the worship. In a suit to enforce the mortgage against the mahant personally and against the mortgaged property, in which suit the mahant failed either to give evidence or to produce the books of the math it was held by the Judicial Committee that the mortgage was for necessity so as to be within the power of the mahant, even if the original loans had been incurred recklessly and not for the benefit of the math, which however was not shown to have been the case. At p. 267 (of Ind App): (at p. 118 of AIR) Lord Atkinson states:"Even if the building scheme of the defendant had been reckless, inconsistent, unsound and liable to fail, which has not been proved, what drove him to borrow this money Rs. 25,000 on mortgage, to pay old debts, and so be relieved of the oppressive burden which the exorbitant rate of interest at which these earlier loans were made imposed upon him? It was the high rate of interest, which he was already bound to pay, that was the necessary and immediate cause of his giving this mortgage, though the remote cause of it was the getting into debt by the building operation, In their Lordships view the principle of the case above mentioned applies to this case.9. In testing, therefore, the question of legal necessity for the impugned transaction regard must be paid to the actual pressure on the estate, the immediate danger to be averted or the benefit to be conferred upon the trust estate. Applying the test in the present case, we are satisfied that the transaction of sale dated June 14, 1945 in favour of respondents 3 and 4 was beneficial to the gaddi of Shanter Shah and the finding of the lower courts on this point is correct.10. On behalf of the respondents Nos. 3 and 4 Mr. Viswanatha Sastri contended that the decision of the High Court on the issue of res judicata was not correct. We are, however, satisfied that the High Court was right in taking the view for the reasons given by it that the decision in suit No. 3 of 1943 did not operate as res judicata.
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We do not think there is any warrant for accepting this argument.Both the lower courts have concurrently found that the Dharamshala at Hardwar was not independent of the endowment of Gaddi Shanter Shah but that it was only a part of the property of the Mahant of Shanter Shah. In our opinion, the finding of the lower courts is supported by adequate evidence. It is the admitted position that Baba Bakhat Mal was the founder of Gaddi Shanter Shah which was a Math intended for the initiation of disciples into the mysteries of the Udasi cult and for imparting spiritual knowledge of the Udasi cult. Exhibit 14 is a copy of a proceeding under Act II of 1819 and Act III ofview of this evidence we are of opinion that both the lower courts have rightly found that the Dharamshala at Hardwar was not a separate endowment but was a part and parcel of the Gaddi Shanter Shah. We are of the opinion that Mr. Purshottam Tricumdas has been unable to make good his submission on this aspect of theappears that Mahant Pooran Das resigned the Gaddi of Shanter Shah and Narendra Das was installed as Mahant in his place. In the interest of the Gaddi Mahant Narendra Das appointed a committee of trustees to advise him in the management of the affairs of the trust. The committee of trustees was appointed in pursuance of an agreement dated July 27, 1944. The committee consisted of eight leading Mahants of the Udasi sect and the committee was constituted to safeguard the interest of the trust and to place the management of its affairs on a satisfactory hasis. After the High Courts order dated April 30, 1945 efforts were made by Mahant Narendra Das and the committee of trustees appointed by him to persuade the Akhara to take a smaller portion of the Dharamshala for the same amount, but their afforts were fruitless. The committee of trustees and Mahant Narendra Das had meetings on April 15, 1945 and April 30, 1945 to consider the matter. After the Akhara refused the offer of the committee of trustees, respondents 3 and 4 were approached by the committee and were persuaded to take a much smaller portion of the building of Dharamshala for the same amount. It was in these circumstances that respondents1 and 2 executed the sale deed on June 14, 1945 in favour of respondents 3 and 4 for the portion of the Dharamshala mentioned in that document for a consideration of Rs.very object of a Math is to maintain a competent line of religious teachers for propagating and disseminating the religious doctrines of a particular order or sect. In the eye of law there cannot be a Math without a lawfully appointed Mathadhipati as its spiritual head. For the proper functioning of a Math, it is also essential that the rightful Mahant should be in control and possession of the property belonging to the Math. Where, therefore, a lawful Mathadhipati is kept out of the possession of the endowed property by a trespasser asserting a hostile claim, there is a hostile title asserted in the litigation against the Math itself. In the litigation in suit No. 135 of 1915 filed by Sital Das the expenses incurred by the mahant must therefore be held to have been incurred in repelling a hostile attack on the trust property.Similarly, in suit No. 70 of 1925 filed by Anand Prakash against Saheb Das which was decided in favour of the latter, the expenses incurred by Mahant Saheb Das must be held to have been incurred in repelling a hostile attack on the trust property. This conclusion is also borne out by the circumstance that none of the succeeding Mahants challenged the validity of the mortgage transaction and by the other circumstance that the Akhara being the high command of the Udasi sect proceeded on the basis that the cost of the litigation was a legitimate charge on the Mathare accordingly of opinion that the mortgage deed dated June 1, 1933 executed by Saheb Das is supported by legal necessity. It is equally manifest that the sale deed dated June 14, 1945 in favour of respondents 3 and 4 executed to satisfy the mortgage decree obtained by the Akhara is supported by legal necessity and is a valid transaction. We accordingly reject the argument of Mr. Purshottam Tricumdas on this part of the case.In this state of facts it is clear that the sale deed dated June 14, 1945 in favour of respondents 3 and 4 was supported by legal necessity, for otherwise the portion of the Dharamshala which was saved by means of the sale deed would have been lost irrevocably to the trust.In testing, therefore, the question of legal necessity for the impugned transaction regard must be paid to the actual pressure on the estate, the immediate danger to be averted or the benefit to be conferred upon the trust estate. Applying the test in the present case, we are satisfied that the transaction of sale dated June 14, 1945 in favour of respondents 3 and 4 was beneficial to the gaddi of Shanter Shah and the finding of the lower courts on this point isare, however, satisfied that the High Court was right in taking the view for the reasons given by it that the decision in suit No. 3 of 1943 did not operate as res judicata.
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MY PALACE MUTUALLY AIDED CO-OPERATIVE SOCIETY Vs. B. MAHESH & ORS | recalling the said order, or by passing any other appropriate order. However, inherent powers cannot be used in conflict of any other existing provision, or in case a remedy has been provided for by any other provision of CPC. Moreover, in the event that a fraud has been played upon a party, the same may not be a case where inherent powers can be exercised. (emphasis supplied) 34. The High Court, relying upon the above judgments of this Court which recognizes the power to recall, seems to have lost sight of the restrictions imposed while exercising jurisdiction under Section 151 of the CPC, which were elaborately discussed by this Court in the above referred judgment about exercising of the power under Section 151 of the CPC being only in circumstances where alternate remedies do not exist. 35. Therefore, we are of the firm opinion that recalling a final decree in such circumstances cannot be countenanced under Section 151 of the CPC. The High Court erred in exercising its jurisdiction under Section 151 of the CPC, to hear and pass a detailed judgment recalling its earlier final decree dated 19.09.2013, rather than directing the respondents to pursue the effective alternate remedies under law. Having said the above, we must clarify that we are not, in any way, doubting the proposition of law that fraud nullifies all proceedings, or that the Court has power to recall an order which was passed due to a fraud played on the Court. However, while exercising the power under Section 151 CPC for setting aside the final judgment and decree, the Division Bench should have taken into consideration the restriction which was observed by this Court in the captioned judgment. Once we have come to the irresistible conclusion that exercising power under Section 151 CPC in the facts and circumstances of the case is bad, we are not inclined to go into further issues that were extensively argued. 36. The other ground that the learned senior judge who passed the present impugned order had represented one of the opposite parties in certain collateral proceedings related to the subject property, merits some discussion. It appears that although the appellant raised this ground before us, it was neither raised before the High Court nor brought to the attention of the learned senior Judge. The party ought to have raised this issue also at the time of arguments, particularly when the issue of recusal of the learned Judge had been specifically raised on the other ground that he had been the presiding member of the Bench which had dismissed the appeal filed by the State. 37. When an issue was not raised before the learned Division Bench, we do not wish to spill much ink on this issue. However, the material placed on record by the counsel for the appellant cannot be ignored. Annexure P8 of the appeal paper book indicates that the Senior Judge heading the Division Bench, while being an advocate, had represented the Andhra Pradesh State Financial Corporation in one of the connected proceedings related to this case. 38. Although we have no doubt in our mind about the absence of bias of any form of the learned senior Judge, we must at the same time also look at the issue of whether right minded persons could consider there exists any real likelihood of bias. In the case of State of West Bengal v. Shivananda Pathak, 1998 5 SCC 513, this Court held as under: 34. In Metropolitan Properties Co. v. Lannon [(1968) 1 WLR 815 : (1968) 1 All ER 354] it was observed whether there was a real likelihood of bias or not has to be ascertained with reference to right-minded persons; whether they would consider that there was a real likelihood of bias. Almost the same test has also been applied here in an old decision, namely, in Manak Lal v. Dr Prem Chand Singhvi [AIR 1957 SC 425 : 1957 SCR 575 ] . In that case, although the Court found that the Chairman of the Bar Council Tribunal appointed by the Chief Justice of the Rajasthan High Court to enquire into the misconduct of Manak Lal, an advocate, on the complaint of one Prem Chand was not biased towards him, it was held that he should not have presided over the proceedings to give effect to the salutary principle that justice should not only be done, it should also be seen to be done in view of the fact that the Chairman, who, undoubtedly, was a Senior Advocate and an ex-Advocate General, had, at one time, represented Prem Chand in some case. These principles have had their evolution in the field of administrative law but the courts performing judicial functions only cannot be excepted from the rule of bias as the Presiding Officers of the court have to hear and decide contentious issues with an unbiased mind. The maxim nemo debet esse judex in propria sua causa and the principle justice should not only be done but should manifestly be seen to be done can be legitimately invoked in their cases. (emphasis supplied) 39. It is a well-established principle, both in our jurisprudence and across the world, that [N]ot only must justice be done; it must also be seen to be done R v. Sussex Justices, ex parte McCarthy, 1924 (1) KB 256. In the present circumstances, it may have been more apposite for the concerned Judge to have recused from this case. The appellant should have brought it to the notice of the learned senior Judge at the very first instance, and not at this belated stage. 40. In the above circumstances, we are of the opinion that the High Court should not have decided the recall application filed by the respondents, let alone pass such extensive orders which has the effect of unsettling proceedings and transactions which have a history of more than 60 years in a proceeding, basing on an application filed under Section 151 of the CPC. | 1[ds]24. We have heard the learned Senior counsel on either side, perused the entire material on record. Though several grounds have been raised, the first ground taken is that the High Court erred in exercising jurisdiction under Section 151 of the CPC, when alternate remedies exist under the CPC. Second ground is that the Senior Judge on the Bench, who appeared for one of the parties, ought not to have heard the matter.25. In response to the first leg of challenge, i.e., on the procedural aspect, we may note that the recall application was filed under Section 151 of the CPC against the final decree dated 19.09.2013.26. Section 151 of the CPC provides for Civil Courts to invoke their inherent jurisdiction and utilize the same to meet the ends of justice or to prevent abuse of process. Although such a provision is worded broadly, this Court has tempered the provision to limit its ambit to only those circumstances where certain procedural gaps exist, to ensure that substantive justice is not obliterated by hyper technicalities. As far back as in 1961, this Court in Padam Sen v. State of U.P. , AIR 1961 SC 218 ,observed as under:8. …The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.29. The respondents in the present case had access to recourse under Section 96 of the CPC, which allows for appeals from an original decree. It must be remembered that the present matter was being heard by the High Court exercising its original jurisdiction. The High Court was in effect conducting a trial, and the final decree passed by the High Court on 19.09.2013 was in effect a decree in an original suit. As such, there existed a right of appeal under Section 96 of the CPC, for the respondents. Though they were not parties to the suit, they could have filed an appeal with the leave of the Court as an affected party.30. Sections 96 to 100 of CPC deals with the procedure for filing appeals from original decrees. A perusal of the above provision makes it clear that the provisions are silent about the category of persons who can prefer an appeal. But it is well settled legal position that a person who is affected by a judgment but is not a party to the suit, can prefer an appeal with the leave of the Court. The sine qua non for filing an appeal by a third party is that he must have been affected by reason of the judgment and decree which is sought to be impugned.31. In the light of the above, it can be safely concluded any aggrieved party can prefer an appeal with the leave of the Court.32. The High Court, in the impugned judgment, relied on the judgment of this Court in Indian Bank vs Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550, wherein this Court acknowledges the possibility of maintaining a recall application against a judgement if it is obtained by fraud on the Court. However, it went on to hold that in cases of fraud, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. The Court held as follows:22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud…33. The subsequent judgment of this Court in Ram Prakash Agarwal v. Gopi Krishan, (2013) 11 SCC 296 further clarifies the law on the use of the power under Section 151 of the CPC by the Court in cases of fraud and holds as follows:13. Section 151 CPC is not a substantive provision that confers the right to get any relief of any kind. It is a mere procedural provision which enables a party to have the proceedings of a pending suit conducted in a manner that is consistent with justice and equity. The court can do justice between the parties before it. Similarly, inherent powers cannot be used to re-open settled matters. The inherent powers of the Court must, to that extent, be regarded as abrogated by the legislature. A provision barring the exercise of inherent power need not be express, it may even be implied. Inherent power cannot be used to restrain the execution of a decree at the instance of one who was not a party to suit. Such power is absolutely essential for securing the ends of justice, and to overcome the failure of justice. The Court under Section 151 CPC may adopt any procedure to do justice, unless the same is expressly prohibited.19. In view of the above, the law on this issue stands crystallised to the effect that the inherent powers enshrined under Section 151 CPC can be exercised only where no remedy has been provided for in any other provision of CPC. In the event that a party has obtained a decree or order by playing a fraud upon the court, or where an order has been passed by a mistake of the court, the court may be justified in rectifying such mistake, either by recalling the said order, or by passing any other appropriate order. However, inherent powers cannot be used in conflict of any other existing provision, or in case a remedy has been provided for by any other provision of CPC. Moreover, in the event that a fraud has been played upon a party, the same may not be a case where inherent powers can be exercised. (emphasis supplied)34. The High Court, relying upon the above judgments of this Court which recognizes the power to recall, seems to have lost sight of the restrictions imposed while exercising jurisdiction under Section 151 of the CPC, which were elaborately discussed by this Court in the above referred judgment about exercising of the power under Section 151 of the CPC being only in circumstances where alternate remedies do not exist.35. Therefore, we are of the firm opinion that recalling a final decree in such circumstances cannot be countenanced under Section 151 of the CPC. The High Court erred in exercising its jurisdiction under Section 151 of the CPC, to hear and pass a detailed judgment recalling its earlier final decree dated 19.09.2013, rather than directing the respondents to pursue the effective alternate remedies under law. Having said the above, we must clarify that we are not, in any way, doubting the proposition of law that fraud nullifies all proceedings, or that the Court has power to recall an order which was passed due to a fraud played on the Court. However, while exercising the power under Section 151 CPC for setting aside the final judgment and decree, the Division Bench should have taken into consideration the restriction which was observed by this Court in the captioned judgment. Once we have come to the irresistible conclusion that exercising power under Section 151 CPC in the facts and circumstances of the case is bad, we are not inclined to go into further issues that were extensively argued.36. The other ground that the learned senior judge who passed the present impugned order had represented one of the opposite parties in certain collateral proceedings related to the subject property, merits some discussion. It appears that although the appellant raised this ground before us, it was neither raised before the High Court nor brought to the attention of the learned senior Judge. The party ought to have raised this issue also at the time of arguments, particularly when the issue of recusal of the learned Judge had been specifically raised on the other ground that he had been the presiding member of the Bench which had dismissed the appeal filed by the State.37. When an issue was not raised before the learned Division Bench, we do not wish to spill much ink on this issue. However, the material placed on record by the counsel for the appellant cannot be ignored. Annexure P8 of the appeal paper book indicates that the Senior Judge heading the Division Bench, while being an advocate, had represented the Andhra Pradesh State Financial Corporation in one of the connected proceedings related to this case.38. Although we have no doubt in our mind about the absence of bias of any form of the learned senior Judge, we must at the same time also look at the issue of whether right minded persons could consider there exists any real likelihood of bias. In the case of State of West Bengal v. Shivananda Pathak, 1998 5 SCC 513, this Court held as under:34. In Metropolitan Properties Co. v. Lannon [(1968) 1 WLR 815 : (1968) 1 All ER 354] it was observed whether there was a real likelihood of bias or not has to be ascertained with reference to right-minded persons; whether they would consider that there was a real likelihood of bias. Almost the same test has also been applied here in an old decision, namely, in Manak Lal v. Dr Prem Chand Singhvi [AIR 1957 SC 425 : 1957 SCR 575 ] . In that case, although the Court found that the Chairman of the Bar Council Tribunal appointed by the Chief Justice of the Rajasthan High Court to enquire into the misconduct of Manak Lal, an advocate, on the complaint of one Prem Chand was not biased towards him, it was held that he should not have presided over the proceedings to give effect to the salutary principle that justice should not only be done, it should also be seen to be done in view of the fact that the Chairman, who, undoubtedly, was a Senior Advocate and an ex-Advocate General, had, at one time, represented Prem Chand in some case. These principles have had their evolution in the field of administrative law but the courts performing judicial functions only cannot be excepted from the rule of bias as the Presiding Officers of the court have to hear and decide contentious issues with an unbiased mind. The maxim nemo debet esse judex in propria sua causa and the principle justice should not only be done but should manifestly be seen to be done can be legitimately invoked in their cases.39. It is a well-established principle, both in our jurisprudence and across the world, that [N]ot only must justice be done; it must also be seen to be done R v. Sussex Justices, ex parte McCarthy, 1924 (1) KB 256. In the present circumstances, it may have been more apposite for the concerned Judge to have recused from this case. The appellant should have brought it to the notice of the learned senior Judge at the very first instance, and not at this belated stage.40. In the above circumstances, we are of the opinion that the High Court should not have decided the recall application filed by the respondents, let alone pass such extensive orders which has the effect of unsettling proceedings and transactions which have a history of more than 60 years in a proceeding, basing on an application filed under Section 151 of the CPC. | 1 | 5,485 | 2,165 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
recalling the said order, or by passing any other appropriate order. However, inherent powers cannot be used in conflict of any other existing provision, or in case a remedy has been provided for by any other provision of CPC. Moreover, in the event that a fraud has been played upon a party, the same may not be a case where inherent powers can be exercised. (emphasis supplied) 34. The High Court, relying upon the above judgments of this Court which recognizes the power to recall, seems to have lost sight of the restrictions imposed while exercising jurisdiction under Section 151 of the CPC, which were elaborately discussed by this Court in the above referred judgment about exercising of the power under Section 151 of the CPC being only in circumstances where alternate remedies do not exist. 35. Therefore, we are of the firm opinion that recalling a final decree in such circumstances cannot be countenanced under Section 151 of the CPC. The High Court erred in exercising its jurisdiction under Section 151 of the CPC, to hear and pass a detailed judgment recalling its earlier final decree dated 19.09.2013, rather than directing the respondents to pursue the effective alternate remedies under law. Having said the above, we must clarify that we are not, in any way, doubting the proposition of law that fraud nullifies all proceedings, or that the Court has power to recall an order which was passed due to a fraud played on the Court. However, while exercising the power under Section 151 CPC for setting aside the final judgment and decree, the Division Bench should have taken into consideration the restriction which was observed by this Court in the captioned judgment. Once we have come to the irresistible conclusion that exercising power under Section 151 CPC in the facts and circumstances of the case is bad, we are not inclined to go into further issues that were extensively argued. 36. The other ground that the learned senior judge who passed the present impugned order had represented one of the opposite parties in certain collateral proceedings related to the subject property, merits some discussion. It appears that although the appellant raised this ground before us, it was neither raised before the High Court nor brought to the attention of the learned senior Judge. The party ought to have raised this issue also at the time of arguments, particularly when the issue of recusal of the learned Judge had been specifically raised on the other ground that he had been the presiding member of the Bench which had dismissed the appeal filed by the State. 37. When an issue was not raised before the learned Division Bench, we do not wish to spill much ink on this issue. However, the material placed on record by the counsel for the appellant cannot be ignored. Annexure P8 of the appeal paper book indicates that the Senior Judge heading the Division Bench, while being an advocate, had represented the Andhra Pradesh State Financial Corporation in one of the connected proceedings related to this case. 38. Although we have no doubt in our mind about the absence of bias of any form of the learned senior Judge, we must at the same time also look at the issue of whether right minded persons could consider there exists any real likelihood of bias. In the case of State of West Bengal v. Shivananda Pathak, 1998 5 SCC 513, this Court held as under: 34. In Metropolitan Properties Co. v. Lannon [(1968) 1 WLR 815 : (1968) 1 All ER 354] it was observed whether there was a real likelihood of bias or not has to be ascertained with reference to right-minded persons; whether they would consider that there was a real likelihood of bias. Almost the same test has also been applied here in an old decision, namely, in Manak Lal v. Dr Prem Chand Singhvi [AIR 1957 SC 425 : 1957 SCR 575 ] . In that case, although the Court found that the Chairman of the Bar Council Tribunal appointed by the Chief Justice of the Rajasthan High Court to enquire into the misconduct of Manak Lal, an advocate, on the complaint of one Prem Chand was not biased towards him, it was held that he should not have presided over the proceedings to give effect to the salutary principle that justice should not only be done, it should also be seen to be done in view of the fact that the Chairman, who, undoubtedly, was a Senior Advocate and an ex-Advocate General, had, at one time, represented Prem Chand in some case. These principles have had their evolution in the field of administrative law but the courts performing judicial functions only cannot be excepted from the rule of bias as the Presiding Officers of the court have to hear and decide contentious issues with an unbiased mind. The maxim nemo debet esse judex in propria sua causa and the principle justice should not only be done but should manifestly be seen to be done can be legitimately invoked in their cases. (emphasis supplied) 39. It is a well-established principle, both in our jurisprudence and across the world, that [N]ot only must justice be done; it must also be seen to be done R v. Sussex Justices, ex parte McCarthy, 1924 (1) KB 256. In the present circumstances, it may have been more apposite for the concerned Judge to have recused from this case. The appellant should have brought it to the notice of the learned senior Judge at the very first instance, and not at this belated stage. 40. In the above circumstances, we are of the opinion that the High Court should not have decided the recall application filed by the respondents, let alone pass such extensive orders which has the effect of unsettling proceedings and transactions which have a history of more than 60 years in a proceeding, basing on an application filed under Section 151 of the CPC.
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be justified in rectifying such mistake, either by recalling the said order, or by passing any other appropriate order. However, inherent powers cannot be used in conflict of any other existing provision, or in case a remedy has been provided for by any other provision of CPC. Moreover, in the event that a fraud has been played upon a party, the same may not be a case where inherent powers can be exercised. (emphasis supplied)34. The High Court, relying upon the above judgments of this Court which recognizes the power to recall, seems to have lost sight of the restrictions imposed while exercising jurisdiction under Section 151 of the CPC, which were elaborately discussed by this Court in the above referred judgment about exercising of the power under Section 151 of the CPC being only in circumstances where alternate remedies do not exist.35. Therefore, we are of the firm opinion that recalling a final decree in such circumstances cannot be countenanced under Section 151 of the CPC. The High Court erred in exercising its jurisdiction under Section 151 of the CPC, to hear and pass a detailed judgment recalling its earlier final decree dated 19.09.2013, rather than directing the respondents to pursue the effective alternate remedies under law. Having said the above, we must clarify that we are not, in any way, doubting the proposition of law that fraud nullifies all proceedings, or that the Court has power to recall an order which was passed due to a fraud played on the Court. However, while exercising the power under Section 151 CPC for setting aside the final judgment and decree, the Division Bench should have taken into consideration the restriction which was observed by this Court in the captioned judgment. Once we have come to the irresistible conclusion that exercising power under Section 151 CPC in the facts and circumstances of the case is bad, we are not inclined to go into further issues that were extensively argued.36. The other ground that the learned senior judge who passed the present impugned order had represented one of the opposite parties in certain collateral proceedings related to the subject property, merits some discussion. It appears that although the appellant raised this ground before us, it was neither raised before the High Court nor brought to the attention of the learned senior Judge. The party ought to have raised this issue also at the time of arguments, particularly when the issue of recusal of the learned Judge had been specifically raised on the other ground that he had been the presiding member of the Bench which had dismissed the appeal filed by the State.37. When an issue was not raised before the learned Division Bench, we do not wish to spill much ink on this issue. However, the material placed on record by the counsel for the appellant cannot be ignored. Annexure P8 of the appeal paper book indicates that the Senior Judge heading the Division Bench, while being an advocate, had represented the Andhra Pradesh State Financial Corporation in one of the connected proceedings related to this case.38. Although we have no doubt in our mind about the absence of bias of any form of the learned senior Judge, we must at the same time also look at the issue of whether right minded persons could consider there exists any real likelihood of bias. In the case of State of West Bengal v. Shivananda Pathak, 1998 5 SCC 513, this Court held as under:34. In Metropolitan Properties Co. v. Lannon [(1968) 1 WLR 815 : (1968) 1 All ER 354] it was observed whether there was a real likelihood of bias or not has to be ascertained with reference to right-minded persons; whether they would consider that there was a real likelihood of bias. Almost the same test has also been applied here in an old decision, namely, in Manak Lal v. Dr Prem Chand Singhvi [AIR 1957 SC 425 : 1957 SCR 575 ] . In that case, although the Court found that the Chairman of the Bar Council Tribunal appointed by the Chief Justice of the Rajasthan High Court to enquire into the misconduct of Manak Lal, an advocate, on the complaint of one Prem Chand was not biased towards him, it was held that he should not have presided over the proceedings to give effect to the salutary principle that justice should not only be done, it should also be seen to be done in view of the fact that the Chairman, who, undoubtedly, was a Senior Advocate and an ex-Advocate General, had, at one time, represented Prem Chand in some case. These principles have had their evolution in the field of administrative law but the courts performing judicial functions only cannot be excepted from the rule of bias as the Presiding Officers of the court have to hear and decide contentious issues with an unbiased mind. The maxim nemo debet esse judex in propria sua causa and the principle justice should not only be done but should manifestly be seen to be done can be legitimately invoked in their cases.39. It is a well-established principle, both in our jurisprudence and across the world, that [N]ot only must justice be done; it must also be seen to be done R v. Sussex Justices, ex parte McCarthy, 1924 (1) KB 256. In the present circumstances, it may have been more apposite for the concerned Judge to have recused from this case. The appellant should have brought it to the notice of the learned senior Judge at the very first instance, and not at this belated stage.40. In the above circumstances, we are of the opinion that the High Court should not have decided the recall application filed by the respondents, let alone pass such extensive orders which has the effect of unsettling proceedings and transactions which have a history of more than 60 years in a proceeding, basing on an application filed under Section 151 of the CPC.
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Bar Council of India & Others Vs. A.K. Balaji & Others | fee as a percentage of the proceeds if they win the case. Third Party Litigation Funding/Legal Financing agreements are not prohibited. In U.K., Section 58B of the Courts and Legal Services Act, 1990 permits litigation funding agreements between legal service providers and litigants or clients, and also permits third party Litigation Funding or Legal Financing agreements, whereby the third party can get a share of the damages or “winnings”. 36. In India, partnerships with non-lawyers for conducting legal practice is not permitted. In U.K., Section 66 of the Courts and Legal Services Act, 1990 expressly permits solicitors and barristers to enter into partnerships with non-solicitors and non-barristers. CONSIDERATION OF THE ISSUES 37. We have considered the rival submissions. Questions for consideration mainly arise out of directions in para 63 of the Madras High Court judgment which have already been quoted in the beginning of this judgment. viz. : (i) Whether the expression ‘practise the profession of law’ includes only litigation practice or non-litigation practice also;(ii) Whether such practice by foreign law firms or foreign lawyers is permissible without fulfilling the requirements of Advocates Act and the Bar Council of India Rules;(iii) If not, whether there is a bar for the said law firms or lawyers to visit India on ‘fly in and fly out’ basis for giving legal advice regarding foreign law on diverse international legal issues;(iv) Whether there is no bar to foreign law firms and lawyers from conducting arbitration proceedings and disputes arising out of contracts relating to international commercial arbitration;(v) Whether BPO companies providing integrated services are not covered by the Advocates Act or the Bar Council of India rules. RE : (i) 38. In Pravin C. Shah versus K.A. Mohd. Ali (2001) 8 SCC 650 ), it was observed that right to practice is genus of which right to appear and conduct cases is specie. It was observed: “………The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart form appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions etc. ……” In Ex. Capt. Harish Uppal versus Union of India (2003) 2 SCC 45 ), same view was reiterated. 39. Ethics of the legal profession apply not only when an advocate appears before the Court. The same also apply to regulate practice outside the Court. Adhering to such Ethics is integral to the administration of justice. The professional standards laid down from time to time are required to be followed. Thus, we uphold the view that practice of law includes litigation as well as non litigation. RE : (ii) 40. We have already held that practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts of non-litigation practice which is part of practice of law. Scheme in Chapter-IV of the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies to non-litigation work also. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner also. RE : (iii) 41. Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis. A casual visit for giving advice may not be covered by the expression ‘practice’. Whether a particular visit is casual or frequent so as to amount to practice is a question of fact to be determined from situation to situation. Bar Council of India or Union of India are at liberty to make appropriate rules in this regard. We may, however, make it clear that the contention that the Advocates Act applies only if a person is practicing Indian law cannot be accepted. Conversely, plea that a foreign lawyer is entitled to practice foreign law in India without subjecting himself to the regulatory mechanism of the Bar Council of India Rules can also be not accepted. We do not find any merit in the contention that the Advocates Act does not deal with companies or firms and only individuals. If prohibition applies to an individual, it equally applies to group of individuals or juridical persons. RE: (iv) 42. It is not possible to hold that there is absolutely no bar to a foreign lawyer for conducting arbitrations in India. If the matter is governed by particular rules of an institution or if the matter otherwise falls under Section 32 or 33, there is no bar to conduct such proceedings in prescribed manner. If the matter is governed by an international commercial arbitration agreement, conduct of proceedings may fall under Section 32 or 33 read with the provisions of the Arbitration Act. Even in such cases, Code of Conduct, if any, applicable to the legal profession in India has to be followed. It is for the Bar Council of India or Central Government to make a specific provision in this regard, if considered appropriate. RE: (v) 43. The BPO companies providing range of customized and integrated services and functions to its customers may not violate the provisions of the Advocates Act, only if the activities in pith and substance do not amount to practice of law. The manner in which they are styled may not be conclusive. As already explained, if their services do not directly or indirectly amount to practice of law, the Advocates Act may not apply. This is a matter which may have to be dealt with on case to case basis having regard to a fact situation. | 1[ds]39. Ethics of the legal profession apply not only when an advocate appears before the Court. The same also apply to regulate practice outside the Court. Adhering to such Ethics is integral to the administration of justice. The professional standards laid down from time to time are required to be followed. Thus, we uphold the view that practice of law includes litigation as well as non litigation.We have already held that practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts ofpractice which is part of practice of law. Scheme inof the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies towork also. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner also.Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis. A casual visit for giving advice may not be covered by the expressionWhether a particular visit is casual or frequent so as to amount to practice is a question of fact to be determined from situation to situation. Bar Council of India or Union of India are at liberty to make appropriate rules in this regard. We may, however, make it clear that the contention that the Advocates Act applies only if a person is practicing Indian law cannot be accepted. Conversely, plea that a foreign lawyer is entitled to practice foreign law in India without subjecting himself to the regulatory mechanism of the Bar Council of India Rules can also be not accepted. We do not find any merit in the contention that the Advocates Act does not deal with companies or firms and only individuals. If prohibition applies to an individual, it equally applies to group of individuals or juridical persons.It is not possible to hold that there is absolutely no bar to a foreign lawyer for conducting arbitrations in India. If the matter is governed by particular rules of an institution or if the matter otherwise falls under Section 32 or 33, there is no bar to conduct such proceedings in prescribed manner. If the matter is governed by an international commercial arbitration agreement, conduct of proceedings may fall under Section 32 or 33 read with the provisions of the Arbitration Act. Even in such cases, Code of Conduct, if any, applicable to the legal profession in India has to be followed. It is for the Bar Council of India or Central Government to make a specific provision in this regard, if considered appropriate.The BPO companies providing range of customized and integrated services and functions to its customers may not violate the provisions of the Advocates Act, only if the activities in pith and substance do not amount to practice of law. The manner in which they are styled may not be conclusive. As already explained, if their services do not directly or indirectly amount to practice of law, the Advocates Act may not apply. This is a matter which may have to be dealt with on case to case basis having regard to a fact situation. | 1 | 14,564 | 627 | ### 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:
fee as a percentage of the proceeds if they win the case. Third Party Litigation Funding/Legal Financing agreements are not prohibited. In U.K., Section 58B of the Courts and Legal Services Act, 1990 permits litigation funding agreements between legal service providers and litigants or clients, and also permits third party Litigation Funding or Legal Financing agreements, whereby the third party can get a share of the damages or “winnings”. 36. In India, partnerships with non-lawyers for conducting legal practice is not permitted. In U.K., Section 66 of the Courts and Legal Services Act, 1990 expressly permits solicitors and barristers to enter into partnerships with non-solicitors and non-barristers. CONSIDERATION OF THE ISSUES 37. We have considered the rival submissions. Questions for consideration mainly arise out of directions in para 63 of the Madras High Court judgment which have already been quoted in the beginning of this judgment. viz. : (i) Whether the expression ‘practise the profession of law’ includes only litigation practice or non-litigation practice also;(ii) Whether such practice by foreign law firms or foreign lawyers is permissible without fulfilling the requirements of Advocates Act and the Bar Council of India Rules;(iii) If not, whether there is a bar for the said law firms or lawyers to visit India on ‘fly in and fly out’ basis for giving legal advice regarding foreign law on diverse international legal issues;(iv) Whether there is no bar to foreign law firms and lawyers from conducting arbitration proceedings and disputes arising out of contracts relating to international commercial arbitration;(v) Whether BPO companies providing integrated services are not covered by the Advocates Act or the Bar Council of India rules. RE : (i) 38. In Pravin C. Shah versus K.A. Mohd. Ali (2001) 8 SCC 650 ), it was observed that right to practice is genus of which right to appear and conduct cases is specie. It was observed: “………The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart form appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions etc. ……” In Ex. Capt. Harish Uppal versus Union of India (2003) 2 SCC 45 ), same view was reiterated. 39. Ethics of the legal profession apply not only when an advocate appears before the Court. The same also apply to regulate practice outside the Court. Adhering to such Ethics is integral to the administration of justice. The professional standards laid down from time to time are required to be followed. Thus, we uphold the view that practice of law includes litigation as well as non litigation. RE : (ii) 40. We have already held that practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts of non-litigation practice which is part of practice of law. Scheme in Chapter-IV of the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies to non-litigation work also. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner also. RE : (iii) 41. Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis. A casual visit for giving advice may not be covered by the expression ‘practice’. Whether a particular visit is casual or frequent so as to amount to practice is a question of fact to be determined from situation to situation. Bar Council of India or Union of India are at liberty to make appropriate rules in this regard. We may, however, make it clear that the contention that the Advocates Act applies only if a person is practicing Indian law cannot be accepted. Conversely, plea that a foreign lawyer is entitled to practice foreign law in India without subjecting himself to the regulatory mechanism of the Bar Council of India Rules can also be not accepted. We do not find any merit in the contention that the Advocates Act does not deal with companies or firms and only individuals. If prohibition applies to an individual, it equally applies to group of individuals or juridical persons. RE: (iv) 42. It is not possible to hold that there is absolutely no bar to a foreign lawyer for conducting arbitrations in India. If the matter is governed by particular rules of an institution or if the matter otherwise falls under Section 32 or 33, there is no bar to conduct such proceedings in prescribed manner. If the matter is governed by an international commercial arbitration agreement, conduct of proceedings may fall under Section 32 or 33 read with the provisions of the Arbitration Act. Even in such cases, Code of Conduct, if any, applicable to the legal profession in India has to be followed. It is for the Bar Council of India or Central Government to make a specific provision in this regard, if considered appropriate. RE: (v) 43. The BPO companies providing range of customized and integrated services and functions to its customers may not violate the provisions of the Advocates Act, only if the activities in pith and substance do not amount to practice of law. The manner in which they are styled may not be conclusive. As already explained, if their services do not directly or indirectly amount to practice of law, the Advocates Act may not apply. This is a matter which may have to be dealt with on case to case basis having regard to a fact situation.
### Response:
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### Explanation:
39. Ethics of the legal profession apply not only when an advocate appears before the Court. The same also apply to regulate practice outside the Court. Adhering to such Ethics is integral to the administration of justice. The professional standards laid down from time to time are required to be followed. Thus, we uphold the view that practice of law includes litigation as well as non litigation.We have already held that practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts ofpractice which is part of practice of law. Scheme inof the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies towork also. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner also.Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis. A casual visit for giving advice may not be covered by the expressionWhether a particular visit is casual or frequent so as to amount to practice is a question of fact to be determined from situation to situation. Bar Council of India or Union of India are at liberty to make appropriate rules in this regard. We may, however, make it clear that the contention that the Advocates Act applies only if a person is practicing Indian law cannot be accepted. Conversely, plea that a foreign lawyer is entitled to practice foreign law in India without subjecting himself to the regulatory mechanism of the Bar Council of India Rules can also be not accepted. We do not find any merit in the contention that the Advocates Act does not deal with companies or firms and only individuals. If prohibition applies to an individual, it equally applies to group of individuals or juridical persons.It is not possible to hold that there is absolutely no bar to a foreign lawyer for conducting arbitrations in India. If the matter is governed by particular rules of an institution or if the matter otherwise falls under Section 32 or 33, there is no bar to conduct such proceedings in prescribed manner. If the matter is governed by an international commercial arbitration agreement, conduct of proceedings may fall under Section 32 or 33 read with the provisions of the Arbitration Act. Even in such cases, Code of Conduct, if any, applicable to the legal profession in India has to be followed. It is for the Bar Council of India or Central Government to make a specific provision in this regard, if considered appropriate.The BPO companies providing range of customized and integrated services and functions to its customers may not violate the provisions of the Advocates Act, only if the activities in pith and substance do not amount to practice of law. The manner in which they are styled may not be conclusive. As already explained, if their services do not directly or indirectly amount to practice of law, the Advocates Act may not apply. This is a matter which may have to be dealt with on case to case basis having regard to a fact situation.
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Tata Engineering & Locomotive Co. Ltd., Bombay Vs. The Registrar of the Restrictive Trade Agreement, New Delhi | pays the apprentice stipend. If territorial restrictions are removed, there will be unequal distribution of vehicles in various territories. While there will be shortage in some territories, there will be larger supplies in others. Vehicles are supplied by Telco ac cording to territorial requirements. Various factors are taken into consideration in assessing the requirements of territories. 48. By making its dealers exclusive to Telco, there cannot be said to be any prevention, distortion or restriction of competition in the territory in which a dealer operates, either between manufacturers of the same type of vehicles or between dealers in these vehicles. Any manufacturer of vehicles such as those of Telco may manufacture and sell its vehicles in a territory in which Telcos dealers operate. Any other manufacturer of vehicles similar to those of Telco is also free to appoint dealers of its choice in the same territory covered by Telcos dealers. The channels for outlet for vehicle have not been blocked by the fact that the dealers appointed by Telco are exclusive to Telco nor it can be said that Telco has by its exclusive arrangement with its dealers affected the flow of supplies of vehicles into the market. If Telco sold themselves in each territory it could not be said that Telco was pursuing any restrictive trade practice, Would the position change if Telco asked their dealers not to sell Telco bus chassis outside the dealers territory? Just as Telco could not compete with itself similarly dealers would not compete with one another. 49. The competition would be between Telco products and the products of the other manufacturers Premier, Hindustan and Leyland. Restrictive trade practice is based on reason, embodied in Section 2(o) of the Act. When trucks are in short supply and dealers are restrained from selling at above the maximum price they cannot sell below the maximum price and compete with one an-other. Dealers of the same manufacturer do not compete with one another in every case irrespective of the market conditions or the character of the product sold. 50. Competition between dealers appointed by the same manufacturer can be reduced when there is a practical possibility of such competition as for example, when the goods are in abundance. When there is an acute scarcity of goods and there is no possibility of dealers selling the product at less than the permissible price, it would be irrational to talk of territorial limits restricting competition. Restriction on competition postulates the existence or the possibility of competition. On the facts proved in the pre sent case the only competition possible is between the dealers and the manufacturers. The territorial restriction promotes competition between the four manufacturers in every part of India while it has no effect of any theoretical competition between the dealers because such competition between dealers does not and cannot exist. 51. The question of competition cannot be considered in vacuo or in a doctrinaire spirit The concept of competition is to be understood in a commercial sense- Territorial restriction will promote competition whereas the removal of territorial restriction would reduce competition. As a result of territorial restriction there is in each part of India open competition among the four manufacturers. If the territorial restriction is removed there will be pockets with out any competition in certain parts of India. If the dealer in Kashmir is allowed to sale anywhere in India, wealthy cities like Delhi, Bombay, Calcutta will buy up trucks allocated for Kashmir and the buyer in Kashmir will not be able to get the trucks. The other three manufacturers whose trucks are not in equal demand will have Kashmir as an open field to them without competition by Telco. Therefore, competition will be, reduced in Kashmir by the successful competitor being put out of the field. 52. The real reason for exclusive dealership is that instead of diminishing competition between four manufacturers each dealer tries to do his best for his own trucks and buses and thus reduces(?) keen competition among the four manufacturers. If one dealer deals in trucks of one or more manufacturers one cannot be expected to compete with it self. It is, therefore, clear that exclusive dealership promotes instead of retarding competition. 53. Clauses 1 and 3 are in lite interest of the consumer and ensure an equal distribution as far as possible of the goods at a fair price. These provisions do not tend to obstruct the flow of capital or resources into the stream of production or to bring about manipulation of prices or conditions of delivery or to affect the flow of supplies in like market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions. 54. In the present case the restriction imposed by Telco on dealers not to sell bus and chassis outside their territories does not restrict competition for the foregoing reasons. 55. The other term of exclusive dealership in Clauses 6 and 14 of the agreement between Teloo and the dealers that the dealer will not sell commercial vehicles of other manufacturers, does not amount to a restriction in competition because other manufacturers can appoint other persons to deal in their commercial vehicles. It is also in public interest to see that vehicles of other manufacturers are sold in the same territory by other dealers. Therefore, there will be competition between the manufacturers of different commercial vehicles and as far as exclusive dealership of Telco commercial vehicles is concerned, it will be in public interest and not be a restriction in competition. 56. The two terms of restriction on; dealers, namely, sale being confined within; the territory and the other being confined to dealing in only Telco vehicles are not pre judicial to public interest. The Commission found that exclusive nature of dealership of being confined to Telco vehicles is not prejudicial to public interest. The territorial restriction is also in public interest and the Commission was in error in thinking that it is not so. | 1[ds]21. Under the Regulations an application under Section 10(a)(iii) of the Act must contain facts which, in the Registrars opinion, constitute a restrictive trade practice and, if it is in relation to any agreement, set out, such portions of the agreement as may be necessary to bring out the facts complained of. It has to be stated that in the present case Telco is right in contending that beyond making mere references to clauses of the agreement and bald allegations that the clauses constitute restrictive trade practice, no facts or features are set out in the petition to show or establish as to how the alleged clauses constitute restrictive trade practice in the context of facts.23. Section 33 of the Act states that any agreement relating to a restrictive trade practice falling within one or more of the categories mentioned therein shall be subject to registration in accordance with the provisions of Chapter V of the Act Clauses (a) and (d) in Sub-section (1) of Section 33 are relevant in the present case. These are, inter alia, (a) any agreement which restricts or is likely to restrict by any method the per sons or classes of persons to whom goods are sold or from whom goods am bought and (d) any agreement to purchase or sell goods or to tender for the sale or purchase of goods only at prices or on terms or conditions agreed upon between the sellers or purchasers.24. The definition of restrictive trade practice is an exhaustive and not an inclusive one. The decision whether a trade practice is restrictive or not has to be arrived at by applying the rule of reason and not on the doctrine that any restriction as to area or price will per se be a restrictive trade practice, Every trade agreement restrains or binds persons or places or prices.30. The evidence about the features of the trade is this. The medium and heavy vehicles in the trade are restricted to those licensed by Government for manufacture in the country, The capital investment required for a new factory is of a very high order, namely, almost Rs. 100 crores. At present the only manufacturers of commercial vehicles are Telco which produces Tata Vehicles, Hindustan Motors Ltd., which produces Hindustan Vehicles, Premier Automobiles, which produces Premier Vehicles and Ashok Leyland Ltd., which produces Leyland vehicles. The supply of commercial vehicles is far below the requirement of the industry. The gap between the demand and the supply is increasing with the passage of time as the trade is developing at a faster pace than the growth in the number of vehicles produced. The Government of India estimated during the year 1974-75 the production of 56,300 medium and heavy vehicles. The production however, is now likely to be of the order of 35,000. The Fifth Five Year Plan for the production is said to be increased to 80,100. It is said that against this target the installation capacity today is 46,300 vehicles, Even if the expansion programme is fully implemented the installed capacity by the end of the Fifth Five Year Plan will be only 66,975 vehicles per year.31. The scarcity which is a feature of this trade is accentuated in the case of Telcos vehicles because they are in great demand all over the country and even in the export market. In 1974 it is said that Telco exported vehicles amounting to 86% of the total export from the country. The export earnings are said to be Rs. 7.29 crores for 1101 vehicles. At the time of arguments it was suggested that Telco exports now vehicles worth Rs. 10 crores.32. The clauses relating to territorial restriction in the present case do not constitute, restrictive trade practice for the following reasons:33. The domestic market in India is spread over this vast sub-continent with very diverse conditions of roads, population and demand. It is essential for the community, the consumer and the manufacturer to have- an equitable geographical distribution of his vehicles. Vehicles may be required for operation in any part of India and public interest requires that the channels of communication should be open throughout the country. These vehicles should ply even in the remotest areas like Ladakh, Nagaland, etc.34. A user of Telco vehicles expects to get all over the country the service of a high standard enjoined by Telco upon its dealers. Telco on its part also needs a country-wide network of dealers so that sales take place and the dealers can maintain the service stations, spare part stocks and workshops with the requisite equipment, machinery and trained personnel all over the country. This also enables the consumers to rely on Telcos vehicles since they in turn can expect services, repairs and spare parts all over India. Telco has thus to ensure an all India net work of dealers, including those which will serve remote areas.35. It is in evidence that commercial vehicles is a highly complex mechanical pro duct. When Telco sells a vehicle it also has a responsibility that the vehicle is kept running and maintained in the optimum condition. Telco must preserve its reputation and ensure that the vehicles are only sold by dealers who have the requisite facilities and organisation to give the proper after- sales service. Unlike most consumer pro ducts, a commercial vehicle involves a continuous relationship between a dealer and a consumer. The consumer looks to the dealer for keeping the vehicle running and for all attendant facilities like service stations, work shops and spare parts. Reliability and repair of a vehicle, which represents a substantial investment for the consumer, is vital also to the public as a whole and there must be constantly available throughout the country a network of dealers with adequate repair and maintenance service. Even before the delivery of a commercial vehicle to the consumer, there is a meticulous pre-delivery inspection and service by the dealer. After delivery, Telco gives three free services. Telco also gives a warranty for a period of six months from the date of registration or 12 months from the date of delivery of vehicle from the factory or for a period in which the vehicle has run for a distance of 32,000 kilometres, whichever expires earlier.36. There are outstanding distinctions between a car dealer and a commercial vehicle dealer. The peculiar characteristics of dealers in commercial vehicles are these : The purchase of a car in India rarely represents the substantial or the bulk of the investment of a purchaser, The purchase of a commercial vehicle, however, represents the substantial and often the only capital investment of the owner. A chassis manufactured by Telco is sold to the customer at almost a lakh of rupees and the body costs him about Rs. 15,000/- for a truck and about Rupees 40,000/- for a bus. Over 80% of persons owning trucks are individual owners having not more than two trucks and mostly only one truck. The vehicle is normally constantly on the road and is put to the maximum possible use with often more than one driver plying it. Thus a vehicle plies on an average over a lakh of kilometers per year, The heavy investment also makes it necessary that a vehicle should be constantly on the move. The owner can ill-afford to waste time and requires easily accessible and prompt Service Stations, Workshops and stocks of spares. The purchaser regards the truck as a life-time in vestment. The purchaser looks to the dealer for prompt after-sales service and repairs. Since 80% of truck operators are individual operators and often have scant mechanical knowledge, they have to depend upon the dealer for keeping the truck moving with the necessary trained personnel, workshops, service stations and stocks of spares, As a result of these characteristics, the relationship between a dealer and the truck purchaser is much more constant than with the car purchaser. The standard of service he expects is more vigorous and prompt.37. Vehicles of Telco are in keen demand, both because of their quality as also because of the assurance of efficient after- sales service by the network of Telco dealers. These requirements cannot be met unless there is a network of dealers with specific territories. It is essential from the angle of the consumer, Telco and the public that there should be widest and equitable geographical distribution of the vehicles of Telco. Public interest itself requires that the vehicles should not be concentrated in metro centers or urban areas where there is a high demand for them, to the detriment of the remote areas or semi-urban areas. The consumer also plies trucks all over the country and expects that wherever he goes, whether to Kerala or Assam, there should be a dealer, a service station, a workshop, trained personnel and spare parts which can attend to Telco trucks. Urban area centers like Bombay, Delhi and Calcutta, have a very large demand as compared to the rest of the country. But at the same time Telco has to ensure sales in places like Kashmir, Nagaland and Tripura, where the demand is much less. In fact, in some of these areas, there are no alternative means of communication and transport like railways and the life of the community is largely dependent upon road transport. Even where the demand is less, there has to be a dealer with the necessary facilities and organisation for after-sales-service.38. Telco appoints dealers for different territories in India. The geographical network is natural to the industry itself. The purchaser will purchase and get his vehicle serviced in his own territory. The purchaser looks to a dealer in his own territory with whom he has relationship and who will give him credit facilities, who will render after- sales-service and from whom he can purchase spares, who will handle warranty claims and with whom he can have constant relationship for purchases in future. Unless a dealer is assured of customers in his own area and zones, he will not have the necessary incentive to maintain the optimum level of service stations, workshops and spare part stocks, nor can the dealer plan his resources including technical personnel, capital equipment and financial resources for his future commitment.39. Telco regards after-sales-service of crucial importance to serve its consumers. It is natural and cheaper for a purchaser to buy and service his vehicles in his own territory. After-sales-service of Telco is fairly elaborate and complex and it is because of the standard of this service that Telco has been able to maintain the reputation. Each dealer is required to provide one premises for show-room, service station, workshop, spare parts, shop, canteen and also (a) rest house for drivers; (b) equipment and machinery for maintenance and repairs; (c) Set or sets of special tools specially designed for carrying out repairs to Telcos vehicles; (d) Technical personnel including personnel trained by the appellant at its factory in Jamshedpur and (e) Adequate stock of spare parts to meet the potential demand in the territory.40. Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubanashwar, Jamshedpur, Gauhati, Jullunder and Jaipur. If territorial restriction is removed, there will be a tendency for persons to book orders in (other?) areas thus starving the consumers of that area of their equitable share and disrupting the flow of vehicles in both areas. This will create pockets of artificial scarcity and dislocate the network. If the dealer is not assured of a steady demand in his territory, he may have no incentive or may not find it economic to organise proper after-sales-service. This would also result in dealers diverting their supplies to metro cent res starving the semi-urban and rural areas.41. Network of dealers and service stations has a direct relation with the territorial assurances given to each dealer. It is as a result of such assurances that a dealer is able to maintain the whole chain of dealer ship network, service stations, stocks of spare parts, trained personnel, equipment, special tool kits and give the optimum service as laid down by Telco to its vehicles. Some of the dealers have even maintained mobile service vans. The dealer has to invest a largo amount in providing all these facilities. The dealer is familiar with his territory and in view of the potential sales, takes steps to improve his organisation. If these clauses are omitted, the dealer would not make investment and would neglect the service facilities to the detriment of the consumer.42. In the light of scarcity in the supply of vehicles and the need to distribute vehicles to all the dealers in India, Telco makes equitable distribution of its products by taking into account these factors : (a) Population of commercial vehicles in the dealers territory : (b) Orders from customers pending with the dealer; (c) Preference for Tata diesel vehicles as against other makes in the territory of the dealer; (d) Past sales performance of the dealer; (e) Effective after- sales-service provided by the dealers; (£) Special requirements of the territory during the erection of Government Projects such as steel plants, construction of dams etc; (g) Emergency requirements of the territory on account of drought, flood relief etc; (h) Government recommendations for meeting certain specific requirements; (i) Dependence of the particular territory on road transport and (j) Requirements of State Government and nationalised transport undertakings which are procured through dealers.43. The demand for the vehicles has always exceeded the supply making it imperative for Telco to ensure equitable distribution of the vehicles to the various parts of the country. There are many commercial agreements under which the territories are divided among distributors and such agreements do not constitute restrictive trade practice, where the whole object is to ensure fair, efficient and even distribution particularly of a commodity which is in short supply and in great demand. If these were not done and it was permitted for one dealer to encroach on the territory of another this would affect the flow of vehicles into the market leaving some territories unsupplied. In order to pre vent this undesirable position dealers were appointed for different territories and care was taken consistently to see that all parts of the country are treated equally and fairly.44. The exclusive dealings do not impede competition but promote it. Such dealings lead to specialisation and improvement in after-sales-service. The exclusive dealership agreements do not restrict distribution in any area or prevent competition. The customer has the choice of buying any make he likes, The advantage of exclusive dealership is that a dealer specialises in his own type of vehicle with all the attending advantages of trained personnel; special service stations, workshops and spare parts. Each set of special tools costs approximately Rs. 55,000. The set is suitable for servicing one vehicle at a time. Some dealers like the United Motors Pvt. Ltd., Bombay have four sets at Colaba, Wadi Bunder, Jogeshwari and Chembur. The investment of United Motors is approximately Rs. 24 lakhs. It is estimated that one service station with special tools of Telco and workshop equipment will cost as much as Rupees five lakhs45. It is by specialising in each make of vehicle and providing the best possible service that the competition between the various makes is enhanced. It is practically not possible for the same dealer to have parallel lines of service stations, workshops, spare parts, trained personnel for different makes. It is also not practical for the dealer to maintain different and competitive standards laid down by different companies which may differ from manufacturer to manufacturer. If a dealer has more than one franchise, the competition between the various makes will be reduced. It will be difficult for the manufactures to make the dealer responsible for his make and concentrate on it. There may be conflicts between his responsibility for after-sales-service.46. Telco commenced appointing dealers in 1954. At that time 25 or 26 dealers were appointed. The number in creased to 68. There are also sub-dealers, Each dealer is required to make a security deposit varying from Rs. 1 lakh to Rs. 6 lakhs. Telco pays interest on deposits and security deposits. A dealer has to invest a minimum of Rs. 5 lakhs m his establishment. The range of investment would vary from Rs. 5 lakhs to Rs. 50 lakhs depending upon the largeness of the place.47. Dealer Apprentices are trained by Telco in its factory at Jamshedbur. Telco also trains Trade Apprentices. The dealer also pays the apprentice stipend. If territorial restrictions are removed, there will be unequal distribution of vehicles in various territories. While there will be shortage in some territories, there will be larger supplies in others. Vehicles are supplied by Telco ac cording to territorial requirements. Various factors are taken into consideration in assessing the requirements of territories.48. By making its dealers exclusive to Telco, there cannot be said to be any prevention, distortion or restriction of competition in the territory in which a dealer operates, either between manufacturers of the same type of vehicles or between dealers in these vehicles. Any manufacturer of vehicles such as those of Telco may manufacture and sell its vehicles in a territory in which Telcos dealers operate. Any other manufacturer of vehicles similar to those of Telco is also free to appoint dealers of its choice in the same territory covered by Telcos dealers. The channels for outlet for vehicle have not been blocked by the fact that the dealers appointed by Telco are exclusive to Telco nor it can be said that Telco has by its exclusive arrangement with its dealers affected the flow of supplies of vehicles into the market. If Telco sold themselves in each territory it could not be said that Telco was pursuing any restrictive trade practice, Would the position change if Telco asked their dealers not to sell Telco bus chassis outside the dealers territory? Just as Telco could not compete with itself similarly dealers would not compete with one another.49. The competition would be between Telco products and the products of the other manufacturers Premier, Hindustan and Leyland. Restrictive trade practice is based on reason, embodied in Section 2(o) of the Act. When trucks are in short supply and dealers are restrained from selling at above the maximum price they cannot sell below the maximum price and compete with one an-other. Dealers of the same manufacturer do not compete with one another in every case irrespective of the market conditions or the character of the product sold.50. Competition between dealers appointed by the same manufacturer can be reduced when there is a practical possibility of such competition as for example, when the goods are in abundance. When there is an acute scarcity of goods and there is no possibility of dealers selling the product at less than the permissible price, it would be irrational to talk of territorial limits restricting competition. Restriction on competition postulates the existence or the possibility of competition. On the facts proved in the pre sent case the only competition possible is between the dealers and the manufacturers. The territorial restriction promotes competition between the four manufacturers in every part of India while it has no effect of any theoretical competition between the dealers because such competition between dealers does not and cannot exist.51. The question of competition cannot be considered in vacuo or in a doctrinaire spirit The concept of competition is to be understood in a commercial sense- Territorial restriction will promote competition whereas the removal of territorial restriction would reduce competition. As a result of territorial restriction there is in each part of India open competition among the four manufacturers. If the territorial restriction is removed there will be pockets with out any competition in certain parts of India. If the dealer in Kashmir is allowed to sale anywhere in India, wealthy cities like Delhi, Bombay, Calcutta will buy up trucks allocated for Kashmir and the buyer in Kashmir will not be able to get the trucks. The other three manufacturers whose trucks are not in equal demand will have Kashmir as an open field to them without competition by Telco. Therefore, competition will be, reduced in Kashmir by the successful competitor being put out of the field.52. The real reason for exclusive dealership is that instead of diminishing competition between four manufacturers each dealer tries to do his best for his own trucks and buses and thus reduces(?) keen competition among the four manufacturers. If one dealer deals in trucks of one or more manufacturers one cannot be expected to compete with it self. It is, therefore, clear that exclusive dealership promotes instead of retarding competition.53. Clauses 1 and 3 are in lite interest of the consumer and ensure an equal distribution as far as possible of the goods at a fair price. These provisions do not tend to obstruct the flow of capital or resources into the stream of production or to bring about manipulation of prices or conditions of delivery or to affect the flow of supplies in like market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions.54. In the present case the restriction imposed by Telco on dealers not to sell bus and chassis outside their territories does not restrict competition for the foregoing reasons.55. The other term of exclusive dealership in Clauses 6 and 14 of the agreement between Teloo and the dealers that the dealer will not sell commercial vehicles of other manufacturers, does not amount to a restriction in competition because other manufacturers can appoint other persons to deal in their commercial vehicles. It is also in public interest to see that vehicles of other manufacturers are sold in the same territory by other dealers. Therefore, there will be competition between the manufacturers of different commercial vehicles and as far as exclusive dealership of Telco commercial vehicles is concerned, it will be in public interest and not be a restriction in competition.56. The two terms of restriction on; dealers, namely, sale being confined within; the territory and the other being confined to dealing in only Telco vehicles are not pre judicial to public interest. The Commission found that exclusive nature of dealership of being confined to Telco vehicles is not prejudicial to public interest. The territorial restriction is also in public interest and the Commission was in error in thinking that it is not so. | 1 | 7,583 | 4,103 | ### 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:
pays the apprentice stipend. If territorial restrictions are removed, there will be unequal distribution of vehicles in various territories. While there will be shortage in some territories, there will be larger supplies in others. Vehicles are supplied by Telco ac cording to territorial requirements. Various factors are taken into consideration in assessing the requirements of territories. 48. By making its dealers exclusive to Telco, there cannot be said to be any prevention, distortion or restriction of competition in the territory in which a dealer operates, either between manufacturers of the same type of vehicles or between dealers in these vehicles. Any manufacturer of vehicles such as those of Telco may manufacture and sell its vehicles in a territory in which Telcos dealers operate. Any other manufacturer of vehicles similar to those of Telco is also free to appoint dealers of its choice in the same territory covered by Telcos dealers. The channels for outlet for vehicle have not been blocked by the fact that the dealers appointed by Telco are exclusive to Telco nor it can be said that Telco has by its exclusive arrangement with its dealers affected the flow of supplies of vehicles into the market. If Telco sold themselves in each territory it could not be said that Telco was pursuing any restrictive trade practice, Would the position change if Telco asked their dealers not to sell Telco bus chassis outside the dealers territory? Just as Telco could not compete with itself similarly dealers would not compete with one another. 49. The competition would be between Telco products and the products of the other manufacturers Premier, Hindustan and Leyland. Restrictive trade practice is based on reason, embodied in Section 2(o) of the Act. When trucks are in short supply and dealers are restrained from selling at above the maximum price they cannot sell below the maximum price and compete with one an-other. Dealers of the same manufacturer do not compete with one another in every case irrespective of the market conditions or the character of the product sold. 50. Competition between dealers appointed by the same manufacturer can be reduced when there is a practical possibility of such competition as for example, when the goods are in abundance. When there is an acute scarcity of goods and there is no possibility of dealers selling the product at less than the permissible price, it would be irrational to talk of territorial limits restricting competition. Restriction on competition postulates the existence or the possibility of competition. On the facts proved in the pre sent case the only competition possible is between the dealers and the manufacturers. The territorial restriction promotes competition between the four manufacturers in every part of India while it has no effect of any theoretical competition between the dealers because such competition between dealers does not and cannot exist. 51. The question of competition cannot be considered in vacuo or in a doctrinaire spirit The concept of competition is to be understood in a commercial sense- Territorial restriction will promote competition whereas the removal of territorial restriction would reduce competition. As a result of territorial restriction there is in each part of India open competition among the four manufacturers. If the territorial restriction is removed there will be pockets with out any competition in certain parts of India. If the dealer in Kashmir is allowed to sale anywhere in India, wealthy cities like Delhi, Bombay, Calcutta will buy up trucks allocated for Kashmir and the buyer in Kashmir will not be able to get the trucks. The other three manufacturers whose trucks are not in equal demand will have Kashmir as an open field to them without competition by Telco. Therefore, competition will be, reduced in Kashmir by the successful competitor being put out of the field. 52. The real reason for exclusive dealership is that instead of diminishing competition between four manufacturers each dealer tries to do his best for his own trucks and buses and thus reduces(?) keen competition among the four manufacturers. If one dealer deals in trucks of one or more manufacturers one cannot be expected to compete with it self. It is, therefore, clear that exclusive dealership promotes instead of retarding competition. 53. Clauses 1 and 3 are in lite interest of the consumer and ensure an equal distribution as far as possible of the goods at a fair price. These provisions do not tend to obstruct the flow of capital or resources into the stream of production or to bring about manipulation of prices or conditions of delivery or to affect the flow of supplies in like market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions. 54. In the present case the restriction imposed by Telco on dealers not to sell bus and chassis outside their territories does not restrict competition for the foregoing reasons. 55. The other term of exclusive dealership in Clauses 6 and 14 of the agreement between Teloo and the dealers that the dealer will not sell commercial vehicles of other manufacturers, does not amount to a restriction in competition because other manufacturers can appoint other persons to deal in their commercial vehicles. It is also in public interest to see that vehicles of other manufacturers are sold in the same territory by other dealers. Therefore, there will be competition between the manufacturers of different commercial vehicles and as far as exclusive dealership of Telco commercial vehicles is concerned, it will be in public interest and not be a restriction in competition. 56. The two terms of restriction on; dealers, namely, sale being confined within; the territory and the other being confined to dealing in only Telco vehicles are not pre judicial to public interest. The Commission found that exclusive nature of dealership of being confined to Telco vehicles is not prejudicial to public interest. The territorial restriction is also in public interest and the Commission was in error in thinking that it is not so.
### Response:
1
### Explanation:
Jamshedbur. Telco also trains Trade Apprentices. The dealer also pays the apprentice stipend. If territorial restrictions are removed, there will be unequal distribution of vehicles in various territories. While there will be shortage in some territories, there will be larger supplies in others. Vehicles are supplied by Telco ac cording to territorial requirements. Various factors are taken into consideration in assessing the requirements of territories.48. By making its dealers exclusive to Telco, there cannot be said to be any prevention, distortion or restriction of competition in the territory in which a dealer operates, either between manufacturers of the same type of vehicles or between dealers in these vehicles. Any manufacturer of vehicles such as those of Telco may manufacture and sell its vehicles in a territory in which Telcos dealers operate. Any other manufacturer of vehicles similar to those of Telco is also free to appoint dealers of its choice in the same territory covered by Telcos dealers. The channels for outlet for vehicle have not been blocked by the fact that the dealers appointed by Telco are exclusive to Telco nor it can be said that Telco has by its exclusive arrangement with its dealers affected the flow of supplies of vehicles into the market. If Telco sold themselves in each territory it could not be said that Telco was pursuing any restrictive trade practice, Would the position change if Telco asked their dealers not to sell Telco bus chassis outside the dealers territory? Just as Telco could not compete with itself similarly dealers would not compete with one another.49. The competition would be between Telco products and the products of the other manufacturers Premier, Hindustan and Leyland. Restrictive trade practice is based on reason, embodied in Section 2(o) of the Act. When trucks are in short supply and dealers are restrained from selling at above the maximum price they cannot sell below the maximum price and compete with one an-other. Dealers of the same manufacturer do not compete with one another in every case irrespective of the market conditions or the character of the product sold.50. Competition between dealers appointed by the same manufacturer can be reduced when there is a practical possibility of such competition as for example, when the goods are in abundance. When there is an acute scarcity of goods and there is no possibility of dealers selling the product at less than the permissible price, it would be irrational to talk of territorial limits restricting competition. Restriction on competition postulates the existence or the possibility of competition. On the facts proved in the pre sent case the only competition possible is between the dealers and the manufacturers. The territorial restriction promotes competition between the four manufacturers in every part of India while it has no effect of any theoretical competition between the dealers because such competition between dealers does not and cannot exist.51. The question of competition cannot be considered in vacuo or in a doctrinaire spirit The concept of competition is to be understood in a commercial sense- Territorial restriction will promote competition whereas the removal of territorial restriction would reduce competition. As a result of territorial restriction there is in each part of India open competition among the four manufacturers. If the territorial restriction is removed there will be pockets with out any competition in certain parts of India. If the dealer in Kashmir is allowed to sale anywhere in India, wealthy cities like Delhi, Bombay, Calcutta will buy up trucks allocated for Kashmir and the buyer in Kashmir will not be able to get the trucks. The other three manufacturers whose trucks are not in equal demand will have Kashmir as an open field to them without competition by Telco. Therefore, competition will be, reduced in Kashmir by the successful competitor being put out of the field.52. The real reason for exclusive dealership is that instead of diminishing competition between four manufacturers each dealer tries to do his best for his own trucks and buses and thus reduces(?) keen competition among the four manufacturers. If one dealer deals in trucks of one or more manufacturers one cannot be expected to compete with it self. It is, therefore, clear that exclusive dealership promotes instead of retarding competition.53. Clauses 1 and 3 are in lite interest of the consumer and ensure an equal distribution as far as possible of the goods at a fair price. These provisions do not tend to obstruct the flow of capital or resources into the stream of production or to bring about manipulation of prices or conditions of delivery or to affect the flow of supplies in like market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions.54. In the present case the restriction imposed by Telco on dealers not to sell bus and chassis outside their territories does not restrict competition for the foregoing reasons.55. The other term of exclusive dealership in Clauses 6 and 14 of the agreement between Teloo and the dealers that the dealer will not sell commercial vehicles of other manufacturers, does not amount to a restriction in competition because other manufacturers can appoint other persons to deal in their commercial vehicles. It is also in public interest to see that vehicles of other manufacturers are sold in the same territory by other dealers. Therefore, there will be competition between the manufacturers of different commercial vehicles and as far as exclusive dealership of Telco commercial vehicles is concerned, it will be in public interest and not be a restriction in competition.56. The two terms of restriction on; dealers, namely, sale being confined within; the territory and the other being confined to dealing in only Telco vehicles are not pre judicial to public interest. The Commission found that exclusive nature of dealership of being confined to Telco vehicles is not prejudicial to public interest. The territorial restriction is also in public interest and the Commission was in error in thinking that it is not so.
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Messrs. Calcutta Company Ltd Vs. The Commissioner Of Income-Tax,West Bengal | App 290 at p. 296: (AIR 1932 PC 178 at p. 180), observed:"Although the Act nowhere in terms authorises the deduction of bad debts of a business, such a deduction is necessarily allowable. What are chargeable to income-tax in respect of a business are the profits and gains of a year; and in assessing the amount of the profits and gains of a year account must necessarily be taken of all losses incurred, otherwise you would not arrive at the true profits and gains."28. The High Court in disallowing the claim of the appellant in the present case only considered the provisions of S. 10(2)(xv) of the Act and came to the conclusion that on a strict interpretation of those provisions the sum of Rs. 24,809 was not an allowable deduction. Its attention was drawn by the learned Counsel for the appellant to the provisions of S. 10(1) of the Act also but it negatived this argument observing that under the Indian Act, the profits must be determined by the method of making the statutory deductions from the receipts and any deduction from the business receipts, if it was to be allowed, must be brought under one or the other of deductions mentioned in S. 10(2) and that there was no scope for any preliminary deduction under general principles. It was, however, held by this Court in Badridas Daga v. The Commissioner of Income-tax, 1958-34 ITR 10 at p. 14: (AIR 1958 SC 783 at p. 786):"It is to be noted that while S. 10(1) imposes a charge on the profits or gains of a trade, it does not provide how those profits are to be computed. Section 10 (2) enumerates various items which are admissible as deductions, but it is well settled that they are not exhaustive of all allowances which could be made in ascertaining profits taxable under S. 10(1)."29. Venkatarama Aiyar J. who delivered the Judgment of this Court then proceeded to discuss the cases of 59 Ind App 290: (AIR 1932 PC 178 ) (supra), (1892) 3 Tax Cas 185 (supra) and 58 Ind App 239: (AIR 1931 PC 165 ) (supra), and observed:"The result is that when a claim is made for a deduction for which there is no specific provision in S. 10(2), whether it is admissible or not will depend on whether, having regard to accepted commercial practice and trading principles, it can be said to arise out of the carrying on of the business and to be incidental to it. If that is established then the deduction must be allowed, provided of course there is no prohibition against it, express or implied, in the Act."30.Turning now to the facts of the present case, we find that the sum of Rs. 24,809 represented the estimated expenditure which had to be incurred by the appellant in discharging a liability which it had already undertaken under the terms of the deeds of sale of the lands in question and was an accrued liability which according to the mercantile system of accounting the appellant was entitled to debit in its books of account for the accounting year as against the receipts of Rs. 43,692-11-9 which represented the sale proceeds of thc said lands. Even under S. 10 (2) of the Income-tax Act, it might possibly be urged that the word "expended " was capable of being interpreted as "expendable" or "to be expended at least in a case where a liability to incur the said expenses had been actually incurred by the assessee who adopted the mercantile system of accounting and the debit of Rs. 24,809 was thus a proper debit in the present case. We need not however base our decision on any such consideration. We are definitely of opinion that the sum of Rs. 24,809 represented the estimated amount which would have to be expended by the appellant in the course of carrying on its business and was incidental to the same and having regard to the accepted commercial practice and trading principles was a deduction which, if there was no specific provision for it under S. 10(2) of the Act was certainly allowable deduction, in arriving at the profits and gains of the business of the appellant under S. 10(1) of the Act, there being no prohibition against it, express or implied in the Act.31. It is to be noted that the appellant had led evidence before the Income-tax authorities in regard to this estimated expenditure of Rs. 24,809 and no exception was taken to the same in regard to the quantum, though the permissibility of such a deduction was questioned by them relying upon the provisions of S. 10(2) of the Act,32. It therefore follows that the conclusion reached by the High Court in regard to the disallowance of Rs. 24,809 was wrong and it should have answered the referred question in the affirmative.33.Before we conclude, we are bound to observe that having accepted the receipts of Rs. 43,692-11-9 in their totality even though a sum of Rs. 29,392-11-9 only was actually received by the appellant in cash, thus making the appellant liable for income-tax on a sum of Rs. 14,300 which had not been received by it during the accounting year, it was hardly open to the Revenue to urge that the sum of Rs. 24,809 should not have been allowed as a permissible deduction before arriving at the profits or gains of the appellant which were liable to tax.Consistently enough with this attitude, the Revenue ought to have expressed its willingness to treat only a sum of Rs. 29,392-11-9 as the actual receipt of the appellant during the accounting year and made up the computation of the profits and gains of the appellants business on that basis. The Revenue, however, did nothing of the sort and insisted upon having its pound of flesh, asking us to delete the whole of the item of Rs. 24.809 from the debit side of thc account which it was certainly not entitled to do. | 1[ds]Time was of course not of the essence of the contract and the appellant therefore was at liberty to carry out that undertaking within a reasonable time. That, however, did not absolve it in any manner whatever from carrying out the undertaking and the purchasers were in a position to enforce the undertaking by taking appropriate proceedings in that behalf.It is clear from the above that on the facts and circumstances of that case the Court held that it was not an accrued liability but was merely a contingent one and if that was the case only the sums actually expended could be deducted and not those which the company was liable to expend in the future.future.19. There is no doubt that the undertaking to carry out the developments within six months from the dates of the deeds of sale was incorporated therein and that undertaking was unconditional, the appellant binding itself absolutely to carry out the same. It was not dependent on any condition being fulfilled or the happening of any event, the only condition being that it was to be carried out within six months which in view of the fact that the time was not of the essence of the contract meant a reasonable time. Whatever may be considered a reasonable time under the circumstances of the case, the setting up of that time limit did not prescribe any condition for the carrying out of that undertaking and the undertaking was absolute in terms. If that undertaking imported any liability on the appellant the liability had already accrued on the dates of the deeds of sale, though that liability was to be discharged at a future date. It was thus an accrued liability and the estimated expenditure which would be incurred in discharging the same could very well be deducted from the profits and gains of the business.As in the case of assets received during the accounting year which could not be immediately realized in a commercial sense, so in the case of the liabilities which have already accrued during the accounting year, though they may not have to be discharged till a later date. It will be always open to the Income-tax authorities to fix an appropriate money value of that liability as at the end of the accounting period by taking all the circumstances into consideration and the estimate of expenses given by the assessee would be liable to scrutiny at their hands having regard to all the facts and circumstances of the case.23. The High Court was, therefore, clearly in error when itview of all the circumstances of the case it must in my opinion, be held that the amounts of sale-price, not received in cash, were also received and for the purpose of earning the receipts the assessee spent, besides giving the lands, nothing more than a promise. Since the whole amount was actually received in the year of account before and without making the promised expenditure, no question of allowing a deduction of any expenditure from such receipts of the yearhowever, distinguished the present case in life ground that the liability here was a floating liability, the measure of which depended upon the will of the appellant and the discharge of which rested only in a promise and that the expenses were entirely at large and the development work itself merely so.25. Apart, however, from the question whether S. 10(2)(xv) of the Income-tax Act would apply to the facts of the present case, the case is, in our opinion we within the purview of S. 10(1) of the Income-tax Act. The appellant here is being assessed in respect of the profits and gains of its business and the profits and gains of the business cannot be determined unless and until the expenses or the obligations which have been incurred are set off against theThese are no doubt observations from the English cases dealing with English statutes of Income-tax, but the general principles which can be deduced therefrom are, nevertheless, applicablenow to the facts of the present case, we find that the sum of Rs. 24,809 represented the estimated expenditure which had to be incurred by the appellant in discharging a liability which it had already undertaken under the terms of the deeds of sale of the lands in question and was an accrued liability which according to the mercantile system of accounting the appellant was entitled to debit in its books of account for the accounting year as against the receipts of Rs. 43,692-11-9 which represented the sale proceeds of thc said lands. Even under S. 10 (2) of the Income-tax Act, it might possibly be urged that the word "expended " was capable of being interpreted as "expendable" or "to be expended at least in a case where a liability to incur the said expenses had been actually incurred by the assessee who adopted the mercantile system of accounting and the debit of Rs. 24,809 was thus a proper debit in the present case. We need not however base our decision on any such consideration. We are definitely of opinion that the sum of Rs. 24,809 represented the estimated amount which would have to be expended by the appellant in the course of carrying on its business and was incidental to the same and having regard to the accepted commercial practice and trading principles was a deduction which, if there was no specific provision for it under S. 10(2) of the Act was certainly allowable deduction, in arriving at the profits and gains of the business of the appellant under S. 10(1) of the Act, there being no prohibition against it, express or implied in the Act.31. It is to be noted that the appellant had led evidence before the Income-tax authorities in regard to this estimated expenditure of Rs. 24,809 and no exception was taken to the same in regard to the quantum, though the permissibility of such a deduction was questioned by them relying upon the provisions of S. 10(2) of the Act,32. It therefore follows that the conclusion reached by the High Court in regard to the disallowance of Rs. 24,809 was wrong and it should have answered the referred question in the affirmative.33.Before we conclude, we are bound to observe that having accepted the receipts of Rs. 43,692-11-9 in their totality even though a sum of Rs. 29,392-11-9 only was actually received by the appellant in cash, thus making the appellant liable for income-tax on a sum of Rs. 14,300 which had not been received by it during the accounting year, it was hardly open to the Revenue to urge that the sum of Rs. 24,809 should not have been allowed as a permissible deduction before arriving at the profits or gains of the appellant which were liable to tax.Consistently enough with this attitude, the Revenue ought to have expressed its willingness to treat only a sum of Rs. 29,392-11-9 as the actual receipt of the appellant during the accounting year and made up the computation of the profits and gains of the appellants business on that basis. The Revenue, however, did nothing of the sort and insisted upon having its pound of flesh, asking us to delete the whole of the item of Rs. 24.809 from the debit side of thc account which it was certainly not entitled to do. | 1 | 5,375 | 1,322 | ### Instruction:
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App 290 at p. 296: (AIR 1932 PC 178 at p. 180), observed:"Although the Act nowhere in terms authorises the deduction of bad debts of a business, such a deduction is necessarily allowable. What are chargeable to income-tax in respect of a business are the profits and gains of a year; and in assessing the amount of the profits and gains of a year account must necessarily be taken of all losses incurred, otherwise you would not arrive at the true profits and gains."28. The High Court in disallowing the claim of the appellant in the present case only considered the provisions of S. 10(2)(xv) of the Act and came to the conclusion that on a strict interpretation of those provisions the sum of Rs. 24,809 was not an allowable deduction. Its attention was drawn by the learned Counsel for the appellant to the provisions of S. 10(1) of the Act also but it negatived this argument observing that under the Indian Act, the profits must be determined by the method of making the statutory deductions from the receipts and any deduction from the business receipts, if it was to be allowed, must be brought under one or the other of deductions mentioned in S. 10(2) and that there was no scope for any preliminary deduction under general principles. It was, however, held by this Court in Badridas Daga v. The Commissioner of Income-tax, 1958-34 ITR 10 at p. 14: (AIR 1958 SC 783 at p. 786):"It is to be noted that while S. 10(1) imposes a charge on the profits or gains of a trade, it does not provide how those profits are to be computed. Section 10 (2) enumerates various items which are admissible as deductions, but it is well settled that they are not exhaustive of all allowances which could be made in ascertaining profits taxable under S. 10(1)."29. Venkatarama Aiyar J. who delivered the Judgment of this Court then proceeded to discuss the cases of 59 Ind App 290: (AIR 1932 PC 178 ) (supra), (1892) 3 Tax Cas 185 (supra) and 58 Ind App 239: (AIR 1931 PC 165 ) (supra), and observed:"The result is that when a claim is made for a deduction for which there is no specific provision in S. 10(2), whether it is admissible or not will depend on whether, having regard to accepted commercial practice and trading principles, it can be said to arise out of the carrying on of the business and to be incidental to it. If that is established then the deduction must be allowed, provided of course there is no prohibition against it, express or implied, in the Act."30.Turning now to the facts of the present case, we find that the sum of Rs. 24,809 represented the estimated expenditure which had to be incurred by the appellant in discharging a liability which it had already undertaken under the terms of the deeds of sale of the lands in question and was an accrued liability which according to the mercantile system of accounting the appellant was entitled to debit in its books of account for the accounting year as against the receipts of Rs. 43,692-11-9 which represented the sale proceeds of thc said lands. Even under S. 10 (2) of the Income-tax Act, it might possibly be urged that the word "expended " was capable of being interpreted as "expendable" or "to be expended at least in a case where a liability to incur the said expenses had been actually incurred by the assessee who adopted the mercantile system of accounting and the debit of Rs. 24,809 was thus a proper debit in the present case. We need not however base our decision on any such consideration. We are definitely of opinion that the sum of Rs. 24,809 represented the estimated amount which would have to be expended by the appellant in the course of carrying on its business and was incidental to the same and having regard to the accepted commercial practice and trading principles was a deduction which, if there was no specific provision for it under S. 10(2) of the Act was certainly allowable deduction, in arriving at the profits and gains of the business of the appellant under S. 10(1) of the Act, there being no prohibition against it, express or implied in the Act.31. It is to be noted that the appellant had led evidence before the Income-tax authorities in regard to this estimated expenditure of Rs. 24,809 and no exception was taken to the same in regard to the quantum, though the permissibility of such a deduction was questioned by them relying upon the provisions of S. 10(2) of the Act,32. It therefore follows that the conclusion reached by the High Court in regard to the disallowance of Rs. 24,809 was wrong and it should have answered the referred question in the affirmative.33.Before we conclude, we are bound to observe that having accepted the receipts of Rs. 43,692-11-9 in their totality even though a sum of Rs. 29,392-11-9 only was actually received by the appellant in cash, thus making the appellant liable for income-tax on a sum of Rs. 14,300 which had not been received by it during the accounting year, it was hardly open to the Revenue to urge that the sum of Rs. 24,809 should not have been allowed as a permissible deduction before arriving at the profits or gains of the appellant which were liable to tax.Consistently enough with this attitude, the Revenue ought to have expressed its willingness to treat only a sum of Rs. 29,392-11-9 as the actual receipt of the appellant during the accounting year and made up the computation of the profits and gains of the appellants business on that basis. The Revenue, however, did nothing of the sort and insisted upon having its pound of flesh, asking us to delete the whole of the item of Rs. 24.809 from the debit side of thc account which it was certainly not entitled to do.
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of that time limit did not prescribe any condition for the carrying out of that undertaking and the undertaking was absolute in terms. If that undertaking imported any liability on the appellant the liability had already accrued on the dates of the deeds of sale, though that liability was to be discharged at a future date. It was thus an accrued liability and the estimated expenditure which would be incurred in discharging the same could very well be deducted from the profits and gains of the business.As in the case of assets received during the accounting year which could not be immediately realized in a commercial sense, so in the case of the liabilities which have already accrued during the accounting year, though they may not have to be discharged till a later date. It will be always open to the Income-tax authorities to fix an appropriate money value of that liability as at the end of the accounting period by taking all the circumstances into consideration and the estimate of expenses given by the assessee would be liable to scrutiny at their hands having regard to all the facts and circumstances of the case.23. The High Court was, therefore, clearly in error when itview of all the circumstances of the case it must in my opinion, be held that the amounts of sale-price, not received in cash, were also received and for the purpose of earning the receipts the assessee spent, besides giving the lands, nothing more than a promise. Since the whole amount was actually received in the year of account before and without making the promised expenditure, no question of allowing a deduction of any expenditure from such receipts of the yearhowever, distinguished the present case in life ground that the liability here was a floating liability, the measure of which depended upon the will of the appellant and the discharge of which rested only in a promise and that the expenses were entirely at large and the development work itself merely so.25. Apart, however, from the question whether S. 10(2)(xv) of the Income-tax Act would apply to the facts of the present case, the case is, in our opinion we within the purview of S. 10(1) of the Income-tax Act. The appellant here is being assessed in respect of the profits and gains of its business and the profits and gains of the business cannot be determined unless and until the expenses or the obligations which have been incurred are set off against theThese are no doubt observations from the English cases dealing with English statutes of Income-tax, but the general principles which can be deduced therefrom are, nevertheless, applicablenow to the facts of the present case, we find that the sum of Rs. 24,809 represented the estimated expenditure which had to be incurred by the appellant in discharging a liability which it had already undertaken under the terms of the deeds of sale of the lands in question and was an accrued liability which according to the mercantile system of accounting the appellant was entitled to debit in its books of account for the accounting year as against the receipts of Rs. 43,692-11-9 which represented the sale proceeds of thc said lands. Even under S. 10 (2) of the Income-tax Act, it might possibly be urged that the word "expended " was capable of being interpreted as "expendable" or "to be expended at least in a case where a liability to incur the said expenses had been actually incurred by the assessee who adopted the mercantile system of accounting and the debit of Rs. 24,809 was thus a proper debit in the present case. We need not however base our decision on any such consideration. We are definitely of opinion that the sum of Rs. 24,809 represented the estimated amount which would have to be expended by the appellant in the course of carrying on its business and was incidental to the same and having regard to the accepted commercial practice and trading principles was a deduction which, if there was no specific provision for it under S. 10(2) of the Act was certainly allowable deduction, in arriving at the profits and gains of the business of the appellant under S. 10(1) of the Act, there being no prohibition against it, express or implied in the Act.31. It is to be noted that the appellant had led evidence before the Income-tax authorities in regard to this estimated expenditure of Rs. 24,809 and no exception was taken to the same in regard to the quantum, though the permissibility of such a deduction was questioned by them relying upon the provisions of S. 10(2) of the Act,32. It therefore follows that the conclusion reached by the High Court in regard to the disallowance of Rs. 24,809 was wrong and it should have answered the referred question in the affirmative.33.Before we conclude, we are bound to observe that having accepted the receipts of Rs. 43,692-11-9 in their totality even though a sum of Rs. 29,392-11-9 only was actually received by the appellant in cash, thus making the appellant liable for income-tax on a sum of Rs. 14,300 which had not been received by it during the accounting year, it was hardly open to the Revenue to urge that the sum of Rs. 24,809 should not have been allowed as a permissible deduction before arriving at the profits or gains of the appellant which were liable to tax.Consistently enough with this attitude, the Revenue ought to have expressed its willingness to treat only a sum of Rs. 29,392-11-9 as the actual receipt of the appellant during the accounting year and made up the computation of the profits and gains of the appellants business on that basis. The Revenue, however, did nothing of the sort and insisted upon having its pound of flesh, asking us to delete the whole of the item of Rs. 24.809 from the debit side of thc account which it was certainly not entitled to do.
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Hindustan Aluminium Corporation Ltd Vs. State Of Uttar Pradesh & Anr | sense, as a substitute for "and". This is the reasonable and proper construction having regard to the scheme followed in the framing of notifications. 11. It is urged that item No. 6 in the notification of 1973 and Item No. 1 in the notification of 1975 speak of "all kinds of minerals, ores, metals and alloys" and, it is said, the word "all" should be given its fullest amplitude so as to include even subsequently fabricated forms of the metal. It seems to us that the construction suggested is inconsistent with the scheme to which we have referred. While broadly a metal in its primary form and a metal in its subsequently fabricated form may be said to belong to the same genus, the distinction made between the two constitutes a dichotomy of direct significance to the controversy before us. 12. The question whether rolled steel sections are a different commodity from scrap iron ingots was considered by this Court in Devi Das G opal Krishnan and Others v. The State of Punjab and Others, and this Court had no hesitation in holding that when scrap iron ingots are converted into rolled steel sections they go through a process of manufacture which brings into existence a new marketable commodity. We are of the opinion that the same conclusion must follow when aluminium ingots and billets are converted into aluminium rolled products and extrusion products. 13. Learned counsel for the appellant places reliance on Tungabhadra Industries Ltd., Kurnool v. Commercial Tax Officer, Kurnool where this Court took the view that hydrogenated "groundnut oil" commonly called Vanaspati was "ground nut oil" within the meaning of rule 18(2) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. In that case, the Court was of opinion that the process of hydrogenation did not alter the essential identity of the oil, and reference was made to the broad compass of the expression "groundnut oil", besides the circumstance that the use to which the original groundnut oil could be put would also be the use to which the hydrogenated oil could be applied. It seems to us that the case is distinguishable. We then turn to State of Madhya Bharat (now the State of Madhya Pradesh) and Others v. Hiralal, the next case placed before us. This Court held that scrap iron, when put through a process of re-rolling to produce attractive and acceptable forms of iron and steel in the shape of bars, flats and plates, must be regarded as continuing to be "iron and steel" for the purpose of the notification issued under the Madhya Bharat Sales Tax Act. The case, however, has been distinguished by this Court in State of Tamil Nadu v. Pyare Lal Malhotra on the ground that the nature of the raw material from which the goods were made was the decisive criterion for deciding the earlier case. It observed -"The language of the notification involved t here made it clear that the exemption was for the metal used. In the cases before us now, the object of single point taxation is the commercial commodities and not the substance out of which it is made. Each commercial commodity here becomes a separate object of taxation in a series of sales of that commercial commodity so long as it retains its identity as that commodity." 14. And the Court then referred with approval to Devi Dass Gopal Krishnan (supra). Our attention has been invited to State of Gujarat v. Shah Veljibhai Motichand, Lunawada where the Gujarat High Court held that corrugated iron sheets were merely "iron" in another shape and form and could not be regarded as articles or products manufactu red or fabricated out of iron. We have perused the three judgments delivered in that case but it seems to us that the majority opinion is of doubtful validity, specially having regard to the observations of this Court made in Pyare Lal Malthora (supra). We are also referred to Maharaja Book Depot v. State of Gujarat. This Court held that an exercise book is "paper" as defined in s. 2(a) (vii) of the Essential Commodities Act, 1955 and Item 13 in Schedule I to the Gujarat Essential Articles Dealers (Regulation) Order 1971. The Court accepted that construction on the ground that it would be in consonance with and would carry out effectively the object or purpose of the Act and the Regulation Order. It is desirable t o recall that the Essential Commodities Act was enacted to control the distribution and price of essential commodities. A sufficiently comprehensive interpretation was called for in order that all products essential to the community which would reasonably fall within the scope of the definition could be covered.Learned counsel for the appellant relies on the wide definition of the word "aluminium" in the Aluminium (Control) Order, 1970, but we must remember that the word ha s been given the broad definition set out there only for the purposes of that Control Order. It cannot be pressed into service for resolving the controversy before us. 15. Learned counsel for the appellant also relies on the Glossary of Terms for Aluminium and Aluminium Alloys prepared by the Indian Standards Institution(1), the Glossary of Terms prepared by the British Standards Institution(2), Engineering Metallurgy(3), Non-Ferrous Metals and their Alloys(4), Met al Industry: Hand Book and Directory, 1962 and allied literature. In considering the material, it is necessary to caution ourselves that the literature is concerned with conceptions particular to the aluminium industry, while we are here concerned with the application of a sales tax statute.16. Finally, it is urged that two interpretations are possible of the relevant entries in the notifications of 1973 and 1975 therefore the interpretation favourable to the dealer should be adopted. We are of the definite opinion that the only interpretation possible is that aluminium rolled products and extrusions are regarded as distinct commercial items from aluminium ingots and billets in the notifications issued under the U. P. Sales Tax Act. 17. | 0[ds]Words of everyday use must be construed not in their scientific or technical sense but as understood in common parlance. That principle has been repeatedly reaffirmed in the decisions of this Court. It holds good where a contest exists between the scientific and technological connotation of the word on the one hand and its understanding in common parlance on the other. We are here concerned, however, with a very different situation. We are concerned, with the manner in which these and similar expressions have been employed by those who framed the relevant notifications, and with the inference that can be drawn from the particular arrangement of the entries in the notifications. We must derive the intent from a contextual scheme.Section 3A of the U.P. Sales Tax Act empowers the State Government to prescribe, by notification, the rate, and the point at which the tax may be imposed on the sale of a commodity. A consideration of the notifications issued from time to time will show that the expression "metal" has been generally employed to refer to the metal in its primary sense. The reference is to the metal in the form in which it is marketable as a primary commodity. Subsequent forms evolved from the primary form and constituting distinct commodities marketable as such must be regarded as new commercial commoditiesIt is clear that while clause (a) makes specific reference to certain metals, clause (b) separately sets forth the products which emerge as a result of processing the original metal. Clause (b) speaks of sheets, including circles meant for making brass-ware, and containing only any or all of the metals specified in clause (a). A sheet of copper only or tin only or nickel only or zinc only is regarded as belonging to a distinct entry in the notification from copper, tin, nickel or zinc in its unfabricated from. This schematic arrangement has been followed in notification No. ST-3500/X dated May 10, 1956, notification No. 1366/X-990- 1956, dated April 1 , 1960 and notification No. St-9377/X-906 (AB-4)-1971 dated October 6, 1971. In all those notifications the framers of the notifications followed the scheme that one clause dealt with the metal in its original saleable form and another separate clause dealt with fabricated forms in which it was saleable as a new commodity. It is admitted before us on behalf of the appellant that aluminium ingots and billets are saleable commodities as such in the market. In the circumstances the inference is irresistible that when such a notification refers to a metal, it refers to the metal in the primary or original form in which it is saleable and not to any subsequently fabricated form. It is true that in the notification dated May 30, 1975, as amended retrospectively on August 14, 1975It is urged that item No. 6 in the notification of 1973 and Item No. 1 in the notification of 1975 speak of "all kinds of minerals, ores, metals and alloys" and, it is said, the word "all" should be given its fullest amplitude so as to include even subsequently fabricated forms of themetal.It seems to us that the construction suggested is inconsistent with the scheme to which we have referred. While broadly a metal in its primary form and a metal in its subsequently fabricated form may be said to belong to the same genus, the distinction made between the two constitutes a dichotomy of direct significance to the controversy before usFinally, it is urged that two interpretations are possible of the relevant entries in the notifications of 1973 and 1975 therefore the interpretation favourable to the dealer should be adopted.We are of the definite opinion that the only interpretation possible is that aluminium rolled products and extrusions are regarded as distinct commercial items from aluminium ingots and billets in the notifications issued under the U. P. Sales Tax Act8. We are not satisfied that the appellant is right. There is no doubt that, as laid down by this Court in Porritts &Spencer (Asia) Ltd. v. State of Haryana, a word describing a commodity in a sales tax statute should be interpreted according to its popular sense, the sense being that in which people conversant with the subject matter with which the statute is dealing would attribute to it | 0 | 2,849 | 788 | ### Instruction:
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sense, as a substitute for "and". This is the reasonable and proper construction having regard to the scheme followed in the framing of notifications. 11. It is urged that item No. 6 in the notification of 1973 and Item No. 1 in the notification of 1975 speak of "all kinds of minerals, ores, metals and alloys" and, it is said, the word "all" should be given its fullest amplitude so as to include even subsequently fabricated forms of the metal. It seems to us that the construction suggested is inconsistent with the scheme to which we have referred. While broadly a metal in its primary form and a metal in its subsequently fabricated form may be said to belong to the same genus, the distinction made between the two constitutes a dichotomy of direct significance to the controversy before us. 12. The question whether rolled steel sections are a different commodity from scrap iron ingots was considered by this Court in Devi Das G opal Krishnan and Others v. The State of Punjab and Others, and this Court had no hesitation in holding that when scrap iron ingots are converted into rolled steel sections they go through a process of manufacture which brings into existence a new marketable commodity. We are of the opinion that the same conclusion must follow when aluminium ingots and billets are converted into aluminium rolled products and extrusion products. 13. Learned counsel for the appellant places reliance on Tungabhadra Industries Ltd., Kurnool v. Commercial Tax Officer, Kurnool where this Court took the view that hydrogenated "groundnut oil" commonly called Vanaspati was "ground nut oil" within the meaning of rule 18(2) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. In that case, the Court was of opinion that the process of hydrogenation did not alter the essential identity of the oil, and reference was made to the broad compass of the expression "groundnut oil", besides the circumstance that the use to which the original groundnut oil could be put would also be the use to which the hydrogenated oil could be applied. It seems to us that the case is distinguishable. We then turn to State of Madhya Bharat (now the State of Madhya Pradesh) and Others v. Hiralal, the next case placed before us. This Court held that scrap iron, when put through a process of re-rolling to produce attractive and acceptable forms of iron and steel in the shape of bars, flats and plates, must be regarded as continuing to be "iron and steel" for the purpose of the notification issued under the Madhya Bharat Sales Tax Act. The case, however, has been distinguished by this Court in State of Tamil Nadu v. Pyare Lal Malhotra on the ground that the nature of the raw material from which the goods were made was the decisive criterion for deciding the earlier case. It observed -"The language of the notification involved t here made it clear that the exemption was for the metal used. In the cases before us now, the object of single point taxation is the commercial commodities and not the substance out of which it is made. Each commercial commodity here becomes a separate object of taxation in a series of sales of that commercial commodity so long as it retains its identity as that commodity." 14. And the Court then referred with approval to Devi Dass Gopal Krishnan (supra). Our attention has been invited to State of Gujarat v. Shah Veljibhai Motichand, Lunawada where the Gujarat High Court held that corrugated iron sheets were merely "iron" in another shape and form and could not be regarded as articles or products manufactu red or fabricated out of iron. We have perused the three judgments delivered in that case but it seems to us that the majority opinion is of doubtful validity, specially having regard to the observations of this Court made in Pyare Lal Malthora (supra). We are also referred to Maharaja Book Depot v. State of Gujarat. This Court held that an exercise book is "paper" as defined in s. 2(a) (vii) of the Essential Commodities Act, 1955 and Item 13 in Schedule I to the Gujarat Essential Articles Dealers (Regulation) Order 1971. The Court accepted that construction on the ground that it would be in consonance with and would carry out effectively the object or purpose of the Act and the Regulation Order. It is desirable t o recall that the Essential Commodities Act was enacted to control the distribution and price of essential commodities. A sufficiently comprehensive interpretation was called for in order that all products essential to the community which would reasonably fall within the scope of the definition could be covered.Learned counsel for the appellant relies on the wide definition of the word "aluminium" in the Aluminium (Control) Order, 1970, but we must remember that the word ha s been given the broad definition set out there only for the purposes of that Control Order. It cannot be pressed into service for resolving the controversy before us. 15. Learned counsel for the appellant also relies on the Glossary of Terms for Aluminium and Aluminium Alloys prepared by the Indian Standards Institution(1), the Glossary of Terms prepared by the British Standards Institution(2), Engineering Metallurgy(3), Non-Ferrous Metals and their Alloys(4), Met al Industry: Hand Book and Directory, 1962 and allied literature. In considering the material, it is necessary to caution ourselves that the literature is concerned with conceptions particular to the aluminium industry, while we are here concerned with the application of a sales tax statute.16. Finally, it is urged that two interpretations are possible of the relevant entries in the notifications of 1973 and 1975 therefore the interpretation favourable to the dealer should be adopted. We are of the definite opinion that the only interpretation possible is that aluminium rolled products and extrusions are regarded as distinct commercial items from aluminium ingots and billets in the notifications issued under the U. P. Sales Tax Act. 17.
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Words of everyday use must be construed not in their scientific or technical sense but as understood in common parlance. That principle has been repeatedly reaffirmed in the decisions of this Court. It holds good where a contest exists between the scientific and technological connotation of the word on the one hand and its understanding in common parlance on the other. We are here concerned, however, with a very different situation. We are concerned, with the manner in which these and similar expressions have been employed by those who framed the relevant notifications, and with the inference that can be drawn from the particular arrangement of the entries in the notifications. We must derive the intent from a contextual scheme.Section 3A of the U.P. Sales Tax Act empowers the State Government to prescribe, by notification, the rate, and the point at which the tax may be imposed on the sale of a commodity. A consideration of the notifications issued from time to time will show that the expression "metal" has been generally employed to refer to the metal in its primary sense. The reference is to the metal in the form in which it is marketable as a primary commodity. Subsequent forms evolved from the primary form and constituting distinct commodities marketable as such must be regarded as new commercial commoditiesIt is clear that while clause (a) makes specific reference to certain metals, clause (b) separately sets forth the products which emerge as a result of processing the original metal. Clause (b) speaks of sheets, including circles meant for making brass-ware, and containing only any or all of the metals specified in clause (a). A sheet of copper only or tin only or nickel only or zinc only is regarded as belonging to a distinct entry in the notification from copper, tin, nickel or zinc in its unfabricated from. This schematic arrangement has been followed in notification No. ST-3500/X dated May 10, 1956, notification No. 1366/X-990- 1956, dated April 1 , 1960 and notification No. St-9377/X-906 (AB-4)-1971 dated October 6, 1971. In all those notifications the framers of the notifications followed the scheme that one clause dealt with the metal in its original saleable form and another separate clause dealt with fabricated forms in which it was saleable as a new commodity. It is admitted before us on behalf of the appellant that aluminium ingots and billets are saleable commodities as such in the market. In the circumstances the inference is irresistible that when such a notification refers to a metal, it refers to the metal in the primary or original form in which it is saleable and not to any subsequently fabricated form. It is true that in the notification dated May 30, 1975, as amended retrospectively on August 14, 1975It is urged that item No. 6 in the notification of 1973 and Item No. 1 in the notification of 1975 speak of "all kinds of minerals, ores, metals and alloys" and, it is said, the word "all" should be given its fullest amplitude so as to include even subsequently fabricated forms of themetal.It seems to us that the construction suggested is inconsistent with the scheme to which we have referred. While broadly a metal in its primary form and a metal in its subsequently fabricated form may be said to belong to the same genus, the distinction made between the two constitutes a dichotomy of direct significance to the controversy before usFinally, it is urged that two interpretations are possible of the relevant entries in the notifications of 1973 and 1975 therefore the interpretation favourable to the dealer should be adopted.We are of the definite opinion that the only interpretation possible is that aluminium rolled products and extrusions are regarded as distinct commercial items from aluminium ingots and billets in the notifications issued under the U. P. Sales Tax Act8. We are not satisfied that the appellant is right. There is no doubt that, as laid down by this Court in Porritts &Spencer (Asia) Ltd. v. State of Haryana, a word describing a commodity in a sales tax statute should be interpreted according to its popular sense, the sense being that in which people conversant with the subject matter with which the statute is dealing would attribute to it
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Ramanbhai Naranbhai Patel Vs. State Of Gujarat | of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad day light. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them.21. But even that apart, there is direct eyewitness account deposed to by the witness Dhirubhai Mohanbhai (brother of the deceased), witness Dhirubhai Mohanbhai P.W.5, the tenant residing in the locality and Dilipbhai, the younger brother of the deceased. These witnesses have clearly deposed that they knew the accused. In fact, Dilipbhai was the person who was involved in the incident of the previous day wherein Accused No. 1 and his accomplices had a quarrel with him and his supporters. That part of the evidence of these eyewitnesses had remained well sustained on record. So far as witness Niruben was concerned, she is the wife of the deceased Ramanbhai Mohanbhai. The accused mounted an assault on her husband in her bedroom and even though she might not be knowing the accused earlier, the faces of the accused mounting such an assault and which caused fatal injuries to her husband can easily be treated to have been imprinted in her mind and when she could identify these accused in the Court even in the absence of identification parade, it could not be said that her deposition was unnatural or she was trying to falsely rope in the present accused by shielding the real assaulters on her husband.22. In this connection, we may also consider one grievance put forward by learned Counsel for the appellants. So far as the evidence of witness Dhirubhai Mohanbhai is concerned, he submitted that on a holiday like 25.12.1987, this witness who was aged 19 years, had no occasion to stand near the pan galla and witness the incident and that he was a chance witness. It is difficult to appreciate this contention. It is not unnatural for a younger boy like Dhirubhai Mohanbhai on a holiday to stand near the pan galla. It was he who detected Accused Nos. 3, 4 and 6, who came on motorcycle and who were followed by their other accomplices forming part and parcel of the unlawful assembly. They were all armed with deadly weapons. This witness cannot be said to be a chance witness as he was staying in the same house in which Ramanbhai Mohanbhai was staying. His presence was, therefore, most natural. As he was involved in quarrel with Accused No. 1 and his group on the earlier day, he could easily identify them and could visualise that they had come to mount an assault on them. Learned Counsel for the appellants then submitted that if that was so the accused would have first assaulted Dhirubhai Mohanbhai instead of assaulting the witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai or for that matter deceased Ramanbhai Mohanbhai. The High Court has given a cogent reason for repelling this contention. The accused, as the eyewitness account shows, first rushed in a group to the Press belonging to Nitinbhai, who was involved in the incident of earlier day, and there they assaulted Bhogilal Ranchhodbhai and in the process also Karsanbhai Vallabhbhai and then rushed into the house of Ramanbhai. Therefore, they might have failed to witness Dilipbhai but that does not mean that the eyewitness account of Dilipbhai should be treated to be a concocted one especially when he fully knew the accused and their intentions as he had a quarrel with them only on the earlier day.23. Similarly, the submission of learned Counsel for the appellants that witness Dhirubhai Premjibhai-P.W.5, was a chance witness, also cannot be countenanced as the evidence on record shows that he was a tenant of Shivkrupa building situated in the near vicinity and he was staying in the locality since number of years. He had no reason to falsely implicate the accused nor was he interested in any of the prosecution witnesses. He knew the accused as deposed to by him and that part of the evidence has stood the test of cross-examination. Consequently, this witness cannot be said to be a chance witness as contended by learned Counsel for the appellants. So far as the witness Dhirubhai, brother of the deceased is concerned, he was a practising advocate and he was staying in the nearly house. His version was quite natural that he rushed on spot and saw the assault by the accused on the victims and tried to help the injured Ramanbhai Mohanbhai being carried to the hospital. This witness also had deposed that he had known the accused since long. Consequently, even leaving aside the eyewitness account of Niruben and the injured witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai as there was no identification parade of the accused qua them, the eyewitness accounts of Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai clearly rope in the accused in the crime as they were well known to them. Both the Courts below have, therefore, rightly placed reliance on this evidence to bring home the charges to the accused. The net result of this discussion is that Accused Nos. 1 and 2 are clearly mentioned in the dying declaration Exhibit-75. They are said to have assaulted the deceased and inflicted severe injuries, which ultimately killed him. That part of the dying declaration is fully supported by the eyewitness account of witnesses Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai who had seen these accused in the company of Accused Nos. 3, 4 and 6 and who had, on the date of the incident, being armed with deadly weapons and having formed an unlawful assembly had committed the crime in question. It must, therefore, be held that the prosecution had fully established its case against Accused Nos. 1, 2, 3, 4 and 6. Their appeal was rightly dismissed by the High Court. | 0[ds]12. We have also carefully considered the impugned judgment of the High Court and have found that the conclusions to which the High Court reached against the appellants is well sustained on evidence on record and calls for no interference. It could not be demonstrated by learned Counsel for the appellants that the concurrent findings of fact reached by the Sessions Court and the High Court on prosecution evidence suffered from any manifest illegality or perversity or had resulted into any grave failure of justice. Once this conclusion is reached, the appeal would be liable toNos. 1 and 2reason is obvious. According to the prosecution case and as supported by eyewitness account, a group of persons armed with deadly weapons came in by speeding vehicles like scooter and Bullet motorcycles in batches and mounted an assault in broad day light near the Press as well as in the house of deceased Ramanbhai Mohanbhai and also in the near vicinity thereof resulting in serious injures by sharp cutting instruments to eyewitnesses Bhogilal Ranchhodbhai, P.W. 2, Karsanbhai Vallabhbhai, P.W. 14, and Dhirubhai Mohanbhai (brother of deceased). The injures suffered by Bhogilal Ranchhodbhai were apparently of a very serious nature as his intestines had come out, as noted by the doctor who treated him, and a piece of his intestine was even found lying on the spot and there was blood shed all round. In such a situation the anxiety of PSI Shri Parmar to first remove the injured to the hospital to save their lives instead of going into the meticulous details by way of interrogating the persons standing nearby for finding out the cause of the assault, cannot be said to be unnatural or uncalled for. It is in the evidence of PSI Shri Parmar that the moment he got an opportunity in the hospital to record the statement of Ramanbhai Mohanbhai, he recorded the same at about 12.30 P.M. because prior thereto the doctor attending upon the injured had not permitted him to interrogate the injured and that the injured Bhogilal Ranchhodbhai was unconscious. While the injured Ramanbhai Mohanbhai was also being given preliminary treatment and only when he was removed to the ward that PSI Shri Parmar got an opportunity to interrogate him and immediately recorded his statement as an FIR which subsequently, as noted earlier, has become a dying declaration i.e.The evidence of Shri Parmar further shows that thereafter he started investigation, went on spot, made Panchnama of three places of offence i.e. the Press, the house of Ramanbhai Mohanbhai and also in the vicinity and when in the meantime the injured Ramanbhai Mohanbhai died at 4.00 P.M. in the hospital recording the case of order, the inquest Panchnama was made and thereafter in the evening statements of witnesses were recorded. Under these circumstances, it is difficult appreciate how it can be alleged that the police investigation was not a bona fide one. It is, of course, true that the High Court, as noted in the impugned judgment, has observed that PSI Shri Parmar had miserably failed to come up to an ideal standard of investigation. But, in our view, the said observation is not fully justified. It may be that Shri Parmar could have acted more promptly but that would not mean that he was guilty of any mala fide intentions. Learned Counsel for the appellants also heavily relied upon the observations of the High Court in para 30 of the judgment that theof the witnesses and more particularly of Dhirubhai Mohanbhai, as also theof the two police officers Shri Parmar and Shri Buch, bring out enough material to show that some efforts were being made to influence the investigation. These observations, however, cannot help the learned Counsel for the appellants for the simple reason that the High Court itself notes that theseefforts had failed. Once the injured eyewitnesses and other eyewitnesses have been found to be reliable and especially when the dying declarationclearly implicate Accused Nos. 1, 2 and other persons, it is not possible to countenance the submission of learned Counsel for the appellants that PSI Shri Parmar was waiting to rope in innocent accused and was in search of their names. The submissions in support of these two points, therefore, are not of any avail to the learned Counsel for the appellants.Point No. 3 :16. It is true that the FIR, based on dying declarationdoes not disclose the names of all the accused. However, a mere look at the said dying declaration shows that the deceased Ramanbhai Mohanbhai clearly stated that he was assaulted by deadly weapons by AccusedNos. 1 andamongst others, of course, he mentioned the names of Accused No.Ghanshyambhai Patel and one another Ghanshyambhai who assaulted him. But Accused No.Ghanshyambhai Patel was already acquitted while Ghanshyambhai was notHowever, in the same statement, he also mentioned that there was an assembly of 15 to 17 persons. Consequently, the dying declaration can certainly be held to have involved AccusedNos. 1 andin the fatal assault on deceased Ramanbhai Mohanbhai, amongst others. Thus it has to be kept in view that the said dying declaration had not only mentioned a limited number of persons who had attacked him but had also clearly involved other persons who were accomplices of the named accused, who all came in a group and mounted assault on him. Consequently,of names of remaining accused by Ramanbhai Mohanbhai in his dying declaration pales into insignificance. That disposes of Point No. 3.Point No. 4 :17. So far as the medical evidence is concerned, the High Court has observed in para 13 of the judgment that looking to the injuries received by the surviving victims as well as on the person of the deceased, the case of weapons asby the prosecution is certainly made out. No doubt, there is reference to presence of spear and dharia, which has not been ultimately spoken to by any of the witnesses as having been used, but when gupti is used, according to prosecution, stab wounds of a particular dimension can certainly be correlated with it as would be the case with the use of knife. Axe blows are also clearly made out from the point of view of medical evidence. These observations of the High Court, while considering the medical evidence, are fully borne out from the eyewitness account as seen in the light of the medical evidence. It has to be kept in view that this is a case in which assault was mounted by large number of persons forming an unlawful assembly and they were armed with different types of weapons even though injures suffered by the victims might have been caused by gupti or axe or hockey stick. It is easy to visaulise that other persons who were forming part of the same group might have been armed with spear or dharia but as they are acquitted, nothing more can be said about the same. However, it must be held that the injures, suffered by the eyewitnesses as noted by the medical evidence, could very well have been caused by sharp cutting instruments like axe and gupti. It, therefore, cannot be said that the medical evidence does not support the prosecution case. This point, therefore, also is not well sustained on evidence on record.Point No. 5In becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances, identification of such a named accused only in the Court when the accused was not known earlier to the witness had to be treated as valueless. The said decision, in turn, relied upon an earlier decision of this Court in the case of State (Delhi Admn.) v. V.C. Shukla and another etc., AIR 1980 SC 1382 wherein also Fazal Ali, J., speaking for a three Judge Bench made similar observations in this regard. In that case the evidence of the witness of the Court and his identifying the accused only in the Court without previous identification parade was found to be a valueless exercise. The observations made therein were confined to the nature of the evidence deposed o by the said eyewitnesses. It, therefore, cannot be held, as tried to be submitted by learned Counsel for the appellants, that in the absence of test identification parade, the evidence of eyewitness identifying the accused would become inadmissible or totally useless. Whether the evidence deserves any credence or not would always depend on the facts and circumstance of each case. It is, of course, true as submitted by learned Counsel for the appellants, that the later decisions of this Court in the case of Rajesh Govind Jagesha and others v. State of Maharashtra and State of Himachal Pradesh v. Lekh Raj and another (supra) had not considered the aforesaid three Judge Bench decisions of this Court. However, in our view, the ratio of the aforesaid later decisions of this Court cannot be said to be running counter to what is decided by the earlier three Judge Bench judgments on the facts and circumstances examined by the Court while rendering these decisions. But even assuming as submitted by learned Counsel for the appellants that the evidence of these two injured witness i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in the Court may be treated to be of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad day light. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them.21. But even that apart, there is direct eyewitness account deposed to by the witness Dhirubhai Mohanbhai (brother of the deceased), witness Dhirubhai Mohanbhai P.W.5, the tenant residing in the locality and Dilipbhai, the younger brother of the deceased. These witnesses have clearly deposed that they knew the accused. In fact, Dilipbhai was the person who was involved in the incident of the previous day wherein Accused No. 1 and his accomplices had a quarrel with him and his supporters. That part of the evidence of these eyewitnesses had remained well sustained on record. So far as witness Niruben was concerned, she is the wife of the deceased Ramanbhai Mohanbhai. The accused mounted an assault on her husband in her bedroom and even though she might not be knowing the accused earlier, the faces of the accused mounting such an assault and which caused fatal injuries to her husband can easily be treated to have been imprinted in her mind and when she could identify these accused in the Court even in the absence of identification parade, it could not be said that her deposition was unnatural or she was trying to falsely rope in the present accused by shielding the real assaulters on her husband.22. In this connection, we may also consider one grievance put forward by learned Counsel for the appellants. So far as the evidence of witness Dhirubhai Mohanbhai is concerned, he submitted that on a holiday like 25.12.1987, this witness who was aged 19 years, had no occasion to stand near the pan galla and witness the incident and that he was a chance witness. It is difficult to appreciate this contention. It is not unnatural for a younger boy like Dhirubhai Mohanbhai on a holiday to stand near the pan galla. It was he who detected Accused Nos. 3, 4 and 6, who came on motorcycle and who were followed by their other accomplices forming part and parcel of the unlawful assembly. They were all armed with deadly weapons. This witness cannot be said to be a chance witness as he was staying in the same house in which Ramanbhai Mohanbhai was staying. His presence was, therefore, most natural. As he was involved in quarrel with Accused No. 1 and his group on the earlier day, he could easily identify them and could visualise that they had come to mount an assault on them. Learned Counsel for the appellants then submitted that if that was so the accused would have first assaulted Dhirubhai Mohanbhai instead of assaulting the witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai or for that matter deceased Ramanbhai Mohanbhai. The High Court has given a cogent reason for repelling this contention. The accused, as the eyewitness account shows, first rushed in a group to the Press belonging to Nitinbhai, who was involved in the incident of earlier day, and there they assaulted Bhogilal Ranchhodbhai and in the process also Karsanbhai Vallabhbhai and then rushed into the house of Ramanbhai. Therefore, they might have failed to witness Dilipbhai but that does not mean that the eyewitness account of Dilipbhai should be treated to be a concocted one especially when he fully knew the accused and their intentions as he had a quarrel with them only on the earlier day.23. Similarly, the submission of learned Counsel for the appellants that witness Dhirubhaiwas a chance witness, also cannot be countenanced as the evidence on record shows that he was a tenant of Shivkrupa building situated in the near vicinity and he was staying in the locality since number of years. He had no reason to falsely implicate the accused nor was he interested in any of the prosecution witnesses. He knew the accused as deposed to by him and that part of the evidence has stood the test ofConsequently, this witness cannot be said to be a chance witness as contended by learned Counsel for the appellants. So far as the witness Dhirubhai, brother of the deceased is concerned, he was a practising advocate and he was staying in the nearly house. His version was quite natural that he rushed on spot and saw the assault by the accused on the victims and tried to help the injured Ramanbhai Mohanbhai being carried to the hospital. This witness also had deposed that he had known the accused since long. Consequently, even leaving aside the eyewitness account of Niruben and the injured witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai as there was no identification parade of the accused qua them, the eyewitness accounts of Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai clearly rope in the accused in the crime as they were well known to them. Both the Courts below have, therefore, rightly placed reliance on this evidence to bring home the charges to the accused. The net result of this discussion is that AccusedNos. 1 andare clearly mentioned in the dying declarationThey are said to have assaulted the deceased and inflicted severe injuries, which ultimately killed him. That part of the dying declaration is fully supported by the eyewitness account of witnesses Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai who had seen these accused in the company of Accused Nos. 3, 4 and 6 and who had, on the date of the incident, being armed with deadly weapons and having formed an unlawful assembly had committed the crime in question. It must, therefore, be held that the prosecution had fully established its case against Accused Nos. 1, 2, 3, 4 and 6. Their appeal was rightly dismissed by the High Court. | 0 | 6,278 | 2,787 | ### Instruction:
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of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad day light. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them.21. But even that apart, there is direct eyewitness account deposed to by the witness Dhirubhai Mohanbhai (brother of the deceased), witness Dhirubhai Mohanbhai P.W.5, the tenant residing in the locality and Dilipbhai, the younger brother of the deceased. These witnesses have clearly deposed that they knew the accused. In fact, Dilipbhai was the person who was involved in the incident of the previous day wherein Accused No. 1 and his accomplices had a quarrel with him and his supporters. That part of the evidence of these eyewitnesses had remained well sustained on record. So far as witness Niruben was concerned, she is the wife of the deceased Ramanbhai Mohanbhai. The accused mounted an assault on her husband in her bedroom and even though she might not be knowing the accused earlier, the faces of the accused mounting such an assault and which caused fatal injuries to her husband can easily be treated to have been imprinted in her mind and when she could identify these accused in the Court even in the absence of identification parade, it could not be said that her deposition was unnatural or she was trying to falsely rope in the present accused by shielding the real assaulters on her husband.22. In this connection, we may also consider one grievance put forward by learned Counsel for the appellants. So far as the evidence of witness Dhirubhai Mohanbhai is concerned, he submitted that on a holiday like 25.12.1987, this witness who was aged 19 years, had no occasion to stand near the pan galla and witness the incident and that he was a chance witness. It is difficult to appreciate this contention. It is not unnatural for a younger boy like Dhirubhai Mohanbhai on a holiday to stand near the pan galla. It was he who detected Accused Nos. 3, 4 and 6, who came on motorcycle and who were followed by their other accomplices forming part and parcel of the unlawful assembly. They were all armed with deadly weapons. This witness cannot be said to be a chance witness as he was staying in the same house in which Ramanbhai Mohanbhai was staying. His presence was, therefore, most natural. As he was involved in quarrel with Accused No. 1 and his group on the earlier day, he could easily identify them and could visualise that they had come to mount an assault on them. Learned Counsel for the appellants then submitted that if that was so the accused would have first assaulted Dhirubhai Mohanbhai instead of assaulting the witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai or for that matter deceased Ramanbhai Mohanbhai. The High Court has given a cogent reason for repelling this contention. The accused, as the eyewitness account shows, first rushed in a group to the Press belonging to Nitinbhai, who was involved in the incident of earlier day, and there they assaulted Bhogilal Ranchhodbhai and in the process also Karsanbhai Vallabhbhai and then rushed into the house of Ramanbhai. Therefore, they might have failed to witness Dilipbhai but that does not mean that the eyewitness account of Dilipbhai should be treated to be a concocted one especially when he fully knew the accused and their intentions as he had a quarrel with them only on the earlier day.23. Similarly, the submission of learned Counsel for the appellants that witness Dhirubhai Premjibhai-P.W.5, was a chance witness, also cannot be countenanced as the evidence on record shows that he was a tenant of Shivkrupa building situated in the near vicinity and he was staying in the locality since number of years. He had no reason to falsely implicate the accused nor was he interested in any of the prosecution witnesses. He knew the accused as deposed to by him and that part of the evidence has stood the test of cross-examination. Consequently, this witness cannot be said to be a chance witness as contended by learned Counsel for the appellants. So far as the witness Dhirubhai, brother of the deceased is concerned, he was a practising advocate and he was staying in the nearly house. His version was quite natural that he rushed on spot and saw the assault by the accused on the victims and tried to help the injured Ramanbhai Mohanbhai being carried to the hospital. This witness also had deposed that he had known the accused since long. Consequently, even leaving aside the eyewitness account of Niruben and the injured witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai as there was no identification parade of the accused qua them, the eyewitness accounts of Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai clearly rope in the accused in the crime as they were well known to them. Both the Courts below have, therefore, rightly placed reliance on this evidence to bring home the charges to the accused. The net result of this discussion is that Accused Nos. 1 and 2 are clearly mentioned in the dying declaration Exhibit-75. They are said to have assaulted the deceased and inflicted severe injuries, which ultimately killed him. That part of the dying declaration is fully supported by the eyewitness account of witnesses Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai who had seen these accused in the company of Accused Nos. 3, 4 and 6 and who had, on the date of the incident, being armed with deadly weapons and having formed an unlawful assembly had committed the crime in question. It must, therefore, be held that the prosecution had fully established its case against Accused Nos. 1, 2, 3, 4 and 6. Their appeal was rightly dismissed by the High Court.
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accused in the Court may be treated to be of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad day light. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them.21. But even that apart, there is direct eyewitness account deposed to by the witness Dhirubhai Mohanbhai (brother of the deceased), witness Dhirubhai Mohanbhai P.W.5, the tenant residing in the locality and Dilipbhai, the younger brother of the deceased. These witnesses have clearly deposed that they knew the accused. In fact, Dilipbhai was the person who was involved in the incident of the previous day wherein Accused No. 1 and his accomplices had a quarrel with him and his supporters. That part of the evidence of these eyewitnesses had remained well sustained on record. So far as witness Niruben was concerned, she is the wife of the deceased Ramanbhai Mohanbhai. The accused mounted an assault on her husband in her bedroom and even though she might not be knowing the accused earlier, the faces of the accused mounting such an assault and which caused fatal injuries to her husband can easily be treated to have been imprinted in her mind and when she could identify these accused in the Court even in the absence of identification parade, it could not be said that her deposition was unnatural or she was trying to falsely rope in the present accused by shielding the real assaulters on her husband.22. In this connection, we may also consider one grievance put forward by learned Counsel for the appellants. So far as the evidence of witness Dhirubhai Mohanbhai is concerned, he submitted that on a holiday like 25.12.1987, this witness who was aged 19 years, had no occasion to stand near the pan galla and witness the incident and that he was a chance witness. It is difficult to appreciate this contention. It is not unnatural for a younger boy like Dhirubhai Mohanbhai on a holiday to stand near the pan galla. It was he who detected Accused Nos. 3, 4 and 6, who came on motorcycle and who were followed by their other accomplices forming part and parcel of the unlawful assembly. They were all armed with deadly weapons. This witness cannot be said to be a chance witness as he was staying in the same house in which Ramanbhai Mohanbhai was staying. His presence was, therefore, most natural. As he was involved in quarrel with Accused No. 1 and his group on the earlier day, he could easily identify them and could visualise that they had come to mount an assault on them. Learned Counsel for the appellants then submitted that if that was so the accused would have first assaulted Dhirubhai Mohanbhai instead of assaulting the witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai or for that matter deceased Ramanbhai Mohanbhai. The High Court has given a cogent reason for repelling this contention. The accused, as the eyewitness account shows, first rushed in a group to the Press belonging to Nitinbhai, who was involved in the incident of earlier day, and there they assaulted Bhogilal Ranchhodbhai and in the process also Karsanbhai Vallabhbhai and then rushed into the house of Ramanbhai. Therefore, they might have failed to witness Dilipbhai but that does not mean that the eyewitness account of Dilipbhai should be treated to be a concocted one especially when he fully knew the accused and their intentions as he had a quarrel with them only on the earlier day.23. Similarly, the submission of learned Counsel for the appellants that witness Dhirubhaiwas a chance witness, also cannot be countenanced as the evidence on record shows that he was a tenant of Shivkrupa building situated in the near vicinity and he was staying in the locality since number of years. He had no reason to falsely implicate the accused nor was he interested in any of the prosecution witnesses. He knew the accused as deposed to by him and that part of the evidence has stood the test ofConsequently, this witness cannot be said to be a chance witness as contended by learned Counsel for the appellants. So far as the witness Dhirubhai, brother of the deceased is concerned, he was a practising advocate and he was staying in the nearly house. His version was quite natural that he rushed on spot and saw the assault by the accused on the victims and tried to help the injured Ramanbhai Mohanbhai being carried to the hospital. This witness also had deposed that he had known the accused since long. Consequently, even leaving aside the eyewitness account of Niruben and the injured witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai as there was no identification parade of the accused qua them, the eyewitness accounts of Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai clearly rope in the accused in the crime as they were well known to them. Both the Courts below have, therefore, rightly placed reliance on this evidence to bring home the charges to the accused. The net result of this discussion is that AccusedNos. 1 andare clearly mentioned in the dying declarationThey are said to have assaulted the deceased and inflicted severe injuries, which ultimately killed him. That part of the dying declaration is fully supported by the eyewitness account of witnesses Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai who had seen these accused in the company of Accused Nos. 3, 4 and 6 and who had, on the date of the incident, being armed with deadly weapons and having formed an unlawful assembly had committed the crime in question. It must, therefore, be held that the prosecution had fully established its case against Accused Nos. 1, 2, 3, 4 and 6. Their appeal was rightly dismissed by the High Court.
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Commissioner Of Income-Tax, Madras Vs. Bagyalakshmi & Co., Udamalpet | assess the income of a person in the manner provided by the Act.Except where there is a specific provision of the Income-tax Act which derogates from any other statutory law or personal law, the provision will have to be considered in the light of the relevant branches of law. A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases he occupies a dual position. Qua the partnership he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom one of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties. Their right is only to a share in the profits of their partner-representative in accordance with law or in accordance with the terms of the agreement, as the case may be. If that be so, Guruswamy Naidu could have validly entered into a genuine partnership with others taking a 10 annas share in the business, though in fact as between the members of the family he has only a 2 annas share therein, he would have been answerable for the profits pertaining to his share to be divided members of the family, but it would not have affected the validity or genuineness of the partnership. So much is conceded by the learned Attorney-General. If so, we do not see why a different result should flow if instead of one member of the divided family two members thereof under some arrangement between the said members of the family took 10 annas share in the partnership. If the contention of the Revenue was of no avail in the case of representation by a single member, it could not also have any validity in the case where two members represented the divided members of the family in the partnership. As the partnership deed was genuine, it must be held that the shares given to Guruswamy Naidu and Venkatasubba Naidu in the laid partnership are correct in accordance with the terms of the partnership deed.5. This Court in Charandas Haridas v. Commr. of Income-tax, Bombay (1960) 39 ITR 202 at p. 208 : (AIR 1960 SC 910 at p. 913), had to consider a converse position. There a karta of a Hindu undivided family was a partner in 6 managing agency firms and the share of the managing agency commission received by him as such partner was being assessed as the income of the family. Thereafter, there was a partial partition in the family by which he gave his daughter a one pie share of the commission from each of two of the managing agencies and the balance in those agencies and the commission in the other four managing agencies were divided into five equal shares between himself, his wife and three minor sons. The memorandum of partition recited that the parties had decided that commission which accrued from January 1, 1946, ceased to be joint family property and that each became absolute owner of his share. Notwithstanding the partition, the Income-tax authorities assessed the said total income as the income of the joint family. The Bombay High Court agreed with that view. But this Court held that as the partition document was a genuine one, it was fully effective between the members of the family and, therefore, the income in respect of the divided property was not the income of the Hindu joint family. In that context Hidayatullah, J., speaking for the Court, made the following observations :"The fact of a partition in the Hindu law may have no effect upon the position of the partner, in so far as the law of partnership is concerned but it has full effect upon the family in so far as the Hindu law is concerned. Just as the fact of a karta becoming a partner does not introduce the members of the undivided family into the partnership, the division of the family does not change the position of the partner vis-a-vis the other partner or partners. The Income-tax law before the partition takes note, factually, of the position of the karta, and assesses not him qua partner but as representing the Hindu undivided family. In doing so, the Income-tax law looks not to the provisions of the Partnership Act, but to the provisions of Hindu law. When once the family has disrupted, the position under the partnership continues as before but the position under the Hindu law changes. There is then no Hindu undivided family as a unit of assessment in point of fact, and the income which accrues cannot be said to be of a Hindu undivided family. There is nothing in the Indian Income-tax law or the law of partnership which prevents the members of a Hindu joint family from dividing any asset."These observations support the conclusion we have arrived at. The division in the joint family does not change the position of the karta as a partner vis-a-vis the other partner or partners in a pre-existing partnership, because the law of partnership and Hindu law function in different fields. if so, on the same principle a divided member or some of the divided members of an erstwhile joint family can certainly enter into a partnership with third parties under some arrangement among the members of the divided family. That shares in the partnership depend upon the terms of the partnership; the shares of the members of the divided family in the interest of their representative in the partnership depend upon the terms of the partition deed. | 1[ds]4. We have held in Civil Appeal No. 982 of 1963, dated 4-11-1964: (AIR 1965 SC1703), that the Income-tax Officer can reject the registration of a firm if it is not genuine or valid and if the application for registration has not complied with the rules made under the Act. Here we have admittedly a genuine partnership. It cannot even be suggested that it is invalid. The only objection is that Guruswamy Naidu and Venkatasubba Naidu have less shares in the partition deed than those shown in the partnership deed. If the distinction between three concepts is borne in mind much of the confusion disappears. A partnership is a creature of contract. Under Hindu law a joint family is one of status and right to partition is one of its incidents. The Income-tax law gives the Income-tax Officer a power to assess the income of a person in the manner provided by the Act.Except where there is a specific provision of the Income-tax Act which derogates from any other statutory law or personal law, the provision will have to be considered in the light of the relevant branches of law. A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases he occupies a dual position. Qua the partnership he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom one of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties. Their right is only to a share in the profits of their partner-representative in accordance with law or in accordance with the terms of the agreement, as the case may be. If that be so, Guruswamy Naidu could have validly entered into a genuine partnership with others taking a 10 annas share in the business, though in fact as between the members of the family he has only a 2 annas share therein, he would have been answerable for the profits pertaining to his share to be divided members of the family, but it would not have affected the validity or genuineness of the partnership. So much is conceded by the learned Attorney-General. If so, we do not see why a different result should flow if instead of one member of the divided family two members thereof under some arrangement between the said members of the family took 10 annas share in the partnership. If the contention of the Revenue was of no avail in the case of representation by a single member, it could not also have any validity in the case where two members represented the divided members of the family in the partnership. As the partnership deed was genuine, it must be held that the shares given to Guruswamy Naidu and Venkatasubba Naidu in the laid partnership are correct in accordance with the terms of the partnershipobservations support the conclusion we have arrived at. The division in the joint family does not change the position of the karta as a partner vis-a-vis the other partner or partners in a pre-existing partnership, because the law of partnership and Hindu law function in different fields. if so, on the same principle a divided member or some of the divided members of an erstwhile joint family can certainly enter into a partnership with third parties under some arrangement among the members of the divided family. That shares in the partnership depend upon the terms of the partnership; the shares of the members of the divided family in the interest of their representative in the partnership depend upon the terms of the partition deed. | 1 | 2,406 | 739 | ### 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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assess the income of a person in the manner provided by the Act.Except where there is a specific provision of the Income-tax Act which derogates from any other statutory law or personal law, the provision will have to be considered in the light of the relevant branches of law. A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases he occupies a dual position. Qua the partnership he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom one of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties. Their right is only to a share in the profits of their partner-representative in accordance with law or in accordance with the terms of the agreement, as the case may be. If that be so, Guruswamy Naidu could have validly entered into a genuine partnership with others taking a 10 annas share in the business, though in fact as between the members of the family he has only a 2 annas share therein, he would have been answerable for the profits pertaining to his share to be divided members of the family, but it would not have affected the validity or genuineness of the partnership. So much is conceded by the learned Attorney-General. If so, we do not see why a different result should flow if instead of one member of the divided family two members thereof under some arrangement between the said members of the family took 10 annas share in the partnership. If the contention of the Revenue was of no avail in the case of representation by a single member, it could not also have any validity in the case where two members represented the divided members of the family in the partnership. As the partnership deed was genuine, it must be held that the shares given to Guruswamy Naidu and Venkatasubba Naidu in the laid partnership are correct in accordance with the terms of the partnership deed.5. This Court in Charandas Haridas v. Commr. of Income-tax, Bombay (1960) 39 ITR 202 at p. 208 : (AIR 1960 SC 910 at p. 913), had to consider a converse position. There a karta of a Hindu undivided family was a partner in 6 managing agency firms and the share of the managing agency commission received by him as such partner was being assessed as the income of the family. Thereafter, there was a partial partition in the family by which he gave his daughter a one pie share of the commission from each of two of the managing agencies and the balance in those agencies and the commission in the other four managing agencies were divided into five equal shares between himself, his wife and three minor sons. The memorandum of partition recited that the parties had decided that commission which accrued from January 1, 1946, ceased to be joint family property and that each became absolute owner of his share. Notwithstanding the partition, the Income-tax authorities assessed the said total income as the income of the joint family. The Bombay High Court agreed with that view. But this Court held that as the partition document was a genuine one, it was fully effective between the members of the family and, therefore, the income in respect of the divided property was not the income of the Hindu joint family. In that context Hidayatullah, J., speaking for the Court, made the following observations :"The fact of a partition in the Hindu law may have no effect upon the position of the partner, in so far as the law of partnership is concerned but it has full effect upon the family in so far as the Hindu law is concerned. Just as the fact of a karta becoming a partner does not introduce the members of the undivided family into the partnership, the division of the family does not change the position of the partner vis-a-vis the other partner or partners. The Income-tax law before the partition takes note, factually, of the position of the karta, and assesses not him qua partner but as representing the Hindu undivided family. In doing so, the Income-tax law looks not to the provisions of the Partnership Act, but to the provisions of Hindu law. When once the family has disrupted, the position under the partnership continues as before but the position under the Hindu law changes. There is then no Hindu undivided family as a unit of assessment in point of fact, and the income which accrues cannot be said to be of a Hindu undivided family. There is nothing in the Indian Income-tax law or the law of partnership which prevents the members of a Hindu joint family from dividing any asset."These observations support the conclusion we have arrived at. The division in the joint family does not change the position of the karta as a partner vis-a-vis the other partner or partners in a pre-existing partnership, because the law of partnership and Hindu law function in different fields. if so, on the same principle a divided member or some of the divided members of an erstwhile joint family can certainly enter into a partnership with third parties under some arrangement among the members of the divided family. That shares in the partnership depend upon the terms of the partnership; the shares of the members of the divided family in the interest of their representative in the partnership depend upon the terms of the partition deed.
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4. We have held in Civil Appeal No. 982 of 1963, dated 4-11-1964: (AIR 1965 SC1703), that the Income-tax Officer can reject the registration of a firm if it is not genuine or valid and if the application for registration has not complied with the rules made under the Act. Here we have admittedly a genuine partnership. It cannot even be suggested that it is invalid. The only objection is that Guruswamy Naidu and Venkatasubba Naidu have less shares in the partition deed than those shown in the partnership deed. If the distinction between three concepts is borne in mind much of the confusion disappears. A partnership is a creature of contract. Under Hindu law a joint family is one of status and right to partition is one of its incidents. The Income-tax law gives the Income-tax Officer a power to assess the income of a person in the manner provided by the Act.Except where there is a specific provision of the Income-tax Act which derogates from any other statutory law or personal law, the provision will have to be considered in the light of the relevant branches of law. A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases he occupies a dual position. Qua the partnership he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom one of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties. Their right is only to a share in the profits of their partner-representative in accordance with law or in accordance with the terms of the agreement, as the case may be. If that be so, Guruswamy Naidu could have validly entered into a genuine partnership with others taking a 10 annas share in the business, though in fact as between the members of the family he has only a 2 annas share therein, he would have been answerable for the profits pertaining to his share to be divided members of the family, but it would not have affected the validity or genuineness of the partnership. So much is conceded by the learned Attorney-General. If so, we do not see why a different result should flow if instead of one member of the divided family two members thereof under some arrangement between the said members of the family took 10 annas share in the partnership. If the contention of the Revenue was of no avail in the case of representation by a single member, it could not also have any validity in the case where two members represented the divided members of the family in the partnership. As the partnership deed was genuine, it must be held that the shares given to Guruswamy Naidu and Venkatasubba Naidu in the laid partnership are correct in accordance with the terms of the partnershipobservations support the conclusion we have arrived at. The division in the joint family does not change the position of the karta as a partner vis-a-vis the other partner or partners in a pre-existing partnership, because the law of partnership and Hindu law function in different fields. if so, on the same principle a divided member or some of the divided members of an erstwhile joint family can certainly enter into a partnership with third parties under some arrangement among the members of the divided family. That shares in the partnership depend upon the terms of the partnership; the shares of the members of the divided family in the interest of their representative in the partnership depend upon the terms of the partition deed.
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Madhusoodhanan & Another Vs. Kerala Kaumudi Pvt. Ltd. & Others | to Madhusoodhanan, Valsa Mani was admittedly a major on 21st May, 1985. And yet the Division Bench held that Mani continued to stand in a fiduciary relationship with her and therefore "the transfer which purports to have been effected by Valsa Mani on her own will clearly indicate the stamp of illegality and invalidity". The reasoning is incomprehensible and unacceptable. Valsa was an adult and legally competent to enter into a contract of sale of her sharers to Madhusoodhanan which she duly did. 65. As far as the shares of Sukumaran Mani are concened in our opinion, the learned Single Judge was right when he said that Mani’s group could not question the transfer of the shares of Sukumaran Mani on account of his minority, as Sukumar Mani hasd not effected any transfer directly in favour of Madhusoodhanan. As Sukumaran Mani was at the relevant point of time a minor, his shares were transferred by his mother as guardian to his father, Mani, who had in turn transferred the shares to Madhusoodhanan. The Apepllate Court was wrong when it held that the transfer of the shares of Sukumaran Mani was "an absolute nullity in the eye of law" on the ground that the initial transfer by Sukumaran Mani was invalid because it was sought to be effected by Sukumaran Mani’s mother who was not his legal guardian and who ‘figured as a guardian only as a ruse for getting over the statutory provision". The transfer of Sukumaran Mani’s share through his mother to Mani has not been challenged. Therefore the issue of Sukumaran Mani’s minority and his mother’s competence to act as his legal guardian, were not issues which could be relevantly raised before, or decided by the appellate court. 66. Coming now the question of consideration, the Division Bench on an interpretation of Sec. 108 held that "the fixation of the price was a condition precedent, even in relation to an important and mandatory procedural formality like the payment of stamp duty to make the transfer lawful and proper". 67. We have already held that the relevant share transfer forms must be taken to have been duly executed. Although Mani and Madhusoodhanan had agreed to determine the actual consideration later, clearly some consideration was agreed to be shown on the share transfer forms. As noted, Exhibit R.18 produced by Mani’s group is a voucher for the cost of share transfer stamps. The stamps must have been purchased on the basis of the consideration which was shown on the share transfer forms at the prescribed percentage under the Stamp Act. 68. But it is also clear from the evidence on record that this was not the "actual" price which was to be determined consensually by Mani and Madhusoodhanan. On 19th January, 1985, Mani wrote a letter to Madhusoodhanan which has been exhibited as P-134. The letter states: "This is in continuation of discussion I had with you, regarding the sale of Flow line machine. Sheet-fed offset and the Cutting machine to me. My offer is Rs 3 lakhs for all the three machines. This amount may be deducted from the sale value of shares you owe to me. Kindly let me know your decision so that I can arrange to lift the machines". 69. Then we have the paragraphs from the affidavits of Madhavi and Mani quoted earlier which talk of the "balance consideration". 70. Finally is the lawyer’s notice dated 20.3.87 (Ex. P-83) sent on behalf of the Mani to Madhusoodhanan threatening legal action unless Madhusoodhanan paid "the balance sale consideration of Rs. 50 lakhs". "Since Mani had positively asserted that he must get a price between 50 and 75 lakhs, and that price negotiated was "in between the said figures". 71. Madhusoodhanan’s claim in this regard is inconsistent. At one stage the claimed that the consideration for the transfer was recorded in the transfer form. At another stage he said. "As far as transferring the shares is concerned, it is already transferred at the face value by fixing the proper stamps and the process have been completed. The excess amount I will pay on the shares will depend upon finally when he transfers the 3 shares to me, but I will not enter into a written agreement, I will continue to pay as and when the 5th respondent required money". "The only agreement was that whatever be and price paid for the shares, that should not be known to anybody else including our wives". 72. Madhusoodhanan has claimed that he in fact paid Rs. 10 lakhs to Mani. In his letter dated 28.7.86 written to Srinivasan. Madhusoodhanan had asserted (Exhibit P11) that he had paid Rs. 5 lakhs to M.S. Mani as part payment for his shares which had been purchased by Madhusoodhanan and that this brought the total payment made on this account to Rs. 10 lakhs. Mani contended that there was a total failure of consideration, a contention which was accepted by the Appellate Court. The truth appears to lie somewhere in between. 73. There is no dispute that the machines were in fact lifted by Mani, pursuant to Ex. P.1324. Exhibit R-14 evidences payment by Kerala Kaumudi of Rs. 3 lakhs to Madhusoodhanan for, ostensibly purchasing property at Cochin for Kerala Kaumudi. The Division Bench holds that "it is this money that is utilised for payment to Mani as part consideration of the shares to be transferred by Mani and his group". However, the Division Bench discounts this payment because "They very transactions itself may be open to serious challenge. The money of the company cannot be appropriated for a personal purpose of a person having a fiduciary capacity vis-a-vis the company". As a statement of law this is a doubtful proposition. Be that as it may, it is apparent that Mani received some consideration for the transfers although the consideration may have moved from Kerala Kaumudi to Mani. To sum up - the transfers by Mani and his children were effected validly to Madhusoodhanan. | 0[ds]27. The Division Bench, therefore, erred in holding that the agreement for transfer of shares was conditional on the determination of the price of the shares and in concluding that as there had been no such determination, no transfer could have taken place. The express intention was to effect an immediate transfer of the shares and to agree upon the consideration later. Section 9 of the Sale of Goods Act, 1930 permits this. [Ascertainment of Price :(1) The price in a contract of sale may be fixed by the contract or may be left to be fixed in manner, thereby agreed or may be determined by the course of dealing between the parties. (2) Where the price is not determined in accordance with the foregoing provisions, the buyer shall pay the seller a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular cases.In this case, there can be no doubt that the first stage of the agreement for the immediate transfer of shares was executed and the Division Bench erred when it held to the contrary.We have been unable to understand the logic of the Division Bench by which it sidestepped this inevitable conclusion, when it said "It is open to a party to take an extra precaution to ward off possible disconcerting experiences while planning for the future." Ignoring- or at least not giving sufficient weight - to the wealth of evidence in favour of the submissions of Madhu or at least not giving sufficient weight - to the wealth of evidence in favour of the submissions of Madhusoodhan, the learned judges of the Appellate Court sought to base their assessment of the evidence on the absence of documents, such as income tax returns of Madhusoodhan, which according to them would have shown the acquisition of the additional shares by Madhusoodhanan from Mani, an exercise which was entirely uncalled for in the face of the positive evidence already on record and the repeated admissions of Mani and his group before theany event, our conclusion that the transfer of shares by Mani and his children to Madhusoodhanan would stand without the support of the statutory presumption under Section 195 of the 1956 Act.As far as the shares of Sukumaran Mani are concened in our opinion, the learned Single Judge was right when he said thatgroup could not question the transfer of the shares of Sukumaran Mani on account of his minority, as Sukumar Mani hasd not effected any transfer directly in favour of Madhusoodhanan. As Sukumaran Mani was at the relevant point of time a minor, his shares were transferred by his mother as guardian to his father, Mani, who had in turn transferred the shares to Madhusoodhanan. The Apepllate Court was wrong when it held that the transfer of the shares of Sukumaran Mani was "an absolute nullity in the eye of law" on the ground that the initial transfer by Sukumaran Mani was invalid because it was sought to be effected by Sukumaranmother who was not his legal guardian and who ‘figured as a guardian only as a ruse for getting over the statutory provision". The transfer of Sukumaranshare through his mother to Mani has not been challenged. Therefore the issue of Sukumaranminority and hiscompetence to act as his legal guardian, were not issues which could be relevantly raised before, or decided by the appellate court.There is no dispute that the machines were in fact lifted by Mani, pursuant to Ex. P.1324. Exhibit R-14 evidences payment by Kerala Kaumudi of Rs. 3 lakhs to Madhusoodhanan for, ostensibly purchasing property at Cochin for Kerala Kaumudi. The Division Bench holds that "it is this money that is utilised for payment to Mani as part consideration of the shares to be transferred by Mani and his group". However, the Division Bench discounts this payment because "They very transactions itself may be open to serious challenge. The money of the company cannot be appropriated for a personal purpose of a person having a fiduciary capacity vis-a-vis the company". As a statement of law this is a doubtful proposition. Be that as it may, it is apparent that Mani received some consideration for the transfers although the consideration may have moved from Kerala Kaumudi to Mani. To sum up - the transfers by Mani and his children were effected validly to Madhusoodhanan.93. Since the further resolution to delete Art. 74 formed no part of the notice of the Extraordinary General Meeting, which in all fairness it should have, we have no doubt in our minds that the special resolution on the basis of such defective notice is insupportable in law and cannot be given effect to. This finding is sufficient to hold that the deletion of article 74 of the Articles of the company was invalid and that therefore Madhusoodhanan continued to be the managing director of Kerala Kaumudi as claimed by him in CS 3/89.In the circumstances we hold that Madhusoodhanan and his group were not served with the notice dated 1.8.86. It is therefore unnecessary to decide whether the period prescribed in the notice to apply for the shares was too short or contrary to the Article of Association of Kerala Kaumudi.124. Once we have held that Madhusoodhanan and his group all of whom heldshares in KeralaKaumudi, were not given notice to apply for allotment of the additional shares, it must be held that the subsequent allotment of the shares to Ravi and Srinivasan at the meeting held on 8.8.86 and the affirmation of such allotment at the meeting allegedly held on 16.6.86 were vitiated thereby and invalid.As far as the question of consideration is concerned, we have already held that parties can agree to subsequently determine the price at which the were sold and section 9 of the Sale of Goods Act, 1930 expressly provides that such contracts are perfectly legal. Besides, the Karar in terms does not call upon parties to determine the consideration. All it says is that once the consideration was determined by Madhusoodhanan and Mani, it would be made known to the others. Since there was no such determination, there was no question of informing anyone. The finding that there was no determination of the consideration in respect of the inherited shares as a ground for holding that the Karar was not specifically performable is similarly incorrect as the determination of the price formed no part of the Karar.This section is an instance of such legislative clarity that it needs no paraphrasing to highlight its intent. The Division Bench was clearly wrong in its foray into the question of the value of the assets allotted under the Karar. It has, despite Explanation 1 to Section 20(2) refused specific performance of the Karar on one of the excluded grounds viz., inadequacy of consideration.Although the learned Single Judge in disposing of CP 26/87 gave directions for the appointment of Arbitrators, to determine the value of the shares, in our view it would be more appropriate to do so in decreeing the suit for specific performance of the Karar. It is also not clear from the material on record, in which of the brothers name 9 shares of the late Sukumaran and the 3 shares of Madhavi now stand. Who ever is recorded as the owner of the shares shall further transfer six of those shares to Madhusoodhanan.The explanation given by Laisa that she used to sign whatever papers had been sent by Madhusoodhanan is unbelievable. The Division Bench by relying upon a narrative in a biography of Norman Birkett (The Life of Lord Birkett of Ulverston by H. Montgomery Hyde) chose to accept it. According to Laisa herself, she had been a director of the company, operated the banking accounts and otherwise done whatever was necessary in the discharge of her duties as a director since 1972. As we have noted earlier, differences between the 4 brothers had been simmering for a long time which manifested itself in 1984. This was also noted by the Division Bench when it said, "in the year 1984, differences became somewhat apparent". In the circumstances,facile explanation, that she signed every document in 1985 because of her faith and trust in Madhusoodhanan is clearly false.162. The next reason given by the Division Bench for allowing the application for rectification was that the original share transfer deeds had not been produced. Madhusoodhanan had filed an application for production of the original share transfer deeds. He said that he could not produce the share transfer deeds because they were in the administrative office of KIPL and that he had been prevented from entering that office. That the administrative office of KIPL is within the Kerala Kaumudi premises in a separate room was also the finding of the Division Bench. Madhusoodhanan and isgrievance that they were being denied access tooffice since April, 1986 was not rejected by the Division Bench as not genuine. But the Division Bench observed "A mere alibi of inability to enter the office, cannot be accepted as a sufficiently strong reason for their grievous omission". This conclusion is as starting as it is unreasonable. For the reasons given earlier in connection with transfer ofshares in KeralaKaumudi, we are of the view that here also, the minutes and the other records of the company, which prima facie raise a presumption of their veracity, have not been sufficiently disproved by the evidence tendered on behalf of the petitioners in the application for rectification.The next reason given by the Division Bench for permitting rectification of the share register of KIPL was that no price had been fixed for the shares and that there were not even negotiations with parties regarding such fixation of price. This is, for reasons already stated, an incorrect statement of the law. Moreover, in this case there is the additional factor which has persuaded us to hold that the Division Bench was wrong, namely Article 16 of the Articles of Association of KIPL whichBoard of Directors shall fix price at which the shares for the time being forming part of the capital of the company may be purchased in pursuance of transfer notice and the price thus fixed shall be known as the ‘fairUntil the ‘fairhas been fixed as herein provided, a sum equal to the capital paid up on any share shall be deemed to be the fair value of such share".final conclusion that there had been a non-compliance with section 108 of Companies Act because there was no indication about any purchase of stamps or about the share transfer deeds having been duly stamped, is an exercise in speculation. The Articles of Association of KIPL themselves require compliance with section 108 before any transfer can be effected. When the minutes recorded that share transfer deeds had been placed before the Board, when the transfers were approved by the Board in the presence of the only witness for the petitioners, and when none of the documents which were duly maintained by the company recording the transfers of the shares had been disproved, we cannot uphold a finding that the share transfer deeds must have been improperly stamped or executed in violation of the provisions of Section 108 of Companiessee no reason to interfere with this finding of fact. It is true that the Division Bench proceeded on an erroneous basis then it held that the learned Single Judge had dismissed the application on the ground of delay. Since we have upheld the factual finding of the court of the first instance, this misreading of the Trialjudgment by the Division Bench is of no consequence.Logically the Division Bench should have also rejected the appeal preferred from the decree in CS No. 4/49. However, the Division Bench rejected the appeal on the sole ground that although KIPL had been denied access in 1986, the suit had been filed only in 1966. According to the Division Bench "The inaction for a period of two years can be taken to have resulted in the extinction of the present possession. If the plaintiff does not have present possession, injunction could not be an available relief". This nature piece of reasoning appears to proceed on the basis that the period of limitation for extinction of a possessory right is two years which it is not. Besides the claim of KIPL was that it was being denied access. The denial was s continuous one. It was therefore open to KIPL to file a suit while such denial continued by seeking to injunct the obstructers from continuing with the obstruction.evidence and the documents referred to hereinabove prove beyond a shadow of doubt, that the administrative office of KIPL was in Kaumudi Buildings. That is also the Division Bench has held. Having come to this conclusion the division bench erred grievously in denying KIPL the relief it claimed only on the ground of delay, as if what was being with by the Division Bench were an interlocutory application for interim relief. | 0 | 9,637 | 2,331 | ### Instruction:
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to Madhusoodhanan, Valsa Mani was admittedly a major on 21st May, 1985. And yet the Division Bench held that Mani continued to stand in a fiduciary relationship with her and therefore "the transfer which purports to have been effected by Valsa Mani on her own will clearly indicate the stamp of illegality and invalidity". The reasoning is incomprehensible and unacceptable. Valsa was an adult and legally competent to enter into a contract of sale of her sharers to Madhusoodhanan which she duly did. 65. As far as the shares of Sukumaran Mani are concened in our opinion, the learned Single Judge was right when he said that Mani’s group could not question the transfer of the shares of Sukumaran Mani on account of his minority, as Sukumar Mani hasd not effected any transfer directly in favour of Madhusoodhanan. As Sukumaran Mani was at the relevant point of time a minor, his shares were transferred by his mother as guardian to his father, Mani, who had in turn transferred the shares to Madhusoodhanan. The Apepllate Court was wrong when it held that the transfer of the shares of Sukumaran Mani was "an absolute nullity in the eye of law" on the ground that the initial transfer by Sukumaran Mani was invalid because it was sought to be effected by Sukumaran Mani’s mother who was not his legal guardian and who ‘figured as a guardian only as a ruse for getting over the statutory provision". The transfer of Sukumaran Mani’s share through his mother to Mani has not been challenged. Therefore the issue of Sukumaran Mani’s minority and his mother’s competence to act as his legal guardian, were not issues which could be relevantly raised before, or decided by the appellate court. 66. Coming now the question of consideration, the Division Bench on an interpretation of Sec. 108 held that "the fixation of the price was a condition precedent, even in relation to an important and mandatory procedural formality like the payment of stamp duty to make the transfer lawful and proper". 67. We have already held that the relevant share transfer forms must be taken to have been duly executed. Although Mani and Madhusoodhanan had agreed to determine the actual consideration later, clearly some consideration was agreed to be shown on the share transfer forms. As noted, Exhibit R.18 produced by Mani’s group is a voucher for the cost of share transfer stamps. The stamps must have been purchased on the basis of the consideration which was shown on the share transfer forms at the prescribed percentage under the Stamp Act. 68. But it is also clear from the evidence on record that this was not the "actual" price which was to be determined consensually by Mani and Madhusoodhanan. On 19th January, 1985, Mani wrote a letter to Madhusoodhanan which has been exhibited as P-134. The letter states: "This is in continuation of discussion I had with you, regarding the sale of Flow line machine. Sheet-fed offset and the Cutting machine to me. My offer is Rs 3 lakhs for all the three machines. This amount may be deducted from the sale value of shares you owe to me. Kindly let me know your decision so that I can arrange to lift the machines". 69. Then we have the paragraphs from the affidavits of Madhavi and Mani quoted earlier which talk of the "balance consideration". 70. Finally is the lawyer’s notice dated 20.3.87 (Ex. P-83) sent on behalf of the Mani to Madhusoodhanan threatening legal action unless Madhusoodhanan paid "the balance sale consideration of Rs. 50 lakhs". "Since Mani had positively asserted that he must get a price between 50 and 75 lakhs, and that price negotiated was "in between the said figures". 71. Madhusoodhanan’s claim in this regard is inconsistent. At one stage the claimed that the consideration for the transfer was recorded in the transfer form. At another stage he said. "As far as transferring the shares is concerned, it is already transferred at the face value by fixing the proper stamps and the process have been completed. The excess amount I will pay on the shares will depend upon finally when he transfers the 3 shares to me, but I will not enter into a written agreement, I will continue to pay as and when the 5th respondent required money". "The only agreement was that whatever be and price paid for the shares, that should not be known to anybody else including our wives". 72. Madhusoodhanan has claimed that he in fact paid Rs. 10 lakhs to Mani. In his letter dated 28.7.86 written to Srinivasan. Madhusoodhanan had asserted (Exhibit P11) that he had paid Rs. 5 lakhs to M.S. Mani as part payment for his shares which had been purchased by Madhusoodhanan and that this brought the total payment made on this account to Rs. 10 lakhs. Mani contended that there was a total failure of consideration, a contention which was accepted by the Appellate Court. The truth appears to lie somewhere in between. 73. There is no dispute that the machines were in fact lifted by Mani, pursuant to Ex. P.1324. Exhibit R-14 evidences payment by Kerala Kaumudi of Rs. 3 lakhs to Madhusoodhanan for, ostensibly purchasing property at Cochin for Kerala Kaumudi. The Division Bench holds that "it is this money that is utilised for payment to Mani as part consideration of the shares to be transferred by Mani and his group". However, the Division Bench discounts this payment because "They very transactions itself may be open to serious challenge. The money of the company cannot be appropriated for a personal purpose of a person having a fiduciary capacity vis-a-vis the company". As a statement of law this is a doubtful proposition. Be that as it may, it is apparent that Mani received some consideration for the transfers although the consideration may have moved from Kerala Kaumudi to Mani. To sum up - the transfers by Mani and his children were effected validly to Madhusoodhanan.
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it would be more appropriate to do so in decreeing the suit for specific performance of the Karar. It is also not clear from the material on record, in which of the brothers name 9 shares of the late Sukumaran and the 3 shares of Madhavi now stand. Who ever is recorded as the owner of the shares shall further transfer six of those shares to Madhusoodhanan.The explanation given by Laisa that she used to sign whatever papers had been sent by Madhusoodhanan is unbelievable. The Division Bench by relying upon a narrative in a biography of Norman Birkett (The Life of Lord Birkett of Ulverston by H. Montgomery Hyde) chose to accept it. According to Laisa herself, she had been a director of the company, operated the banking accounts and otherwise done whatever was necessary in the discharge of her duties as a director since 1972. As we have noted earlier, differences between the 4 brothers had been simmering for a long time which manifested itself in 1984. This was also noted by the Division Bench when it said, "in the year 1984, differences became somewhat apparent". In the circumstances,facile explanation, that she signed every document in 1985 because of her faith and trust in Madhusoodhanan is clearly false.162. The next reason given by the Division Bench for allowing the application for rectification was that the original share transfer deeds had not been produced. Madhusoodhanan had filed an application for production of the original share transfer deeds. He said that he could not produce the share transfer deeds because they were in the administrative office of KIPL and that he had been prevented from entering that office. That the administrative office of KIPL is within the Kerala Kaumudi premises in a separate room was also the finding of the Division Bench. Madhusoodhanan and isgrievance that they were being denied access tooffice since April, 1986 was not rejected by the Division Bench as not genuine. But the Division Bench observed "A mere alibi of inability to enter the office, cannot be accepted as a sufficiently strong reason for their grievous omission". This conclusion is as starting as it is unreasonable. For the reasons given earlier in connection with transfer ofshares in KeralaKaumudi, we are of the view that here also, the minutes and the other records of the company, which prima facie raise a presumption of their veracity, have not been sufficiently disproved by the evidence tendered on behalf of the petitioners in the application for rectification.The next reason given by the Division Bench for permitting rectification of the share register of KIPL was that no price had been fixed for the shares and that there were not even negotiations with parties regarding such fixation of price. This is, for reasons already stated, an incorrect statement of the law. Moreover, in this case there is the additional factor which has persuaded us to hold that the Division Bench was wrong, namely Article 16 of the Articles of Association of KIPL whichBoard of Directors shall fix price at which the shares for the time being forming part of the capital of the company may be purchased in pursuance of transfer notice and the price thus fixed shall be known as the ‘fairUntil the ‘fairhas been fixed as herein provided, a sum equal to the capital paid up on any share shall be deemed to be the fair value of such share".final conclusion that there had been a non-compliance with section 108 of Companies Act because there was no indication about any purchase of stamps or about the share transfer deeds having been duly stamped, is an exercise in speculation. The Articles of Association of KIPL themselves require compliance with section 108 before any transfer can be effected. When the minutes recorded that share transfer deeds had been placed before the Board, when the transfers were approved by the Board in the presence of the only witness for the petitioners, and when none of the documents which were duly maintained by the company recording the transfers of the shares had been disproved, we cannot uphold a finding that the share transfer deeds must have been improperly stamped or executed in violation of the provisions of Section 108 of Companiessee no reason to interfere with this finding of fact. It is true that the Division Bench proceeded on an erroneous basis then it held that the learned Single Judge had dismissed the application on the ground of delay. Since we have upheld the factual finding of the court of the first instance, this misreading of the Trialjudgment by the Division Bench is of no consequence.Logically the Division Bench should have also rejected the appeal preferred from the decree in CS No. 4/49. However, the Division Bench rejected the appeal on the sole ground that although KIPL had been denied access in 1986, the suit had been filed only in 1966. According to the Division Bench "The inaction for a period of two years can be taken to have resulted in the extinction of the present possession. If the plaintiff does not have present possession, injunction could not be an available relief". This nature piece of reasoning appears to proceed on the basis that the period of limitation for extinction of a possessory right is two years which it is not. Besides the claim of KIPL was that it was being denied access. The denial was s continuous one. It was therefore open to KIPL to file a suit while such denial continued by seeking to injunct the obstructers from continuing with the obstruction.evidence and the documents referred to hereinabove prove beyond a shadow of doubt, that the administrative office of KIPL was in Kaumudi Buildings. That is also the Division Bench has held. Having come to this conclusion the division bench erred grievously in denying KIPL the relief it claimed only on the ground of delay, as if what was being with by the Division Bench were an interlocutory application for interim relief.
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SHIVRAJ SINGH CHOUHAN & ORS. Vs. SPEAKER, MADHYA PRADESH LEGISLATIVE ASSEMBLY & ORS. | the extent that the Members have not met even members of their own families. This submission has met with a significant amount of resistance. The Members have entered appearance in these proceeding by filing an application for impleadment, which was canvassed on their behalf by Mr Maninder Singh, learned Senior Counsel. Mr Maninder Singh submitted that the Members who have tendered their resignation have no desire to interact with any representatives of the INC and that they are entitled to decide for themselves as to whether they should continue to be Members of the House when they lack faith in the incumbent government in the state. 54. The spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state of our democratic politics. It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics. Political bargaining, or horse-trading, as we noticed, is now an oft repeated usage in legal precedents. Poaching is an expression which was bandied about on both sides of the debate in the present case. It is best that courts maintain an arms length from the sordid tales of political life. In defining constitutional principle, however, this Court must be conscious of the position on the ground as admitted by Counsel of both sides and an effort has to be made to the extent possible to ensure that democratic values prevail. An underlying assumption of the anti-defection scheme outlined in the Tenth Schedule of the Constitution is that the political party is the defined political unit which the Constitution recognises. Where we increasingly see a breakdown in the composition and allegiances of the political party due to private allurements offered to Members as opposed to public policy considerations, the law may have to evolve to address these burgeoning evils. We were of the view during the course of the hearing that directions can be issued by the Court to ensure that the twenty-two Members who were in Bengaluru during the course of the hearing are not subjected to any restraint or hindrance whatsoever in the free exercise of their rights and liberties as citizens. We put the question to Dr Singhvi, learned Senior Counsel appearing on behalf of the Speaker, as to whether the Speaker would be willing to accept speaking to the resigning Members through video conferencing at an independent neutral venue, under the supervision of an observer appointed by the Court. Mr Maninder Singh, learned Senior Counsel, appearing on behalf of the Members submitted that he was willing to abide by any modalities that may be fixed by this Court to ensure that the Members were not under any coercion. However, Dr Singhvi submitted that he did not have instructions to accept any such modality. Conscious as we are of the domain of the Speaker in such matters, we have desisted from issuing any such directions. However, we are of the view that in order to facilitate a trust vote for which the twenty-two Members should be free to participate in the house should they opt to do so, directions in that regard should be issued both to the Director General of Police of Karnataka as well as to the Director General of Police of Madhya Pradesh. Our directions are intended to sub-serve the purpose of ensuring that none of the Members are restrained in the exercise of their rights and liberties as citizens and that if any of them opt to attend the proceedings of the Legislative Assembly, they should not be prevented from doing so. 55. The reliefs which have been sought in the writ petition instituted by the MP Congress Party are manifestly misconceived. A direction to the Union of India (through the Secretary, Ministry of Home Affairs) and to the State of Karnataka (through its Chief Secretary) has been sought to grant access to the office bearers of the MP Congress Party to communicate with respondents five to nineteen (the Members who have tendered their resignations). The petition has not been framed as one seeking a writ of habeas corpus. The Members who have appeared in these proceedings through learned Senior Counsel, Mr Maninder Singh have submitted that they do not wish to interact with any of the member of the MP Congress Party. We cannot compel them to do so. Ultimately, it is for the Members to decide who they wish to associate with and to face the consequences of such a decision in accordance with the law and the Constitution. We have already indicated that we are inclined to issue directions to ensure the protection of their rights and liberties as free citizens. Among the reliefs which have been sought is a direction that the vote of confidence should be held only in the presence of all the duly elected Members and that a trust vote cannot be held in the absence of representatives of twenty-two constituencies, whose presence could be secured by holding by-elections for the vacant seats in accordance with law. These reliefs are patently misconceived. 56. The court cannot issue a direction mandating that a trust vote cannot be convened if any one or more Members do not remain present in the House. Whether or not to remain present is for the individual Members to decide and they would, necessarily be accountable for the decisions which they take, both to their political party and to their constituents. Similarly, the relief to the effect that no trust vote should be conducted until by-elections are held for the twenty-two seats is again misconceived. One of the prayers in the second writ petition seeks an anticipatory direction of this Court based on the assumption that a disqualification would stand attracted upon which the seat would fall vacant and an election would have been held. In any event, the convening of a trust vote cannot be postponed to a future date until by-elections take place. | 0[ds]During the course of his submissions, Dr Singhvi placed on the record a copy of an affidavit submitted by 54 Members owing their allegiance to the BJP. It is evident from the contents and tenor of the affidavit that it has been prepared to support the position of the signatories that they will support the BJP and vote against the incumbent government. On a bare reading of the affidavit, it is evident that it does not postulate a request for convening a discussion on a motion of no confidence. Having concluded that there exists no parallel proceeding for convening a trust vote, we now turn to whether the Governor has acted within the scope of his constitutional authority in calling for a trust voteWe reject these submissions. Merely because the present dispute concerns the conduct of elected representatives, or the remedy sought is a democratic process, does not mean that the court will refuse to consider itThe present controversy arises out of a dispute between the Governor, as the titular head of the executive within the State of Madhya Pradesh, the Chief Minister, the de-facto head of the executive within the state and the Speaker of the Madhya Pradesh Legislative Assembly, who has supervisory jurisdiction over the legislative branch of the state. In hearing the present dispute, the court is tasked to determine whether the Governor, a constitutional functionary, acted within his constitutional authority in relation to the legislature by demanding a floor test. Merely because the prima facie determination made by the Governor was of the political support enjoyed by the incumbent government or the action demanded was a political process (the floor test) is not a reason for this Court not to hear the matter. There is no doubt that the present case is suitable for judicial determination by this Court. In fact it is eminently so39. The issue of whether a Governor can call for a trust vote in an already constituted legislative assembly is not entirely res integra41. As a matter of constitutional law, it would not be correct to proceed on the basis that the constitutional authority entrusted to the Governor to require the Council of Ministers to prove their majority on the floor of the House can only be exercised at the very inception after general elections are held and not when the Governor has objective reasons to believe that the incumbent government does not command the confidence of the house. The Governor is not denuded of the power to order a floor test where on the basis of the material available to the Governor it becomes evident that the issue as to whether the government commands the confidence of the house requires to be assessed on the basis of a floor test. Undoubtedly, the purpose of entrusting such a function to the Governor is not to destabilise an existing government. When the satisfaction on the basis of which the Governor has ordered a floor test is called into question, the decision of the Governor is not immune from judicial review. The court would be justified in scrutinizing whether the Governor prima facie had relevant and germane material to order a floor test to be conducted. It must be noted that the Governor does not decide whether the incumbent government commands the confidence of the house. The purpose of holding a floor test in the legislative assembly is precisely to enable the elected representatives to determine whether the Council of Ministers commands the confidence of the House; that verification is not conducted by the Governor. The decision in SR Bommai in fact held that recourse to the power under Article 356 was not warranted in a situation where the issue of confidence could yet be tested on the floor of the house by calling for a trust vote. Undoubtedly, in that case, it was the Chief Minister who had suggested, following a meeting of the Cabinet, that the House should be convened for the purposes of testing the majority of the Council of Ministers. The significance of the decision lies in the fact that the decision of the Governor to submit a report under Article 356 was faulted on the ground that the floor test would have been an appropriate course of actionWe are unable to accept the submission of Mr Sibal that the observations of the Constitution Bench in Nebam Rebia are obiter. The observations in Nebam Rebia are consistent with the formulation of principle in the nine judge Bench decision in SR Bommai, as we have discussed earlier. The power under Article 174 of the Constitution to summon the House and to prorogue it is one which is exercised by the Governor on the aid and advice of the Council of Ministers. But in a situation where the Governor has reasons to believe that the Council of Ministers headed by the Chief Minister has lost the confidence of the House, constitutional propriety requires that the issue be resolved by calling for a floor test. The Governor in calling for a floor test cannot be construed to have acted beyond the bounds of constitutional authority43. The powers which are entrusted to constitutional functionaries are not beyond the pale of judicial review. Where the exercise of the discretion by the Governor to call a floor test is challenged before the court, it is not immune from judicial review. The court is entitled to determine whether in calling for the floor test, the Governor did so on the basis of objective material and reasons which were relevant and germane to the exercise of the power. The exercise of such a power is not intended to destabilise or displace a democratically elected government accountable to the legislative assembly and collectively responsible to it. The exercise of the power to call for a trust vote must be guided by the over-arching consideration that the formation of satisfaction by the Governor is not based on extraneous considerations47. In the present case, the facts which have come on the record indicate the Budget Session of the Legislative Assembly had been convened on the aid and advice of the Council of Ministers to commence from 16 March 2020. The Governor was intimated that twenty-two Members owing allegiance to the INC had tendered their resignations to the Speaker of the Assembly. Copies of the resignation letters were forwarded to the Governor. At this stage, the validity of these resignations had not been discerned and no decision had been made by the Speaker as to whether the resignations were voluntary or genuine. The Chief Minister subsequently tendered advice to the Governor for the removal of six Members who were ministers in the State government. On 13 March 2020, the Speaker of the Legislative Assembly issued notices of disqualification. However, on 14 March 2020 the resignations of six Members who were ministers of the incumbent government were accepted by the Speaker acting in exercise of the constitutional authority under the proviso to Article 190(3)(b). The Chief Minister, adverting to the turmoil in the state, addressed a communication to the Governor on 13 March 2020 stating that the convening of the floor test would be a sure basis for resolving the conundrum. This is a strong indication that the Chief Minister himself was of the opinion that the situation in the state had cast his governments majority in doubt. However, upon the convening of the Legislative Assembly, no floor test was conducted, and the House was adjourned till 26 March 2020. These facts form the basis on which the Governor advised that a floor test be conducted. Based on the resignation of six ministers of the incumbent government (accepted by the Speaker), the purported resignation of sixteen more Members belonging to the INC, and the refusal of the Chief Minister to conduct a floor test despite the House having been convened on 16 March 2020, the exercise of power by the Governor to convene a floor test cannot be regarded as constitutionally improper49. The idea underlying the trust vote in the ultimate analysis, is to uphold the political accountability of the elected government to the state legislature. Assertion of accountability is a mirror image of the collective responsibility of the government to the legislature. The requirement of the trust vote fulfils that purpose in the present case. The present controversy has shone a light on the often-fluid allegiances of democratically elected representatives. This is a matter for their conscience and the court expresses no opinion on the matter. However, it is important to note that in directing a trust vote, the Governor does not favour a particular political party. It is inevitable that the specific timing of a trust vote may tilt the balance towards the party possessing a majority at the time the trust vote is directed. All political parties are equally at risk of losing the support of their elected legislators, just as the legislators are at risk of losing the vote of the electorate. This is how the system of parliamentary governance operates and learned Senior Counsel on both sides of the dispute congenially admitted that the outcome of the trust vote is the ultimate litmus test for the legitimacy to govern. However, we note that where the evidence indicates that circumstances of violence and coercion exist that would undermine a free and fair vote in the assembly, the Governor and the court must take measures to ensure that the sanctity of the trust vote is maintained. In the circumstances as they have emerged in this case, the exercise of authority by the Governor was based on circumstances which were legitimate to the purpose of ensuring that the norm of collective responsibility is duly preserved. There existed no extraordinary circumstances for the Governor to determine that a trust vote was not the appropriate course of action on 16 March 2020.51. It is trite law that neither the Governor, nor for that matter this Court, has the power to impinge upon the authority of the Speaker to take a decision on the above issuesThe holding of a trust vote operates in a distinct field from the issue as to whether one or more individual members of the Legislative Assembly have embarked upon a voluntary act of resignation or have incurred the wrath of the Tenth Schedule. Holding a trust vote is necessary to ascertain whether the Council of Ministers headed by the Chief Minister has the confidence of the House. The continuous existence of that confidence is crucial to the legitimacy and hence survival of the government. It is a matter which can brook no delay since the authority of the government presided over by the Chief Minister depends on the Council of Ministers continuing to have the faith of the legislative body as a collective entity. Particularly where the Members resigned in an expression of a lack of faith in the existing government, the convening of a floor test is the surest method of assessing the impact of the resignations on the collective will of the house. The consequence of the acceptance of a resignation is to reduce the numerical strength of the House. Until the resignations are accepted, the Members who have resigned continue to be reflected in the strength of the house having regard to the language which has been employed in Article 190(3)(b) (shall thereupon fall vacant). Whether in a situation such as the present an elected government is entitled to continue despite the resignations of twenty-two of its Members has a significant bearing on the issue of confidence. Neither the Governor nor for that matter the Court can entrench upon the power of the Speaker, but the pendency of the proceedings before the Speaker cannot be a valid basis to not have the confidence of the House in the government determined by the convening of a floor test. Added to it is a factual circumstance in the present case that the Speaker accepted the resignations tendered by six of the twenty-two Members on 14 March 2020. All of the Members sailed together. No explanation was forthcoming in the submission of Dr Singhvi on what, if any, was the distinction between the six Members whose resignations were accepted with alacrity and the remaining sixteen on whose resignations, no decision has been taken. None of the Members who resigned (neither the six nor the sixteen) appeared before the Speaker. Therefore, non-appearance before the Speaker is evidently not a ground of distinction. We have highlighted above the factual scenario only to emphasise that the convening of a trust vote is of crucial importance to affirm the fundamental values of the Constitution namely, abiding by the rules which govern a parliamentary democracy. The fundamental precept of parliamentary democracy is that the government owes collective responsibility to the legislative assembly and as a collective body, the legislative assembly is entitled to hold the government to account. The ultimate expression of accountability is the existence of or the lack of confidence in the Council of Ministers. We are therefore unable to accept the submission of Dr Singhvi that the holding of a trust vote would short-circuit the jurisdiction of the Speaker on a matter of resignation and disqualification.52. During the course of his submission, Dr Singhvi fairly accepted that the holding of a trust vote at this stage would ultimately only affect the ability of the resigning Members to accept ministerial office in a new government that may be formed if the issue of disqualification has not been addressed in the meantime. Dr Singhvi submitted that the effort in such cases is for the resigning Members to bring down a government on the allure of ministerial positions in a succeeding government as their disqualification may not be accepted in the future if the government were to change. This, as Dr Singhvi submitted before the court, is how democratic politics operates in54. The spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state of our democratic politics. It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics. Political bargaining, or horse-trading, as we noticed, is now an oft repeated usage in legal precedents. Poaching is an expression which was bandied about on both sides of the debate in the present case. It is best that courts maintain an arms length from the sordid tales of political life. In defining constitutional principle, however, this Court must be conscious of the position on the ground as admitted by Counsel of both sides and an effort has to be made to the extent possible to ensure that democratic values prevail. An underlying assumption of the anti-defection scheme outlined in the Tenth Schedule of the Constitution is that the political party is the defined political unit which the Constitution recognises. Where we increasingly see a breakdown in the composition and allegiances of the political party due to private allurements offered to Members as opposed to public policy considerations, the law may have to evolve to address these burgeoning evils. We were of the view during the course of the hearing that directions can be issued by the Court to ensure that the twenty-two Members who were in Bengaluru during the course of the hearing are not subjected to any restraint or hindrance whatsoever in the free exercise of their rights and liberties as citizens.We put the question to Dr Singhvi, learned Senior Counsel appearing on behalf of the Speaker, as to whether the Speaker would be willing to accept speaking to the resigning Members through video conferencing at an independent neutral venue, under the supervision of an observer appointed by the CourtConscious as we are of the domain of the Speaker in such matters, we have desisted from issuing any such directions. However, we are of the view that in order to facilitate a trust vote for which the twenty-two Members should be free to participate in the house should they opt to do so, directions in that regard should be issued both to the Director General of Police of Karnataka as well as to the Director General of Police of Madhya Pradesh. Our directions are intended to sub-serve the purpose of ensuring that none of the Members are restrained in the exercise of their rights and liberties as citizens and that if any of them opt to attend the proceedings of the Legislative Assembly, they should not be prevented from doing so55. The reliefs which have been sought in the writ petition instituted by the MP Congress Party are manifestly misconceived. A direction to the Union of India (through the Secretary, Ministry of Home Affairs) and to the State of Karnataka (through its Chief Secretary) has been sought to grant access to the office bearers of the MP Congress Party to communicate with respondents five to nineteen (the Members who have tendered their resignations). The petition has not been framed as one seeking a writ of habeas corpus. The Members who have appeared in these proceedings through learned Senior Counsel, Mr Maninder Singh have submitted that they do not wish to interact with any of the member of the MP Congress Party. We cannot compel them to do so. Ultimately, it is for the Members to decide who they wish to associate with and to face the consequences of such a decision in accordance with the law and the Constitution. We have already indicated that we are inclined to issue directions to ensure the protection of their rights and liberties as free citizens. Among the reliefs which have been sought is a direction that the vote of confidence should be held only in the presence of all the duly elected Members and that a trust vote cannot be held in the absence of representatives of twenty-two constituencies, whose presence could be secured by holding by-elections for the vacant seats in accordance with law. These reliefs are patently misconceived56. The court cannot issue a direction mandating that a trust vote cannot be convened if any one or more Members do not remain present in the House. Whether or not to remain present is for the individual Members to decide and they would, necessarily be accountable for the decisions which they take, both to their political party and to their constituents. Similarly, the relief to the effect that no trust vote should be conducted until by-elections are held for the twenty-two seats is again misconceived. One of the prayers in the second writ petition seeks an anticipatory direction of this Court based on the assumption that a disqualification would stand attracted upon which the seat would fall vacant and an election would have been held. In any event, the convening of a trust vote cannot be postponed to a future date until by-elections take place. | 0 | 19,806 | 3,358 | ### 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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the extent that the Members have not met even members of their own families. This submission has met with a significant amount of resistance. The Members have entered appearance in these proceeding by filing an application for impleadment, which was canvassed on their behalf by Mr Maninder Singh, learned Senior Counsel. Mr Maninder Singh submitted that the Members who have tendered their resignation have no desire to interact with any representatives of the INC and that they are entitled to decide for themselves as to whether they should continue to be Members of the House when they lack faith in the incumbent government in the state. 54. The spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state of our democratic politics. It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics. Political bargaining, or horse-trading, as we noticed, is now an oft repeated usage in legal precedents. Poaching is an expression which was bandied about on both sides of the debate in the present case. It is best that courts maintain an arms length from the sordid tales of political life. In defining constitutional principle, however, this Court must be conscious of the position on the ground as admitted by Counsel of both sides and an effort has to be made to the extent possible to ensure that democratic values prevail. An underlying assumption of the anti-defection scheme outlined in the Tenth Schedule of the Constitution is that the political party is the defined political unit which the Constitution recognises. Where we increasingly see a breakdown in the composition and allegiances of the political party due to private allurements offered to Members as opposed to public policy considerations, the law may have to evolve to address these burgeoning evils. We were of the view during the course of the hearing that directions can be issued by the Court to ensure that the twenty-two Members who were in Bengaluru during the course of the hearing are not subjected to any restraint or hindrance whatsoever in the free exercise of their rights and liberties as citizens. We put the question to Dr Singhvi, learned Senior Counsel appearing on behalf of the Speaker, as to whether the Speaker would be willing to accept speaking to the resigning Members through video conferencing at an independent neutral venue, under the supervision of an observer appointed by the Court. Mr Maninder Singh, learned Senior Counsel, appearing on behalf of the Members submitted that he was willing to abide by any modalities that may be fixed by this Court to ensure that the Members were not under any coercion. However, Dr Singhvi submitted that he did not have instructions to accept any such modality. Conscious as we are of the domain of the Speaker in such matters, we have desisted from issuing any such directions. However, we are of the view that in order to facilitate a trust vote for which the twenty-two Members should be free to participate in the house should they opt to do so, directions in that regard should be issued both to the Director General of Police of Karnataka as well as to the Director General of Police of Madhya Pradesh. Our directions are intended to sub-serve the purpose of ensuring that none of the Members are restrained in the exercise of their rights and liberties as citizens and that if any of them opt to attend the proceedings of the Legislative Assembly, they should not be prevented from doing so. 55. The reliefs which have been sought in the writ petition instituted by the MP Congress Party are manifestly misconceived. A direction to the Union of India (through the Secretary, Ministry of Home Affairs) and to the State of Karnataka (through its Chief Secretary) has been sought to grant access to the office bearers of the MP Congress Party to communicate with respondents five to nineteen (the Members who have tendered their resignations). The petition has not been framed as one seeking a writ of habeas corpus. The Members who have appeared in these proceedings through learned Senior Counsel, Mr Maninder Singh have submitted that they do not wish to interact with any of the member of the MP Congress Party. We cannot compel them to do so. Ultimately, it is for the Members to decide who they wish to associate with and to face the consequences of such a decision in accordance with the law and the Constitution. We have already indicated that we are inclined to issue directions to ensure the protection of their rights and liberties as free citizens. Among the reliefs which have been sought is a direction that the vote of confidence should be held only in the presence of all the duly elected Members and that a trust vote cannot be held in the absence of representatives of twenty-two constituencies, whose presence could be secured by holding by-elections for the vacant seats in accordance with law. These reliefs are patently misconceived. 56. The court cannot issue a direction mandating that a trust vote cannot be convened if any one or more Members do not remain present in the House. Whether or not to remain present is for the individual Members to decide and they would, necessarily be accountable for the decisions which they take, both to their political party and to their constituents. Similarly, the relief to the effect that no trust vote should be conducted until by-elections are held for the twenty-two seats is again misconceived. One of the prayers in the second writ petition seeks an anticipatory direction of this Court based on the assumption that a disqualification would stand attracted upon which the seat would fall vacant and an election would have been held. In any event, the convening of a trust vote cannot be postponed to a future date until by-elections take place.
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account. The ultimate expression of accountability is the existence of or the lack of confidence in the Council of Ministers. We are therefore unable to accept the submission of Dr Singhvi that the holding of a trust vote would short-circuit the jurisdiction of the Speaker on a matter of resignation and disqualification.52. During the course of his submission, Dr Singhvi fairly accepted that the holding of a trust vote at this stage would ultimately only affect the ability of the resigning Members to accept ministerial office in a new government that may be formed if the issue of disqualification has not been addressed in the meantime. Dr Singhvi submitted that the effort in such cases is for the resigning Members to bring down a government on the allure of ministerial positions in a succeeding government as their disqualification may not be accepted in the future if the government were to change. This, as Dr Singhvi submitted before the court, is how democratic politics operates in54. The spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state of our democratic politics. It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics. Political bargaining, or horse-trading, as we noticed, is now an oft repeated usage in legal precedents. Poaching is an expression which was bandied about on both sides of the debate in the present case. It is best that courts maintain an arms length from the sordid tales of political life. In defining constitutional principle, however, this Court must be conscious of the position on the ground as admitted by Counsel of both sides and an effort has to be made to the extent possible to ensure that democratic values prevail. An underlying assumption of the anti-defection scheme outlined in the Tenth Schedule of the Constitution is that the political party is the defined political unit which the Constitution recognises. Where we increasingly see a breakdown in the composition and allegiances of the political party due to private allurements offered to Members as opposed to public policy considerations, the law may have to evolve to address these burgeoning evils. We were of the view during the course of the hearing that directions can be issued by the Court to ensure that the twenty-two Members who were in Bengaluru during the course of the hearing are not subjected to any restraint or hindrance whatsoever in the free exercise of their rights and liberties as citizens.We put the question to Dr Singhvi, learned Senior Counsel appearing on behalf of the Speaker, as to whether the Speaker would be willing to accept speaking to the resigning Members through video conferencing at an independent neutral venue, under the supervision of an observer appointed by the CourtConscious as we are of the domain of the Speaker in such matters, we have desisted from issuing any such directions. However, we are of the view that in order to facilitate a trust vote for which the twenty-two Members should be free to participate in the house should they opt to do so, directions in that regard should be issued both to the Director General of Police of Karnataka as well as to the Director General of Police of Madhya Pradesh. Our directions are intended to sub-serve the purpose of ensuring that none of the Members are restrained in the exercise of their rights and liberties as citizens and that if any of them opt to attend the proceedings of the Legislative Assembly, they should not be prevented from doing so55. The reliefs which have been sought in the writ petition instituted by the MP Congress Party are manifestly misconceived. A direction to the Union of India (through the Secretary, Ministry of Home Affairs) and to the State of Karnataka (through its Chief Secretary) has been sought to grant access to the office bearers of the MP Congress Party to communicate with respondents five to nineteen (the Members who have tendered their resignations). The petition has not been framed as one seeking a writ of habeas corpus. The Members who have appeared in these proceedings through learned Senior Counsel, Mr Maninder Singh have submitted that they do not wish to interact with any of the member of the MP Congress Party. We cannot compel them to do so. Ultimately, it is for the Members to decide who they wish to associate with and to face the consequences of such a decision in accordance with the law and the Constitution. We have already indicated that we are inclined to issue directions to ensure the protection of their rights and liberties as free citizens. Among the reliefs which have been sought is a direction that the vote of confidence should be held only in the presence of all the duly elected Members and that a trust vote cannot be held in the absence of representatives of twenty-two constituencies, whose presence could be secured by holding by-elections for the vacant seats in accordance with law. These reliefs are patently misconceived56. The court cannot issue a direction mandating that a trust vote cannot be convened if any one or more Members do not remain present in the House. Whether or not to remain present is for the individual Members to decide and they would, necessarily be accountable for the decisions which they take, both to their political party and to their constituents. Similarly, the relief to the effect that no trust vote should be conducted until by-elections are held for the twenty-two seats is again misconceived. One of the prayers in the second writ petition seeks an anticipatory direction of this Court based on the assumption that a disqualification would stand attracted upon which the seat would fall vacant and an election would have been held. In any event, the convening of a trust vote cannot be postponed to a future date until by-elections take place.
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Purshottam Vishandas Raheja Vs. Shrichand Vishandas Raheja(D)Tr.Lrs.&Ors | coming within the exceptions noticed in the said judgment. In our opinion, the case of the respondent herein does not come under any one of those exceptions and even on facts it is not such a case which calls for the issuance of an interim mandatory injunction directing the possession being handed over to the respondent." 20. In Kishore Kumar Khaitan and another vs. Praveen Kumar Singh [reported in (2006) 3 SCC 312 ], this Court once again reiterated the principles with respect to the interim mandatory injunction in paragraph 6 in the following words: "6. An interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction." 21. In our view, the learned Single Judge has considered all the relevant aspects of the matter and thereafter passed the limited interim order whereby documents for sale of the flats will continue to be signed by the Respondents, though, the monies coming into the bank account thereafter will be utilized only for the purposes that are necessary, as stated in paragraph 22 extracted above. The appellants have not been directed to be removed from the property inasmuch as they were the people on the spot carrying on the development prior to filing of the suit. The order sought by the respondents, if granted, would mean granting all the reliefs and a sort of pre-trial decree without the opportunity to the Appellants to have their plea examined with respect to the family arrangement, which plea is supported by their sisters.22. The test to be applied to assess the correctness of the order of the learned Single Judge would be whether the order is so arbitrary, capricious or perverse that it should be interfered at an interlocutory stage in an intra-Court appeal. In Wander Ltd. and another vs. Antox India P.Ltd. [reported in 1990 (Supp) SCC 727], a bench of Three Judges of this Court has laid down the law in this respect which has been consistently followed. In that matter, Appellant No.1 being the registered proprietor of a Trade Mark had entered into an agreement with the Respondent permitting it to manufacture certain pharmaceutical product. On the basis of that arrangement, the respondent applied for the requisite license from the authorities concerned. In view the dispute between the parties, the Appellant called upon the Respondent to stop manufacturing the particular product, and entered into an arrangement with another company. The Respondent filed a suit and sought a temporary injunction to restrain the Appellant and its new nominee-company from manufacturing the products concerned. This was on the basis of continued user in respect of the Trade Mark of the product by the Respondent. It was contended that user was in his own right. A learned Single Judge of the High Court declined to grant the interim injunction which was granted in appeal by the Appellate Bench of Madras High Court. This Court, in its judgment, held that the Appellate Bench had erred firstly, in misdirecting with respect to the nature of its powers in appeal and secondly, in basing its judgment on the alleged user of the Trade Mark. A bench of Three Judge of this Court laid down the law in this behalf in paragraph 14 of the judgment which is as follows: "14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph. (1960) 3 SCR 713 ....These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton... the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.The appellate judgment does not seem to defer to this principle." It is to be noted that the proposition laid down has been consistently followed thereafter. 23. For the reasons stated above, in our view, the present case, is not one where mandatory interim injunction, as sought by the Respondents was justified. The learned Single Judge had passed a reasoned order, and, in no way, it could be said that he had exercised the discretion in an arbitrary, capricious or perverse manner, or had ignored the settled principles of law regarding grant or refusal of interlocutory injunction. There was no reason for the Appellate Bench to interfere and set aside that order. 24. | 1[ds]In our view, the learned Single Judge has considered all the relevant aspects of the matter and thereafter passed the limited interim order whereby documents for sale of the flats will continue to be signed by the Respondents, though, the monies coming into the bank account thereafter will be utilized only for the purposes that are necessary, as stated in paragraph 22 extracted above. The appellants have not been directed to be removed from the property inasmuch as they were the people on the spot carrying on the development prior to filing of the suit. The order sought by the respondents, if granted, would mean granting all the reliefs and a sort of pre-trial decree without the opportunity to the Appellants to have their plea examined with respect to the family arrangement, which plea is supported by their sisters.22. The test to be applied to assess the correctness of the order of the learned Single Judge would be whether the order is so arbitrary, capricious or perverse that it should be interfered at an interlocutory stage in an intra-Court appeal. In Wander Ltd. and another vs. Antox India P.Ltd. [reported in 1990 (Supp) SCC 727], a bench of Three Judges of this Court has laid down the law in this respect which has been consistently followed. In that matter, Appellant No.1 being the registered proprietor of a Trade Mark had entered into an agreement with the Respondent permitting it to manufacture certain pharmaceutical product. On the basis of that arrangement, the respondent applied for the requisite license from the authorities concerned. In view the dispute between the parties, the Appellant called upon the Respondent to stop manufacturing the particular product, and entered into an arrangement with another company. The Respondent filed a suit and sought a temporary injunction to restrain the Appellant and its new nominee-company from manufacturing the products concerned. This was on the basis of continued user in respect of the Trade Mark of the product by the Respondent. It was contended that user was in his own right. A learned Single Judge of the High Court declined to grant the interim injunction which was granted in appeal by the Appellate Bench of Madras High Court. This Court, in its judgment, held that the Appellate Bench had erred firstly, in misdirecting with respect to the nature of its powers in appeal and secondly, in basing its judgment on the alleged user of the Tradeour view, the present case, is not one where mandatory interim injunction, as sought by the Respondents was justified. The learned Single Judge had passed a reasoned order, and, in no way, it could be said that he had exercised the discretion in an arbitrary, capricious or perverse manner, or had ignored the settled principles of law regarding grant or refusal of interlocutory injunction. There was no reason for the Appellate Bench to interfere and set aside that order. | 1 | 6,148 | 533 | ### 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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coming within the exceptions noticed in the said judgment. In our opinion, the case of the respondent herein does not come under any one of those exceptions and even on facts it is not such a case which calls for the issuance of an interim mandatory injunction directing the possession being handed over to the respondent." 20. In Kishore Kumar Khaitan and another vs. Praveen Kumar Singh [reported in (2006) 3 SCC 312 ], this Court once again reiterated the principles with respect to the interim mandatory injunction in paragraph 6 in the following words: "6. An interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction." 21. In our view, the learned Single Judge has considered all the relevant aspects of the matter and thereafter passed the limited interim order whereby documents for sale of the flats will continue to be signed by the Respondents, though, the monies coming into the bank account thereafter will be utilized only for the purposes that are necessary, as stated in paragraph 22 extracted above. The appellants have not been directed to be removed from the property inasmuch as they were the people on the spot carrying on the development prior to filing of the suit. The order sought by the respondents, if granted, would mean granting all the reliefs and a sort of pre-trial decree without the opportunity to the Appellants to have their plea examined with respect to the family arrangement, which plea is supported by their sisters.22. The test to be applied to assess the correctness of the order of the learned Single Judge would be whether the order is so arbitrary, capricious or perverse that it should be interfered at an interlocutory stage in an intra-Court appeal. In Wander Ltd. and another vs. Antox India P.Ltd. [reported in 1990 (Supp) SCC 727], a bench of Three Judges of this Court has laid down the law in this respect which has been consistently followed. In that matter, Appellant No.1 being the registered proprietor of a Trade Mark had entered into an agreement with the Respondent permitting it to manufacture certain pharmaceutical product. On the basis of that arrangement, the respondent applied for the requisite license from the authorities concerned. In view the dispute between the parties, the Appellant called upon the Respondent to stop manufacturing the particular product, and entered into an arrangement with another company. The Respondent filed a suit and sought a temporary injunction to restrain the Appellant and its new nominee-company from manufacturing the products concerned. This was on the basis of continued user in respect of the Trade Mark of the product by the Respondent. It was contended that user was in his own right. A learned Single Judge of the High Court declined to grant the interim injunction which was granted in appeal by the Appellate Bench of Madras High Court. This Court, in its judgment, held that the Appellate Bench had erred firstly, in misdirecting with respect to the nature of its powers in appeal and secondly, in basing its judgment on the alleged user of the Trade Mark. A bench of Three Judge of this Court laid down the law in this behalf in paragraph 14 of the judgment which is as follows: "14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph. (1960) 3 SCR 713 ....These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton... the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.The appellate judgment does not seem to defer to this principle." It is to be noted that the proposition laid down has been consistently followed thereafter. 23. For the reasons stated above, in our view, the present case, is not one where mandatory interim injunction, as sought by the Respondents was justified. The learned Single Judge had passed a reasoned order, and, in no way, it could be said that he had exercised the discretion in an arbitrary, capricious or perverse manner, or had ignored the settled principles of law regarding grant or refusal of interlocutory injunction. There was no reason for the Appellate Bench to interfere and set aside that order. 24.
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In our view, the learned Single Judge has considered all the relevant aspects of the matter and thereafter passed the limited interim order whereby documents for sale of the flats will continue to be signed by the Respondents, though, the monies coming into the bank account thereafter will be utilized only for the purposes that are necessary, as stated in paragraph 22 extracted above. The appellants have not been directed to be removed from the property inasmuch as they were the people on the spot carrying on the development prior to filing of the suit. The order sought by the respondents, if granted, would mean granting all the reliefs and a sort of pre-trial decree without the opportunity to the Appellants to have their plea examined with respect to the family arrangement, which plea is supported by their sisters.22. The test to be applied to assess the correctness of the order of the learned Single Judge would be whether the order is so arbitrary, capricious or perverse that it should be interfered at an interlocutory stage in an intra-Court appeal. In Wander Ltd. and another vs. Antox India P.Ltd. [reported in 1990 (Supp) SCC 727], a bench of Three Judges of this Court has laid down the law in this respect which has been consistently followed. In that matter, Appellant No.1 being the registered proprietor of a Trade Mark had entered into an agreement with the Respondent permitting it to manufacture certain pharmaceutical product. On the basis of that arrangement, the respondent applied for the requisite license from the authorities concerned. In view the dispute between the parties, the Appellant called upon the Respondent to stop manufacturing the particular product, and entered into an arrangement with another company. The Respondent filed a suit and sought a temporary injunction to restrain the Appellant and its new nominee-company from manufacturing the products concerned. This was on the basis of continued user in respect of the Trade Mark of the product by the Respondent. It was contended that user was in his own right. A learned Single Judge of the High Court declined to grant the interim injunction which was granted in appeal by the Appellate Bench of Madras High Court. This Court, in its judgment, held that the Appellate Bench had erred firstly, in misdirecting with respect to the nature of its powers in appeal and secondly, in basing its judgment on the alleged user of the Tradeour view, the present case, is not one where mandatory interim injunction, as sought by the Respondents was justified. The learned Single Judge had passed a reasoned order, and, in no way, it could be said that he had exercised the discretion in an arbitrary, capricious or perverse manner, or had ignored the settled principles of law regarding grant or refusal of interlocutory injunction. There was no reason for the Appellate Bench to interfere and set aside that order.
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Ratanlal Vs. Sundarabai Govardhandas Samsuka (D) th. L.Rs. and Ors | of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the, suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach. 21. In the light of the above precedents, it would be necessary to observe statements of certain witnesses. Appellant, himself, got examined as a witness, which is marked as Ex. 121. He stated that after death of his biological father in 1972, he came to Nasik to continue his education while living with Govardhandas at his residence. As per his evidence, during the marriage of Asha, Govardhandas decided to adopt the Appellant and the ceremony was held on 08.07.1973, one day before the marriage. The adoption ceremony was held at the residence of Govardhandas. As Appellant and Govardhandas were from the Jain community, there was no bar in their community either for adoption of a married son or concerning the age of the adopted son. It is stated that there is no custom in their community to reduce the adoption in writing. One Chaturbuj Maharaj was the priest who performed the said ceremony in the presence of his biological mother, sisters and other relatives. His biological mother gave Appellant in adoption to Govardhandas and Sundarabai i.e. the original Plaintiff. Govardhandas and Sundarabai performed the pooja of the said ceremony. Said ceremony was held with the desire and consent of Sundarabai and Govardhandas. After the Appellant was given in adoption to Govardhandas, Appellant was instructed by the priest to sit on the lap of Govardhandas and Sundarabai. After the ceremony, lunch was served to all persons, who had attended the ceremony. It is to be noted that invitation cards were printed but the same were sent separately and not with the marriage invitation card. In the cross examination he states that even though the marriage was held on 09.07.1973, certain marriage ceremonies were held as per community traditions on 08.07.1973. That he was aged thirty-two when he was allegedly adopted and he does not know of any examples of adoption of a thirty-two-year-old man. He admits that he did not submit any document to show that he was using his adoptive fathers name after 1973. He further states that he had filed an application before the municipal council for succession rights, but the same was not produced in the suit. Moreover, he states that he was filing income tax returns in his earlier name Ratanlal Chunilal. 22. One Chaturbuj Laxminarayan Sharma was examined as witness No. 2 on behalf of the Appellant. His deposition was marked as Ex. No. 152. He stated that he knew Govardhandas for 30 years. He used to perform ceremonies for his family including the adoption ceremony of the Appellant which had taken place at the residence of Govardhandas. He deposed that the ceremony was attended by a gathering of 100 to 200 people. According to him he had performed Navgrah pooja, Kuldevi pooja, Laxminarayan pooja, havan and sankalp as part of adoption. Thereafter, name of the Appellant was changed from Ratanlal Chunilal to Ratanlal Govardhandas. At the time of the ceremony, mother of the Appellant gave hand of the Appellant in the hands of Govardhandas. Photographs were taken at the time of the ceremony. In the cross examination he stated that invitation card for the ceremony was published and distributed. He was unable to tell who decided to perform adoption ceremony by giving hand of the Appellant. He admits that in Jain community, person to be adopted has to be seated on the lap of the adopting father. But he stated that Ratanlal was not asked to take a seat on the lap of Govardhandas as he was weak and Defendant No. 1 (Ratanlal) was healthier; this is a glaring contradiction between the evidence of Appellant and the priest. One Harakchand Bhansali of Kapoorgaon was adopted after he was married. He was not able to give particulars of such adoption. Further he states that he does not know of any other example of adoption of a married person. 23. Girjappa Gangaram Kothule, who was examined as defense witness No. 3, stated that he knew Govardhandas for many years. He recollected that many years ago Govardhandas had discussed the matter of adopting the Appellant with him. He was present during the ceremony. He could not recollect whether invitation cards were printed for the adoption ceremony. According to his statement, the adoption ceremony was performed at the residence of the Govardhandas wherein 200 to 300 persons attended that function. He further stated that no religious ceremony relating to the marriage had taken place prior to the day of marriage. It is to be noted that Mohanlal and Ajith have deposed on the same lines in favour of the Appellant. 24. The evidence as discussed above makes it clear that there are lot of contradictions in the evidence of witnesses on all material aspects of adoption. A thorough glance at the entire evidence makes it clear that the Appellant who asserts the fact that he is adopted by late Govardhandas failed to plead and prove the factum of adoption. All the circumstances pleaded by the Appellant are not properly explained by adducing cogent evidence to the satisfaction of the Court. The trial court placed burden on the Plaintiff to prove the adoption which is contrary to law. The Appellant failed to satisfy the Court that any question of law much less substantial questions of law arise in this appeal which warrant interference of this Court. 25. Having regard to the evidence available on record and the circumstances elucidated herein above, the view taken by the High Court, being convincingly reasonable, we see no reason to interfere with the judgment of the High Court. | 0[ds]It is an admitted fact that the parties concerned in this case are Jains. There is no dispute that Jains are governed by the Hindu Adoption and Maintenance Act, 1956 [hereinafter the Act for brevity]11. From the aforesaid provisions, it is clear that a person cannot be adopted if he or she is a married person, unless there is a custom or usage, as defined Under Section 3(a), applicable to the parties which permits persons who are married being taken in adoption.12. India has a strong tradition of respect for difference and diversity which is reflected under the Hindu family laws as it is applicable to diverse communities living from the southern tip to northern mountains, from western plains to eastern hills. Diversity in our country brings along various customs which defines what India is. Law is not oblivious of this fact and sometimes allows society to be governed by customs within the foundation of law. It is well known that a custom commands legitimacy not by an authority of law formed by the State rather from the public acceptance and acknowledgment.13. As per the settled law Under Section 3(a) the Act, the following ingredients are necessary for establishing a valid custom-a. Continuity.b. Certainty.c. Long usage.d. And reasonability.As customs, when pleaded are mostly at variance with the general law, they should be strictly proved. Generally, there is a presumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the plea of existence of any custom has to discharge the onus of proving it, with all its requisites to the satisfaction of the Court in a most clear and unambiguous manner. It should be noted that, there are many types of customs to name a few-general customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depend on the type and the extent of usage. It must be shown that the alleged custom has the characteristics of a genuine custom viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant.14. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adjusted, but from practices prompted by the convenience of society. A judicial decision recognizing a custom may be relevant, but these are not indispensable for its establishment. When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a court of superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration. In this case at hand there was no pleading or proof which could justify that the above standards were met.17. It is very much evident that the Appellant in this case has failed to produce any evidence to prove that such practice has attained the status of general custom prevalent among the concerned community. Custom, on which the Appellant is relying, is a matter of proof and cannot be based on a priori reasoning or logical and analogical deductions, as sought to be canvassed by the Appellant herein. Hence the issue is answered against the Appellant.The only evidence, the Appellant has adduced, is his own testimony and a word of a priest who had performed the ceremony. A general custom which the Appellant intends to prove requires greater proof than the one Appellant adduced before the court. Moreover, there is no dispute with regard to the fact that the Appellant did not plead in his written statement about existence of any custom as such. Parties to a suit are always governed by their pleadings. Any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties.19. At this juncture it would be necessary to observe the law laid down by this Court in numerous cases that the burden of proving adoption is a heavy one and if there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence.This Court held so in Kishori Lal v. Mst. Chaltibai AIR 1959 SC 504 , We can do no better than to quote the relevant passage from the above judgment which reads as under:As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance.20. In Rahasa Pandiani (dead) by L.Rs. and Ors. v. Gokulananda Panda and Ors., AIR 1987 SC 962 , aforesaid aspect was observed as under:When the Plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the, suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach.24. The evidence as discussed above makes it clear that there are lot of contradictions in the evidence of witnesses on all material aspects of adoption. A thorough glance at the entire evidence makes it clear that the Appellant who asserts the fact that he is adopted by late Govardhandas failed to plead and prove the factum of adoption. All the circumstances pleaded by the Appellant are not properly explained by adducing cogent evidence to the satisfaction of the Court. The trial court placed burden on the Plaintiff to prove the adoption which is contrary to law. The Appellant failed to satisfy the Court that any question of law much less substantial questions of law arise in this appeal which warrant interference of this Court.25. Having regard to the evidence available on record and the circumstances elucidated herein above, the view taken by the High Court, being convincingly reasonable, we see no reason to interfere with the judgment of the High Court.Appellant, himself, got examined as a witness, which is marked as Ex. 121.It is to be noted that invitation cards were printed but the same were sent separately and not with the marriage invitation card. In the cross examination he states that even though the marriage was held on 09.07.1973, certain marriage ceremonies were held as per community traditions on 08.07.1973. That he was aged thirty-two when he was allegedly adopted and he does not know of any examples of adoption of a thirty-two-year-old man. He admits that he did not submit any document to show that he was using his adoptive fathers name after 1973. He further states that he had filed an application before the municipal council for succession rights, but the same was not produced in the suit. Moreover, he states that he was filing income tax returns in his earlier name Ratanlal Chunilal.22. One Chaturbuj Laxminarayan Sharma was examined as witness No. 2 on behalf of the Appellant.He was unable to tell who decided to perform adoption ceremony by giving hand of the Appellant. He admits that in Jain community, person to be adopted has to be seated on the lap of the adopting father. But he stated that Ratanlal was not asked to take a seat on the lap of Govardhandas as he was weak and Defendant No. 1 (Ratanlal) was healthier; this is a glaring contradiction between the evidence of Appellant and the priest. One Harakchand Bhansali of Kapoorgaon was adopted after he was married. He was not able to give particulars of such adoption. Further he states that he does not know of any other example of adoption of a married person.23. Girjappa Gangaram Kothule, who was examined as defense witness No. 3, stated that he knew Govardhandas for many years. He recollected that many years ago Govardhandas had discussed the matter of adopting the Appellant with him. He was present during the ceremony. He could not recollect whether invitation cards were printed for the adoption ceremony. According to his statement, the adoption ceremony was performed at the residence of the Govardhandas wherein 200 to 300 persons attended that function. He further stated that no religious ceremony relating to the marriage had taken place prior to the day of marriage. It is to be noted that Mohanlal and Ajith have deposed on the same lines in favour of the Appellant. | 0 | 4,401 | 1,927 | ### 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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of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the, suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach. 21. In the light of the above precedents, it would be necessary to observe statements of certain witnesses. Appellant, himself, got examined as a witness, which is marked as Ex. 121. He stated that after death of his biological father in 1972, he came to Nasik to continue his education while living with Govardhandas at his residence. As per his evidence, during the marriage of Asha, Govardhandas decided to adopt the Appellant and the ceremony was held on 08.07.1973, one day before the marriage. The adoption ceremony was held at the residence of Govardhandas. As Appellant and Govardhandas were from the Jain community, there was no bar in their community either for adoption of a married son or concerning the age of the adopted son. It is stated that there is no custom in their community to reduce the adoption in writing. One Chaturbuj Maharaj was the priest who performed the said ceremony in the presence of his biological mother, sisters and other relatives. His biological mother gave Appellant in adoption to Govardhandas and Sundarabai i.e. the original Plaintiff. Govardhandas and Sundarabai performed the pooja of the said ceremony. Said ceremony was held with the desire and consent of Sundarabai and Govardhandas. After the Appellant was given in adoption to Govardhandas, Appellant was instructed by the priest to sit on the lap of Govardhandas and Sundarabai. After the ceremony, lunch was served to all persons, who had attended the ceremony. It is to be noted that invitation cards were printed but the same were sent separately and not with the marriage invitation card. In the cross examination he states that even though the marriage was held on 09.07.1973, certain marriage ceremonies were held as per community traditions on 08.07.1973. That he was aged thirty-two when he was allegedly adopted and he does not know of any examples of adoption of a thirty-two-year-old man. He admits that he did not submit any document to show that he was using his adoptive fathers name after 1973. He further states that he had filed an application before the municipal council for succession rights, but the same was not produced in the suit. Moreover, he states that he was filing income tax returns in his earlier name Ratanlal Chunilal. 22. One Chaturbuj Laxminarayan Sharma was examined as witness No. 2 on behalf of the Appellant. His deposition was marked as Ex. No. 152. He stated that he knew Govardhandas for 30 years. He used to perform ceremonies for his family including the adoption ceremony of the Appellant which had taken place at the residence of Govardhandas. He deposed that the ceremony was attended by a gathering of 100 to 200 people. According to him he had performed Navgrah pooja, Kuldevi pooja, Laxminarayan pooja, havan and sankalp as part of adoption. Thereafter, name of the Appellant was changed from Ratanlal Chunilal to Ratanlal Govardhandas. At the time of the ceremony, mother of the Appellant gave hand of the Appellant in the hands of Govardhandas. Photographs were taken at the time of the ceremony. In the cross examination he stated that invitation card for the ceremony was published and distributed. He was unable to tell who decided to perform adoption ceremony by giving hand of the Appellant. He admits that in Jain community, person to be adopted has to be seated on the lap of the adopting father. But he stated that Ratanlal was not asked to take a seat on the lap of Govardhandas as he was weak and Defendant No. 1 (Ratanlal) was healthier; this is a glaring contradiction between the evidence of Appellant and the priest. One Harakchand Bhansali of Kapoorgaon was adopted after he was married. He was not able to give particulars of such adoption. Further he states that he does not know of any other example of adoption of a married person. 23. Girjappa Gangaram Kothule, who was examined as defense witness No. 3, stated that he knew Govardhandas for many years. He recollected that many years ago Govardhandas had discussed the matter of adopting the Appellant with him. He was present during the ceremony. He could not recollect whether invitation cards were printed for the adoption ceremony. According to his statement, the adoption ceremony was performed at the residence of the Govardhandas wherein 200 to 300 persons attended that function. He further stated that no religious ceremony relating to the marriage had taken place prior to the day of marriage. It is to be noted that Mohanlal and Ajith have deposed on the same lines in favour of the Appellant. 24. The evidence as discussed above makes it clear that there are lot of contradictions in the evidence of witnesses on all material aspects of adoption. A thorough glance at the entire evidence makes it clear that the Appellant who asserts the fact that he is adopted by late Govardhandas failed to plead and prove the factum of adoption. All the circumstances pleaded by the Appellant are not properly explained by adducing cogent evidence to the satisfaction of the Court. The trial court placed burden on the Plaintiff to prove the adoption which is contrary to law. The Appellant failed to satisfy the Court that any question of law much less substantial questions of law arise in this appeal which warrant interference of this Court. 25. Having regard to the evidence available on record and the circumstances elucidated herein above, the view taken by the High Court, being convincingly reasonable, we see no reason to interfere with the judgment of the High Court.
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0
### Explanation:
relying upon oral evidence.This Court held so in Kishori Lal v. Mst. Chaltibai AIR 1959 SC 504 , We can do no better than to quote the relevant passage from the above judgment which reads as under:As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance.20. In Rahasa Pandiani (dead) by L.Rs. and Ors. v. Gokulananda Panda and Ors., AIR 1987 SC 962 , aforesaid aspect was observed as under:When the Plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the, suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach.24. The evidence as discussed above makes it clear that there are lot of contradictions in the evidence of witnesses on all material aspects of adoption. A thorough glance at the entire evidence makes it clear that the Appellant who asserts the fact that he is adopted by late Govardhandas failed to plead and prove the factum of adoption. All the circumstances pleaded by the Appellant are not properly explained by adducing cogent evidence to the satisfaction of the Court. The trial court placed burden on the Plaintiff to prove the adoption which is contrary to law. The Appellant failed to satisfy the Court that any question of law much less substantial questions of law arise in this appeal which warrant interference of this Court.25. Having regard to the evidence available on record and the circumstances elucidated herein above, the view taken by the High Court, being convincingly reasonable, we see no reason to interfere with the judgment of the High Court.Appellant, himself, got examined as a witness, which is marked as Ex. 121.It is to be noted that invitation cards were printed but the same were sent separately and not with the marriage invitation card. In the cross examination he states that even though the marriage was held on 09.07.1973, certain marriage ceremonies were held as per community traditions on 08.07.1973. That he was aged thirty-two when he was allegedly adopted and he does not know of any examples of adoption of a thirty-two-year-old man. He admits that he did not submit any document to show that he was using his adoptive fathers name after 1973. He further states that he had filed an application before the municipal council for succession rights, but the same was not produced in the suit. Moreover, he states that he was filing income tax returns in his earlier name Ratanlal Chunilal.22. One Chaturbuj Laxminarayan Sharma was examined as witness No. 2 on behalf of the Appellant.He was unable to tell who decided to perform adoption ceremony by giving hand of the Appellant. He admits that in Jain community, person to be adopted has to be seated on the lap of the adopting father. But he stated that Ratanlal was not asked to take a seat on the lap of Govardhandas as he was weak and Defendant No. 1 (Ratanlal) was healthier; this is a glaring contradiction between the evidence of Appellant and the priest. One Harakchand Bhansali of Kapoorgaon was adopted after he was married. He was not able to give particulars of such adoption. Further he states that he does not know of any other example of adoption of a married person.23. Girjappa Gangaram Kothule, who was examined as defense witness No. 3, stated that he knew Govardhandas for many years. He recollected that many years ago Govardhandas had discussed the matter of adopting the Appellant with him. He was present during the ceremony. He could not recollect whether invitation cards were printed for the adoption ceremony. According to his statement, the adoption ceremony was performed at the residence of the Govardhandas wherein 200 to 300 persons attended that function. He further stated that no religious ceremony relating to the marriage had taken place prior to the day of marriage. It is to be noted that Mohanlal and Ajith have deposed on the same lines in favour of the Appellant.
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Taiyo Membrane Corporation Pty. Ltd Vs. Shapoorji Pallonji & Co.Ltd | 1. This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ?the Act?) has been lodged by one Taiyo Membrane Corporation Pty. Ltd. seeking appointment of an arbitrator to resolve certain disputes that have arisen out of three sub-contracts executed with the respondent in respect of works relating to renovation of the Jawaharlal Nehru Stadium, New Delhi. The said works were awarded to the respondent by the C.P.W.D. 2. The area of dispute is small and narrow, namely, the entitlement of the petitioner to 5% of his claimed dues which, according to the petitioner, has been wrongly withheld by the respondent.3. The respondent has objected to the appointment of an Arbitrator by the Court, inter alia, on the ground that the contractual obligations incumbent on the petitioner/applicant have not been fulfilled without which the demand for release of the amount, as aforesaid, is not justified. As the said objection itself raises an arbitrable issue the same need not engage the attention of the Court. Such attention, however, has to be focused on the principal objection of the respondent. The same is to the effect that the two of the sub-agreements were between Taiyo Membrane Corporation and the respondent Company whereas one sub-agreement was between Taiyo Membrane Corporation (India) and the respondent. The applicant is Taiyo Membrane Corporation Pty. Ltd. which is not a party to any of the said sub-agreements. Besides, it is contended that invocation of the arbitration clause was by the applicant who is not a party to the agreements. On the said basis, it is urged that there is no valid invocation of the arbitration clause and consequently there is no failure on the part of the respondent to appoint the arbitrator so as to warrant an order from the Court under Section 11(6) of the Act. It is also urged that one of the sub-agreements being between two Indian entities i.e. Taiyo Membrane Corporation (India) and the respondent Company any appointment of an arbitrator would fall outside the jurisdiction of this Court under Section 11(6) of the Act.4. The above objections of the respondent have been sought to be met by the petitioner by filing a rejoinder affidavit to point out that the Letters of Intent with regard to the works allotted under the sub-agreements were issued in favour of Taiyo Membrane Corporation Pty. Ltd. That apart, several correspondences exchanged between the respondent Company and the Taiyo Membrane Corporation Pty. Ltd. with regard to the works covered by the sub-contracts have also been referred to and relied upon to contend that there is no doubt and ambiguity with regard to the fact that the Taiyo Membrane Corporation Pty. Ltd. and Taiyo Membrane Corporation are one and the same entity. Insofar as the agreements executed by Taiyo Membrane Corporation (India) is concerned, it is urged that the above position has also been clarified by subsequent communications exchanged between the respondent Company and Taiyo Membrane Corporation Pty. Ltd. with respect to the work covered by the agreement in which one of the parties is Taiyo Membrane Corporation (India).5. While it is correct that there is some confusion with regard to the description of the parties in the sub-agreements; the legal notice(s); and the letter(s) of invocation; the L.O.Is. issued in respect of the works and the correspondences exchanged by and between the parties make it clear that the applicant Taiyo Membrane Corporation Pty. Ltd. and Taiyo Membrane Corporation are one and the same entity and the works under the sub-agreements had been allotted by the respondent to the said entity. In this regard it may also be relevant to note that under the Australian Corporation Act, 2001 (Section 57A) a Corporation includes a Company and a proprietary Company Limited by shares is incorporated as Pty. Ltd. 6. In the above circumstances the alleged mis-description will not affect the maintainability of the present application. As already observed, the Court does not find any ambiguity or inconsistency in the description of parties so as to non-suit the applicant-petitioner by dismissing its application on the above basis. The ambiguity, if any, in the description of the parties having been explained and the respondent Company itself having issued L.O.Is. and having exchanged subsequent correspondences with the applicant with regard to the works under the sub-contracts, though executed in the name of the Taiyo Membrane Corporation and Taiyo Membrane Corporation (India), the applicants petition cannot be held to be not maintainable as urged on behalf of the respondent. | 1[ds]6. In the above circumstances the allegedwill not affect the maintainability of the present application. As already observed, the Court does not find any ambiguity or inconsistency in the description of parties so as toer by dismissing its application on the above basis. The ambiguity, if any, in the description of the parties having been explained and the respondent Company itself having issued L.O.Is. and having exchanged subsequent correspondences with the applicant with regard to the works under thethough executed in the name of the Taiyo Membrane Corporation and Taiyo Membrane Corporation (India), the applicants petition cannot be held to be not maintainable as urged on behalf of the respondent. | 1 | 841 | 126 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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1. This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ?the Act?) has been lodged by one Taiyo Membrane Corporation Pty. Ltd. seeking appointment of an arbitrator to resolve certain disputes that have arisen out of three sub-contracts executed with the respondent in respect of works relating to renovation of the Jawaharlal Nehru Stadium, New Delhi. The said works were awarded to the respondent by the C.P.W.D. 2. The area of dispute is small and narrow, namely, the entitlement of the petitioner to 5% of his claimed dues which, according to the petitioner, has been wrongly withheld by the respondent.3. The respondent has objected to the appointment of an Arbitrator by the Court, inter alia, on the ground that the contractual obligations incumbent on the petitioner/applicant have not been fulfilled without which the demand for release of the amount, as aforesaid, is not justified. As the said objection itself raises an arbitrable issue the same need not engage the attention of the Court. Such attention, however, has to be focused on the principal objection of the respondent. The same is to the effect that the two of the sub-agreements were between Taiyo Membrane Corporation and the respondent Company whereas one sub-agreement was between Taiyo Membrane Corporation (India) and the respondent. The applicant is Taiyo Membrane Corporation Pty. Ltd. which is not a party to any of the said sub-agreements. Besides, it is contended that invocation of the arbitration clause was by the applicant who is not a party to the agreements. On the said basis, it is urged that there is no valid invocation of the arbitration clause and consequently there is no failure on the part of the respondent to appoint the arbitrator so as to warrant an order from the Court under Section 11(6) of the Act. It is also urged that one of the sub-agreements being between two Indian entities i.e. Taiyo Membrane Corporation (India) and the respondent Company any appointment of an arbitrator would fall outside the jurisdiction of this Court under Section 11(6) of the Act.4. The above objections of the respondent have been sought to be met by the petitioner by filing a rejoinder affidavit to point out that the Letters of Intent with regard to the works allotted under the sub-agreements were issued in favour of Taiyo Membrane Corporation Pty. Ltd. That apart, several correspondences exchanged between the respondent Company and the Taiyo Membrane Corporation Pty. Ltd. with regard to the works covered by the sub-contracts have also been referred to and relied upon to contend that there is no doubt and ambiguity with regard to the fact that the Taiyo Membrane Corporation Pty. Ltd. and Taiyo Membrane Corporation are one and the same entity. Insofar as the agreements executed by Taiyo Membrane Corporation (India) is concerned, it is urged that the above position has also been clarified by subsequent communications exchanged between the respondent Company and Taiyo Membrane Corporation Pty. Ltd. with respect to the work covered by the agreement in which one of the parties is Taiyo Membrane Corporation (India).5. While it is correct that there is some confusion with regard to the description of the parties in the sub-agreements; the legal notice(s); and the letter(s) of invocation; the L.O.Is. issued in respect of the works and the correspondences exchanged by and between the parties make it clear that the applicant Taiyo Membrane Corporation Pty. Ltd. and Taiyo Membrane Corporation are one and the same entity and the works under the sub-agreements had been allotted by the respondent to the said entity. In this regard it may also be relevant to note that under the Australian Corporation Act, 2001 (Section 57A) a Corporation includes a Company and a proprietary Company Limited by shares is incorporated as Pty. Ltd. 6. In the above circumstances the alleged mis-description will not affect the maintainability of the present application. As already observed, the Court does not find any ambiguity or inconsistency in the description of parties so as to non-suit the applicant-petitioner by dismissing its application on the above basis. The ambiguity, if any, in the description of the parties having been explained and the respondent Company itself having issued L.O.Is. and having exchanged subsequent correspondences with the applicant with regard to the works under the sub-contracts, though executed in the name of the Taiyo Membrane Corporation and Taiyo Membrane Corporation (India), the applicants petition cannot be held to be not maintainable as urged on behalf of the respondent.
### Response:
1
### Explanation:
6. In the above circumstances the allegedwill not affect the maintainability of the present application. As already observed, the Court does not find any ambiguity or inconsistency in the description of parties so as toer by dismissing its application on the above basis. The ambiguity, if any, in the description of the parties having been explained and the respondent Company itself having issued L.O.Is. and having exchanged subsequent correspondences with the applicant with regard to the works under thethough executed in the name of the Taiyo Membrane Corporation and Taiyo Membrane Corporation (India), the applicants petition cannot be held to be not maintainable as urged on behalf of the respondent.
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Gyani Chand Vs. State Of A.P | is pertinent to note that the appellant has already undergone the sentence.2. Undisputed facts giving rise to the present litigation in a nutshell are as under:The appellant had given an undertaking in I.A. No.11 of 1985 in O.S. No.231 of 1972 before the IXth Assistant Judge, City Civil Court, Hyderabad that he would ?return the documents on an undertaking to produce them whenever directed?. The mother of the appellant, Late Sharda Bai was a litigant in the afore-stated case, which had been disposed of in 1981. Some of the documents, which had been produced by the mother of the appellant in the said case, were required by her and as she was unable to remain present before the Court due to her old age, she had requested the appellant to make an application on her behalf, for return of the documents and, accordingly, the appellant had made an application to the Court for return of the documents, which had been produced by Late Sharda Bai, the mother of the appellant. While returning the documents, the appellant was asked to give an undertaking to the Court that the said documents would be produced by him as and when the same would be required by the Court.3. The said documents, which were handed over to the appellant, were given by him to his mother, Late Sharda Bai. The said documents were required in I.A. No.632 of 2001 in O.S. No.231 of 1972, which was pending in the Court of IXth Junior Civil Judge, Civil Court at Hyderabad. By an affidavit dated 5.10.2001, Late Sharda Bai had admitted the fact that the said documents were given to her by the appellant and she had further stated in the said affidavit that the appellant in the said proceedings had no right to get the said documents. Thus, it is an admitted fact that the present appellant had handed over the said documents to his mother Late Sharda Bai, who had right to retain the same as the documents were produced by her.4. It is also an admitted fact that Sharda Bai expired on 02.06.2004.5. When the appellant was asked to produce the said documents as per the undertaking given by him to the court, the appellant had submitted before the court that he had already handed over the said documents to Late Sharda Bai, who had expired on 02.06.2004 and he had further submitted that his house was ?badly hit by the cyclone in the year 1999, as a result of which his house was submerged into the flood water consequent to that it was collapsed as his house was built up of mud and covered with asbestos sheets resulting most of their belongings were vanished?. Thus, the said documents were neither with the appellant nor were they available at that time. According to the appellant, the case in which the said documents were required, was filed by the relatives of the appellant and they had filed an application for production of the said documents to pressurise the appellant in their family affairs.6. Thus, it was the case of the appellant before the Court that it was impossible for him to return the documents handed over to him as the said documents were handed over by him to the rightful owner of the documents and the documents were also destroyed.7. As the matter was taken up seriously by the Court concerned, reference was made for initiating contempt proceedings against the appellant as the documents were not returned as per the undertaking and the matter was placed before the High Court and by virtue of the impugned order, the High Court came to the conclusion that the appellant was guilty of contempt of court and therefore, the appellant has been punished.8. Upon hearing the learned counsel appearing for the parties, we are of the view that there is no willful breach of the undertaking given to the court by the appellant, for which he can be held guilty of committing contempt of the Court.9. In the instant case, it is an admitted fact that the documents had been handed over by the appellant to his mother, Late Sharda Bai, who was the rightful owner of the said documents and the said fact was admitted by his mother by filing an affidavit in another legal proceedings. Subsequently, the said documents had been destroyed because of the flood and therefore, it was impossible for the appellant to return the same to the Court.10. Section 2(b) of the Contempt of Courts Act, 1971 reads as under:?2(b) ?civil contempt? means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;?11. Upon perusal of the above mentioned definition of ?civil contempt?, it is very clear that so as to hold somebody guilty of contempt of court, the concerned person must have willfully disobeyed any judgment, decree, direction, order, writ or any other process of a court or should have willfully committed breach of an undertaking given to a court.12. In the instant case, from the facts stated hereinabove, it is crystal clear that the appellant had no intention of committing breach of the undertaking given to the court. It was physically impossible for the appellant to produce the documents as the documents had already been given by him to his mother, on whose behalf he had collected the same from the court and the said documents had been subsequently destroyed because of a natural calamity. In our opinion, after knowing the above stated facts, the court should not have directed the appellant to produce the documents because it was impossible for the appellant to produce the documents. It would not be fair on the part of a court to give a direction to do something which is impossible and if a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of contempt. | 1[ds]12. In the instant case, from the facts stated hereinabove, it is crystal clear that the appellant had no intention of committing breach of the undertaking given to the court. It was physically impossible for the appellant to produce the documents as the documents had already been given by him to his mother, on whose behalf he had collected the same from the court and the said documents had been subsequently destroyed because of a natural calamity. In our opinion, after knowing the above stated facts, the court should not have directed the appellant to produce the documents because it was impossible for the appellant to produce the documents. It would not be fair on the part of a court to give a direction to do something which is impossible and if a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of contempt. | 1 | 1,175 | 173 | ### 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:
is pertinent to note that the appellant has already undergone the sentence.2. Undisputed facts giving rise to the present litigation in a nutshell are as under:The appellant had given an undertaking in I.A. No.11 of 1985 in O.S. No.231 of 1972 before the IXth Assistant Judge, City Civil Court, Hyderabad that he would ?return the documents on an undertaking to produce them whenever directed?. The mother of the appellant, Late Sharda Bai was a litigant in the afore-stated case, which had been disposed of in 1981. Some of the documents, which had been produced by the mother of the appellant in the said case, were required by her and as she was unable to remain present before the Court due to her old age, she had requested the appellant to make an application on her behalf, for return of the documents and, accordingly, the appellant had made an application to the Court for return of the documents, which had been produced by Late Sharda Bai, the mother of the appellant. While returning the documents, the appellant was asked to give an undertaking to the Court that the said documents would be produced by him as and when the same would be required by the Court.3. The said documents, which were handed over to the appellant, were given by him to his mother, Late Sharda Bai. The said documents were required in I.A. No.632 of 2001 in O.S. No.231 of 1972, which was pending in the Court of IXth Junior Civil Judge, Civil Court at Hyderabad. By an affidavit dated 5.10.2001, Late Sharda Bai had admitted the fact that the said documents were given to her by the appellant and she had further stated in the said affidavit that the appellant in the said proceedings had no right to get the said documents. Thus, it is an admitted fact that the present appellant had handed over the said documents to his mother Late Sharda Bai, who had right to retain the same as the documents were produced by her.4. It is also an admitted fact that Sharda Bai expired on 02.06.2004.5. When the appellant was asked to produce the said documents as per the undertaking given by him to the court, the appellant had submitted before the court that he had already handed over the said documents to Late Sharda Bai, who had expired on 02.06.2004 and he had further submitted that his house was ?badly hit by the cyclone in the year 1999, as a result of which his house was submerged into the flood water consequent to that it was collapsed as his house was built up of mud and covered with asbestos sheets resulting most of their belongings were vanished?. Thus, the said documents were neither with the appellant nor were they available at that time. According to the appellant, the case in which the said documents were required, was filed by the relatives of the appellant and they had filed an application for production of the said documents to pressurise the appellant in their family affairs.6. Thus, it was the case of the appellant before the Court that it was impossible for him to return the documents handed over to him as the said documents were handed over by him to the rightful owner of the documents and the documents were also destroyed.7. As the matter was taken up seriously by the Court concerned, reference was made for initiating contempt proceedings against the appellant as the documents were not returned as per the undertaking and the matter was placed before the High Court and by virtue of the impugned order, the High Court came to the conclusion that the appellant was guilty of contempt of court and therefore, the appellant has been punished.8. Upon hearing the learned counsel appearing for the parties, we are of the view that there is no willful breach of the undertaking given to the court by the appellant, for which he can be held guilty of committing contempt of the Court.9. In the instant case, it is an admitted fact that the documents had been handed over by the appellant to his mother, Late Sharda Bai, who was the rightful owner of the said documents and the said fact was admitted by his mother by filing an affidavit in another legal proceedings. Subsequently, the said documents had been destroyed because of the flood and therefore, it was impossible for the appellant to return the same to the Court.10. Section 2(b) of the Contempt of Courts Act, 1971 reads as under:?2(b) ?civil contempt? means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;?11. Upon perusal of the above mentioned definition of ?civil contempt?, it is very clear that so as to hold somebody guilty of contempt of court, the concerned person must have willfully disobeyed any judgment, decree, direction, order, writ or any other process of a court or should have willfully committed breach of an undertaking given to a court.12. In the instant case, from the facts stated hereinabove, it is crystal clear that the appellant had no intention of committing breach of the undertaking given to the court. It was physically impossible for the appellant to produce the documents as the documents had already been given by him to his mother, on whose behalf he had collected the same from the court and the said documents had been subsequently destroyed because of a natural calamity. In our opinion, after knowing the above stated facts, the court should not have directed the appellant to produce the documents because it was impossible for the appellant to produce the documents. It would not be fair on the part of a court to give a direction to do something which is impossible and if a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of contempt.
### Response:
1
### Explanation:
12. In the instant case, from the facts stated hereinabove, it is crystal clear that the appellant had no intention of committing breach of the undertaking given to the court. It was physically impossible for the appellant to produce the documents as the documents had already been given by him to his mother, on whose behalf he had collected the same from the court and the said documents had been subsequently destroyed because of a natural calamity. In our opinion, after knowing the above stated facts, the court should not have directed the appellant to produce the documents because it was impossible for the appellant to produce the documents. It would not be fair on the part of a court to give a direction to do something which is impossible and if a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of contempt.
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Commnr. Of Customs, Maharashtra Vs. M/S. Galaxy Entertainment (I) P.Ltd.&Ors | Adjudicating Authority, the said equipment was undervalued and it was further disguised under what is called as technical and installation fees paid at the rate of Rs. 5.90 per game for one million customers of the assessee over a period of three years. That agreement was dated 20.8.1998. The Adjudicating Authority arrived at the figure of Rs. 59 lacs on the aforestated basis and included the said amount in the assessable value of the equipment. The Adjudicating Authority came to the conclusion that the cost was artificially divided with the intention of evading payment of customs duty. In the circumstances, the Adjudicating Authority held that the transaction value under Rule 4(1) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 (“Customs Valuation Rules”) cannot be taken and accordingly, the Adjudicating Authority invoked Rule 5(1)(c) of the Customs Valuation Rules and called upon the assessee to pay duty on the price calculated at the rate of US $ 30000 x 20 + Rs.1.41 lacs per lane as Installation Charges, which M/s. Capital Leisure Pvt. Ltd. had paid, amounting to Rs. 28.33 lacs. 4. Aggrieved by the aforesaid decision of the Adjudicating Authority, the matter was carried in appeal by the assessee to the Appellate Tribunal. The Tribunal came to the conclusion that in the present case there was no undervaluation and, therefore, there was no reason to deviate from the valuation under Rule 4(1). According to the Tribunal, the declared value of the equipments at the rate of US $ 15199 per lane was the negotiated price. According to the Tribunal, there was no suppression as the Technical and Installation Agreement dated 20.8.1998 was post-clearance agreement. According to the Tribunal, the facts of the present case stood clearly covered by the judgment of this Court in the case of Basant Industries v. Additional Collector of Customs, 1996 (81) ELT 195. Consequently, the appeal was allowed by the Tribunal. Hence, these civil appeals have been filed by the Department. 5. We do not find any merit in these civil appeals. In the present case, there were nine imports of the said equipment during the year 1997-98. One such import was made by M/s. Capital Leisure Pvt. Ltd., New Delhi. In that matter, the cost came to US $ 30000 per lane. This transaction has been taken by the Department as the basis of valuation under Rule 5(1)(c). However, the import from USA by M/s. Capital Leisure Pvt. Ltd. was of 6-Lane Bowling Alley. We have examined all the nine transactions. None of those transactions exceeded 8-Lane Bowling Alley. In the present case, the assessee has imported 20-Lane Bowling Alley. It is the largest in Asia. M/s. AMF Bowling Inc., USA, wanted to promote the game in India. The records indicate hectic bargaining for 20-Lane Bowling Alley by the assessee. In the circumstances, the Tribunal was right in coming to the conclusion that the cost per lane at US $ 15000 was a proper negotiated price. In the circumstances, in our view, the matter is fully covered by the judgment of this Court in the case of Basant Industries (supra). Further, there is no merit in the contention advanced on behalf of the Department that the cost of the equipment was deliberately bifurcated and that the Technical and Installation Charges Agreement dated 20.8.1998 was a disguise to arrive at the true value of the import. In this connection we find that, the foreign supplier had its subsidiary in India; that subsidiary was M/s. AMF Bowling (I) Pvt. Ltd.. It is not the case of the Department that the said subsidiary was a bogus company. As stated above, the equipment was supplied by M/s. AMF Bowling Inc., USA which wanted to promote the game in India. As stated above, 20-Lane Bowling Alley was the biggest in Asia. The foreign supplier wanted the said equipment to be installed properly. The said equipment was a synthetic item. To install that item required specialized knowledge. That expertise was available with M/s. AMF Bowling (I) Pvt. Ltd. (subsidiary of the foreign supplier). As a matter of promotion, the Technical and Installation Charges Agreement dated 20.8.1998 stipulated raising of revenue for next three years by charging a fee of Rs. 5.90 per game for one million games bowled aggregating to Rs. 59 lacs. Therefore, that agreement had no nexus with the sale proceeds of the equipment paid by the assessee to M/s. AMF Bowling Inc., USA. The post-clearance agreement was revenue generation agreement. Rs. 59 lacs was not a quantified amount. Rs. 59 lacs was calculated on the basis that one million games were likely to be bowled in the next three years. That risk was taken by M/s. AMF Bowling (I) Pvt. Ltd. Even under Rules of Interpretation to the Customs Valuation Rules, post-clearance agreements are excluded. Further, even under the order of the Adjudicating Authority the validity or the genuineness of the Agreement dated 20.8.1998 is not doubted. In fact, in M/s. Capital Leisure, the department has also taken into account the cost of Technical and Installation services at Rs. 28.33 lacs which in the present case is Rs. 59 lacs. As stated, in the case of M/s. Capital Leisure the transaction was concerning 6-Lanes Bowling Alley, whereas here we have 20-Lanes.In the circumstances, we do not find any infirmity in the impugned judgment of the Tribunal. One cannot compare the impugned transaction with the transaction which M/s. AMF Bowling Inc., USA had with M/s. Capital Leisure Pvt. Ltd. We find no merit in the argument advanced on behalf of the Department that the Technical and Installation charges was a disguise to cover the true cost of the equipment. There is no evidence of any flow-back or extra-consideration deflating the price and, therefore, there was no reason to include Rs. 59 lacs in the assessable value of the equipment. In our view, Rule 4(1) of the Customs Valuation Rules was applicable and the Department had erred in invoking Rule 5(1)(c) of the said Rules. | 0[ds]. We do not find any merit in these civil appeals. In the present case, there were nine imports of the said equipment during the yearOne such import was made by M/s. Capital Leisure Pvt. Ltd., New Delhi. In that matter, the cost came to US $ 30000 per lane. This transaction has been taken by the Department as the basis of valuation under Rule 5(1)(c). However, the import from USA by M/s. Capital Leisure Pvt. Ltd. was ofBowling Alley. We have examined all the nine transactions. None of those transactions exceededBowling Alley. In the present case, the assessee has importedBowling Alley. It is the largest in Asia. M/s. AMF Bowling Inc., USA, wanted to promote the game in India. The records indicate hectic bargaining forBowling Alley by the assessee. In the circumstances, the Tribunal was right in coming to the conclusion that the cost per lane at US $ 15000 was a proper negotiated price. In the circumstances, in our view, the matter is fully covered by the judgment of this Court in the case of Basant Industries (supra). Further, there is no merit in the contention advanced on behalf of the Department that the cost of the equipment was deliberately bifurcated and that the Technical and Installation Charges Agreement dated 20.8.1998 was a disguise to arrive at the true value of the import. In this connection we find that, the foreign supplier had its subsidiary in India; that subsidiary was M/s. AMF Bowling (I) Pvt. Ltd.. It is not the case of the Department that the said subsidiary was a bogus company.As stated, in the case of M/s. Capital Leisure the transaction was concerningBowling Alley, whereas here we havethe circumstances, we do not find any infirmity in the impugned judgment of the Tribunal. One cannot compare the impugned transaction with the transaction which M/s. AMF Bowling Inc., USA had with M/s. Capital Leisure Pvt. Ltd. We find no merit in the argument advanced on behalf of the Department that the Technical and Installation charges was a disguise to cover the true cost of the equipment. There is no evidence of anyon deflating the price and, therefore, there was no reason to include Rs. 59 lacs in the assessable value of the equipment. In our view, Rule 4(1) of the Customs Valuation Rules was applicable and the Department had erred in invoking Rule 5(1)(c) of the said Rules. | 0 | 1,546 | 474 | ### 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:
Adjudicating Authority, the said equipment was undervalued and it was further disguised under what is called as technical and installation fees paid at the rate of Rs. 5.90 per game for one million customers of the assessee over a period of three years. That agreement was dated 20.8.1998. The Adjudicating Authority arrived at the figure of Rs. 59 lacs on the aforestated basis and included the said amount in the assessable value of the equipment. The Adjudicating Authority came to the conclusion that the cost was artificially divided with the intention of evading payment of customs duty. In the circumstances, the Adjudicating Authority held that the transaction value under Rule 4(1) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 (“Customs Valuation Rules”) cannot be taken and accordingly, the Adjudicating Authority invoked Rule 5(1)(c) of the Customs Valuation Rules and called upon the assessee to pay duty on the price calculated at the rate of US $ 30000 x 20 + Rs.1.41 lacs per lane as Installation Charges, which M/s. Capital Leisure Pvt. Ltd. had paid, amounting to Rs. 28.33 lacs. 4. Aggrieved by the aforesaid decision of the Adjudicating Authority, the matter was carried in appeal by the assessee to the Appellate Tribunal. The Tribunal came to the conclusion that in the present case there was no undervaluation and, therefore, there was no reason to deviate from the valuation under Rule 4(1). According to the Tribunal, the declared value of the equipments at the rate of US $ 15199 per lane was the negotiated price. According to the Tribunal, there was no suppression as the Technical and Installation Agreement dated 20.8.1998 was post-clearance agreement. According to the Tribunal, the facts of the present case stood clearly covered by the judgment of this Court in the case of Basant Industries v. Additional Collector of Customs, 1996 (81) ELT 195. Consequently, the appeal was allowed by the Tribunal. Hence, these civil appeals have been filed by the Department. 5. We do not find any merit in these civil appeals. In the present case, there were nine imports of the said equipment during the year 1997-98. One such import was made by M/s. Capital Leisure Pvt. Ltd., New Delhi. In that matter, the cost came to US $ 30000 per lane. This transaction has been taken by the Department as the basis of valuation under Rule 5(1)(c). However, the import from USA by M/s. Capital Leisure Pvt. Ltd. was of 6-Lane Bowling Alley. We have examined all the nine transactions. None of those transactions exceeded 8-Lane Bowling Alley. In the present case, the assessee has imported 20-Lane Bowling Alley. It is the largest in Asia. M/s. AMF Bowling Inc., USA, wanted to promote the game in India. The records indicate hectic bargaining for 20-Lane Bowling Alley by the assessee. In the circumstances, the Tribunal was right in coming to the conclusion that the cost per lane at US $ 15000 was a proper negotiated price. In the circumstances, in our view, the matter is fully covered by the judgment of this Court in the case of Basant Industries (supra). Further, there is no merit in the contention advanced on behalf of the Department that the cost of the equipment was deliberately bifurcated and that the Technical and Installation Charges Agreement dated 20.8.1998 was a disguise to arrive at the true value of the import. In this connection we find that, the foreign supplier had its subsidiary in India; that subsidiary was M/s. AMF Bowling (I) Pvt. Ltd.. It is not the case of the Department that the said subsidiary was a bogus company. As stated above, the equipment was supplied by M/s. AMF Bowling Inc., USA which wanted to promote the game in India. As stated above, 20-Lane Bowling Alley was the biggest in Asia. The foreign supplier wanted the said equipment to be installed properly. The said equipment was a synthetic item. To install that item required specialized knowledge. That expertise was available with M/s. AMF Bowling (I) Pvt. Ltd. (subsidiary of the foreign supplier). As a matter of promotion, the Technical and Installation Charges Agreement dated 20.8.1998 stipulated raising of revenue for next three years by charging a fee of Rs. 5.90 per game for one million games bowled aggregating to Rs. 59 lacs. Therefore, that agreement had no nexus with the sale proceeds of the equipment paid by the assessee to M/s. AMF Bowling Inc., USA. The post-clearance agreement was revenue generation agreement. Rs. 59 lacs was not a quantified amount. Rs. 59 lacs was calculated on the basis that one million games were likely to be bowled in the next three years. That risk was taken by M/s. AMF Bowling (I) Pvt. Ltd. Even under Rules of Interpretation to the Customs Valuation Rules, post-clearance agreements are excluded. Further, even under the order of the Adjudicating Authority the validity or the genuineness of the Agreement dated 20.8.1998 is not doubted. In fact, in M/s. Capital Leisure, the department has also taken into account the cost of Technical and Installation services at Rs. 28.33 lacs which in the present case is Rs. 59 lacs. As stated, in the case of M/s. Capital Leisure the transaction was concerning 6-Lanes Bowling Alley, whereas here we have 20-Lanes.In the circumstances, we do not find any infirmity in the impugned judgment of the Tribunal. One cannot compare the impugned transaction with the transaction which M/s. AMF Bowling Inc., USA had with M/s. Capital Leisure Pvt. Ltd. We find no merit in the argument advanced on behalf of the Department that the Technical and Installation charges was a disguise to cover the true cost of the equipment. There is no evidence of any flow-back or extra-consideration deflating the price and, therefore, there was no reason to include Rs. 59 lacs in the assessable value of the equipment. In our view, Rule 4(1) of the Customs Valuation Rules was applicable and the Department had erred in invoking Rule 5(1)(c) of the said Rules.
### Response:
0
### Explanation:
. We do not find any merit in these civil appeals. In the present case, there were nine imports of the said equipment during the yearOne such import was made by M/s. Capital Leisure Pvt. Ltd., New Delhi. In that matter, the cost came to US $ 30000 per lane. This transaction has been taken by the Department as the basis of valuation under Rule 5(1)(c). However, the import from USA by M/s. Capital Leisure Pvt. Ltd. was ofBowling Alley. We have examined all the nine transactions. None of those transactions exceededBowling Alley. In the present case, the assessee has importedBowling Alley. It is the largest in Asia. M/s. AMF Bowling Inc., USA, wanted to promote the game in India. The records indicate hectic bargaining forBowling Alley by the assessee. In the circumstances, the Tribunal was right in coming to the conclusion that the cost per lane at US $ 15000 was a proper negotiated price. In the circumstances, in our view, the matter is fully covered by the judgment of this Court in the case of Basant Industries (supra). Further, there is no merit in the contention advanced on behalf of the Department that the cost of the equipment was deliberately bifurcated and that the Technical and Installation Charges Agreement dated 20.8.1998 was a disguise to arrive at the true value of the import. In this connection we find that, the foreign supplier had its subsidiary in India; that subsidiary was M/s. AMF Bowling (I) Pvt. Ltd.. It is not the case of the Department that the said subsidiary was a bogus company.As stated, in the case of M/s. Capital Leisure the transaction was concerningBowling Alley, whereas here we havethe circumstances, we do not find any infirmity in the impugned judgment of the Tribunal. One cannot compare the impugned transaction with the transaction which M/s. AMF Bowling Inc., USA had with M/s. Capital Leisure Pvt. Ltd. We find no merit in the argument advanced on behalf of the Department that the Technical and Installation charges was a disguise to cover the true cost of the equipment. There is no evidence of anyon deflating the price and, therefore, there was no reason to include Rs. 59 lacs in the assessable value of the equipment. In our view, Rule 4(1) of the Customs Valuation Rules was applicable and the Department had erred in invoking Rule 5(1)(c) of the said Rules.
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New India Assurance Co.Ltd Vs. Kusum | High Court has noticed the decision of this Court in Nanjappa (supra), wherein it was held : 8. Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur case that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs. As noticed hereinbefore, similar directions were also issued in National Insurance Co. Ltd. v. Baljit Kaur [(2004) 2 SCC 1] in the following terms : 21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh1. The said decision has been overruled only in Asha Rani2. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding. Yet again, in National Insurance Co. Ltd. v. Kusum Rai [2006) 3 SCALE 519 ], it was held : Thus, although we are of the opinion that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution but we direct that the appellant may recover the amount from the owner in the same manner as was directed in Nanjappan (supra). Yet again in Oriental Insurance Co. Ltd. v. Zaharulnisha [(2008) 12 SCC 385] , this Court held : 22. In the result, the appeal is allowed to the limited extent and it is directed that the appellant Insurance Company though not liable to pay the amount of compensation, but in the nature of this case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle viz. Respondent 8, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this appeal. This direction is given in the light of the judgments of this Court in National Insurance Co. Ltd. v. Baljit Kaur and Deddappa v. National Insurance Co. Ltd. Again in Dedappa v. National Insurance Co. Ltd. [(2008) 2 SCC 595] , it was held : 26. However, as the appellant hails from the lowest strata of society, we are of the opinion that in a case of this nature, we should, in exercise of our extraordinary jurisdiction under Article 142 of the Constitution of India, direct Respondent 1 to pay the amount of claim to the appellants herein and recover the same from the owner of the vehicle viz. Respondent 2, particularly in view of the fact that no appeal was preferred by him. We direct accordingly. 9. Whenever, thus, a direction has been issued by the Tribunal, it must be held to have been done in exercise of its inherent power. It would be travesty of justice, if the Insurance Company which is directed to pay the amount and then face immense difficulties in executing a decree. | 1[ds]7. An owner of a vehicle in terms of the provisions of the Motor Vehicles Act is legally obligated to get the vehicle insured. The rights and liabiltis of the parties to the contract of insurance would be governed thereby subject to the provisions of the Motor Vehicles Act. One of the conditions which would make the insurance company liable to reimburse the owner of the vehicle in respect of payment of the amount of compensation in favour of a claimant is that the driver of the vehicle must possess a valid driving licence. The owner has a duty to see that a vehicle is driven by a person having a valid driving licence. The licence of the driver of the said bus was proved to be invalid. The owner did not raise any contention that he has used due diligence in allowing the driver to drive the vehicle8. The courts, however, keeping in view the social justice doctrine in mind wherefor the Act was enacted and in the interest of the claimants had been passing such orders9. Whenever, thus, a direction has been issued by the Tribunal, it must be held to have been done in exercise of its inherent power. It would be travesty of justice, if the Insurance Company which is directed to pay the amount and then face immense difficulties in executing a decree. | 1 | 2,420 | 248 | ### 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:
High Court has noticed the decision of this Court in Nanjappa (supra), wherein it was held : 8. Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur case that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs. As noticed hereinbefore, similar directions were also issued in National Insurance Co. Ltd. v. Baljit Kaur [(2004) 2 SCC 1] in the following terms : 21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh1. The said decision has been overruled only in Asha Rani2. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding. Yet again, in National Insurance Co. Ltd. v. Kusum Rai [2006) 3 SCALE 519 ], it was held : Thus, although we are of the opinion that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution but we direct that the appellant may recover the amount from the owner in the same manner as was directed in Nanjappan (supra). Yet again in Oriental Insurance Co. Ltd. v. Zaharulnisha [(2008) 12 SCC 385] , this Court held : 22. In the result, the appeal is allowed to the limited extent and it is directed that the appellant Insurance Company though not liable to pay the amount of compensation, but in the nature of this case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle viz. Respondent 8, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this appeal. This direction is given in the light of the judgments of this Court in National Insurance Co. Ltd. v. Baljit Kaur and Deddappa v. National Insurance Co. Ltd. Again in Dedappa v. National Insurance Co. Ltd. [(2008) 2 SCC 595] , it was held : 26. However, as the appellant hails from the lowest strata of society, we are of the opinion that in a case of this nature, we should, in exercise of our extraordinary jurisdiction under Article 142 of the Constitution of India, direct Respondent 1 to pay the amount of claim to the appellants herein and recover the same from the owner of the vehicle viz. Respondent 2, particularly in view of the fact that no appeal was preferred by him. We direct accordingly. 9. Whenever, thus, a direction has been issued by the Tribunal, it must be held to have been done in exercise of its inherent power. It would be travesty of justice, if the Insurance Company which is directed to pay the amount and then face immense difficulties in executing a decree.
### Response:
1
### Explanation:
7. An owner of a vehicle in terms of the provisions of the Motor Vehicles Act is legally obligated to get the vehicle insured. The rights and liabiltis of the parties to the contract of insurance would be governed thereby subject to the provisions of the Motor Vehicles Act. One of the conditions which would make the insurance company liable to reimburse the owner of the vehicle in respect of payment of the amount of compensation in favour of a claimant is that the driver of the vehicle must possess a valid driving licence. The owner has a duty to see that a vehicle is driven by a person having a valid driving licence. The licence of the driver of the said bus was proved to be invalid. The owner did not raise any contention that he has used due diligence in allowing the driver to drive the vehicle8. The courts, however, keeping in view the social justice doctrine in mind wherefor the Act was enacted and in the interest of the claimants had been passing such orders9. Whenever, thus, a direction has been issued by the Tribunal, it must be held to have been done in exercise of its inherent power. It would be travesty of justice, if the Insurance Company which is directed to pay the amount and then face immense difficulties in executing a decree.
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Nagar Rice & Flour Miills & Ors Vs. N. Teekappa Gowda & Bros. & Ors | take into consideration matters which are specified in sub-section (4) of Section 5. The licensing authority must on application issue a licence to an existing rice mill or a rice mill in respect of which a permit has been granted under Section 5. For change in the location of any rice mill in respect of which a licence has been granted under Section 6, the previous permission of the Central Government is necessary under Section 8 (3) (c). 9. The Parliament has by the Rice Milling Industry (Regulation) Act, 1958, prescribed limitations that an existing rice mill shall carry on business only after obtaining a licence and if the rice mill is to be shifted from its existing location, previous permission of the Central Governmen1 shall be obtained. Permission for shifting their rice mill was obtained by the appellants from the Director of Food and Civil Supplies. The appellants had not started rice milling operations before the sanction of the Director of Food and Civil Supplies was obtained. Even if it be assumed that the previous sanction has to be obtained from the authorities before the machinery is moved from its existing site, we fail to appreciate what grievance the respondents may raise against the grant of permission by the authority permitting the installation of machinery on a new site. The right to carry on business being a fundamental right under Art. l9 (1) (g) of the Constitution, its exercise is subject only to the restrictions imposed by law in the interests of the general public under Article l9 (6) (i). 10. Section 8 (3) (c) is merely regulatory if it is not complied with, the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice-mill of the appellants be regarded as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Article l9 (6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations in the building on the new site. Even assuming that no previous permission was obtained, the respondents would have no locus standi for challenging the grant of the permission, because no right vested in the respondents was infringed 11. But Mr. Gokhale for the respondents contended that in granting the permission under Section 8 (3) (o) the authority was bound to take into account matters which govern the issue of a permit under Section (4) of the Act. Counsel submitted that sub-section (3) (c) of Section 8 was enacted with a view to ensure adequate milling: facilities and to prevent unfair competition and on that account it is provided that when the location of an existing rice mill has to be shifted the authority had to take into consideration the number of rice mills operating in the locality; the availability of power and water supply for the rice mill in respect of which a permit is applied for whether the functioning of the rice mill in respect of which a permit is applied for would cause substantial unemployment in the locality; and such other particulars as may be prescribed. According to counsel since the Act was intended to regulate the carrying on of business of rice mills in the country, it was implicit in Sec. 8 (3) (c) that the authority sanctioning the change of location of a rice mill shall consider whether another person was by the shifting likely to be prejudiced thereby. This, counsel says, the Director did not consider, and on that account the order is liable to be set aside because the right of the respondents is infringed. This argument was not advanced before the High Court, and, in our judgment, has no substance. The considerations which are prescribed by sub-section (4) of Section 5 only apply to the grant of a permit in respect of a new rice mill or a defunct rice mill. They have no application in considering the shifting the location of an existing rice mill. In respect of a new or defunct rice mill a permit and a licence are both required: in respect of an existing rice mill only a licence is required. The conditions prescribed by sub-section (4) of Section 5 only apply to the grant of a permit and not to a licence. By Section 8 (3) (c) it is made one of the conditions of the licence that the location of the rice mill shall not be shifted without the previous permission of the Central Government. It is true that the appropriate authority clothed with the power must consider the expediency of permitting a change of location. But there is no statutory obligation imposed upon him to take into consideration the matters prescribed by sub-section (4) of Section 5 in granting the permission to change the location. 12. The appellants had been carrying on business in milling rice for more than 30 years and the mill by reason of the proposal to submerge the site in the Sharawathi Hydro-Electric Project had to be shifted from its location. The State allotted another piece of land to the appellants and did not acquire their machinery and permitted erection of their rice mill building on the new location. This was done with a view to cause minimum hardship to the appellants arising in consequence of the proposed construction of the dam resulting in submergence of their land. The State also granted permission to the appellants to change the location under the Rice Milling Industry (Regulation) Act, 1958. The permission cannot be said to be granted without consideration of the relevant circumstances. | 1[ds]10. Section 8 (3) (c) is merely regulatory if it is not complied with, the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice-mill of the appellants be regarded as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Article l9 (6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations in the building on the new site. Even assuming that no previous permission was obtained, the respondents would have no locus standi for challenging the grant of the permission, because no right vested in the respondents was infringedThis, counsel says, the Director did not consider, and on that account the order is liable to be set aside because the right of the respondents is infringed. This argument was not advanced before the High Court, and, in our judgment, has no substance. The considerations which are prescribed by sub-section (4) of Section 5 only apply to the grant of a permit in respect of a new rice mill or a defunct rice mill. They have no application in considering the shifting the location of an existing rice mill. In respect of a new or defunct rice mill a permit and a licence are both required: in respect of an existing rice mill only a licence is required. The conditions prescribed by sub-section (4) of Section 5 only apply to the grant of a permit and not to a licence. By Section 8 (3) (c) it is made one of the conditions of the licence that the location of the rice mill shall not be shifted without the previous permission of the Central Government. It is true that the appropriate authority clothed with the power must consider the expediency of permitting a change of location. But there is no statutory obligation imposed upon him to take into consideration the matters prescribed by sub-section (4) of Section 5 in granting the permission to change the location12. The appellants had been carrying on business in milling rice for more than 30 years and the mill by reason of the proposal to submerge the site in the Sharawathi Hydro-Electric Project had to be shifted from its location. The State allotted another piece of land to the appellants and did not acquire their machinery and permitted erection of their rice mill building on the new location. This was done with a view to cause minimum hardship to the appellants arising in consequence of the proposed construction of the dam resulting in submergence of their land. The State also granted permission to the appellants to change the location underthe Rice Milling Industry (Regulation) Act, 1958. The permission cannot be said to be granted without consideration of the relevant circumstances. | 1 | 2,947 | 588 | ### 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:
take into consideration matters which are specified in sub-section (4) of Section 5. The licensing authority must on application issue a licence to an existing rice mill or a rice mill in respect of which a permit has been granted under Section 5. For change in the location of any rice mill in respect of which a licence has been granted under Section 6, the previous permission of the Central Government is necessary under Section 8 (3) (c). 9. The Parliament has by the Rice Milling Industry (Regulation) Act, 1958, prescribed limitations that an existing rice mill shall carry on business only after obtaining a licence and if the rice mill is to be shifted from its existing location, previous permission of the Central Governmen1 shall be obtained. Permission for shifting their rice mill was obtained by the appellants from the Director of Food and Civil Supplies. The appellants had not started rice milling operations before the sanction of the Director of Food and Civil Supplies was obtained. Even if it be assumed that the previous sanction has to be obtained from the authorities before the machinery is moved from its existing site, we fail to appreciate what grievance the respondents may raise against the grant of permission by the authority permitting the installation of machinery on a new site. The right to carry on business being a fundamental right under Art. l9 (1) (g) of the Constitution, its exercise is subject only to the restrictions imposed by law in the interests of the general public under Article l9 (6) (i). 10. Section 8 (3) (c) is merely regulatory if it is not complied with, the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice-mill of the appellants be regarded as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Article l9 (6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations in the building on the new site. Even assuming that no previous permission was obtained, the respondents would have no locus standi for challenging the grant of the permission, because no right vested in the respondents was infringed 11. But Mr. Gokhale for the respondents contended that in granting the permission under Section 8 (3) (o) the authority was bound to take into account matters which govern the issue of a permit under Section (4) of the Act. Counsel submitted that sub-section (3) (c) of Section 8 was enacted with a view to ensure adequate milling: facilities and to prevent unfair competition and on that account it is provided that when the location of an existing rice mill has to be shifted the authority had to take into consideration the number of rice mills operating in the locality; the availability of power and water supply for the rice mill in respect of which a permit is applied for whether the functioning of the rice mill in respect of which a permit is applied for would cause substantial unemployment in the locality; and such other particulars as may be prescribed. According to counsel since the Act was intended to regulate the carrying on of business of rice mills in the country, it was implicit in Sec. 8 (3) (c) that the authority sanctioning the change of location of a rice mill shall consider whether another person was by the shifting likely to be prejudiced thereby. This, counsel says, the Director did not consider, and on that account the order is liable to be set aside because the right of the respondents is infringed. This argument was not advanced before the High Court, and, in our judgment, has no substance. The considerations which are prescribed by sub-section (4) of Section 5 only apply to the grant of a permit in respect of a new rice mill or a defunct rice mill. They have no application in considering the shifting the location of an existing rice mill. In respect of a new or defunct rice mill a permit and a licence are both required: in respect of an existing rice mill only a licence is required. The conditions prescribed by sub-section (4) of Section 5 only apply to the grant of a permit and not to a licence. By Section 8 (3) (c) it is made one of the conditions of the licence that the location of the rice mill shall not be shifted without the previous permission of the Central Government. It is true that the appropriate authority clothed with the power must consider the expediency of permitting a change of location. But there is no statutory obligation imposed upon him to take into consideration the matters prescribed by sub-section (4) of Section 5 in granting the permission to change the location. 12. The appellants had been carrying on business in milling rice for more than 30 years and the mill by reason of the proposal to submerge the site in the Sharawathi Hydro-Electric Project had to be shifted from its location. The State allotted another piece of land to the appellants and did not acquire their machinery and permitted erection of their rice mill building on the new location. This was done with a view to cause minimum hardship to the appellants arising in consequence of the proposed construction of the dam resulting in submergence of their land. The State also granted permission to the appellants to change the location under the Rice Milling Industry (Regulation) Act, 1958. The permission cannot be said to be granted without consideration of the relevant circumstances.
### Response:
1
### Explanation:
10. Section 8 (3) (c) is merely regulatory if it is not complied with, the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice-mill of the appellants be regarded as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Article l9 (6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations in the building on the new site. Even assuming that no previous permission was obtained, the respondents would have no locus standi for challenging the grant of the permission, because no right vested in the respondents was infringedThis, counsel says, the Director did not consider, and on that account the order is liable to be set aside because the right of the respondents is infringed. This argument was not advanced before the High Court, and, in our judgment, has no substance. The considerations which are prescribed by sub-section (4) of Section 5 only apply to the grant of a permit in respect of a new rice mill or a defunct rice mill. They have no application in considering the shifting the location of an existing rice mill. In respect of a new or defunct rice mill a permit and a licence are both required: in respect of an existing rice mill only a licence is required. The conditions prescribed by sub-section (4) of Section 5 only apply to the grant of a permit and not to a licence. By Section 8 (3) (c) it is made one of the conditions of the licence that the location of the rice mill shall not be shifted without the previous permission of the Central Government. It is true that the appropriate authority clothed with the power must consider the expediency of permitting a change of location. But there is no statutory obligation imposed upon him to take into consideration the matters prescribed by sub-section (4) of Section 5 in granting the permission to change the location12. The appellants had been carrying on business in milling rice for more than 30 years and the mill by reason of the proposal to submerge the site in the Sharawathi Hydro-Electric Project had to be shifted from its location. The State allotted another piece of land to the appellants and did not acquire their machinery and permitted erection of their rice mill building on the new location. This was done with a view to cause minimum hardship to the appellants arising in consequence of the proposed construction of the dam resulting in submergence of their land. The State also granted permission to the appellants to change the location underthe Rice Milling Industry (Regulation) Act, 1958. The permission cannot be said to be granted without consideration of the relevant circumstances.
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Kotak Mahindra Bank Limited Vs. Kew Precision Parts Private Limited & Ors | however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in Section 19, and there is really no substantial difference between the parties as to the true legal position in this matter. 64. It is well settled that even entries in books of accounts and/or balance sheets of a Corporate Debtor would amount to an acknowledgment under Section 18 of the Limitation Act. In Asset Reconstruction Company (India) Limited v. Bishal Jaiswal and Anr. AIR 2021 SC 5249 (supra) authored by Nariman, J. this Court quoted with approval the judgments, inter alia, of Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff AIR 1962 Cal 115, and in Re Pandem Tea Co. AIR 1974 Cal 170 Ltd., the judgment of the Delhi High Court in South Asia Industries (P) Ltd. v. General Krishna Shamsher Jung Bahadur Rana ILR (1972) 2 Del 712 and the judgment of Karnataka High Court in Hegde Golay Ltd. v. State Bank of India ILR 1987 Kar 2673 and held that an acknowledgement of liability that is made in a balance sheet can amount to an acknowledgement of debt. In this Case, the Appellant Financial Creditor has not relied on any books of accounts or Balance Sheets of the Corporate Debtor. 65. Section 18 of the Limitation Act speaks of an acknowledgment in writing of liability, signed by the party against whom such property or right is claimed. Even if the writing containing the acknowledgment is undated, evidence might be given of the time when it was signed. The explanation clarifies that an acknowledgment may be sufficient even though it is accompanied by refusal to pay, deliver, perform or permit to enjoy or is coupled with claim to set off, or is addressed to a person other than a person entitled to the property or right. Signed is to be construed to mean signed personally or by an authorised agent. 66. An acknowledgement made in writing within the period of limitation extends the period of limitation. In this case, there was no acknowledgement of debt within three years from the period on which the account of the Corporate Debtor was declared NPA or within three years from the date on which the loan facilities were recalled. 67. The Adjudicating Authority proceeded on the basis that the offer of settlement made by the Corporate Debtor on 12th December 2018 and rejection thereof by the appellate showed the Corporate Debtor had conceded that there was a continuous cause of action. It is, however, the case of the Appellant Financial Creditor in this appeal that terms of settlement were executed on 20th December 2018 whereby the Corporate Debtor agreed to repay the amount of Rs.24,55,00,000/- within 31st December 2018. The Adjudicating Authority, however, did not refer to any settlement. Nor did it address the question of whether any agreement for repayment of debt came into existence in December 2018 and, if so, whether the agreement would attract Section 25(3) of the Contract Act. 68. The Appellate Tribunal (NCLAT) found that there was no acknowledgement of debt within the period of limitation of three years. Holding the application of the Appellant Financial Creditor, under Section 7 of the IBC, to be barred by limitation, the Appellate Authority (NCLAT) allowed the appeal. 69. The Appellate Tribunal (NCLAT) also did not notice the terms of settlement stated to have been executed on 20th December 2018, possibly because the attention of the NCLAT was not drawn to any terms of the settlement. The Appellate Tribunal (NCLAT) did not, therefore, have the occasion to consider whether Section 25(3) of the Contract Act would be attracted. The Appellate Tribunal (NCLAT), as observed above, proceeded on the basis that the CIRP proceedings were barred by limitation in the absence of any acknowledgement of debt within the period of limitation, and closed the CIRP proceedings in the NCLT, without considering the question of applicability of Section 5 of the Limitation Act for condonation of delay, to proceedings under Section 7 of the IBC. 70. This Court is of the view that the Appellate Tribunal (NCLAT erred in closing the CIRP proceedings without giving the Appellant Financial Creditor the opportunity to explain if there was sufficient cause for the delay in approaching the NCLT. An appeal being the continuation of original proceedings, the provision of Section 7(5)(b) of the IBC, of notifying the Financial Creditor before rejection of a claim, would be attracted. If notified of the proposal to close the proceedings, the Appellant Financial Creditor might have got the opportunity to rectify the defects in its application under Section 7 by filing additional pleadings and/or documents. As held in Dena Bank (supra), documents can be filed at any time until the application for CIRP is finally dismissed. | 1[ds]26. If, as contended by the Appellant Financial Creditor, any cheque had been issued in February, 2017, the application of the Appellant Financial Creditor under Section 7 for initiation of CIRP filed on 2nd January, 2019 would clearly be within limitation. However, there are no details of the payment disclosed by the Appellant Financial Creditor either in the proceedings before the NCLT or NCLAT or before this court. However, if no payment had been made, after the account of the Corporate Debtor had been declared NPA in September, 2015, acknowledgment made on 12th December, 2018 or later, after expiry of over three years from the date on which the default occurred, would not save limitation.27. It is the case of the Appellant Financial Creditor that on 12th December 2018 the Corporate Debtor made an offer of one time settlement at Rs.15 Crores. This offer was not accepted. On 19th December 2018, the Corporate Debtor revised its offer to Rs.20 Crores for one time settlement. This offer was also not accepted. On 20th December 2018, the Corporate Debtor again revised its offer for one time settlement. This time the Corporate Debtor offered to settle the outstanding dues of the Financial Creditor upon payment of Rs. 24,55,00,000/- to be paid within 31st December 2018. This offer was accepted, and terms of settlement were signed.29. From the above, it is clear that any agreement to pay a time barred debt, would be enforceable in law, within three years from the due date of payment, in terms of such agreement. It appears that Section 25(3) of the Indian Contract Act was not brought to the notice of the NCLAT. The NCLAT also did not consider the aforesaid Section.31. Under Section 25(3), a debtor can enter into an agreement in writing, to pay the whole or part of a debt, which the creditor might have enforced, but for the limitation of a suit in law. A written promise to pay the barred debt is a valid contract. Such a promise constitutes novation and can form the basis of a suit independent of the original debt, for it is well settled that the debt is not extinguished, the remedy gets barred by passage of time as held by this Court in Bombay Dyeing and Manufacturing Company Limited vs. State of Bombay AIR 1958 SC 328 .36. Under Section 7(2) of the IBC, read with the Statutory 2016 Adjudicating Authority Rules, made in exercise of powers conferred, inter alia, by clauses (c) (d) (e) and (f) of sub-section (1) of Section 239 read with Sections 7, 8, 9 and 10 of the IBC, a financial creditor is required to apply in the prescribed Form 1 for initiation of the Corporate Insolvency Resolution Process, against a Corporate Debtor under Section 7 of the IBC, accompanied with documents and records required therein, and as specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, hereinafter referred to as the 2016 IB Board of India Regulations.43. In Swiss Ribbons Private Limited & Anr. v. Union of India and Ors. (2019) 4 SCC 17, authored by Nariman, J. this Court observed:-28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtors assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.45. Unlike coercive recovery litigation, the Corporate Insolvency Resolution Process under the IBC is not adversarial to the interests of the Corporate Debtor, as observed by this Court in Swiss Ribbons Private Limited v. Union of India (supra).47. In construing and/or interpreting any statutory provision one must look into the legislative intent of the statute. The intention of the statute has to be found in the words used by the legislature itself. In case of doubt it is always safe to look into the object and purpose of the statute or the reason and spirit behind it. Each word, phrase or sentence has to be construed in the light of the general purpose of the Act itself, as observed by Mukherjea J., in Popatlal Shah v. State of Madras AIR 1953 SC 274 and a plethora of other judgments of this Court.49. In Dena Bank (Now Bank of Baroda) v. C. Shivakumar Reddy and Another (2021) 10 SCC 330, this Court held:-89. On a careful reading of the provisions of the IBC and in particular the provisions of Section 7(2) to (5) of the IBC read with the 2016 Adjudicating Authority Rules there is no bar to the filing of documents at any time until a final order either admitting or dismissing the application has been passed.51. It is well settled by a plethora of judgments of this Court as also different High Courts and, in particular, the judgment of this Court in B.K. Educational Services (P) Ltd. v. Parag Gupta & Associates (2019) 11 SCC 633 : (2018) 5 SCC (Civ) 528] NCLT/NCLAT has the discretion to entertain an application/appeal after the prescribed period of limitation. The condition precedent for exercise of such discretion is the existence of sufficient cause for not preferring the appeal and/or the application within the period prescribed by limitation.54. In Sesh Nath Singh & Anr. Vs. Baidyabati Sheoraphuli Cooperative Bank Ltd. (2021) 7 SCC 313, authored by one of us (Indira Banerjee, J.), this Court held:-64. Similarly under Section 18 of the Limitation Act, an acknowledgment of present subsisting liability, made in writing in respect of any right claimed by the opposite party and signed by the party against whom the right is claimed, has the effect of commencing of a fresh period of limitation, from the date on which the acknowledgment is signed. However, the acknowledgment must be made before the period of limitation expires.65. As observed above, Section 238-A IBC makes the provisions of the Limitation Act, as far as may be, applicable to proceedings before NCLT and Nclat. The IBC does not exclude the application of Sections 6 or 14 or 18 or any other provision of the Limitation Act to proceedings under the IBC in NCLT/Nclat. All the provisions of the Limitation Act are applicable to proceedings in NCLT/Nclat, to the extent feasible.66. We see no reason why Section 14 or 18 of the Limitation Act, 1963 should not apply to proceeding under Section 7 or 9 IBC. Of course, Section 18 of the Limitation Act is not attracted in this case, since the impugned order [Sesh Nath Singh v. Baidyabati Sheoraphuli Coop. Bank Ltd., 2019 SCC OnLine NCLAT 928] of Nclat does not proceed on the basis of any acknowledgment.89. Legislature has in its wisdom chosen not to make the provisions of the Limitation Act verbatim applicable to proceedings in NCLT/NCLAT, but consciously used the words as far as may be. The words as far as may be are not meant to be otiose. Those words are to be understood in the sense in which they best harmonise with the subject matter of the legislation and the object which the Legislature has in view. The Courts would not give an interpretation to those words which would frustrate the purposes of making the Limitation Act applicable to proceedings in the NCLT/NCLAT as far as may be.92. The use of words as far as may be, occurring in Section 238A of the IBC tones down the rigour of the words shall in the aforesaid Section which is normally considered as mandatory. The expression as far as may be is indicative of the fact that all or any of the provisions of the Limitation Act may not apply to proceedings before the Adjudicating Authority (NCLT) or the Appellate authority (NCLAT) if they are patently inconsistent with some provisions of the IBC. At the same time, the words as far as may be cannot be construed as a total exclusion of the requirements of the basic principles of Section 14 of the Limitation Act, but permits a wider, more liberal, contextual and purposive interpretation by necessary modification, which is in harmony with the principles of the said Section.55. There is no specific period of limitation prescribed in the Limitation Act, 1963, for an application under the IBC, before the Adjudicating Authority (NCLT). An application for which no period of limitation is provided anywhere else in the Schedule to the Limitation Act, is governed by Article 137 of the Schedule to the said Act. Under Article 137 of the Schedule to the Limitation Act, the period of limitation prescribed for such an application is three years from the date of accrual of the right to apply.56. There can be no dispute with the proposition that the period of limitation for making an application under Section 7 or 9 of the IBC is three years from the date of accrual of the right to sue, that is, the date of default. In Gaurav Hargovindbhai Dave v. Asset Reconstruction Company (India) Ltd. (2019) 10 SCC 572 authored by Nariman, J. this Court held:-6. …...The present case being an application which is filed under Section 7, would fall only within the residuary Article 137.57. In B. K. Educational Services Private Limited (supra), this Court speaking through Nariman, J. held:-42. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. The right to sue, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.59. In Dena Bank (supra), this Court relied upon the dictum of P.B. Gajendragadkar, J. in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan AIR 1959 SC 798 , and held:-31. … Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked.…60. It is well settled proposition of law, as laid down in the judgment of this Court in Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries (P) Ltd. (2020) 15 SCC 1, that limitation is essentially a mixed question of law and facts and when a party seeks application of any particular provision for extension in enlargement of the period of limitation, the relevant facts are required to be pleaded and requisite evidence is required to be adduced.61. The judgment in Babulal Vardharji Gurjar (supra) was rendered in the facts and circumstances of that case where there were no pleadings at all. As held by this Court in Dena Bank (supra), an application under Section 7 of the IBC in statutory form which requires filling in of particulars cannot be judged by the same standards as a plaint or other pleadings in a court of law. Additional affidavits filed subsequent to the filing of the application, by way of additional affidavits or applications would have to be construed as pleadings, as also the documents enclosed with or relied upon in the application made in the statutory format. Furthermore, pleadings can be amended at any time during the pendency of the proceedings.63. In Khan Bahadur Shapoor Fredoom Mazda v. Durga Prasad Chamaria and Others AIR 1961 SC 1236 , this Court held:-6. It is thus clear that acknowledgment as prescribed by Section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgment of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in Section 19, and there is really no substantial difference between the parties as to the true legal position in this matter.64. It is well settled that even entries in books of accounts and/or balance sheets of a Corporate Debtor would amount to an acknowledgment under Section 18 of the Limitation Act. In Asset Reconstruction Company (India) Limited v. Bishal Jaiswal and Anr. AIR 2021 SC 5249 (supra) authored by Nariman, J. this Court quoted with approval the judgments, inter alia, of Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff AIR 1962 Cal 115, and in Re Pandem Tea Co. AIR 1974 Cal 170 Ltd., the judgment of the Delhi High Court in South Asia Industries (P) Ltd. v. General Krishna Shamsher Jung Bahadur Rana ILR (1972) 2 Del 712 and the judgment of Karnataka High Court in Hegde Golay Ltd. v. State Bank of India ILR 1987 Kar 2673 and held that an acknowledgement of liability that is made in a balance sheet can amount to an acknowledgement of debt. In this Case, the Appellant Financial Creditor has not relied on any books of accounts or Balance Sheets of the Corporate Debtor.66. An acknowledgement made in writing within the period of limitation extends the period of limitation. In this case, there was no acknowledgement of debt within three years from the period on which the account of the Corporate Debtor was declared NPA or within three years from the date on which the loan facilities were recalled.67. The Adjudicating Authority proceeded on the basis that the offer of settlement made by the Corporate Debtor on 12th December 2018 and rejection thereof by the appellate showed the Corporate Debtor had conceded that there was a continuous cause of action. It is, however, the case of the Appellant Financial Creditor in this appeal that terms of settlement were executed on 20th December 2018 whereby the Corporate Debtor agreed to repay the amount of Rs.24,55,00,000/- within 31st December 2018. The Adjudicating Authority, however, did not refer to any settlement. Nor did it address the question of whether any agreement for repayment of debt came into existence in December 2018 and, if so, whether the agreement would attract Section 25(3) of the Contract Act.68. The Appellate Tribunal (NCLAT) found that there was no acknowledgement of debt within the period of limitation of three years. Holding the application of the Appellant Financial Creditor, under Section 7 of the IBC, to be barred by limitation, the Appellate Authority (NCLAT) allowed the appeal.69. The Appellate Tribunal (NCLAT) also did not notice the terms of settlement stated to have been executed on 20th December 2018, possibly because the attention of the NCLAT was not drawn to any terms of the settlement. The Appellate Tribunal (NCLAT) did not, therefore, have the occasion to consider whether Section 25(3) of the Contract Act would be attracted. The Appellate Tribunal (NCLAT), as observed above, proceeded on the basis that the CIRP proceedings were barred by limitation in the absence of any acknowledgement of debt within the period of limitation, and closed the CIRP proceedings in the NCLT, without considering the question of applicability of Section 5 of the Limitation Act for condonation of delay, to proceedings under Section 7 of the IBC.70. This Court is of the view that the Appellate Tribunal (NCLAT erred in closing the CIRP proceedings without giving the Appellant Financial Creditor the opportunity to explain if there was sufficient cause for the delay in approaching the NCLT. An appeal being the continuation of original proceedings, the provision of Section 7(5)(b) of the IBC, of notifying the Financial Creditor before rejection of a claim, would be attracted. If notified of the proposal to close the proceedings, the Appellant Financial Creditor might have got the opportunity to rectify the defects in its application under Section 7 by filing additional pleadings and/or documents. As held in Dena Bank (supra), documents can be filed at any time until the application for CIRP is finally dismissed. | 1 | 9,478 | 3,558 | ### Instruction:
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however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in Section 19, and there is really no substantial difference between the parties as to the true legal position in this matter. 64. It is well settled that even entries in books of accounts and/or balance sheets of a Corporate Debtor would amount to an acknowledgment under Section 18 of the Limitation Act. In Asset Reconstruction Company (India) Limited v. Bishal Jaiswal and Anr. AIR 2021 SC 5249 (supra) authored by Nariman, J. this Court quoted with approval the judgments, inter alia, of Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff AIR 1962 Cal 115, and in Re Pandem Tea Co. AIR 1974 Cal 170 Ltd., the judgment of the Delhi High Court in South Asia Industries (P) Ltd. v. General Krishna Shamsher Jung Bahadur Rana ILR (1972) 2 Del 712 and the judgment of Karnataka High Court in Hegde Golay Ltd. v. State Bank of India ILR 1987 Kar 2673 and held that an acknowledgement of liability that is made in a balance sheet can amount to an acknowledgement of debt. In this Case, the Appellant Financial Creditor has not relied on any books of accounts or Balance Sheets of the Corporate Debtor. 65. Section 18 of the Limitation Act speaks of an acknowledgment in writing of liability, signed by the party against whom such property or right is claimed. Even if the writing containing the acknowledgment is undated, evidence might be given of the time when it was signed. The explanation clarifies that an acknowledgment may be sufficient even though it is accompanied by refusal to pay, deliver, perform or permit to enjoy or is coupled with claim to set off, or is addressed to a person other than a person entitled to the property or right. Signed is to be construed to mean signed personally or by an authorised agent. 66. An acknowledgement made in writing within the period of limitation extends the period of limitation. In this case, there was no acknowledgement of debt within three years from the period on which the account of the Corporate Debtor was declared NPA or within three years from the date on which the loan facilities were recalled. 67. The Adjudicating Authority proceeded on the basis that the offer of settlement made by the Corporate Debtor on 12th December 2018 and rejection thereof by the appellate showed the Corporate Debtor had conceded that there was a continuous cause of action. It is, however, the case of the Appellant Financial Creditor in this appeal that terms of settlement were executed on 20th December 2018 whereby the Corporate Debtor agreed to repay the amount of Rs.24,55,00,000/- within 31st December 2018. The Adjudicating Authority, however, did not refer to any settlement. Nor did it address the question of whether any agreement for repayment of debt came into existence in December 2018 and, if so, whether the agreement would attract Section 25(3) of the Contract Act. 68. The Appellate Tribunal (NCLAT) found that there was no acknowledgement of debt within the period of limitation of three years. Holding the application of the Appellant Financial Creditor, under Section 7 of the IBC, to be barred by limitation, the Appellate Authority (NCLAT) allowed the appeal. 69. The Appellate Tribunal (NCLAT) also did not notice the terms of settlement stated to have been executed on 20th December 2018, possibly because the attention of the NCLAT was not drawn to any terms of the settlement. The Appellate Tribunal (NCLAT) did not, therefore, have the occasion to consider whether Section 25(3) of the Contract Act would be attracted. The Appellate Tribunal (NCLAT), as observed above, proceeded on the basis that the CIRP proceedings were barred by limitation in the absence of any acknowledgement of debt within the period of limitation, and closed the CIRP proceedings in the NCLT, without considering the question of applicability of Section 5 of the Limitation Act for condonation of delay, to proceedings under Section 7 of the IBC. 70. This Court is of the view that the Appellate Tribunal (NCLAT erred in closing the CIRP proceedings without giving the Appellant Financial Creditor the opportunity to explain if there was sufficient cause for the delay in approaching the NCLT. An appeal being the continuation of original proceedings, the provision of Section 7(5)(b) of the IBC, of notifying the Financial Creditor before rejection of a claim, would be attracted. If notified of the proposal to close the proceedings, the Appellant Financial Creditor might have got the opportunity to rectify the defects in its application under Section 7 by filing additional pleadings and/or documents. As held in Dena Bank (supra), documents can be filed at any time until the application for CIRP is finally dismissed.
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Bahadur Shapoor Fredoom Mazda v. Durga Prasad Chamaria and Others AIR 1961 SC 1236 , this Court held:-6. It is thus clear that acknowledgment as prescribed by Section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgment of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in Section 19, and there is really no substantial difference between the parties as to the true legal position in this matter.64. It is well settled that even entries in books of accounts and/or balance sheets of a Corporate Debtor would amount to an acknowledgment under Section 18 of the Limitation Act. In Asset Reconstruction Company (India) Limited v. Bishal Jaiswal and Anr. AIR 2021 SC 5249 (supra) authored by Nariman, J. this Court quoted with approval the judgments, inter alia, of Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff AIR 1962 Cal 115, and in Re Pandem Tea Co. AIR 1974 Cal 170 Ltd., the judgment of the Delhi High Court in South Asia Industries (P) Ltd. v. General Krishna Shamsher Jung Bahadur Rana ILR (1972) 2 Del 712 and the judgment of Karnataka High Court in Hegde Golay Ltd. v. State Bank of India ILR 1987 Kar 2673 and held that an acknowledgement of liability that is made in a balance sheet can amount to an acknowledgement of debt. In this Case, the Appellant Financial Creditor has not relied on any books of accounts or Balance Sheets of the Corporate Debtor.66. An acknowledgement made in writing within the period of limitation extends the period of limitation. In this case, there was no acknowledgement of debt within three years from the period on which the account of the Corporate Debtor was declared NPA or within three years from the date on which the loan facilities were recalled.67. The Adjudicating Authority proceeded on the basis that the offer of settlement made by the Corporate Debtor on 12th December 2018 and rejection thereof by the appellate showed the Corporate Debtor had conceded that there was a continuous cause of action. It is, however, the case of the Appellant Financial Creditor in this appeal that terms of settlement were executed on 20th December 2018 whereby the Corporate Debtor agreed to repay the amount of Rs.24,55,00,000/- within 31st December 2018. The Adjudicating Authority, however, did not refer to any settlement. Nor did it address the question of whether any agreement for repayment of debt came into existence in December 2018 and, if so, whether the agreement would attract Section 25(3) of the Contract Act.68. The Appellate Tribunal (NCLAT) found that there was no acknowledgement of debt within the period of limitation of three years. Holding the application of the Appellant Financial Creditor, under Section 7 of the IBC, to be barred by limitation, the Appellate Authority (NCLAT) allowed the appeal.69. The Appellate Tribunal (NCLAT) also did not notice the terms of settlement stated to have been executed on 20th December 2018, possibly because the attention of the NCLAT was not drawn to any terms of the settlement. The Appellate Tribunal (NCLAT) did not, therefore, have the occasion to consider whether Section 25(3) of the Contract Act would be attracted. The Appellate Tribunal (NCLAT), as observed above, proceeded on the basis that the CIRP proceedings were barred by limitation in the absence of any acknowledgement of debt within the period of limitation, and closed the CIRP proceedings in the NCLT, without considering the question of applicability of Section 5 of the Limitation Act for condonation of delay, to proceedings under Section 7 of the IBC.70. This Court is of the view that the Appellate Tribunal (NCLAT erred in closing the CIRP proceedings without giving the Appellant Financial Creditor the opportunity to explain if there was sufficient cause for the delay in approaching the NCLT. An appeal being the continuation of original proceedings, the provision of Section 7(5)(b) of the IBC, of notifying the Financial Creditor before rejection of a claim, would be attracted. If notified of the proposal to close the proceedings, the Appellant Financial Creditor might have got the opportunity to rectify the defects in its application under Section 7 by filing additional pleadings and/or documents. As held in Dena Bank (supra), documents can be filed at any time until the application for CIRP is finally dismissed.
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Ugar Sugar Works Ltd Vs. Delhi Administration | of liquor is ‘good’ is to ascertain whether that particular brand of liquor has been tested and tried extensively elsewhere and has found its acceptability in other States. The manner in which the Government chooses to ascertain the factor of higher acceptability, must in the very nature of things, fall within the discretion of the Government so long as the discretion is not exercised mala fide. Unreasonably or arbitrarily. The allegations of mala fide made in the writ petition are totally bereft of any factual matrix and we, therefore, do not detain ourselves at all to consider challenge on that ground. In fairness to learned Counsel for the petitioner we may record that challenge to notification on grounds of mala fide was not pressed during arguments. Laying down requirement of achieving minimum sale figures of a particular brand of liquor in other States, as a mode for determination of the “acceptability” of that brand of liquor, is neither irrelevant, nor irrational or unreasonable. It appears that prescription of MSF requirement is aimed at allowing sale of only such brands of liquor which have been tested, tried and found acceptable at large in other parts of the country. 23. The policy objective as reflected in the impugned notification is to provide liquor of good quality in Delhi. The executive policy to determine whether a particular brand of liquor is of good quality or not, on the basis of larger acceptability of the particular brand in other parts of the country, appears to us to be a fair and relevant mode. The manner for determining whether a particular brand of liquor has acquired larger acceptability or not so as to qualify for it being “liquor of good quality” has to be decided by the State is its discretion so long as the manner adopted by the State is “just, fair and reasonable”. It is not in dispute that the criteria of MSF is being uniformly applied and no pick and choose policy has been adopted by the State in that behalf. Learned Counsel for the petitioners has been unable to convince us that fixation of MSF requirements as a criteria for such determination is in any manner “unfair, irrational or unreasonable”. 24. The argument that since MSF laid down for the year 1994-1995 were not changed till 1998-99, there was no need to increase MSF requirements in 1999-2000 or to further increase the same in the year 2000-2001 for the lowest price tag brand of liquor from 60,000 cases (7.2 lac bottles) to 75,000 cases (9 lac bottles) for the current year, suffers from the basic infirmity that it invites the Court to enter into an area of testing the executive policy, not on grounds whether it is “just, fair and reasonable”, but whether the object could not have been achieved by fixing a lower MSF requirement. In other words Court is being invited to prescribe MSF requirements in exercise of its power of judicial review. That is not permissible and we must decline the invitation to enter that area. It is not within the province of this Court to lay down that the executive policy must always remain static, even if its revision is “just, fair and reasonable”. What is relevant is to find out whether the executive action is mala fide, unreasonable or irrational as a criterion. As already observed the Court, in exercise of its power of judicial review, cannot sit in judgment over the policy of Administration except on the limited grounds already noted. Each State is empowered to formulate its own liquor policy keeping in view the interest of its citizens. Determination of wide scale acceptability of a particular brand of liquor, on the basis of national sales figures, does not strike us as being unreasonable, much less irrational. The basis for determination is not only relevant but also fair. No direction can be given or expected from the Court regarding the `correctness’ of an executive policy unless while implementing such policies, there is infringement or violation of any constitutional or statutory provision. In the present case, not only there is no such violation but on other hand, the State in formulating its policy has exercised its statutory powers and applied them uniformly.25. Though, we are not required to test the correctness of the ‘reason’ for increase of MSF over the previous years’ figures, but it is relevant to point out that increase of sale from 60,000 cases to 75,000 cases in respect of ‘lowest price tag’ brand of liquor does not appear to be arbitrary and on the other hand it appears to have a rational basis. Economic mechanism is a highly sensitive and a complex matter. With inflation every year, it goes without saying, that the brand which has the “lowest price tag” this year, was perhaps not the brand which had the “lowest price tag lat year”. It is possible that the brand ‘with lowest price tag’ this year may not be of that good quality as the brand with identical price tag last year, even though it may conform to ISI standards. It was, therefore, reasonable for the State to find out whether that particular brand with the lowest price tag this year, had been tested and tried elsewhere and had been accepted largely by the public in other parts of India to determine if that particular brand of liquor can be considered to be liquor of good quality keeping the health and welfare of the public in view. The impugned notification in our opinion furthers the object of providing good liquor having larger acceptability. The policy is made in the interest of health, welfare and morals to benefit all citizens of Delhi and not the big industrial houses as alleged. Determinaton of wide scale acceptability on the basis of revised national sales figures (MSF) does not strike us as being unreasonable let alone irrational, arbitrary or unfair. Under these circumstances there is no justifiable reason warranting interference with the impugned notification. 26. | 0[ds]16. In view of this settled position of law, any argument impugning the policy decision of the State Government, as reflected in the impugned notification, based upon Article 19(1)(g) is totally out of place and merits outright rejection and we have no hesitation in doing so most emphatically.17. Faced with the settled legal position that there is no fundamental right to trade in liquor, learned Counsel for the petitioner did not pursue the argument based on Article 19(1)(g) to question the competence of Delhi Administration to take a policy decision with regard to regulating trade in liquor and laying down various regulatory measures and in our opinion rightly so. Learned Counsel, however, mounted his challenge to the impugned notification based on Article 14 principally on the ground that the policy as reflected in the impugned notification was irrational and that raising of MSF requirements over the previousfigures with a view to regulate thebeing sold in Delhi was arbitrary and has no nexus with the object sought to be achieved viz., to provide liquor of good quality to the consumers in the National Capital Territory of Delhi. It was also urged that the policy is discriminatory and as a result of the policy, small scale manufactures with good quality of liquor, were likely to be deprived of their marketing brand within the potential market of Delhi, in case they do not achieve the prescribed MSF outside Delhi and that would result in leaving the field wide open only for big business houses who would retain their monopoly in Delhi market.In the present case the executive policy regulating the sale of liquor in the territory of Delhi is sought to be challenged by the petitioner on the ground that it isbesides beingand has no nexus with the object sought to be achieved. We are unable toallegations of mala fide made in the writ petition are totally bereft of any factual matrix and we, therefore, do not detain ourselves at all to consider challenge on that ground. In fairness to learned Counsel for the petitioner we may record that challenge to notification on grounds of mala fide was not pressed during arguments. Laying down requirement of achieving minimum sale figures of a particular brand of liquor in other States, as a mode for determination of theof that brand of liquor, is neither irrelevant, nor irrational or unreasonable. It appears that prescription of MSF requirement is aimed at allowing sale of only such brands of liquor which have been tested, tried and found acceptable at large in other parts of thebasis for determination is not only relevant but also fair. No direction can be given or expected from the Court regarding theof an executive policy unless while implementing such policies, there is infringement or violation of any constitutional or statutory provision. In the present case, not only there is no such violation but on other hand, the State in formulating its policy has exercised its statutory powers and applied them uniformly.25. Though, we are not required to test the correctness of thefor increase of MSF over the previousfigures, but it is relevant to point out that increase of sale from 60,000 cases to 75,000 cases in respect of ‘lowest pricebrand of liquor does not appear to be arbitrary and on the other hand it appears to have a rational basis. Economic mechanism is a highly sensitive and a complex matter. With inflation every year, it goes without saying, that the brand which has thethis year, was perhaps not the brand which had theprice tag latIt is possible that the brand ‘with lowest pricethis year may not be of that good quality as the brand with identical price tag last year, even though it may conform to ISI standards. It was, therefore, reasonable for the State to find out whether that particular brand with the lowest price tag this year, had been tested and tried elsewhere and had been accepted largely by the public in other parts of India to determine if that particular brand of liquor can be considered to be liquor of good quality keeping the health and welfare of the public in view. The impugned notification in our opinion furthers the object of providing good liquor having larger acceptability. The policy is made in the interest of health, welfare and morals to benefit all citizens of Delhi and not the big industrial houses as alleged. Determinaton of wide scale acceptability on the basis of revised national sales figures (MSF) does not strike us as being unreasonable let alone irrational, arbitrary or unfair. Under these circumstances there is no justifiable reason warranting interference with the impugned notification. | 0 | 4,694 | 843 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
of liquor is ‘good’ is to ascertain whether that particular brand of liquor has been tested and tried extensively elsewhere and has found its acceptability in other States. The manner in which the Government chooses to ascertain the factor of higher acceptability, must in the very nature of things, fall within the discretion of the Government so long as the discretion is not exercised mala fide. Unreasonably or arbitrarily. The allegations of mala fide made in the writ petition are totally bereft of any factual matrix and we, therefore, do not detain ourselves at all to consider challenge on that ground. In fairness to learned Counsel for the petitioner we may record that challenge to notification on grounds of mala fide was not pressed during arguments. Laying down requirement of achieving minimum sale figures of a particular brand of liquor in other States, as a mode for determination of the “acceptability” of that brand of liquor, is neither irrelevant, nor irrational or unreasonable. It appears that prescription of MSF requirement is aimed at allowing sale of only such brands of liquor which have been tested, tried and found acceptable at large in other parts of the country. 23. The policy objective as reflected in the impugned notification is to provide liquor of good quality in Delhi. The executive policy to determine whether a particular brand of liquor is of good quality or not, on the basis of larger acceptability of the particular brand in other parts of the country, appears to us to be a fair and relevant mode. The manner for determining whether a particular brand of liquor has acquired larger acceptability or not so as to qualify for it being “liquor of good quality” has to be decided by the State is its discretion so long as the manner adopted by the State is “just, fair and reasonable”. It is not in dispute that the criteria of MSF is being uniformly applied and no pick and choose policy has been adopted by the State in that behalf. Learned Counsel for the petitioners has been unable to convince us that fixation of MSF requirements as a criteria for such determination is in any manner “unfair, irrational or unreasonable”. 24. The argument that since MSF laid down for the year 1994-1995 were not changed till 1998-99, there was no need to increase MSF requirements in 1999-2000 or to further increase the same in the year 2000-2001 for the lowest price tag brand of liquor from 60,000 cases (7.2 lac bottles) to 75,000 cases (9 lac bottles) for the current year, suffers from the basic infirmity that it invites the Court to enter into an area of testing the executive policy, not on grounds whether it is “just, fair and reasonable”, but whether the object could not have been achieved by fixing a lower MSF requirement. In other words Court is being invited to prescribe MSF requirements in exercise of its power of judicial review. That is not permissible and we must decline the invitation to enter that area. It is not within the province of this Court to lay down that the executive policy must always remain static, even if its revision is “just, fair and reasonable”. What is relevant is to find out whether the executive action is mala fide, unreasonable or irrational as a criterion. As already observed the Court, in exercise of its power of judicial review, cannot sit in judgment over the policy of Administration except on the limited grounds already noted. Each State is empowered to formulate its own liquor policy keeping in view the interest of its citizens. Determination of wide scale acceptability of a particular brand of liquor, on the basis of national sales figures, does not strike us as being unreasonable, much less irrational. The basis for determination is not only relevant but also fair. No direction can be given or expected from the Court regarding the `correctness’ of an executive policy unless while implementing such policies, there is infringement or violation of any constitutional or statutory provision. In the present case, not only there is no such violation but on other hand, the State in formulating its policy has exercised its statutory powers and applied them uniformly.25. Though, we are not required to test the correctness of the ‘reason’ for increase of MSF over the previous years’ figures, but it is relevant to point out that increase of sale from 60,000 cases to 75,000 cases in respect of ‘lowest price tag’ brand of liquor does not appear to be arbitrary and on the other hand it appears to have a rational basis. Economic mechanism is a highly sensitive and a complex matter. With inflation every year, it goes without saying, that the brand which has the “lowest price tag” this year, was perhaps not the brand which had the “lowest price tag lat year”. It is possible that the brand ‘with lowest price tag’ this year may not be of that good quality as the brand with identical price tag last year, even though it may conform to ISI standards. It was, therefore, reasonable for the State to find out whether that particular brand with the lowest price tag this year, had been tested and tried elsewhere and had been accepted largely by the public in other parts of India to determine if that particular brand of liquor can be considered to be liquor of good quality keeping the health and welfare of the public in view. The impugned notification in our opinion furthers the object of providing good liquor having larger acceptability. The policy is made in the interest of health, welfare and morals to benefit all citizens of Delhi and not the big industrial houses as alleged. Determinaton of wide scale acceptability on the basis of revised national sales figures (MSF) does not strike us as being unreasonable let alone irrational, arbitrary or unfair. Under these circumstances there is no justifiable reason warranting interference with the impugned notification. 26.
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0
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16. In view of this settled position of law, any argument impugning the policy decision of the State Government, as reflected in the impugned notification, based upon Article 19(1)(g) is totally out of place and merits outright rejection and we have no hesitation in doing so most emphatically.17. Faced with the settled legal position that there is no fundamental right to trade in liquor, learned Counsel for the petitioner did not pursue the argument based on Article 19(1)(g) to question the competence of Delhi Administration to take a policy decision with regard to regulating trade in liquor and laying down various regulatory measures and in our opinion rightly so. Learned Counsel, however, mounted his challenge to the impugned notification based on Article 14 principally on the ground that the policy as reflected in the impugned notification was irrational and that raising of MSF requirements over the previousfigures with a view to regulate thebeing sold in Delhi was arbitrary and has no nexus with the object sought to be achieved viz., to provide liquor of good quality to the consumers in the National Capital Territory of Delhi. It was also urged that the policy is discriminatory and as a result of the policy, small scale manufactures with good quality of liquor, were likely to be deprived of their marketing brand within the potential market of Delhi, in case they do not achieve the prescribed MSF outside Delhi and that would result in leaving the field wide open only for big business houses who would retain their monopoly in Delhi market.In the present case the executive policy regulating the sale of liquor in the territory of Delhi is sought to be challenged by the petitioner on the ground that it isbesides beingand has no nexus with the object sought to be achieved. We are unable toallegations of mala fide made in the writ petition are totally bereft of any factual matrix and we, therefore, do not detain ourselves at all to consider challenge on that ground. In fairness to learned Counsel for the petitioner we may record that challenge to notification on grounds of mala fide was not pressed during arguments. Laying down requirement of achieving minimum sale figures of a particular brand of liquor in other States, as a mode for determination of theof that brand of liquor, is neither irrelevant, nor irrational or unreasonable. It appears that prescription of MSF requirement is aimed at allowing sale of only such brands of liquor which have been tested, tried and found acceptable at large in other parts of thebasis for determination is not only relevant but also fair. No direction can be given or expected from the Court regarding theof an executive policy unless while implementing such policies, there is infringement or violation of any constitutional or statutory provision. In the present case, not only there is no such violation but on other hand, the State in formulating its policy has exercised its statutory powers and applied them uniformly.25. Though, we are not required to test the correctness of thefor increase of MSF over the previousfigures, but it is relevant to point out that increase of sale from 60,000 cases to 75,000 cases in respect of ‘lowest pricebrand of liquor does not appear to be arbitrary and on the other hand it appears to have a rational basis. Economic mechanism is a highly sensitive and a complex matter. With inflation every year, it goes without saying, that the brand which has thethis year, was perhaps not the brand which had theprice tag latIt is possible that the brand ‘with lowest pricethis year may not be of that good quality as the brand with identical price tag last year, even though it may conform to ISI standards. It was, therefore, reasonable for the State to find out whether that particular brand with the lowest price tag this year, had been tested and tried elsewhere and had been accepted largely by the public in other parts of India to determine if that particular brand of liquor can be considered to be liquor of good quality keeping the health and welfare of the public in view. The impugned notification in our opinion furthers the object of providing good liquor having larger acceptability. The policy is made in the interest of health, welfare and morals to benefit all citizens of Delhi and not the big industrial houses as alleged. Determinaton of wide scale acceptability on the basis of revised national sales figures (MSF) does not strike us as being unreasonable let alone irrational, arbitrary or unfair. Under these circumstances there is no justifiable reason warranting interference with the impugned notification.
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State Of Orissa Vs. Gopinath Dash | Rules as provided in the Orissa Service Code (in short Service Code). In Original Application No.1250/1991 after appreciating that the rotational system of allotment of quarters was in the interest of the employees, the Tribunal dismissed the application in view of the dismissal of the other Original Application. It was held that since quarters were allotteed by contractual allotments, the Special Accommodation Rules do not apply. Thereafter 21 persons filed writ petition before the High Court which was registered as O.J.C.No.6383 of 1992. One of the writ petitioners was Panchu Sahu who was also one of the applicants in O.A.No.1250/1991. After dismissal of O.A. No.758/1989, the applicants before the Tribunal filed writ petition O.J.C. No.3193 of 1992. The writ petition No.6383/1992 was dismissed as withdrawn on 7.7.1994. It was noticed by the Division Bench that since the Bench was not inclined to entertain the writ petition, the writ-petitioners wanted to withdraw the petition. In writ petition no.O.J.C.3193/1992 the High Court by its impugned judgment dated 8.8.1996 held that the policy decision of allotment of quarters on rotational basis was contrary t and inconsistent with justness and fair-play. 3. In support of the appeal, learned counsel for the appellants submitted that the approach of the High Court is clearly erroneous. It failed to notice that the policy decision of the government is not to be lightly interfered with. The High Court did not indicate any justifiable reason to quash the policy decision. 4. There is no appearance on behalf of the respondents. Operation of the impugned judgment was stayed by this Court by order dated 8.5.1997. 5. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Ashif Hamid vs. State of J. & K. (AIR 1989 SC 1899 ), Shri Sitaram Sugar Co. vs. Union of India (AIR 1990 SC 1277 ). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere. 6. The correctness of the reasons which prompted the Government in decision making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation. 7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government. 8. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company vs. City of Chicago (1912) 57 L Ed 730. "The problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. 9. The conclusions of the High Court for granting relief, so far as the relevant are as follows: "4. Very patiently we have heard the contentions made by the petitioners and the learned Government Advocate appearing in support of the contentions of the opposite parties. The scarcity of house accommodation is not in doubt or dispute. The policy to allot quarters only for three years is whether pragmatic, fair and rational we are to examine judicially. It is not appreciated by us to why if there is scarcity of quarters, the allotment must be made serially and as would be made available, taking into consideration the eligibility criteria and such allotment to be for a limited period notwithstanding the continuity of the posting of the person concerned at the same place. A person may be transferred, he may immediately be asked to vacate the quarters. A person retires and/or his services ceases, it may be appreciated that he should immediately vacate the quarters. But when a person remains posted, to vacate the quarters after three years notwithstanding his continuity, is certainly not fair, justifiable or rational. On repeated query no satisfactory explanation has been given to us. What is the ultimate goal behind this policy is in order to avoid discontentment or to please very body. Such a policy does not fulfil the test of fair play and justness. 5. Having gone through the detailed averments and also considering the allegations and counter allegations, we find that the grievance of the petitioners is genuine. If the petitioners remain posted at Cuttack and if they are provided with the quarters after considering their eligibility, they cannot be asked to vacate their quarter, unless their services cease or they are transferred elsewhere. This rotation allotment appears to be contrary to and inconsistent with the justness and fair play." 10. Considering in the background of the legal principles set out above, the conclusions of the High Court do not appear to be defensible, muchless for the reasons indicated by the High Court. | 1[ds]5. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutorye scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere6. The correctness of the reasons which prompted the Government in decision making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government10. Considering in the background of the legal principles set out above, the conclusions of the High Court do not appear to be defensible, muchless for the reasons indicated by the High Court | 1 | 1,486 | 324 | ### 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 as provided in the Orissa Service Code (in short Service Code). In Original Application No.1250/1991 after appreciating that the rotational system of allotment of quarters was in the interest of the employees, the Tribunal dismissed the application in view of the dismissal of the other Original Application. It was held that since quarters were allotteed by contractual allotments, the Special Accommodation Rules do not apply. Thereafter 21 persons filed writ petition before the High Court which was registered as O.J.C.No.6383 of 1992. One of the writ petitioners was Panchu Sahu who was also one of the applicants in O.A.No.1250/1991. After dismissal of O.A. No.758/1989, the applicants before the Tribunal filed writ petition O.J.C. No.3193 of 1992. The writ petition No.6383/1992 was dismissed as withdrawn on 7.7.1994. It was noticed by the Division Bench that since the Bench was not inclined to entertain the writ petition, the writ-petitioners wanted to withdraw the petition. In writ petition no.O.J.C.3193/1992 the High Court by its impugned judgment dated 8.8.1996 held that the policy decision of allotment of quarters on rotational basis was contrary t and inconsistent with justness and fair-play. 3. In support of the appeal, learned counsel for the appellants submitted that the approach of the High Court is clearly erroneous. It failed to notice that the policy decision of the government is not to be lightly interfered with. The High Court did not indicate any justifiable reason to quash the policy decision. 4. There is no appearance on behalf of the respondents. Operation of the impugned judgment was stayed by this Court by order dated 8.5.1997. 5. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Ashif Hamid vs. State of J. & K. (AIR 1989 SC 1899 ), Shri Sitaram Sugar Co. vs. Union of India (AIR 1990 SC 1277 ). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere. 6. The correctness of the reasons which prompted the Government in decision making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation. 7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government. 8. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company vs. City of Chicago (1912) 57 L Ed 730. "The problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. 9. The conclusions of the High Court for granting relief, so far as the relevant are as follows: "4. Very patiently we have heard the contentions made by the petitioners and the learned Government Advocate appearing in support of the contentions of the opposite parties. The scarcity of house accommodation is not in doubt or dispute. The policy to allot quarters only for three years is whether pragmatic, fair and rational we are to examine judicially. It is not appreciated by us to why if there is scarcity of quarters, the allotment must be made serially and as would be made available, taking into consideration the eligibility criteria and such allotment to be for a limited period notwithstanding the continuity of the posting of the person concerned at the same place. A person may be transferred, he may immediately be asked to vacate the quarters. A person retires and/or his services ceases, it may be appreciated that he should immediately vacate the quarters. But when a person remains posted, to vacate the quarters after three years notwithstanding his continuity, is certainly not fair, justifiable or rational. On repeated query no satisfactory explanation has been given to us. What is the ultimate goal behind this policy is in order to avoid discontentment or to please very body. Such a policy does not fulfil the test of fair play and justness. 5. Having gone through the detailed averments and also considering the allegations and counter allegations, we find that the grievance of the petitioners is genuine. If the petitioners remain posted at Cuttack and if they are provided with the quarters after considering their eligibility, they cannot be asked to vacate their quarter, unless their services cease or they are transferred elsewhere. This rotation allotment appears to be contrary to and inconsistent with the justness and fair play." 10. Considering in the background of the legal principles set out above, the conclusions of the High Court do not appear to be defensible, muchless for the reasons indicated by the High Court.
### Response:
1
### Explanation:
5. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutorye scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere6. The correctness of the reasons which prompted the Government in decision making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government10. Considering in the background of the legal principles set out above, the conclusions of the High Court do not appear to be defensible, muchless for the reasons indicated by the High Court
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Bharat Co-Operative Bank Mumbai Limited Vs. Co-Operative Bank Employees Union | There, the question arose in regard to the interpretation of section 2 (c) of the Bihar and Orissa Motor Vehicles Taxation Act, 1930. This section when enacted adopted the definition of "motor vehicle" contained section 2 (18) of the Motor vehicles Act, 1939. Subsequently, section 2 (18) was amended by Act 100 of 1956 but no corresponding amendment was made in the definition contained in section 2 (c) of the Taxation Act. The argument advanced before the Court was that the definition in section 2 (c) of the Act was not a definition by incorporation but only a definition by reference and the meaning of "motor vehicle" in section 2 (c) must therefore be taken to be the same as defined from time to time in section 2 (18) of the Motor Vehicles Act, 1939. This argument was negatived by the Court and it was held that this was a case of incorporation and not reference and the defination in section 2 (18) of the Motor Vehicles act, 1939 as then existing was incorporated in section 2 (18) (c) of the Taxation act and neither repeal of the Motor Vehicles Act, 1939 nor any amendment in it would affect the defination of "motor vehicle" in section 2 (c) of the Taxation act. It is thus clear that if there is mere reference to a provision of one statute in another without incorporation, then, unless a different intention clearly appears the reference would be construed as a reference to the provision as be in force from time to time in the former statute. But if a provision of the statute is incorporated in another, any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the later statute. Similar is the view expressed in (Mahindra and Mahindra Ltd. v. Union of India), 1979 (1) S. C. C. 529 where the Court held that section 55 of the monopolies and Restrictive Trade Practices Act, 1969 incorporates and not merely refers to section 100 of C. P. C. Hence, subsequent substitution of section 100 by c. P. C. (Amendment) Act, 1976 would not affect the incorporated provision.( 12 ) WE have no doubt that section 2 (bb) is an instance of the legislation by incorporation and not legislation by reference. Therefore we are not prepared to hold that the amendments which were made in B. R. Act after 1949 can be regarded as incorporated in the I. D. Act. It was not part of the B. R. Act when the I. D. Act was amended and section 2 (bb) was inserted. Nor in the adopted provisions of the B. R. Act is there anything to suggest that the legislature intended to bind itself to any future additions which might be made to that act. Again, there is nothing in the B. R. Act. to suggest that the amendments enacted to it are to be treated as in anyway, retrospective or are to be regarded as affecting any other enactment than the B. R. Act itself. What the legislature has done is nothing more than incorporating the definition of "banking company" in the B. R. Act and, for convenience of drafting, it has done so by reference to that Act instead of setting out for itself at length the provisions which it decided to adopt. ( 13 ) ON behalf of appellant bank a reference was made to the decision of the supreme Court in (Bhatinda Improvement Trust v. Balwant Singh), 1991 (4)s. C. C. 368 where the Court while construing Rule 3 of Jute Manufacturers cess Rules, 1976 held that the words "central Excise Act" and "rules" contained in the said Rule should be construed as if the words "for the time being in force" were there after the words "the provisions of Central Excise and Salt act, 1944 (1 of 1944) and the Rules made thereunder". We are afraid that the decision does not in any way assist the appellant. Rule 3 with which the supreme Court was concerned, made the provisions of the Central Excise Act and the Rules made thereunder applicable in the matter of levy and collection of cess under the Jute Rules. It was a clear case of legislation by reference. In such a case, naturally the subsequent amendments and alterations made to the Central Excise Act and the Rules would ipso facto get imported into the jute Rules. As against this the language used by the legislature in enacting section 2 (bb) clearly suggests a case of legislation by incorporation. In such a case, it is well settled that subsequent amendments or alterations made in the former enactment would not affect the incorporation statute. ( 14 ) IN the circumstances, we are in agreement with the view expressed by learned Single Judge that the subsequent amendments to the B. R. Act will not be attracted in respect of definition of "appropriate Government" in the i. D. Act. Consequently, the "appropriate Government" in respect of the multi state Co-operative banks having branches in more than one State would be the State Government and not the Central Government. Before parting with this matter, we may mention that on behalf of the respondent union, it was argued that the definition of "banking company" as contained in section 5 (c)of the B. R. Act has not been amended by the Amendment Act 23 of 1966 or by any other amendment. But by virtue of section 56 the provisions of the B. R. Act are made applicable in the manner indicated by that section. It is not necessary for us to express any view on this issue as, in our opinion, the definition of the "banking company" will have to be read as it existed on the date of incorporation of section 2 (bb) for the purpose of deciding as to which is the "appropriate Government" and so read the appropriate Government in respect of multi-State Co-operative banks would be the State Government. | 0[ds]( 12 ) WE have no doubt that section 2 (bb) is an instance of the legislation by incorporation and not legislation by reference. Therefore we are not prepared to hold that the amendments which were made in B. R. Act after 1949 can be regarded as incorporated in the I. D. Act. It was not part of the B. R. Act when the I. D. Act was amended and section 2 (bb) was inserted. Nor in the adopted provisions of the B. R. Act is there anything to suggest that the legislature intended to bind itself to any future additions which might be made to that act. Again, there is nothing in the B. R. Act. to suggest that the amendments enacted to it are to be treated as in anyway, retrospective or are to be regarded as affecting any other enactment than the B. R. Act itself. What the legislature has done is nothing more than incorporating the definition of "banking company" in the B. R. Act and, for convenience of drafting, it has done so by reference to that Act instead of setting out for itself at length the provisions which it decided to adopt. ( 13 ) ON behalf of appellant bank a reference was made to the decision of the supreme Court in (Bhatinda Improvement Trust v. Balwant Singh), 1991 (4)s. C. C. 368 where the Court while construing Rule 3 of Jute Manufacturers cess Rules, 1976 held that the words "central Excise Act" and "rules" contained in the said Rule should be construed as if the words "for the time being in force" were there after the words "the provisions of Central Excise and Salt act, 1944 (1 of 1944) and the Rules made thereunder". We are afraid that the decision does not in any way assist the appellant. Rule 3 with which the supreme Court was concerned, made the provisions of the Central Excise Act and the Rules made thereunder applicable in the matter of levy and collection of cess under the Jute Rules. It was a clear case of legislation by reference. In such a case, naturally the subsequent amendments and alterations made to the Central Excise Act and the Rules would ipso facto get imported into the jute Rules. As against this the language used by the legislature in enacting section 2 (bb) clearly suggests a case of legislation by incorporation. In such a case, it is well settled that subsequent amendments or alterations made in the former enactment would not affect the incorporation statute. ( 14 ) IN the circumstances, we are in agreement with the view expressed by learned Single Judge that the subsequent amendments to the B. R. Act will not be attracted in respect of definition of "appropriate Government" in the i. D. Act. Consequently, the "appropriate Government" in respect of the multi statebanks having branches in more than one State would be the State Government and not the Central Government. Before parting with this matter, we may mention that on behalf of the respondent union, it was argued that the definition of "banking company" as contained in section 5 (c)of the B. R. Act has not been amended by the Amendment Act 23 of 1966 or by any other amendment. But by virtue of section 56 the provisions of the B. R. Act are made applicable in the manner indicated by that section. It is not necessary for us to express any view on this issue as, in our opinion, the definition of the "banking company" will have to be read as it existed on the date of incorporation of section 2 (bb) for the purpose of deciding as to which is the "appropriate Government" and so read the appropriate Government in respect ofe banks would be the State Government. | 0 | 3,310 | 711 | ### 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:
There, the question arose in regard to the interpretation of section 2 (c) of the Bihar and Orissa Motor Vehicles Taxation Act, 1930. This section when enacted adopted the definition of "motor vehicle" contained section 2 (18) of the Motor vehicles Act, 1939. Subsequently, section 2 (18) was amended by Act 100 of 1956 but no corresponding amendment was made in the definition contained in section 2 (c) of the Taxation Act. The argument advanced before the Court was that the definition in section 2 (c) of the Act was not a definition by incorporation but only a definition by reference and the meaning of "motor vehicle" in section 2 (c) must therefore be taken to be the same as defined from time to time in section 2 (18) of the Motor Vehicles Act, 1939. This argument was negatived by the Court and it was held that this was a case of incorporation and not reference and the defination in section 2 (18) of the Motor Vehicles act, 1939 as then existing was incorporated in section 2 (18) (c) of the Taxation act and neither repeal of the Motor Vehicles Act, 1939 nor any amendment in it would affect the defination of "motor vehicle" in section 2 (c) of the Taxation act. It is thus clear that if there is mere reference to a provision of one statute in another without incorporation, then, unless a different intention clearly appears the reference would be construed as a reference to the provision as be in force from time to time in the former statute. But if a provision of the statute is incorporated in another, any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the later statute. Similar is the view expressed in (Mahindra and Mahindra Ltd. v. Union of India), 1979 (1) S. C. C. 529 where the Court held that section 55 of the monopolies and Restrictive Trade Practices Act, 1969 incorporates and not merely refers to section 100 of C. P. C. Hence, subsequent substitution of section 100 by c. P. C. (Amendment) Act, 1976 would not affect the incorporated provision.( 12 ) WE have no doubt that section 2 (bb) is an instance of the legislation by incorporation and not legislation by reference. Therefore we are not prepared to hold that the amendments which were made in B. R. Act after 1949 can be regarded as incorporated in the I. D. Act. It was not part of the B. R. Act when the I. D. Act was amended and section 2 (bb) was inserted. Nor in the adopted provisions of the B. R. Act is there anything to suggest that the legislature intended to bind itself to any future additions which might be made to that act. Again, there is nothing in the B. R. Act. to suggest that the amendments enacted to it are to be treated as in anyway, retrospective or are to be regarded as affecting any other enactment than the B. R. Act itself. What the legislature has done is nothing more than incorporating the definition of "banking company" in the B. R. Act and, for convenience of drafting, it has done so by reference to that Act instead of setting out for itself at length the provisions which it decided to adopt. ( 13 ) ON behalf of appellant bank a reference was made to the decision of the supreme Court in (Bhatinda Improvement Trust v. Balwant Singh), 1991 (4)s. C. C. 368 where the Court while construing Rule 3 of Jute Manufacturers cess Rules, 1976 held that the words "central Excise Act" and "rules" contained in the said Rule should be construed as if the words "for the time being in force" were there after the words "the provisions of Central Excise and Salt act, 1944 (1 of 1944) and the Rules made thereunder". We are afraid that the decision does not in any way assist the appellant. Rule 3 with which the supreme Court was concerned, made the provisions of the Central Excise Act and the Rules made thereunder applicable in the matter of levy and collection of cess under the Jute Rules. It was a clear case of legislation by reference. In such a case, naturally the subsequent amendments and alterations made to the Central Excise Act and the Rules would ipso facto get imported into the jute Rules. As against this the language used by the legislature in enacting section 2 (bb) clearly suggests a case of legislation by incorporation. In such a case, it is well settled that subsequent amendments or alterations made in the former enactment would not affect the incorporation statute. ( 14 ) IN the circumstances, we are in agreement with the view expressed by learned Single Judge that the subsequent amendments to the B. R. Act will not be attracted in respect of definition of "appropriate Government" in the i. D. Act. Consequently, the "appropriate Government" in respect of the multi state Co-operative banks having branches in more than one State would be the State Government and not the Central Government. Before parting with this matter, we may mention that on behalf of the respondent union, it was argued that the definition of "banking company" as contained in section 5 (c)of the B. R. Act has not been amended by the Amendment Act 23 of 1966 or by any other amendment. But by virtue of section 56 the provisions of the B. R. Act are made applicable in the manner indicated by that section. It is not necessary for us to express any view on this issue as, in our opinion, the definition of the "banking company" will have to be read as it existed on the date of incorporation of section 2 (bb) for the purpose of deciding as to which is the "appropriate Government" and so read the appropriate Government in respect of multi-State Co-operative banks would be the State Government.
### Response:
0
### Explanation:
( 12 ) WE have no doubt that section 2 (bb) is an instance of the legislation by incorporation and not legislation by reference. Therefore we are not prepared to hold that the amendments which were made in B. R. Act after 1949 can be regarded as incorporated in the I. D. Act. It was not part of the B. R. Act when the I. D. Act was amended and section 2 (bb) was inserted. Nor in the adopted provisions of the B. R. Act is there anything to suggest that the legislature intended to bind itself to any future additions which might be made to that act. Again, there is nothing in the B. R. Act. to suggest that the amendments enacted to it are to be treated as in anyway, retrospective or are to be regarded as affecting any other enactment than the B. R. Act itself. What the legislature has done is nothing more than incorporating the definition of "banking company" in the B. R. Act and, for convenience of drafting, it has done so by reference to that Act instead of setting out for itself at length the provisions which it decided to adopt. ( 13 ) ON behalf of appellant bank a reference was made to the decision of the supreme Court in (Bhatinda Improvement Trust v. Balwant Singh), 1991 (4)s. C. C. 368 where the Court while construing Rule 3 of Jute Manufacturers cess Rules, 1976 held that the words "central Excise Act" and "rules" contained in the said Rule should be construed as if the words "for the time being in force" were there after the words "the provisions of Central Excise and Salt act, 1944 (1 of 1944) and the Rules made thereunder". We are afraid that the decision does not in any way assist the appellant. Rule 3 with which the supreme Court was concerned, made the provisions of the Central Excise Act and the Rules made thereunder applicable in the matter of levy and collection of cess under the Jute Rules. It was a clear case of legislation by reference. In such a case, naturally the subsequent amendments and alterations made to the Central Excise Act and the Rules would ipso facto get imported into the jute Rules. As against this the language used by the legislature in enacting section 2 (bb) clearly suggests a case of legislation by incorporation. In such a case, it is well settled that subsequent amendments or alterations made in the former enactment would not affect the incorporation statute. ( 14 ) IN the circumstances, we are in agreement with the view expressed by learned Single Judge that the subsequent amendments to the B. R. Act will not be attracted in respect of definition of "appropriate Government" in the i. D. Act. Consequently, the "appropriate Government" in respect of the multi statebanks having branches in more than one State would be the State Government and not the Central Government. Before parting with this matter, we may mention that on behalf of the respondent union, it was argued that the definition of "banking company" as contained in section 5 (c)of the B. R. Act has not been amended by the Amendment Act 23 of 1966 or by any other amendment. But by virtue of section 56 the provisions of the B. R. Act are made applicable in the manner indicated by that section. It is not necessary for us to express any view on this issue as, in our opinion, the definition of the "banking company" will have to be read as it existed on the date of incorporation of section 2 (bb) for the purpose of deciding as to which is the "appropriate Government" and so read the appropriate Government in respect ofe banks would be the State Government.
|
The Commissioner of Income Tax, Calcutta Vs. Asiatic Textiles Limited | made in the previous year the payment of a dividend or a larger dividend than that declared would be unreasonable, make an order in writing that the company shall, apart from the sum determined as payable by it on the basis of the assessment under Section 23, be liable to pay super-tax at the rate of fifty per cent in the case of a company whose business consists wholly or mainly in the dealing in or holding of investments, and at the rate of thirty seven per cent in the case of any other company on the undistributed balance of the total income of the previous year, that is to say, on a total income as reduced by the amounts, if any, referred to in cl. (a), clause (b) or clause (c) and the dividends actually distributed, if any." 9. Whether in a particular year dividend should be declared or not is a matter primarily for the Directors of a company. The Income-tax Officer can step in under Section 23A (1) only if the Directors unjustifiably refrain from declaring dividend. If the Directors of a company had reasonable grounds for not declaring any dividend, it is not open for the Income-tax Officer to constitute himself as a super-Director. As observed by this court in Commr. of Income-tax West Bengal v. Gangadhar Bannerjee and Co. (Pvt. ) Ltd., 57 ITR 176 = (AIR 1965 SC 1977 ) the Income-tax Officer, in considering whether the payment of a dividend or a larger dividend than that declared by a company would be unreasonable within the meaning of Section 23A of the Act does not assess any income to tax.He only does what the directors should have done putting himself in their place. Though the object of the section is to prevent evasion of tax, the provision must be worked not from the standpoint of the tax collector but from that of a businessman. The reasonableness or unreasonableness of the amount distributed as dividends is judged by business considerations, such as the previous losses, the present profits, the availability of surplus money and the reasonable requirements of the future and similar others. The Income tax Officer must take an overall picture of the financial position of the business. He should put himself in the position of a prudent businessman or the director of a company and deal with the problem with a sympathetic and objective approach. 10. On the facts found by the Tribunal, there can be hardly any doubt that the assessee had suffered a capital loss of Rs. 12,00,000/-. In our opinion, in view of the said loss, any reasonable body of Directors of a company would have done just what the Directors of the assessee company did. We think, that the Income-tax Officer took an erroneous view of the scope of Section 23A (1). 11. Mr. Mitra, learned counsel for the department contended that the assessee had not in fact incurred any loss though the value of the shares had gone down in the market. As the assessee was still in possession of those shares, there was still a possibility of avoiding the anticipated loss. Hence there was no occasion to take note of the depreciation in the value of the shares in the matter of declaration of dividends. This is an unacceptable contention. The Directors of a company will be justified in taking things as they stand and not befool themselves in the wild hope that the value of the shares may come up again. They are expected to act as hard headed businessmen. They are not expected to gamble with the future of the concern. The question is not whether the value of the shares may not go up in future but whether the Directors were justified in not declaring dividends in view of the loss incurred. The Income-tax Officer overlooked the fact that Directors were naturally more interested in the stability of their concern rather than in increasing the tax payable to the Government. 12. Before the High Court, it appears to have been urged - Mr. Mitra rightly did not press that plea -that the loss incurred being a capital loss the same cannot be taken into consideration in the application of Section 23A (1).This very contention was examined and rejected by the Judicial Committee in Commr. of Income-tax v. Williamson. Diamonds Ltd. (1959) 35 ITR 290 (PC). In that case their Lordships were considering the scope of Section 21 (1) "(Consolidation) Ordinance, 1950 of Tanganyika." That provision corresponds very closely to Section 23A (1) of the Act. Dealing with the scope of that provision, their Lordships observed:"It does not follow from what has been said that capital losses should not be taken into account by the Commissioner. Two matters are mentioned specifically in the words which give him a direction, the first is losses (as interpreted above) and the second is "smallness of profit". The Commissioner is directed to come to a decision upon the question whether "the payment of a dividend or a larger dividend than that declared" is unreasonable." The form of the words used no doubt lends itself to the suggestion that regard should be paid only to the two matters mentioned, but it appears to their Lordships that it is impossible to arrive at a conclusion as to reasonableness by considering the two matters mentioned isolated from other relevant factors. Moreover, the Statute does not say having regard only to losses previously incurred by the company and to the smallness of the profits made. No answer which can be said to be in any measure adequate, can be given to the question "unreasonableness" by considering these two matters only. Their Lordships are of the opinion that the Statute by the words used while making sure that "losses and smallness of profit are never lost sight of requires all matters relevant to the question of unreasonableness to be considered. Capital loss, if established is one of them". We respectfully agree with these observations. | 0[ds]10. On the facts found by the Tribunal, there can be hardly any doubt that the assessee had suffered a capital loss of Rs. 12,00,000/-. In our opinion, in view of the said loss, any reasonable body of Directors of a company would have done just what the Directors of the assessee company did. We think, that the Income-tax Officer took an erroneous view of the scope of Section 23A (1)As the assessee was still in possession of those shares, there was still a possibility of avoiding the anticipated loss. Hence there was no occasion to take note of the depreciation in the value of the shares in the matter of declaration of dividends. This is an unacceptable contention. The Directors of a company will be justified in taking things as they stand and not befool themselves in the wild hope that the value of the shares may come up again. They are expected to act as hard headed businessmen. They are not expected to gamble with the future of the concern. The question is not whether the value of the shares may not go up in future but whether the Directors were justified in not declaring dividends in view of the loss incurred. The Income-tax Officer overlooked the fact that Directors were naturally more interested in the stability of their concern rather than in increasing the tax payable to the Government12. Before the High Court, it appears to have been urged - Mr. Mitra rightly did not press that plea -that the loss incurred being a capital loss the same cannot be taken into consideration in the application of Section 23A (1).This very contention was examined and rejected by the Judicial Committee in Commr. of Income-tax v. Williamson. Diamonds Ltd. (1959) 35 ITR 290 (PC). In that case their Lordships were considering the scope of Section 21 (1) "(Consolidation) Ordinance, 1950 of Tanganyika." That provision corresponds very closely to Section 23A (1) of the Act. Dealing with the scope of that provision, their Lordships observed:"It does not follow from what has been said that capital losses should not be taken into account by the Commissioner. Two matters are mentioned specifically in the words which give him a direction, the first is losses (as interpreted above) and the second is "smallness of profit". The Commissioner is directed to come to a decision upon the question whether "the payment of a dividend or a larger dividend than that declared" is unreasonable."The form of the words used no doubt lends itself to the suggestion that regard should be paid only to the two matters mentioned, but it appears to their Lordships that it is impossible to arrive at a conclusion as to reasonableness by considering the two matters mentioned isolated from other relevant factors. Moreover, the Statute does not say having regard only to losses previously incurred by the company and to the smallness of the profits made. No answer which can be said to be in any measure adequate, can be given to the question "unreasonableness" by considering these two matters only. Their Lordships are of the opinion that the Statute by the words used while making sure that "losses and smallness of profit are never lost sight of requires all matters relevant to the question of unreasonableness to be considered. Capital loss, if established is one of them". We respectfully agree with these observations. | 0 | 2,096 | 641 | ### 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:
made in the previous year the payment of a dividend or a larger dividend than that declared would be unreasonable, make an order in writing that the company shall, apart from the sum determined as payable by it on the basis of the assessment under Section 23, be liable to pay super-tax at the rate of fifty per cent in the case of a company whose business consists wholly or mainly in the dealing in or holding of investments, and at the rate of thirty seven per cent in the case of any other company on the undistributed balance of the total income of the previous year, that is to say, on a total income as reduced by the amounts, if any, referred to in cl. (a), clause (b) or clause (c) and the dividends actually distributed, if any." 9. Whether in a particular year dividend should be declared or not is a matter primarily for the Directors of a company. The Income-tax Officer can step in under Section 23A (1) only if the Directors unjustifiably refrain from declaring dividend. If the Directors of a company had reasonable grounds for not declaring any dividend, it is not open for the Income-tax Officer to constitute himself as a super-Director. As observed by this court in Commr. of Income-tax West Bengal v. Gangadhar Bannerjee and Co. (Pvt. ) Ltd., 57 ITR 176 = (AIR 1965 SC 1977 ) the Income-tax Officer, in considering whether the payment of a dividend or a larger dividend than that declared by a company would be unreasonable within the meaning of Section 23A of the Act does not assess any income to tax.He only does what the directors should have done putting himself in their place. Though the object of the section is to prevent evasion of tax, the provision must be worked not from the standpoint of the tax collector but from that of a businessman. The reasonableness or unreasonableness of the amount distributed as dividends is judged by business considerations, such as the previous losses, the present profits, the availability of surplus money and the reasonable requirements of the future and similar others. The Income tax Officer must take an overall picture of the financial position of the business. He should put himself in the position of a prudent businessman or the director of a company and deal with the problem with a sympathetic and objective approach. 10. On the facts found by the Tribunal, there can be hardly any doubt that the assessee had suffered a capital loss of Rs. 12,00,000/-. In our opinion, in view of the said loss, any reasonable body of Directors of a company would have done just what the Directors of the assessee company did. We think, that the Income-tax Officer took an erroneous view of the scope of Section 23A (1). 11. Mr. Mitra, learned counsel for the department contended that the assessee had not in fact incurred any loss though the value of the shares had gone down in the market. As the assessee was still in possession of those shares, there was still a possibility of avoiding the anticipated loss. Hence there was no occasion to take note of the depreciation in the value of the shares in the matter of declaration of dividends. This is an unacceptable contention. The Directors of a company will be justified in taking things as they stand and not befool themselves in the wild hope that the value of the shares may come up again. They are expected to act as hard headed businessmen. They are not expected to gamble with the future of the concern. The question is not whether the value of the shares may not go up in future but whether the Directors were justified in not declaring dividends in view of the loss incurred. The Income-tax Officer overlooked the fact that Directors were naturally more interested in the stability of their concern rather than in increasing the tax payable to the Government. 12. Before the High Court, it appears to have been urged - Mr. Mitra rightly did not press that plea -that the loss incurred being a capital loss the same cannot be taken into consideration in the application of Section 23A (1).This very contention was examined and rejected by the Judicial Committee in Commr. of Income-tax v. Williamson. Diamonds Ltd. (1959) 35 ITR 290 (PC). In that case their Lordships were considering the scope of Section 21 (1) "(Consolidation) Ordinance, 1950 of Tanganyika." That provision corresponds very closely to Section 23A (1) of the Act. Dealing with the scope of that provision, their Lordships observed:"It does not follow from what has been said that capital losses should not be taken into account by the Commissioner. Two matters are mentioned specifically in the words which give him a direction, the first is losses (as interpreted above) and the second is "smallness of profit". The Commissioner is directed to come to a decision upon the question whether "the payment of a dividend or a larger dividend than that declared" is unreasonable." The form of the words used no doubt lends itself to the suggestion that regard should be paid only to the two matters mentioned, but it appears to their Lordships that it is impossible to arrive at a conclusion as to reasonableness by considering the two matters mentioned isolated from other relevant factors. Moreover, the Statute does not say having regard only to losses previously incurred by the company and to the smallness of the profits made. No answer which can be said to be in any measure adequate, can be given to the question "unreasonableness" by considering these two matters only. Their Lordships are of the opinion that the Statute by the words used while making sure that "losses and smallness of profit are never lost sight of requires all matters relevant to the question of unreasonableness to be considered. Capital loss, if established is one of them". We respectfully agree with these observations.
### Response:
0
### Explanation:
10. On the facts found by the Tribunal, there can be hardly any doubt that the assessee had suffered a capital loss of Rs. 12,00,000/-. In our opinion, in view of the said loss, any reasonable body of Directors of a company would have done just what the Directors of the assessee company did. We think, that the Income-tax Officer took an erroneous view of the scope of Section 23A (1)As the assessee was still in possession of those shares, there was still a possibility of avoiding the anticipated loss. Hence there was no occasion to take note of the depreciation in the value of the shares in the matter of declaration of dividends. This is an unacceptable contention. The Directors of a company will be justified in taking things as they stand and not befool themselves in the wild hope that the value of the shares may come up again. They are expected to act as hard headed businessmen. They are not expected to gamble with the future of the concern. The question is not whether the value of the shares may not go up in future but whether the Directors were justified in not declaring dividends in view of the loss incurred. The Income-tax Officer overlooked the fact that Directors were naturally more interested in the stability of their concern rather than in increasing the tax payable to the Government12. Before the High Court, it appears to have been urged - Mr. Mitra rightly did not press that plea -that the loss incurred being a capital loss the same cannot be taken into consideration in the application of Section 23A (1).This very contention was examined and rejected by the Judicial Committee in Commr. of Income-tax v. Williamson. Diamonds Ltd. (1959) 35 ITR 290 (PC). In that case their Lordships were considering the scope of Section 21 (1) "(Consolidation) Ordinance, 1950 of Tanganyika." That provision corresponds very closely to Section 23A (1) of the Act. Dealing with the scope of that provision, their Lordships observed:"It does not follow from what has been said that capital losses should not be taken into account by the Commissioner. Two matters are mentioned specifically in the words which give him a direction, the first is losses (as interpreted above) and the second is "smallness of profit". The Commissioner is directed to come to a decision upon the question whether "the payment of a dividend or a larger dividend than that declared" is unreasonable."The form of the words used no doubt lends itself to the suggestion that regard should be paid only to the two matters mentioned, but it appears to their Lordships that it is impossible to arrive at a conclusion as to reasonableness by considering the two matters mentioned isolated from other relevant factors. Moreover, the Statute does not say having regard only to losses previously incurred by the company and to the smallness of the profits made. No answer which can be said to be in any measure adequate, can be given to the question "unreasonableness" by considering these two matters only. Their Lordships are of the opinion that the Statute by the words used while making sure that "losses and smallness of profit are never lost sight of requires all matters relevant to the question of unreasonableness to be considered. Capital loss, if established is one of them". We respectfully agree with these observations.
|
Abhiraj Kuer Vs. Debendra Singh | by the accompaniment of condemnatory and penance clauses, (See Texts of Apastamba and Sumantu cited on p. 187) and in view also of the fact that such marriages may spring from natural inclination.The term wife is like the terms yupa (sacrificial post) ahavaniya (sacrificial fire), and denotes a female taken in marriage with occult ceremonies. Therefore, where a sapinda or a sagotra girl is taken in marriage, she does not become a wife."13. It is clear that none of the reasons which justify the view that a breach of the first two rules in Ashvalayanas text viz., the rules against marriage of a sapinda girl, or a sagotra girl, should have the consequence that the marriage should be invalid are present in the case of a breach of the third rule, which is against marrying a Viruddha Sambandha girl.14. It appears clear to us that Ashvalayana himself did not intend the rule against marrying a Viruddha Sambandha girl as a mandatory prohibition. This must have been even more clear to Nanda Pandit and so ,when extending Viruddha Sambandha to adoption on the very basis of Ashvalayanas rule against Viruddha Sambandha marriage, Nanda Pandit could not have but intended his rule against Viruddha Sambandha adoption as a mere recommendation and not a mandatory prohibition.15. Our attention was drawn to a decision of the Madras High Court in Minakshi v. Ramanada, ILR 11 Mad 49 (FB), where the learned judges observed :"In the case of marriage, there are three prohibitions, viz.,(1) The couple between whom marriage is proposed should not be sapindas;(2) They should not be sagotras; and(3) There should be no Viruddha Sambandha or contrary relationship as would render sexual connection between them incestuous."The real question which was before the full Bench was whether there can be valid adoption under the Hindu law if a legal marriage is not possible between the person for whom the adoption is made and the mother of the boy who is adopted, in her maiden state. In the case before the Full Bench, the adoptees mother was a sagotra of the adoptive father, and so, there could be no legal marriage between them. It was not necessary therefore for the learned judges in the Minakshis case ILR 11 Mad 49 (FB), to consider whether the Viruddha Sambandha rule against marriage was mandatory or not.16. We are not aware of any decision in any of the High Courts where Nanda Pandits rule against Viruddha Sambandha adoption has been considered to be a mandatory prohibition. For the reasons discussed above we are of opinion that this rule introduced by Nanda Pandit is only a recommendation and consequently it is of no avail to the appellant to show that the adoption of wifes sisters daughters son is invalid.17. Mr. Jha then tried to take advantage of the rule which has been accepted by almost all the High Courts except Bombay that there can be no valid legal adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is, adopted, in her maiden state, by urging that there can be no legal marriage between a person and his wifes sisters daughter. Assuming for the present that it is no longer open to challenge the correctness of this rule at least so far as the Banaras School is concerned, we are still of the opinion that this argument is of no avail, for the simple reason that we see no reason to think. that there can be no legally valid marriage between a person and his wifes sisters daughter. For the only argument in support of the contention, that there can be no such legal marriage between persons thus related, the learned counsel had to fall back upon Ashvalayanas Viruddha Sambandha rule.That however as we have already shown, is in our opinion only a recommendation and cannot support a proposition that a marriage in breach of the Viruddha Sambandha rule is invalid.18. As early as 1878 Dr. Gooroodas Banerjee (whose erudition equalled his orthodoxy) dealing with this question in his Tagore Law Lectures on the Hindu law of Marriage and Stridhan observed thus: (p. 64)."The prohibition by reason of affinity, which exists in other systems, has no place in Hindu Law. But the prohibition of marriage with sapindas to some extent supplies its place, and so did the prohibition of widow marriage. The Hindu Law, however, does not prohibit marriage with the wifes sister, or even with her niece or her aunt."Dr. Jogendra Nath Bhattacharya in his Commentaries on Hindu Law (Third Edition) Vol. 1, also stated after referring to what has been mentioned in Nirnaya Sindhu against marriage with the wifes sisters daughter (already quoted above) : "Instances of marriage with wifes sisters daughter, and wifes brothers daughter, are also not unknown in Bengal, though Hindu sentiment is strong against such marriages." The question was directly raised in Ragavendra Rau v. Jayaram Rau, ILR 20 Mad 283. Mr. Justice Subramania Ayyar and Mr. Justice Benson relying on Dr. Gooroodas Banerjees statement of the law and also on Syama Charan Sarkars Vyavastha-Darpan, Dr. Bhattacharyas commentaries on Hindu Law and certain other text books held that marriage between a man and his wifes sisters daughter is valid. The learned judges pointed out that in South India at least there was little to indicate that such marriages are disapproved of "by the members of any section of the community".19. In our opinion a marriage of a Hindu with his wifes sisters daughter is not invalid in law even though it may not be liked by certain people. Mr. Jhas second argument based on the rule which we have assumed to be not open to challenge for the purpose of this case that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state, must therefore fail. | 0[ds]There is no doubt that for many years now the Dattak Chandrika of Kuvera and Dattak Mimansa of Nanda Pandit have been recognised to be of great authority on all questions of adoption. It is true that Prof. Jolly in his Tagore Law Lectures had in no uncertain terms characterised the latter to be of little value; and eminent scholars like Dr. Mandlik and Golap Chandra Sarkar while writing in the latter part of the last century subjected many of Nanda Pandits views to unfavourable criticism.There can be no doubt that in laying down the rule that the adoption of the son of a woman who could not have been married by the adoptive father because of incongruous relationship (Viruddha Sambandha) Nanda Pandit was adding to the existing state of law. It is interesting to notice here that commenting on what Saunaka had said in describing the ritual of adoption that a son should be adopted the Dattaka Chandrika observed at p. 14 (Reflection of a son-the resemblance of a son, or in other words the capability to have been begotten, by the adopter, through appointment, and so forth). (Sutherlands translation). The Dattak Mimansa adopts this view, and introduces the further doctrine of (Viruddha Sambandha) relationship as a bar to adoption.5. It is unnecessary for us to examine what authority should be attached to this serious addition to the texts for determining who can be adopted, as for reasons to be presently mentioned we are of opinion that assuming that this rule should be accepted as of authority Nanda Pandit has stated this merely as a recommendation and not as a mandatorydo not think this language that adoption of a son of a Viruddha Sambandha girl should be avoided, can properly be taken as mandatory so that the rule must be obeyed on pain of the adoption being otherwise invalid inare not satisfied that this is the position in law. It is striking that though the numerous Dharma Sutras and Grihya Sutras, deal at great length with the question of the girl who can be taken in marriage not one of them with the solitary exception of Ashvalayana has anything to say about Viruddhacan find no justification either in the modern rules of interpretation or in the miles of interpretation of the old Hindu Shastras for such a view.Quite clearly the rule that a girl suffering from disease should not be married is not a mandatory rule even though it follows some positive rules about marriage. That this is the position has been pointed by Vigyaneshwar.It is clear that none of the reasons which justify the view that a breach of the first two rules in Ashvalayanas text viz., the rules against marriage of a sapinda girl, or a sagotra girl, should have the consequence that the marriage should be invalid are present in the case of a breach of the third rule, which is against marrying a Viruddha Sambandha girl.14. It appears clear to us that Ashvalayana himself did not intend the rule against marrying a Viruddha Sambandha girl as a mandatory prohibition. This must have been even more clear to Nanda Pandit and so ,when extending Viruddha Sambandha to adoption on the very basis of Ashvalayanas rule against Viruddha Sambandha marriage, Nanda Pandit could not have but intended his rule against Viruddha Sambandha adoption as a mere recommendation and not a mandatory prohibition.We are not aware of any decision in any of the High Courts where Nanda Pandits rule against Viruddha Sambandha adoption has been considered to be a mandatory prohibition. For the reasons discussed above we are of opinion that this rule introduced by Nanda Pandit is only a recommendation and consequently it is of no avail to the appellant to show that the adoption of wifes sisters daughters son isfor the present that it is no longer open to challenge the correctness of this rule at least so far as the Banaras School is concerned, we are still of the opinion that this argument is of no avail, for the simple reason that we see no reason to think. that there can be no legally valid marriage between a person and his wifes sisters daughter. For the only argument in support of the contention, that there can be no such legal marriage between persons thus related, the learned counsel had to fall back upon Ashvalayanas Viruddha Sambandha rule.That however as we have already shown, is in our opinion only a recommendation and cannot support a proposition that a marriage in breach of the Viruddha Sambandha rule is invalid.In our opinion a marriage of a Hindu with his wifes sisters daughter is not invalid in law even though it may not be liked by certain people. Mr. Jhas second argument based on the rule which we have assumed to be not open to challenge for the purpose of this case that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state, must therefore fail. | 0 | 3,887 | 899 | ### Instruction:
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### Input:
by the accompaniment of condemnatory and penance clauses, (See Texts of Apastamba and Sumantu cited on p. 187) and in view also of the fact that such marriages may spring from natural inclination.The term wife is like the terms yupa (sacrificial post) ahavaniya (sacrificial fire), and denotes a female taken in marriage with occult ceremonies. Therefore, where a sapinda or a sagotra girl is taken in marriage, she does not become a wife."13. It is clear that none of the reasons which justify the view that a breach of the first two rules in Ashvalayanas text viz., the rules against marriage of a sapinda girl, or a sagotra girl, should have the consequence that the marriage should be invalid are present in the case of a breach of the third rule, which is against marrying a Viruddha Sambandha girl.14. It appears clear to us that Ashvalayana himself did not intend the rule against marrying a Viruddha Sambandha girl as a mandatory prohibition. This must have been even more clear to Nanda Pandit and so ,when extending Viruddha Sambandha to adoption on the very basis of Ashvalayanas rule against Viruddha Sambandha marriage, Nanda Pandit could not have but intended his rule against Viruddha Sambandha adoption as a mere recommendation and not a mandatory prohibition.15. Our attention was drawn to a decision of the Madras High Court in Minakshi v. Ramanada, ILR 11 Mad 49 (FB), where the learned judges observed :"In the case of marriage, there are three prohibitions, viz.,(1) The couple between whom marriage is proposed should not be sapindas;(2) They should not be sagotras; and(3) There should be no Viruddha Sambandha or contrary relationship as would render sexual connection between them incestuous."The real question which was before the full Bench was whether there can be valid adoption under the Hindu law if a legal marriage is not possible between the person for whom the adoption is made and the mother of the boy who is adopted, in her maiden state. In the case before the Full Bench, the adoptees mother was a sagotra of the adoptive father, and so, there could be no legal marriage between them. It was not necessary therefore for the learned judges in the Minakshis case ILR 11 Mad 49 (FB), to consider whether the Viruddha Sambandha rule against marriage was mandatory or not.16. We are not aware of any decision in any of the High Courts where Nanda Pandits rule against Viruddha Sambandha adoption has been considered to be a mandatory prohibition. For the reasons discussed above we are of opinion that this rule introduced by Nanda Pandit is only a recommendation and consequently it is of no avail to the appellant to show that the adoption of wifes sisters daughters son is invalid.17. Mr. Jha then tried to take advantage of the rule which has been accepted by almost all the High Courts except Bombay that there can be no valid legal adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is, adopted, in her maiden state, by urging that there can be no legal marriage between a person and his wifes sisters daughter. Assuming for the present that it is no longer open to challenge the correctness of this rule at least so far as the Banaras School is concerned, we are still of the opinion that this argument is of no avail, for the simple reason that we see no reason to think. that there can be no legally valid marriage between a person and his wifes sisters daughter. For the only argument in support of the contention, that there can be no such legal marriage between persons thus related, the learned counsel had to fall back upon Ashvalayanas Viruddha Sambandha rule.That however as we have already shown, is in our opinion only a recommendation and cannot support a proposition that a marriage in breach of the Viruddha Sambandha rule is invalid.18. As early as 1878 Dr. Gooroodas Banerjee (whose erudition equalled his orthodoxy) dealing with this question in his Tagore Law Lectures on the Hindu law of Marriage and Stridhan observed thus: (p. 64)."The prohibition by reason of affinity, which exists in other systems, has no place in Hindu Law. But the prohibition of marriage with sapindas to some extent supplies its place, and so did the prohibition of widow marriage. The Hindu Law, however, does not prohibit marriage with the wifes sister, or even with her niece or her aunt."Dr. Jogendra Nath Bhattacharya in his Commentaries on Hindu Law (Third Edition) Vol. 1, also stated after referring to what has been mentioned in Nirnaya Sindhu against marriage with the wifes sisters daughter (already quoted above) : "Instances of marriage with wifes sisters daughter, and wifes brothers daughter, are also not unknown in Bengal, though Hindu sentiment is strong against such marriages." The question was directly raised in Ragavendra Rau v. Jayaram Rau, ILR 20 Mad 283. Mr. Justice Subramania Ayyar and Mr. Justice Benson relying on Dr. Gooroodas Banerjees statement of the law and also on Syama Charan Sarkars Vyavastha-Darpan, Dr. Bhattacharyas commentaries on Hindu Law and certain other text books held that marriage between a man and his wifes sisters daughter is valid. The learned judges pointed out that in South India at least there was little to indicate that such marriages are disapproved of "by the members of any section of the community".19. In our opinion a marriage of a Hindu with his wifes sisters daughter is not invalid in law even though it may not be liked by certain people. Mr. Jhas second argument based on the rule which we have assumed to be not open to challenge for the purpose of this case that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state, must therefore fail.
### Response:
0
### Explanation:
There is no doubt that for many years now the Dattak Chandrika of Kuvera and Dattak Mimansa of Nanda Pandit have been recognised to be of great authority on all questions of adoption. It is true that Prof. Jolly in his Tagore Law Lectures had in no uncertain terms characterised the latter to be of little value; and eminent scholars like Dr. Mandlik and Golap Chandra Sarkar while writing in the latter part of the last century subjected many of Nanda Pandits views to unfavourable criticism.There can be no doubt that in laying down the rule that the adoption of the son of a woman who could not have been married by the adoptive father because of incongruous relationship (Viruddha Sambandha) Nanda Pandit was adding to the existing state of law. It is interesting to notice here that commenting on what Saunaka had said in describing the ritual of adoption that a son should be adopted the Dattaka Chandrika observed at p. 14 (Reflection of a son-the resemblance of a son, or in other words the capability to have been begotten, by the adopter, through appointment, and so forth). (Sutherlands translation). The Dattak Mimansa adopts this view, and introduces the further doctrine of (Viruddha Sambandha) relationship as a bar to adoption.5. It is unnecessary for us to examine what authority should be attached to this serious addition to the texts for determining who can be adopted, as for reasons to be presently mentioned we are of opinion that assuming that this rule should be accepted as of authority Nanda Pandit has stated this merely as a recommendation and not as a mandatorydo not think this language that adoption of a son of a Viruddha Sambandha girl should be avoided, can properly be taken as mandatory so that the rule must be obeyed on pain of the adoption being otherwise invalid inare not satisfied that this is the position in law. It is striking that though the numerous Dharma Sutras and Grihya Sutras, deal at great length with the question of the girl who can be taken in marriage not one of them with the solitary exception of Ashvalayana has anything to say about Viruddhacan find no justification either in the modern rules of interpretation or in the miles of interpretation of the old Hindu Shastras for such a view.Quite clearly the rule that a girl suffering from disease should not be married is not a mandatory rule even though it follows some positive rules about marriage. That this is the position has been pointed by Vigyaneshwar.It is clear that none of the reasons which justify the view that a breach of the first two rules in Ashvalayanas text viz., the rules against marriage of a sapinda girl, or a sagotra girl, should have the consequence that the marriage should be invalid are present in the case of a breach of the third rule, which is against marrying a Viruddha Sambandha girl.14. It appears clear to us that Ashvalayana himself did not intend the rule against marrying a Viruddha Sambandha girl as a mandatory prohibition. This must have been even more clear to Nanda Pandit and so ,when extending Viruddha Sambandha to adoption on the very basis of Ashvalayanas rule against Viruddha Sambandha marriage, Nanda Pandit could not have but intended his rule against Viruddha Sambandha adoption as a mere recommendation and not a mandatory prohibition.We are not aware of any decision in any of the High Courts where Nanda Pandits rule against Viruddha Sambandha adoption has been considered to be a mandatory prohibition. For the reasons discussed above we are of opinion that this rule introduced by Nanda Pandit is only a recommendation and consequently it is of no avail to the appellant to show that the adoption of wifes sisters daughters son isfor the present that it is no longer open to challenge the correctness of this rule at least so far as the Banaras School is concerned, we are still of the opinion that this argument is of no avail, for the simple reason that we see no reason to think. that there can be no legally valid marriage between a person and his wifes sisters daughter. For the only argument in support of the contention, that there can be no such legal marriage between persons thus related, the learned counsel had to fall back upon Ashvalayanas Viruddha Sambandha rule.That however as we have already shown, is in our opinion only a recommendation and cannot support a proposition that a marriage in breach of the Viruddha Sambandha rule is invalid.In our opinion a marriage of a Hindu with his wifes sisters daughter is not invalid in law even though it may not be liked by certain people. Mr. Jhas second argument based on the rule which we have assumed to be not open to challenge for the purpose of this case that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state, must therefore fail.
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Tahir Hussain Vs. District Board Muzaffarnagar | Ghulam Hasan, J. 1. This petition under Article 32 of the Constitution raises the question of the constitutional validity of bye-law No. 2 made by the District Board, Muzaffarnagar, U. P., which is challenged as being ultra vires the powers of the Board under Section 174(2)(1)of the United Provinces District Board Act X of 1922 and as being an infringement of the fundamental right of the petitioner under Article 19(1) (g) of the Constitution. 2. The petitioner is a tenant of certain land in village Banat in the District of Muzaffarnagar. He owns a piece of land measuring 35 bighas near this village and holds a market (Painth) for sale of cattle on this land every Wednesday, and charges some commission on sales. The petitioner says that in consideration of this commission he looks after the comfort and convenience of the public visiting the market. The District Board of Muzaffarnagar owns no land in the village, nor holds any market therein. It is alleged that the petitioner and his partner were served with a notice by the District Board not to hold the market and to show cause why they should not be prosecuted. This notice was issued under bye-law No. 2 which is to the following effect: "No person shall establish or maintain or run any cattle market in the District within the jurisdiction of the Board". The question is whether the aforesaid bye-laws is ultra vires the powers of the District Board and whether it violates the fundamental right of the petitioner to carry on his business within the meaning of Article 19(1)(g) of the Constitution. Section 174 of the U. P. District Board Act, 1922 deals with the powers of Boards to make bye-laws. Section 174 (1) says that "A board by special resolution may, and where required by, the Provincial Government shall, make bye-laws applicable to the whole or any part of the rural area of the district, consistent with this Act, and with any rule, for the purpose of promoting or maintaining the health, safety, and convenience of the inhabitants of such area and for the furtherance of the administration of the district under this Act". Sub-section 2(1) says that the Board may in exercise of the said power make any bye-laws regulating poor houses, orphanages, libraries, asylums, veterinary hospitals, markets, staging-houses, inspection houses, public parks and gardens, encamping grounds, sarais and paraos, and other public institutions. These provisions show that the power of the Board to make bye-laws is to be exercised for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the area within its jurisdiction and that this power includes the power to regulate markets as mentioned in sub-section 2(1). The bye-law passed by the District Board is not one passed for regulating the market but for prohibiting the petitioner from holding it. Such a bye-law in face of the provisions of section 174 is obviously beyond jurisdiction. They bye-law as well as the order under it interferes with the fundamental right of the petitioner under Article 19(1)(g) and prevents him from carrying on the business of holding the market. 3. This court had to consider the validity of a more or less similar bye-law made by the Municipal Board, Kairana which provided that no person shall establish any new market or place for wholesale transactions of vegetables without obtaining the previous permission of the Board, and another bye-law which permitted the grant of a monopoly to a contractor to deal in whole-sale transactions at the place fixed as a market. The monopoly to do wholesale business in vegetables was auctioned by the Board to the highest bidder and a place was also fixed as the market where such business could be carried on. A person who had been carrying on wholesale business in vegetables before the bye-laws came into force applied for a license to carry on his business at his shop but his application was rejected and he was prosecuted for contravention of the bye-laws. This court upheld the fundamental right of the aggrieved person under Article 19(1)(g) and held that the prohibition imposed by the bye-law became absolute in the absence of pro-visions authorising the issue of a licence and as the Municipal Board had put it out of its power to grant a license by granting a monopoly, the restrictions imposed were not reasonable within the meaning of Article 19(1) (g) of the Constitution and the bye-laws were accordingly void. See - Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163 (A). | 1[ds]These provisions show that the power of the Board to make bye-laws is to be exercised for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the area within its jurisdiction and that this power includes the power to regulate markets as mentioned in sub-section 2(1). The bye-law passed by the District Board is not one passed for regulating the market but for prohibiting the petitioner from holding it. Such a bye-law in face of the provisions of section 174 is obviously beyond jurisdiction. They bye-law as well as the order under it interferes with the fundamental right of the petitioner under Article 19(1)(g) and prevents him from carrying on the business of holding the market3. This court had to consider the validity of a more or less similar bye-law made by the Municipal Board, Kairana which provided that no person shall establish any new market or place for wholesale transactions of vegetables without obtaining the previous permission of the Board, and another bye-law which permitted the grant of a monopoly to a contractor to deal in whole-sale transactions at the place fixed as a market. The monopoly to do wholesale business in vegetables was auctioned by the Board to the highest bidder and a place was also fixed as the market where such business could be carried on. A person who had been carrying on wholesale business in vegetables before the bye-laws came into force applied for a license to carry on his business at his shop but his application was rejected and he was prosecuted for contravention of the bye-laws. This court upheld the fundamental right of the aggrieved person under Article 19(1)(g) and held that the prohibition imposed by the bye-law became absolute in the absence of pro-visions authorising the issue of a licence and as the Municipal Board had put it out of its power to grant a license by granting a monopoly, the restrictions imposed were not reasonable within the meaning of Article 19(1) (g) of the Constitution and the bye-laws were accordingly void. See - Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163 (A). | 1 | 871 | 399 | ### Instruction:
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Ghulam Hasan, J. 1. This petition under Article 32 of the Constitution raises the question of the constitutional validity of bye-law No. 2 made by the District Board, Muzaffarnagar, U. P., which is challenged as being ultra vires the powers of the Board under Section 174(2)(1)of the United Provinces District Board Act X of 1922 and as being an infringement of the fundamental right of the petitioner under Article 19(1) (g) of the Constitution. 2. The petitioner is a tenant of certain land in village Banat in the District of Muzaffarnagar. He owns a piece of land measuring 35 bighas near this village and holds a market (Painth) for sale of cattle on this land every Wednesday, and charges some commission on sales. The petitioner says that in consideration of this commission he looks after the comfort and convenience of the public visiting the market. The District Board of Muzaffarnagar owns no land in the village, nor holds any market therein. It is alleged that the petitioner and his partner were served with a notice by the District Board not to hold the market and to show cause why they should not be prosecuted. This notice was issued under bye-law No. 2 which is to the following effect: "No person shall establish or maintain or run any cattle market in the District within the jurisdiction of the Board". The question is whether the aforesaid bye-laws is ultra vires the powers of the District Board and whether it violates the fundamental right of the petitioner to carry on his business within the meaning of Article 19(1)(g) of the Constitution. Section 174 of the U. P. District Board Act, 1922 deals with the powers of Boards to make bye-laws. Section 174 (1) says that "A board by special resolution may, and where required by, the Provincial Government shall, make bye-laws applicable to the whole or any part of the rural area of the district, consistent with this Act, and with any rule, for the purpose of promoting or maintaining the health, safety, and convenience of the inhabitants of such area and for the furtherance of the administration of the district under this Act". Sub-section 2(1) says that the Board may in exercise of the said power make any bye-laws regulating poor houses, orphanages, libraries, asylums, veterinary hospitals, markets, staging-houses, inspection houses, public parks and gardens, encamping grounds, sarais and paraos, and other public institutions. These provisions show that the power of the Board to make bye-laws is to be exercised for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the area within its jurisdiction and that this power includes the power to regulate markets as mentioned in sub-section 2(1). The bye-law passed by the District Board is not one passed for regulating the market but for prohibiting the petitioner from holding it. Such a bye-law in face of the provisions of section 174 is obviously beyond jurisdiction. They bye-law as well as the order under it interferes with the fundamental right of the petitioner under Article 19(1)(g) and prevents him from carrying on the business of holding the market. 3. This court had to consider the validity of a more or less similar bye-law made by the Municipal Board, Kairana which provided that no person shall establish any new market or place for wholesale transactions of vegetables without obtaining the previous permission of the Board, and another bye-law which permitted the grant of a monopoly to a contractor to deal in whole-sale transactions at the place fixed as a market. The monopoly to do wholesale business in vegetables was auctioned by the Board to the highest bidder and a place was also fixed as the market where such business could be carried on. A person who had been carrying on wholesale business in vegetables before the bye-laws came into force applied for a license to carry on his business at his shop but his application was rejected and he was prosecuted for contravention of the bye-laws. This court upheld the fundamental right of the aggrieved person under Article 19(1)(g) and held that the prohibition imposed by the bye-law became absolute in the absence of pro-visions authorising the issue of a licence and as the Municipal Board had put it out of its power to grant a license by granting a monopoly, the restrictions imposed were not reasonable within the meaning of Article 19(1) (g) of the Constitution and the bye-laws were accordingly void. See - Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163 (A).
### Response:
1
### Explanation:
These provisions show that the power of the Board to make bye-laws is to be exercised for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the area within its jurisdiction and that this power includes the power to regulate markets as mentioned in sub-section 2(1). The bye-law passed by the District Board is not one passed for regulating the market but for prohibiting the petitioner from holding it. Such a bye-law in face of the provisions of section 174 is obviously beyond jurisdiction. They bye-law as well as the order under it interferes with the fundamental right of the petitioner under Article 19(1)(g) and prevents him from carrying on the business of holding the market3. This court had to consider the validity of a more or less similar bye-law made by the Municipal Board, Kairana which provided that no person shall establish any new market or place for wholesale transactions of vegetables without obtaining the previous permission of the Board, and another bye-law which permitted the grant of a monopoly to a contractor to deal in whole-sale transactions at the place fixed as a market. The monopoly to do wholesale business in vegetables was auctioned by the Board to the highest bidder and a place was also fixed as the market where such business could be carried on. A person who had been carrying on wholesale business in vegetables before the bye-laws came into force applied for a license to carry on his business at his shop but his application was rejected and he was prosecuted for contravention of the bye-laws. This court upheld the fundamental right of the aggrieved person under Article 19(1)(g) and held that the prohibition imposed by the bye-law became absolute in the absence of pro-visions authorising the issue of a licence and as the Municipal Board had put it out of its power to grant a license by granting a monopoly, the restrictions imposed were not reasonable within the meaning of Article 19(1) (g) of the Constitution and the bye-laws were accordingly void. See - Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163 (A).
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Hari Shankar Vs. Rao Girdhari Lal Chowdhury | Ex. P-20, which contained a material admission by the tenant before the present dispute had begun. The learned single Judge was, therefore, in error in departing from a concurrent finding of fact on a wrong supposition.6. But the question that arises in this appeal is one deeper that a mere appraisal of the evidence. It is whether the High Court in the exercise of its revisional power is entitled to reassess the value of the evidence and to substitute its own conclusions of fact in place of those reached by the Court below. This question required an examination of the powers of revision conferred on the High Court by S. 35 of the Act. That section is one of common occurrence in acts dealing with some special kinds of rights and remedies to enforce them. Section 35 is undoubtedly worded in general terms, but it does not create a right to have the case reheard, as was supposed by the learned Judge. Section 35 follows S. 34, where a right of appeal is conferred; but the second sub-section of that section says that no second appeal shall lie.7. The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under S. 115 of the Code of Civil Procedure, the High Courts powers are limited to see whether in a case decided, there has been assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to Jurisdiction and jurisdiction alone. In other Acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit.8. The phrase "according to law" refers to the decision as a whole, and is not to be equated to error of law or of fact simpliciter. It refers to the overall decision, which must he according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which S. 115 is limited. But it must not be overlooked that the section-in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit,- is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law." It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal.9. The section we are dealing with, is almost the same as S. 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better, than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C. J. (as he then was) in Bell and Co. Ltd. v. Waman Hemraj, 40 Bom LR 125: (AIR 1938 Bom 223 ) where the learned Chief Justice, dealing with S. 25 of the Provincial Small Cause Courts Act, observed :"The object of S. 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does S. 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful part has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at."This observation has our full concurrence.10. What the learned Chief Justice has said applies to S. 35 of the Act, with which we are concerned. Judged from this point of view, the learned single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption. | 1[ds]That letter does not disclose all the terms of the tenancy, and it would appear, therefore, that the terms of the original tenancy have not been proved in this case and there is no material on which it can be said either way as to whether a right towas conferred upon the tenant. The defendant did not insist in the Court of first instance that there was yet another letter, and the argument to that effect in this Court cannot beclearly shows that the learned Additional District Judge was weighing Ex.as against Ex.and was acting on Ex.which contained a material admission by the tenant before the present dispute had begun. The learned single Judge was, therefore, in error in departing from a concurrent finding of fact on a wrongquestion required an examination of the powers of revision conferred on the High Court by S. 35 of the Act. That section is one of common occurrence in acts dealing with some special kinds of rights and remedies to enforce them. Section 35 is undoubtedly worded in general terms, but it does not create a right to have the case reheard, as was supposed by the learned Judge. Section 35 follows S. 34, where a right of appeal is conferred; but the secondof that section says that no second appeal shall lie.The section we are dealing with, is almost the same as S. 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better, than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C. J. (as he then was) in Bell and Co. Ltd. v. Waman Hemraj, 40 Bom LR 125: (AIR 1938 Bom 223 ) where the learned Chief Justice, dealing with S. 25 of the Provincial Small Cause Courts Act, observedobject of S. 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does S. 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful part has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrivedobservation has our full concurrence.10. What the learned Chief Justice has said applies to S. 35 of the Act, with which we are concerned. Judged from this point of view, the learned single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption. | 1 | 2,471 | 703 | ### 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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Ex. P-20, which contained a material admission by the tenant before the present dispute had begun. The learned single Judge was, therefore, in error in departing from a concurrent finding of fact on a wrong supposition.6. But the question that arises in this appeal is one deeper that a mere appraisal of the evidence. It is whether the High Court in the exercise of its revisional power is entitled to reassess the value of the evidence and to substitute its own conclusions of fact in place of those reached by the Court below. This question required an examination of the powers of revision conferred on the High Court by S. 35 of the Act. That section is one of common occurrence in acts dealing with some special kinds of rights and remedies to enforce them. Section 35 is undoubtedly worded in general terms, but it does not create a right to have the case reheard, as was supposed by the learned Judge. Section 35 follows S. 34, where a right of appeal is conferred; but the second sub-section of that section says that no second appeal shall lie.7. The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under S. 115 of the Code of Civil Procedure, the High Courts powers are limited to see whether in a case decided, there has been assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to Jurisdiction and jurisdiction alone. In other Acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit.8. The phrase "according to law" refers to the decision as a whole, and is not to be equated to error of law or of fact simpliciter. It refers to the overall decision, which must he according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which S. 115 is limited. But it must not be overlooked that the section-in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit,- is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law." It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal.9. The section we are dealing with, is almost the same as S. 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better, than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C. J. (as he then was) in Bell and Co. Ltd. v. Waman Hemraj, 40 Bom LR 125: (AIR 1938 Bom 223 ) where the learned Chief Justice, dealing with S. 25 of the Provincial Small Cause Courts Act, observed :"The object of S. 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does S. 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful part has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at."This observation has our full concurrence.10. What the learned Chief Justice has said applies to S. 35 of the Act, with which we are concerned. Judged from this point of view, the learned single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption.
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1
### Explanation:
That letter does not disclose all the terms of the tenancy, and it would appear, therefore, that the terms of the original tenancy have not been proved in this case and there is no material on which it can be said either way as to whether a right towas conferred upon the tenant. The defendant did not insist in the Court of first instance that there was yet another letter, and the argument to that effect in this Court cannot beclearly shows that the learned Additional District Judge was weighing Ex.as against Ex.and was acting on Ex.which contained a material admission by the tenant before the present dispute had begun. The learned single Judge was, therefore, in error in departing from a concurrent finding of fact on a wrongquestion required an examination of the powers of revision conferred on the High Court by S. 35 of the Act. That section is one of common occurrence in acts dealing with some special kinds of rights and remedies to enforce them. Section 35 is undoubtedly worded in general terms, but it does not create a right to have the case reheard, as was supposed by the learned Judge. Section 35 follows S. 34, where a right of appeal is conferred; but the secondof that section says that no second appeal shall lie.The section we are dealing with, is almost the same as S. 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better, than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C. J. (as he then was) in Bell and Co. Ltd. v. Waman Hemraj, 40 Bom LR 125: (AIR 1938 Bom 223 ) where the learned Chief Justice, dealing with S. 25 of the Provincial Small Cause Courts Act, observedobject of S. 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does S. 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful part has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrivedobservation has our full concurrence.10. What the learned Chief Justice has said applies to S. 35 of the Act, with which we are concerned. Judged from this point of view, the learned single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption.
|
Nirod Baran Banerjee Vs. Dy. Commissioner Of Hazari Bagh | as follows:-"It was held by this Court t hat the provisions of s. 175(3) were mandatory and the contracts were therefore void and not binding on the Union of India which were not liable for damages for breach of the contracts. The same principle was reiterated by this Court in a later case-State of West Bengal v. M/s. B. K. Mondal and Sons[1962] 1 Supp. SCR 876. The principle is that the provision of s. 175 (3) of the Government of India Act, 1935 or the corresponding provisions of Art. 299(1) of the Constitution of India are mandatory in character and the contravention of these provisions nullifies the contracts and makes them void. There is no question of estoppel or ratification of such a case."3. It was argued by D r. Chitale that in view of the constitutional provisions of Art. 299, this Court held that the agreement was void, and that there could be no estoppel against a statute or constitutional provisions. To the same effect are the decisions in Laliteshwari Prasad Sahi v. Baseshwar Prasad &Ors.(1) and Bihar Eastern Gangetic Fisherman Co-operative Society Ltd. v. Sipahi Singh and Ors.(2). Great reliance was placed by the learned counsel for the appellant on the decision of this Court in The Marine Cooled (Bengal) P. Ltd. v. Union of India(3) which was also a case of an arbitration agreement.The Attorney General while repelling the arguments of the appellant submitted that there can be no dispute with the propositions laid down by this Court regarding the interpretation of Art. 299 of the Constitution of India but that the question whether or not there was an agreement which fulfilled the requirements of Art. 299 is not a pure question of law but is a quest ion which depends on investigation of facts. He added that as the appellant did not plead this point either before the Trial Court or before the High Court when the appeal was heard on merits the appellant cannot be allowed to raise it for the first time either in this Court or in his application given before the High Court for granting a certificate of fitness. It was argued by the Attorney General that if the point had been pleaded at the initial stage, the respondent might have been in a position to show that an agreement conforming to the provisions of Art. 299 of the Constitution of India existed. We are of the opinion that the contention raised by the Attorney General is sound and must prevail. In the case of Kalyanpur Lime works Ltd. v. State of Bihar and Another(4) a similar situation arose and this Court refused to entertain the point relating to the applicability of s. 30 of the Government of India Act 1915 which corresponds to Art. 299 of the Constitution or s. 175(3) of the Government of India Act, on the ground that the party concerned did not raise the same in their pleadings. In this connection this Court observed as follows:-"The first question which arises in this connection is whether t he contract was to be executed by a formal document or whether it could be spelt out from the correspondence in which the negotiations were carried on by the parties. We do not think it necessary to go into this question, for assuming that a formal document was necessary, the plea of section 30, it is to be noted, was not raised in the pleadings. Objection is taken on behalf of the appellant that the point not having been raised in the written statement it was not incumbent upon the plaintiff to show that the contract was executed according to the provisions of section 30, before it could be specifically enforced and reliance was placed upon the provisions of order VI, rule 8, and Order VIII, rule 2 of the Civil Procedure Code."4. This Court pointed out that in view of the provisions of order VI Rule 8 and Order VIII Rule 2 of the Code of Civil Procedure, the appellant would be debarred from raising the point for the first time before this Court or even before the High Court. The facts of the present case appear to be on all fours with facts of the case in the decision cited above. In the instant case al so, the appellant contented himself by relying on the resolution by the Government, treated it as a valid arbitration agreement and never raised the question that the said resolution was hit by Art. 299 of the Constitution of India. On the other hand, the appellant fully participated in the arbitration proceedings and having taken the benefit of a decision by the Board in his favour made a complete somarsault only when the decision went against him, by taking the plea now under examination, which doubtless required investigation of facts. Even that plea too he took neither before the Additional Sub-Judge nor in the High Court when the appeal was heard on merits but only for the first time in the application which he gave for granting leave to appeal to this Court. In these circumstances it is manifest that if the appellant had raised the plea before the Trial Court that the arbitration agreement was not in consonance with Art. 299 of the Constitution of India, the respondent may have been in a position to rebut the plea by producing evidence and circumstances to show that an agreement for arbitration was authenticated in the form required by Art. 299 of the Constitution. It is well settled that no evidence can be looked into by the Court for which there is no foundation in the pleadings. We cannot therefore allow the appellant to raise the plea for the first time in this Court and the High Court also ought not to have entertained it at th e stage of the application for a certificate of fitness to be granted for leave to appeal to this Court. No other point was pleaded before us. | 0[ds]We are of the opinion that the contention raised by the Attorney General is sound and must prevail. In the case of Kalyanpur Lime works Ltd. v. State of Bihar and Another(4) a similar situation arose and this Court refused to entertain the point relating to the applicability of s. 30 of the Government of India Act 1915 which corresponds to Art. 299 of the Constitution or s. 175(3) of the Government of India Act, on the ground that the party concerned did not raise the same in theirCourt pointed out that in view of the provisions of order VI Rule 8 and Order VIII Rule 2 of theCode of Civil Procedure, the appellant would be debarred from raising the point for the first time before this Court or even before the High Court. The facts of the present case appear to be on all fours with facts of the case in the decision cited above. In the instant case al so, the appellant contented himself by relying on the resolution by the Government, treated it as a valid arbitration agreement and never raised the question that the said resolution was hit by Art. 299 of the Constitution of India. On the other hand, the appellant fully participated in the arbitration proceedings and having taken the benefit of a decision by the Board in his favour made a complete somarsault only when the decision went against him, by taking the plea now under examination, which doubtless required investigation of facts. Even that plea too he took neither before the Additional Sub-Judge nor in the High Court when the appeal was heard on merits but only for the first time in the application which he gave for granting leave to appeal to this Court. In these circumstances it is manifest that if the appellant had raised the plea before the Trial Court that the arbitration agreement was not in consonance with Art. 299 of the Constitution of India, the respondent may have been in a position to rebut the plea by producing evidence and circumstances to show that an agreement for arbitration was authenticated in the form required by Art. 299 of the Constitution. It is well settled that no evidence can be looked into by the Court for which there is no foundation in the pleadings. We cannot therefore allow the appellant to raise the plea for the first time in this Court and the High Court also ought not to have entertained it at th e stage of the application for a certificate of fitness to be granted for leave to appeal to this Court. No other point was pleaded before us. | 0 | 1,607 | 476 | ### 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:
as follows:-"It was held by this Court t hat the provisions of s. 175(3) were mandatory and the contracts were therefore void and not binding on the Union of India which were not liable for damages for breach of the contracts. The same principle was reiterated by this Court in a later case-State of West Bengal v. M/s. B. K. Mondal and Sons[1962] 1 Supp. SCR 876. The principle is that the provision of s. 175 (3) of the Government of India Act, 1935 or the corresponding provisions of Art. 299(1) of the Constitution of India are mandatory in character and the contravention of these provisions nullifies the contracts and makes them void. There is no question of estoppel or ratification of such a case."3. It was argued by D r. Chitale that in view of the constitutional provisions of Art. 299, this Court held that the agreement was void, and that there could be no estoppel against a statute or constitutional provisions. To the same effect are the decisions in Laliteshwari Prasad Sahi v. Baseshwar Prasad &Ors.(1) and Bihar Eastern Gangetic Fisherman Co-operative Society Ltd. v. Sipahi Singh and Ors.(2). Great reliance was placed by the learned counsel for the appellant on the decision of this Court in The Marine Cooled (Bengal) P. Ltd. v. Union of India(3) which was also a case of an arbitration agreement.The Attorney General while repelling the arguments of the appellant submitted that there can be no dispute with the propositions laid down by this Court regarding the interpretation of Art. 299 of the Constitution of India but that the question whether or not there was an agreement which fulfilled the requirements of Art. 299 is not a pure question of law but is a quest ion which depends on investigation of facts. He added that as the appellant did not plead this point either before the Trial Court or before the High Court when the appeal was heard on merits the appellant cannot be allowed to raise it for the first time either in this Court or in his application given before the High Court for granting a certificate of fitness. It was argued by the Attorney General that if the point had been pleaded at the initial stage, the respondent might have been in a position to show that an agreement conforming to the provisions of Art. 299 of the Constitution of India existed. We are of the opinion that the contention raised by the Attorney General is sound and must prevail. In the case of Kalyanpur Lime works Ltd. v. State of Bihar and Another(4) a similar situation arose and this Court refused to entertain the point relating to the applicability of s. 30 of the Government of India Act 1915 which corresponds to Art. 299 of the Constitution or s. 175(3) of the Government of India Act, on the ground that the party concerned did not raise the same in their pleadings. In this connection this Court observed as follows:-"The first question which arises in this connection is whether t he contract was to be executed by a formal document or whether it could be spelt out from the correspondence in which the negotiations were carried on by the parties. We do not think it necessary to go into this question, for assuming that a formal document was necessary, the plea of section 30, it is to be noted, was not raised in the pleadings. Objection is taken on behalf of the appellant that the point not having been raised in the written statement it was not incumbent upon the plaintiff to show that the contract was executed according to the provisions of section 30, before it could be specifically enforced and reliance was placed upon the provisions of order VI, rule 8, and Order VIII, rule 2 of the Civil Procedure Code."4. This Court pointed out that in view of the provisions of order VI Rule 8 and Order VIII Rule 2 of the Code of Civil Procedure, the appellant would be debarred from raising the point for the first time before this Court or even before the High Court. The facts of the present case appear to be on all fours with facts of the case in the decision cited above. In the instant case al so, the appellant contented himself by relying on the resolution by the Government, treated it as a valid arbitration agreement and never raised the question that the said resolution was hit by Art. 299 of the Constitution of India. On the other hand, the appellant fully participated in the arbitration proceedings and having taken the benefit of a decision by the Board in his favour made a complete somarsault only when the decision went against him, by taking the plea now under examination, which doubtless required investigation of facts. Even that plea too he took neither before the Additional Sub-Judge nor in the High Court when the appeal was heard on merits but only for the first time in the application which he gave for granting leave to appeal to this Court. In these circumstances it is manifest that if the appellant had raised the plea before the Trial Court that the arbitration agreement was not in consonance with Art. 299 of the Constitution of India, the respondent may have been in a position to rebut the plea by producing evidence and circumstances to show that an agreement for arbitration was authenticated in the form required by Art. 299 of the Constitution. It is well settled that no evidence can be looked into by the Court for which there is no foundation in the pleadings. We cannot therefore allow the appellant to raise the plea for the first time in this Court and the High Court also ought not to have entertained it at th e stage of the application for a certificate of fitness to be granted for leave to appeal to this Court. No other point was pleaded before us.
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0
### Explanation:
We are of the opinion that the contention raised by the Attorney General is sound and must prevail. In the case of Kalyanpur Lime works Ltd. v. State of Bihar and Another(4) a similar situation arose and this Court refused to entertain the point relating to the applicability of s. 30 of the Government of India Act 1915 which corresponds to Art. 299 of the Constitution or s. 175(3) of the Government of India Act, on the ground that the party concerned did not raise the same in theirCourt pointed out that in view of the provisions of order VI Rule 8 and Order VIII Rule 2 of theCode of Civil Procedure, the appellant would be debarred from raising the point for the first time before this Court or even before the High Court. The facts of the present case appear to be on all fours with facts of the case in the decision cited above. In the instant case al so, the appellant contented himself by relying on the resolution by the Government, treated it as a valid arbitration agreement and never raised the question that the said resolution was hit by Art. 299 of the Constitution of India. On the other hand, the appellant fully participated in the arbitration proceedings and having taken the benefit of a decision by the Board in his favour made a complete somarsault only when the decision went against him, by taking the plea now under examination, which doubtless required investigation of facts. Even that plea too he took neither before the Additional Sub-Judge nor in the High Court when the appeal was heard on merits but only for the first time in the application which he gave for granting leave to appeal to this Court. In these circumstances it is manifest that if the appellant had raised the plea before the Trial Court that the arbitration agreement was not in consonance with Art. 299 of the Constitution of India, the respondent may have been in a position to rebut the plea by producing evidence and circumstances to show that an agreement for arbitration was authenticated in the form required by Art. 299 of the Constitution. It is well settled that no evidence can be looked into by the Court for which there is no foundation in the pleadings. We cannot therefore allow the appellant to raise the plea for the first time in this Court and the High Court also ought not to have entertained it at th e stage of the application for a certificate of fitness to be granted for leave to appeal to this Court. No other point was pleaded before us.
|
Mohan Singh Vs. Kashi Bai | while awarding compensation, the provisions contained in the Second Schedule may be taken as a guide including the multiplier, but there may arise some cases, as the one in hand, which may fall in the category having special features or facts calling for deviation from the multiplier usually applicable." 20. It is evident from the above that this Court in the said decisions had taken a departure from the Second Schedule. 21. In Jyoti Kaul v. State of M.P., [ (2002) 6 SCC 306 ] multiplier of 15 was adopted, stating :- "The aforesaid decision makes it clear that the principle of multiplier would depend on the facts and circumstances of each case. Looking to the facts of this case we find that the Tribunal has given good reasons for applying the multiplier of 15. This was in addition of taking into consideration that the predecessors of the deceased all lived for more than 80 years. The High Court reduced the multiplier from 15 to 10 without taking into consideration circumstances considered by the Tribunal and thus committed the error. We, accordingly, set aside the findings of the High Court only to the extent of the application of multiplier and uphold other findings including reduction of interest. The present appeal, accordingly, succeeds in part. The computation of compensation now shall be made on the basis of multiplier of 15. The difference of enhanced amount which has yet not been paid by the respondent State shall be paid to the claimants within a period of three months from today." 22. In Smt. Supe Dei & Ors. v. M/s. National Insurance Co. Ltd. & Anr. [JT 2002 (Suppl.1 ) SC 451], this Court held: "...While considering the question of just compensation payable in a case all relevant factors including the appropriate multiplier are to be kept in mind. The position is well settled that the second schedule under Section 163A to the Act which gives the amount of compensation to be determined for the purpose of claim under the section can be taken as a guideline while determining the compensation under Section 166 of the Act. In that view of the matter, there is no reason why multiplier of 17 should not be taken as the appropriate multiplier in the case." 23. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India and Another [(2003) 3 SCC 148] , this Court held: "11. It is now a well-settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation from the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case.12. The victim at the relevant time was 40 years of age. The Tribunal and the High Court, therefore, cannot be said to have committed an error in applying the multiplier of 15. The only question which is required to be considered now is as to how the multiplicand should be arrived at.13. The deceased at the time of accident was a young man. He had a stable job. A reasonably liberal view of his future prospects should have, therefore, been taken into consideration by the High Court as well as by the Tribunal.14. Having regard to the prospects and advancement of the future career, a higher estimate of the yearly income at Rs.45,000 would not be out of place. From the said amount, one- third of the gross income towards personal living expenses should be deducted. The amount of Rs 30,000 should thus be determined as the loss of dependency. The said sum should be capitalized by applying the multiplier of 15, which comes to Rs 4,50,000." 24. In Kanhaiyalal Kataria and Others v. Mukul Chaturvedi and Others [(2005) 12 SCC 190], this Court held: "3. Learned counsel for the claimants made submissions seeking enhancement of compensation on the ground that the income of the deceased has not been properly estimated. We are not going into any other aspect except the question of proper multiplier for computation of compensation. In our opinion, by taking the multiplier of 17, the amount of compensation deserves to be increased. The compensation amount may be suitably recomputed by the Tribunal by applying the multiplier of 17 and interest at the rate of 12 per cent per annum on the increased amount be also granted." 25. In Bilkish v. United India Insurance Company Limited and Another [(2008) 4 SCC 259] , this Court held: "4. After hearing learned counsel for the parties, we are of the opinion that the view taken by the High Court and the Tribunal is not correct. The incumbent was a bachelor and he could not have spent more than 1/3rd of his total income for personal use and rest of the amount earned by him would certainly go to the family kitty. Therefore, determining the loss of dependency by 50% was not correct. Therefore, we assess that he must be spending 1/3rd towards personal use and contributing 2/3rd of his income to his family. Therefore, we work out that Rs 30,000 was earned by him per annum. The loss of dependency was 2/3rd i.e. Rs 20,000. The multiplier of `11 applied for loss of dependency was also not correct and as per Schedule appended to the Motor Vehicles Act, 1988 it should be `12. Applying the multiplier of 12 the total loss of dependency will be Rs 20,000 x 12 = Rs 2,40,000 and Rs 10,000 towards loss of estate and funeral expenses, the total compensation comes to Rs 2,50,000 and incumbent is entitled for interest @ 9% p.a. from the date of the petition. The appeal is allowed with the aforesaid modification." 26. | 0[ds]view taken by the High Court and the Tribunal is not correct. The incumbent was a bachelor and he could not have spent more than 1/3rd of his total income for personal use and rest of the amount earned by him would certainly go to the family kitty. Therefore, determining the loss of dependency by 50% was not correct. Therefore, we assess that he must be spending 1/3rd towards personal use and contributing 2/3rd of his income to his family. Therefore, we work out that Rs 30,000 was earned by him per annum. The loss of dependency was 2/3rd i.e. Rs 20,000. The multiplier of `11 applied for loss of dependency was also not correct and as per Schedule appended to the Motor Vehicles Act, 1988 it should be `12. Applying the multiplier of 12 the total loss of dependency will be Rs 20,000 x 12 = Rs 2,40,000 and Rs 10,000 towards loss of estate and funeral expenses, the total compensation comes to Rs 2,50,000 and incumbent is entitled for interest @ 9% p.a. from the date of the petition. The appeal is allowed with the aforesaid | 0 | 3,043 | 211 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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while awarding compensation, the provisions contained in the Second Schedule may be taken as a guide including the multiplier, but there may arise some cases, as the one in hand, which may fall in the category having special features or facts calling for deviation from the multiplier usually applicable." 20. It is evident from the above that this Court in the said decisions had taken a departure from the Second Schedule. 21. In Jyoti Kaul v. State of M.P., [ (2002) 6 SCC 306 ] multiplier of 15 was adopted, stating :- "The aforesaid decision makes it clear that the principle of multiplier would depend on the facts and circumstances of each case. Looking to the facts of this case we find that the Tribunal has given good reasons for applying the multiplier of 15. This was in addition of taking into consideration that the predecessors of the deceased all lived for more than 80 years. The High Court reduced the multiplier from 15 to 10 without taking into consideration circumstances considered by the Tribunal and thus committed the error. We, accordingly, set aside the findings of the High Court only to the extent of the application of multiplier and uphold other findings including reduction of interest. The present appeal, accordingly, succeeds in part. The computation of compensation now shall be made on the basis of multiplier of 15. The difference of enhanced amount which has yet not been paid by the respondent State shall be paid to the claimants within a period of three months from today." 22. In Smt. Supe Dei & Ors. v. M/s. National Insurance Co. Ltd. & Anr. [JT 2002 (Suppl.1 ) SC 451], this Court held: "...While considering the question of just compensation payable in a case all relevant factors including the appropriate multiplier are to be kept in mind. The position is well settled that the second schedule under Section 163A to the Act which gives the amount of compensation to be determined for the purpose of claim under the section can be taken as a guideline while determining the compensation under Section 166 of the Act. In that view of the matter, there is no reason why multiplier of 17 should not be taken as the appropriate multiplier in the case." 23. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India and Another [(2003) 3 SCC 148] , this Court held: "11. It is now a well-settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation from the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case.12. The victim at the relevant time was 40 years of age. The Tribunal and the High Court, therefore, cannot be said to have committed an error in applying the multiplier of 15. The only question which is required to be considered now is as to how the multiplicand should be arrived at.13. The deceased at the time of accident was a young man. He had a stable job. A reasonably liberal view of his future prospects should have, therefore, been taken into consideration by the High Court as well as by the Tribunal.14. Having regard to the prospects and advancement of the future career, a higher estimate of the yearly income at Rs.45,000 would not be out of place. From the said amount, one- third of the gross income towards personal living expenses should be deducted. The amount of Rs 30,000 should thus be determined as the loss of dependency. The said sum should be capitalized by applying the multiplier of 15, which comes to Rs 4,50,000." 24. In Kanhaiyalal Kataria and Others v. Mukul Chaturvedi and Others [(2005) 12 SCC 190], this Court held: "3. Learned counsel for the claimants made submissions seeking enhancement of compensation on the ground that the income of the deceased has not been properly estimated. We are not going into any other aspect except the question of proper multiplier for computation of compensation. In our opinion, by taking the multiplier of 17, the amount of compensation deserves to be increased. The compensation amount may be suitably recomputed by the Tribunal by applying the multiplier of 17 and interest at the rate of 12 per cent per annum on the increased amount be also granted." 25. In Bilkish v. United India Insurance Company Limited and Another [(2008) 4 SCC 259] , this Court held: "4. After hearing learned counsel for the parties, we are of the opinion that the view taken by the High Court and the Tribunal is not correct. The incumbent was a bachelor and he could not have spent more than 1/3rd of his total income for personal use and rest of the amount earned by him would certainly go to the family kitty. Therefore, determining the loss of dependency by 50% was not correct. Therefore, we assess that he must be spending 1/3rd towards personal use and contributing 2/3rd of his income to his family. Therefore, we work out that Rs 30,000 was earned by him per annum. The loss of dependency was 2/3rd i.e. Rs 20,000. The multiplier of `11 applied for loss of dependency was also not correct and as per Schedule appended to the Motor Vehicles Act, 1988 it should be `12. Applying the multiplier of 12 the total loss of dependency will be Rs 20,000 x 12 = Rs 2,40,000 and Rs 10,000 towards loss of estate and funeral expenses, the total compensation comes to Rs 2,50,000 and incumbent is entitled for interest @ 9% p.a. from the date of the petition. The appeal is allowed with the aforesaid modification." 26.
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view taken by the High Court and the Tribunal is not correct. The incumbent was a bachelor and he could not have spent more than 1/3rd of his total income for personal use and rest of the amount earned by him would certainly go to the family kitty. Therefore, determining the loss of dependency by 50% was not correct. Therefore, we assess that he must be spending 1/3rd towards personal use and contributing 2/3rd of his income to his family. Therefore, we work out that Rs 30,000 was earned by him per annum. The loss of dependency was 2/3rd i.e. Rs 20,000. The multiplier of `11 applied for loss of dependency was also not correct and as per Schedule appended to the Motor Vehicles Act, 1988 it should be `12. Applying the multiplier of 12 the total loss of dependency will be Rs 20,000 x 12 = Rs 2,40,000 and Rs 10,000 towards loss of estate and funeral expenses, the total compensation comes to Rs 2,50,000 and incumbent is entitled for interest @ 9% p.a. from the date of the petition. The appeal is allowed with the aforesaid
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Maharashtra State Electricity Board Vs. Sterilite Industries (India) | overruled the objections holding that the award is unassailable in proceedings under Section 30 of the Arbitration Act. 7. Appeals were filed against this order of the learned Single Judge on the Letters Patent side and a Division Bench of the High Court reiterated the view taken by the learned Single Judge after reappraisal of the facts, the award made by the arbitrators and the contentions raised in the appeals. It is against this order of the Division Bench, these special leave petitions are filed. 8. Shri T.R. Andhyarujina, learned senior Advocate appearing for the petitioners, contended that the view taken by the arbitrators and the High Court on the construction of clause 14(ii) is plainly wrong; that under clause 14(ii) of the contract a right was reserved in favour of the petitioners to purchase upon such terms and in such manner as the petitioners deemed appropriate, equipments similar to that contracted and the respondents are liable to the petitioners for any additional costs for such similar equipments and/or for liquidated damages for delay as defined in Article 22 of the General Conditions until such reasonable time as may be required for final supply of the equipments; that this reservation in favour of the petitioners is an additional right to claim damages for the respondents for an additional costs that might be incurred for such purchases and has not been taken away from the petitioners their general right to claim damages under Section 73 of the Indian Contract Act; that for invoking the provisions of Section 73 of the Indian Contract Act it was not necessary for the petitioners to have purchased the equipments and materials not supplied by the respondents from the open market; that even in such an event, the petitioners are entitled to claim damages from the respondents on the basis of the difference between the contract price and the market price of the materials on the date of the breach of the agreement by the respondents. 9. The position in law has been noticed by this Court in Union of India v. A.L. Rallia Ram, AIR 1963 SC 1685 , and Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore, 1967(1) SCR 105, to the effect that the arbitrators award both on facts and law is final; that there is no appeal from his verdict; that the Court cannot review his award and correct any mistake in his adjudication, unless the objection to the legality of the award is apparent on the face of it. In understanding what would be an error of law on the face of the award, the following observations in Champsey Bhara & Company v. Jivraj Balloo Spinning and Weaving Company Ltd., L.R. 50 I.A. 324, a decision of the Privy Council, are relevant : "An error in law on the face of the award means, in their Lordships view, that you can find in the award or a document actually incorporated thereto, as for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous." 10. In Arosan Enterprises Ltd. v. Union of India & Anr., 1999(9) SCC 449, this Court again examined this matter and stated that where the error of finding of fact having a bearing on the award is patent and is easily demonstrable without the necessity of carefully weighing the various possible viewpoints, the interference in the award based on erroneous finding of fact is permissible and similarly, if an award is based by applying a principle of law which is patently erroneous, and but for such erroneous application of legal principle, the award could not have been made, such award is liable to be set aside by holding that there has been a legal misconduct on the part of the arbitrator. 11. In the Russell on Arbitration (17th Edition), the position in law is thus stated : "Where an arbitrator makes a mistake either in law or in fact in determining the matters referred, but such mistake does not appear on the face of the award, the award is good notwithstanding the mistake, and will not be remitted or set aside. The general rule is that, as the parties choose their own arbitrator to be the Judge in the disputes between them, they cannot, when the award is good on its face, object to his decision, either upon the law or the facts." 12. In the light of this enunciation of law, we are of the view that unless the error of law sought to be pointed out by the learned counsel for the petitioners in the instant case is patent on the face of the award neither the High Court nor this Court can interfere with the award. The exercise to be done by examining clause 14(ii) of the contract entered into between the parties, construing the same properly and thereafter applying the law to it to come to a conclusion one way or the other, is too involved a process and it cannot be stated that such an error is apparent or patent on the face of the award. Whether under the context of the terms and conditions of a contract, a stipulation in the form and nature of clause 14(ii) operates as a special provision to the exclusion of Section 73 of the Indian Contract Act is a matter of appreciation of facts in a case, and when the decision thereon is not patently absurd or wholly unreasonable, there is no scope for interference by courts dealing with a challenge to the award. Therefore, we think, the view taken by the High Court in this matter is correct and calls for no interference. 13. If as construed by the arbitrators that clause 14(ii) excludes applicability of Section 73 of the Indian Contract Act and the proposition of law stated by the arbitrators is correct, then Section 73 is not attracted to the case. | 0[ds]12. In the light of this enunciation of law, we are of the view that unless the error of law sought to be pointed out by the learned counsel for the petitioners in the instant case is patent on the face of the award neither the High Court nor this Court can interfere with the award. The exercise to be done by examining clause 14(ii) of the contract entered into between the parties, construing the same properly and thereafter applying the law to it to come to a conclusion one way or the other, is too involved a process and it cannot be stated that such an error is apparent or patent on the face of the award. Whether under the context of the terms and conditions of a contract, a stipulation in the form and nature of clause 14(ii) operates as a special provision to the exclusion of Section 73 of the Indian Contract Act is a matter of appreciation of facts in a case, and when the decision thereon is not patently absurd or wholly unreasonable, there is no scope for interference by courts dealing with a challenge to the award. Therefore, we think, the view taken by the High Court in this matter is correct and calls for no interference. 13. If as construed by the arbitrators that clause 14(ii) excludes applicability of Section 73 of the Indian Contract Act and the proposition of law stated by the arbitrators is correct, then Section 73 is not attracted to the case. | 0 | 2,489 | 283 | ### Instruction:
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overruled the objections holding that the award is unassailable in proceedings under Section 30 of the Arbitration Act. 7. Appeals were filed against this order of the learned Single Judge on the Letters Patent side and a Division Bench of the High Court reiterated the view taken by the learned Single Judge after reappraisal of the facts, the award made by the arbitrators and the contentions raised in the appeals. It is against this order of the Division Bench, these special leave petitions are filed. 8. Shri T.R. Andhyarujina, learned senior Advocate appearing for the petitioners, contended that the view taken by the arbitrators and the High Court on the construction of clause 14(ii) is plainly wrong; that under clause 14(ii) of the contract a right was reserved in favour of the petitioners to purchase upon such terms and in such manner as the petitioners deemed appropriate, equipments similar to that contracted and the respondents are liable to the petitioners for any additional costs for such similar equipments and/or for liquidated damages for delay as defined in Article 22 of the General Conditions until such reasonable time as may be required for final supply of the equipments; that this reservation in favour of the petitioners is an additional right to claim damages for the respondents for an additional costs that might be incurred for such purchases and has not been taken away from the petitioners their general right to claim damages under Section 73 of the Indian Contract Act; that for invoking the provisions of Section 73 of the Indian Contract Act it was not necessary for the petitioners to have purchased the equipments and materials not supplied by the respondents from the open market; that even in such an event, the petitioners are entitled to claim damages from the respondents on the basis of the difference between the contract price and the market price of the materials on the date of the breach of the agreement by the respondents. 9. The position in law has been noticed by this Court in Union of India v. A.L. Rallia Ram, AIR 1963 SC 1685 , and Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore, 1967(1) SCR 105, to the effect that the arbitrators award both on facts and law is final; that there is no appeal from his verdict; that the Court cannot review his award and correct any mistake in his adjudication, unless the objection to the legality of the award is apparent on the face of it. In understanding what would be an error of law on the face of the award, the following observations in Champsey Bhara & Company v. Jivraj Balloo Spinning and Weaving Company Ltd., L.R. 50 I.A. 324, a decision of the Privy Council, are relevant : "An error in law on the face of the award means, in their Lordships view, that you can find in the award or a document actually incorporated thereto, as for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous." 10. In Arosan Enterprises Ltd. v. Union of India & Anr., 1999(9) SCC 449, this Court again examined this matter and stated that where the error of finding of fact having a bearing on the award is patent and is easily demonstrable without the necessity of carefully weighing the various possible viewpoints, the interference in the award based on erroneous finding of fact is permissible and similarly, if an award is based by applying a principle of law which is patently erroneous, and but for such erroneous application of legal principle, the award could not have been made, such award is liable to be set aside by holding that there has been a legal misconduct on the part of the arbitrator. 11. In the Russell on Arbitration (17th Edition), the position in law is thus stated : "Where an arbitrator makes a mistake either in law or in fact in determining the matters referred, but such mistake does not appear on the face of the award, the award is good notwithstanding the mistake, and will not be remitted or set aside. The general rule is that, as the parties choose their own arbitrator to be the Judge in the disputes between them, they cannot, when the award is good on its face, object to his decision, either upon the law or the facts." 12. In the light of this enunciation of law, we are of the view that unless the error of law sought to be pointed out by the learned counsel for the petitioners in the instant case is patent on the face of the award neither the High Court nor this Court can interfere with the award. The exercise to be done by examining clause 14(ii) of the contract entered into between the parties, construing the same properly and thereafter applying the law to it to come to a conclusion one way or the other, is too involved a process and it cannot be stated that such an error is apparent or patent on the face of the award. Whether under the context of the terms and conditions of a contract, a stipulation in the form and nature of clause 14(ii) operates as a special provision to the exclusion of Section 73 of the Indian Contract Act is a matter of appreciation of facts in a case, and when the decision thereon is not patently absurd or wholly unreasonable, there is no scope for interference by courts dealing with a challenge to the award. Therefore, we think, the view taken by the High Court in this matter is correct and calls for no interference. 13. If as construed by the arbitrators that clause 14(ii) excludes applicability of Section 73 of the Indian Contract Act and the proposition of law stated by the arbitrators is correct, then Section 73 is not attracted to the case.
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0
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12. In the light of this enunciation of law, we are of the view that unless the error of law sought to be pointed out by the learned counsel for the petitioners in the instant case is patent on the face of the award neither the High Court nor this Court can interfere with the award. The exercise to be done by examining clause 14(ii) of the contract entered into between the parties, construing the same properly and thereafter applying the law to it to come to a conclusion one way or the other, is too involved a process and it cannot be stated that such an error is apparent or patent on the face of the award. Whether under the context of the terms and conditions of a contract, a stipulation in the form and nature of clause 14(ii) operates as a special provision to the exclusion of Section 73 of the Indian Contract Act is a matter of appreciation of facts in a case, and when the decision thereon is not patently absurd or wholly unreasonable, there is no scope for interference by courts dealing with a challenge to the award. Therefore, we think, the view taken by the High Court in this matter is correct and calls for no interference. 13. If as construed by the arbitrators that clause 14(ii) excludes applicability of Section 73 of the Indian Contract Act and the proposition of law stated by the arbitrators is correct, then Section 73 is not attracted to the case.
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Narkesari Prakashan Karmachari Sangh Vs. Narkesari Prakashan Ltd. & Another | to as the Act) for permission to retrench 19 workmen. Out of these 19 workmen 17 were employed as Hand Compositors and 2 were employed as Depositors in the establishment of Respondent 1. Respondent 1 is publishing a daily newspaper called Tarun Bharat. Respondent 1 had also launched a Hindi daily Yug Dharma but subsequently the management of Yug Dharma was taken over by Rashtriya Vichar Sadhna in 1971 and from November 1, 1988 the business and undertaking of Yug Dharma has been transferred to Yug Dharma Workers Newspaper Pvt. Ltd. On May 27, 1991 the Managing Director of Respondent 1 filed the application under Section25-N of tie Act wherein permission for retrenchment was sought on the basis that the work of hand composing of Yug Dharma had ceased since June 1989 because Yug Dharma Management had made its own arrangement for composition and since then no composing work was being done by the workmen of Hand Composing Section. It was stated that the retrenchment had become necessary on account of change in technology of composing which had been adopted by Yug Dharma because they had installed their own DTP Composing Machines and sufficient job work to feed the Hand Composing Department could not be secured from the market. The said application was opposed by the Narkesari Prakashan Karmachari Sangh, the appellant herein, and it was urged that a notice under Section9-A of the Act is mandatory and it ought to have been given by the establishment for switching over from hand composing to photo composing method of composition of newspapers and that the proposed retrenchment was null and void being violative of Section9-A of the Act. It was also submitted that there was work of hand composition with the management of Respondent 1 since last 40 years and, therefore, it was not correct for the management to say that the workmen were entrusted with the work of composing only Yug Dharma. The Secretary (Labour), Industries, Energy and Labour Department of the Government of Maharashtra, by his order dated July 24, 1991 allowed the said application filed by Respondent 1 and granted permission to retrench 19 workers subject to the condition that the retrenched workmen should be given compensation as specified in Section 25-N within a reasonable period and that preference, will be given to them for future recruitment by the company, if any. Instead of seeking a reference under sub-section (6) of Section 25-N the appellant challenged the order dated July 24, 1991 granting permission for retrenchment, by filing a writ petition under Article 226 of the Constitution in the High Court. The said writ petition was allowed by a learned Single Judge by judgment dated August 28, 1991. The letters patent appeal filed by Respondent 1 was allowed and the judgment of the learned single Judge was reversed and the writ petition filed by the appellant has been dismissed with the modification that the said permission would be confined to 12 workmen only in view of he fact that the management had offered to absorb 7 workmen. It was directed that the 7 workmen would be absorbed on the basis of the rest of seniority-cum-suitability of the workmen concerned for the job offered to them. 2. Before the Division Bench of the High Court the main question which was raised was whether the retrenchment of the workmen was a direct outcome of the new technology adopted by Respondent 1 viz., installation of four photo composing machines to deal with the work of composing or whether retrenchment was due to non-availability of the hand composing of Yug Dharma. The learned Judges have found that the four photo composing machines had been installed by Respondent 1 and the same became operative on 1992-93. According to the learned Judges even if the claim of the appellant that the said machines started operating from 1985 was accepted, the machines had been operating for more than four years till 1989 and, therefore, the retrenchment of the workmen was not necessitated by the installation of the said machines. The learned Judges have held that retrenchment had become necessary because in June 1989 the company owning Yug Dharma has installed its own machines for composing and had stopped giving work for hand composing of Yug Dharma to Respondent 1 and, thereafter Respondent 1 was not in a position to give any work to hand compositors. The Division Bench of the High Court, therefore, held that Section9-A of the Act had no application in this case. Feeling aggrieved by the said judgment of the High Court the appellant has filed this appeal. 3. The learned counsel appearing for the appellant has urged that the High Court was in error in recording a finding with regard to the non-applicability of Section9-A of the Act even though there was no evidence before the High Court and the State Government with regard to facts as found by the High Court. The submission of the learned counsel is that as a result of the said decision of the High Court the appellant would be prejudiced before the Tribunal when it seeks a reference against retrenchment of the workmen. We find no merit in this contention. The appellant could have availed of the remedy of a reference as provided in sub-section(6) of Section25-N of the Act against the order granting permission under Section 25-N. The appellant did not choose to do so. They chose the remedy of moving the High Court under Article 226 of the Constitution and raised the question about non-compliance with the mandatory provision of Section9-A of the Act. Since the contention was raised it had to be dealt with by the High Court in the writ petition filed by the appellant. The High Court, after examining the matter on merits, has rejected the said contention. The appellant cannot be heard to make a grievance that the High Court should not have gone into the merits of the said contention. We, therefore, find no merit in this appeal. | 0[ds]We find no merit in this contention. The appellant could have availed of the remedy of a reference as provided inN of the Act against the order granting permission under Section. The appellant did not choose to do so. They chose the remedy of moving the High Court under Article 226 of the Constitution and raised the question aboute with the mandatory provision ofA of the Act. Since the contention was raised it had to be dealt with by the High Court in the writ petition filed by the appellant. The High Court, after examining the matter on merits, has rejected the said contention. The appellant cannot be heard to make a grievance that the High Court should not have gone into the merits of the said contention. We, therefore, find no merit in this appeal. | 0 | 1,112 | 153 | ### Instruction:
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to as the Act) for permission to retrench 19 workmen. Out of these 19 workmen 17 were employed as Hand Compositors and 2 were employed as Depositors in the establishment of Respondent 1. Respondent 1 is publishing a daily newspaper called Tarun Bharat. Respondent 1 had also launched a Hindi daily Yug Dharma but subsequently the management of Yug Dharma was taken over by Rashtriya Vichar Sadhna in 1971 and from November 1, 1988 the business and undertaking of Yug Dharma has been transferred to Yug Dharma Workers Newspaper Pvt. Ltd. On May 27, 1991 the Managing Director of Respondent 1 filed the application under Section25-N of tie Act wherein permission for retrenchment was sought on the basis that the work of hand composing of Yug Dharma had ceased since June 1989 because Yug Dharma Management had made its own arrangement for composition and since then no composing work was being done by the workmen of Hand Composing Section. It was stated that the retrenchment had become necessary on account of change in technology of composing which had been adopted by Yug Dharma because they had installed their own DTP Composing Machines and sufficient job work to feed the Hand Composing Department could not be secured from the market. The said application was opposed by the Narkesari Prakashan Karmachari Sangh, the appellant herein, and it was urged that a notice under Section9-A of the Act is mandatory and it ought to have been given by the establishment for switching over from hand composing to photo composing method of composition of newspapers and that the proposed retrenchment was null and void being violative of Section9-A of the Act. It was also submitted that there was work of hand composition with the management of Respondent 1 since last 40 years and, therefore, it was not correct for the management to say that the workmen were entrusted with the work of composing only Yug Dharma. The Secretary (Labour), Industries, Energy and Labour Department of the Government of Maharashtra, by his order dated July 24, 1991 allowed the said application filed by Respondent 1 and granted permission to retrench 19 workers subject to the condition that the retrenched workmen should be given compensation as specified in Section 25-N within a reasonable period and that preference, will be given to them for future recruitment by the company, if any. Instead of seeking a reference under sub-section (6) of Section 25-N the appellant challenged the order dated July 24, 1991 granting permission for retrenchment, by filing a writ petition under Article 226 of the Constitution in the High Court. The said writ petition was allowed by a learned Single Judge by judgment dated August 28, 1991. The letters patent appeal filed by Respondent 1 was allowed and the judgment of the learned single Judge was reversed and the writ petition filed by the appellant has been dismissed with the modification that the said permission would be confined to 12 workmen only in view of he fact that the management had offered to absorb 7 workmen. It was directed that the 7 workmen would be absorbed on the basis of the rest of seniority-cum-suitability of the workmen concerned for the job offered to them. 2. Before the Division Bench of the High Court the main question which was raised was whether the retrenchment of the workmen was a direct outcome of the new technology adopted by Respondent 1 viz., installation of four photo composing machines to deal with the work of composing or whether retrenchment was due to non-availability of the hand composing of Yug Dharma. The learned Judges have found that the four photo composing machines had been installed by Respondent 1 and the same became operative on 1992-93. According to the learned Judges even if the claim of the appellant that the said machines started operating from 1985 was accepted, the machines had been operating for more than four years till 1989 and, therefore, the retrenchment of the workmen was not necessitated by the installation of the said machines. The learned Judges have held that retrenchment had become necessary because in June 1989 the company owning Yug Dharma has installed its own machines for composing and had stopped giving work for hand composing of Yug Dharma to Respondent 1 and, thereafter Respondent 1 was not in a position to give any work to hand compositors. The Division Bench of the High Court, therefore, held that Section9-A of the Act had no application in this case. Feeling aggrieved by the said judgment of the High Court the appellant has filed this appeal. 3. The learned counsel appearing for the appellant has urged that the High Court was in error in recording a finding with regard to the non-applicability of Section9-A of the Act even though there was no evidence before the High Court and the State Government with regard to facts as found by the High Court. The submission of the learned counsel is that as a result of the said decision of the High Court the appellant would be prejudiced before the Tribunal when it seeks a reference against retrenchment of the workmen. We find no merit in this contention. The appellant could have availed of the remedy of a reference as provided in sub-section(6) of Section25-N of the Act against the order granting permission under Section 25-N. The appellant did not choose to do so. They chose the remedy of moving the High Court under Article 226 of the Constitution and raised the question about non-compliance with the mandatory provision of Section9-A of the Act. Since the contention was raised it had to be dealt with by the High Court in the writ petition filed by the appellant. The High Court, after examining the matter on merits, has rejected the said contention. The appellant cannot be heard to make a grievance that the High Court should not have gone into the merits of the said contention. We, therefore, find no merit in this appeal.
### Response:
0
### Explanation:
We find no merit in this contention. The appellant could have availed of the remedy of a reference as provided inN of the Act against the order granting permission under Section. The appellant did not choose to do so. They chose the remedy of moving the High Court under Article 226 of the Constitution and raised the question aboute with the mandatory provision ofA of the Act. Since the contention was raised it had to be dealt with by the High Court in the writ petition filed by the appellant. The High Court, after examining the matter on merits, has rejected the said contention. The appellant cannot be heard to make a grievance that the High Court should not have gone into the merits of the said contention. We, therefore, find no merit in this appeal.
|
Official Liquidator Vs. Dharti Dhan (P) Ltd | the donee may do it ; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf. Where there is such a duty, it is not inaccurate to say that the words conferring the power are equivalent to saying that the donee must exercise it. It by no means follows that because there is a duty cast on the donee of a power to exercise it, that mandamus lies to enforce it : that depends on the nature of the duty and the position of the donee. " 7. The principle laid down above has been followed consistently by this court whenever it has been contended that the word " may " carries with it the obligation to exercise a power in a particular manner or direction. In such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discretion conferred upon the donee of the power. If the conditions in which the power is to be exereised in particular cases are also specified by a statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner. This is the principle we deduce from the cases of this court cited before us : Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad [1963] 3 SCR 312 (SC), State of Uttar Pradesh v. Jogendra Singh [1964] 2 SCR 197 (SC), Sardar Govindrao v. State of M.P [1965] 1 SCR 678(SC), A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Mst. Ram Kali [1968] 1 SCR 205(SC), Bashira v. State of U.P. [1969] 1 SCR 32 (SC) and Prakash Chand Agarwal v. Hindustan Steel Ltd. [1972] 2 SCR 405 (SC).In the statutory provision under consideration now before us the power to stay a proceeding is not annexed with the obligation to necessarily stay on proof of certain conditions although there are conditions prescribed for the making of the application for stay and the period during which the power to stay can be exercised. The question whether it should, on the facts of a particular case, be exercised or not will have to be examined and then decided by the court to which the application is made. If the applicant can make out, on facts, that the objects of the power conferred by sections 442 and 446 of the Act can only be carried out by a stay order, it could perhaps be urged that an obligation to do so has become annexed to it by proof of those facts. That would be the position not because the word " may " itself must be equated with " shall " but because judicial power has necessarily to be exercised justly, properly and reasonably to enforce the principle that rights created must be enforced. 8. In the case before us, the only right which could be said to have been created is the right to get speedier adjudication from the court where the winding-up proceeding is taking place. That is the object of the provisions. On facts disclosed in this case, we find that the application seems to have been made with the object of delaying decisions on claims made. In such a case, there could be no doubt that the application should be rejected outright as the learned company judge did. 9. Secondly, an attempt was made to urge that as the power to grant or not to grant or to grant a stay upon certain conditions, assuming the power to be discretionary, is to be exercised by the courts in which that discretion is vested, this court should not interfere with the exercise of discretion by the Division Bench to which an appeal from the order of the company judge lay. The effective answer to this contention is that, where the learned company judge had himself exercised his discretion on a correct appreciation of the object of the provisions of sections 442 and 446 of the Act, even though he did not state the object or refer to all the facts, the appellate court should not have interfered by granting a conditional stay without giving sufficient reasons to override the discretion of the learned company judge to refuse stay. We think that a questions of general principle arises in this case which has to be clarified so that an interference by this court under article 136 of the Constitution, in order to vindicate a correct principle and to meet the ends of justice, is called for.Thirdly, learned counsel for the respondent submitted that the order under appeal before us is not final so that we need not interfere under article 136 of the Constitution for this reason. It is true that this court does not, as a rule, interfere with interlocutory orders. It is not necessary for us to embark on this occasion on a discussion of the meaning of a " final " order. That is certainly a question fraught with difficulties. It is sufficient for us to observe that our powers of interference under article 136 of the Constitution are not confined to those in respect of final orders, although finality of an order is a test which this court generally applies in considering whether it should interfere under article 136 of the Constitution with it. We think that we have indicated sufficiently why, despite the fact that an order staying proceedings under section 442(b) of the Act may not, strictly speaking, be final, yet a question of general principle of wide application, as to the circumstances in which an apparently discretionary power may become annexed with a duty to exercise it in a particular way, having arisen here, we consider this to be a fit-case for interference under article 136 of the Constitution. 10. | 1[ds]The clear object of the section is that claims in suits and proceedings pending elsewhere which have a bearing on the companys liabilities, may be stayed only until the winding-up order is made, because after the winding-up order has been passed, section 446 begins to operate so as to automatically transfer with certain exceptions proceedings against the company being wound up to the court exercising the jurisdiction to wind it upSections 442 and 446 of the Act have to be read together. It is only where the object of the two sections, when read together, is served by a stay order that the stay order could be justified. That object is to expeditiously decide and dispose of pending claims in the course of winding-up proceedings. A stay is not to be granted if the object of applying for it appears to be, as it does in the case before us, merely to delay adjudication on a claim, and thereby to defeat justice. In other words, a stay order, under section 442, cannot be made mechanically, or, as a matter of course, on showing fulfilment of some fixed and prescribed conditions. It can only be made judiciously upon an examination of the totality of the facts which vary from case to case. It follows that the order to be passed must be discretionary and the power to pass it must, therefore, be directory and not mandatory. In other words, the word " may " used before " stay " in section 442 of the Act really means " may " and not " must " or " shall " in such a context. In fact, it is not quite accurate to say that the word " may ", by itself, acquires the meaning of " must " or " shall " sometimes. This word, however, always signifies a conferment of power. That power may, having regard to the context in which it occurs, and the requirements contemplated for its exercise, have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises. In other words, it is the context which can attach the obligation to the power compelling its exercise in a certain way. The context, both legal and factual, may impart to the power that obligatorinessThe principle laid down above has been followed consistently by this court whenever it has been contended that the word " may " carries with it the obligation to exercise a power in a particular manner or direction. In such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discretion conferred upon the donee of the power. If the conditions in which the power is to be exereised in particular cases are also specified by a statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner. This is the principle we deduce from the cases of this court cited before us : Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad [1963] 3 SCR 312 (SC), State of Uttar Pradesh v. Jogendra Singh [1964] 2 SCR 197 (SC), Sardar Govindrao v. State of M.P [1965] 1 SCR 678(SC), A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Mst. Ram Kali [1968] 1 SCR 205(SC), Bashira v. State of U.P. [1969] 1 SCR 32 (SC) and Prakash Chand Agarwal v. Hindustan Steel Ltd. [1972] 2 SCR 405 (SC).In the statutory provision under consideration now before us the power to stay a proceeding is not annexed with the obligation to necessarily stay on proof of certain conditions although there are conditions prescribed for the making of the application for stay and the period during which the power to stay can be exercised. The question whether it should, on the facts of a particular case, be exercised or not will have to be examined and then decided by the court to which the application is made. If the applicant can make out, on facts, that the objects of the power conferred by sections 442 and 446 of the Act can only be carried out by a stay order, it could perhaps be urged that an obligation to do so has become annexed to it by proof of those facts. That would be the position not because the word " may " itself must be equated with " shall " but because judicial power has necessarily to be exercised justly, properly and reasonably to enforce the principle that rights created must be enforcedIn the case before us, the only right which could be said to have been created is the right to get speedier adjudication from the court where the winding-up proceeding is taking place. That is the object of the provisions. On facts disclosed in this case, we find that the application seems to have been made with the object of delaying decisions on claims made. In such a case, there could be no doubt that the application should be rejected outright as the learned company judge didSecondly, an attempt was made to urge that as the power to grant or not to grant or to grant a stay upon certain conditions, assuming the power to be discretionary, is to be exercised by the courts in which that discretion is vested, this court should not interfere with the exercise of discretion by the Division Bench to which an appeal from the order of the company judge lay. The effective answer to this contention is that, where the learned company judge had himself exercised his discretion on a correct appreciation of the object of the provisions of sections 442 and 446 of the Act, even though he did not state the object or refer to all the facts, the appellate court should not have interfered by granting a conditional stay without giving sufficient reasons to override the discretion of the learned company judge to refuse stay. We think that a questions of general principle arises in this case which has to be clarified so that an interference by this court under article 136 of the Constitution, in order to vindicate a correct principle and to meet the ends of justice, is called for.Thirdly, learned counsel for the respondent submitted that the order under appeal before us is not final so that we need not interfere under article 136 of the Constitution for this reason. It is true that this court does not, as a rule, interfere with interlocutory orders. It is not necessary for us to embark on this occasion on a discussion of the meaning of a " final " order. That is certainly a question fraught with difficulties. It is sufficient for us to observe that our powers of interference under article 136 of the Constitution are not confined to those in respect of final orders, although finality of an order is a test which this court generally applies in considering whether it should interfere under article 136 of the Constitution with it. We think that we have indicated sufficiently why, despite the fact that an order staying proceedings under section 442(b) of the Act may not, strictly speaking, be final, yet a question of general principle of wide application, as to the circumstances in which an apparently discretionary power may become annexed with a duty to exercise it in a particular way, having arisen here, we consider this to be a fit-case for interference under article 136 of the Constitution. | 1 | 3,688 | 1,394 | ### Instruction:
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the donee may do it ; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf. Where there is such a duty, it is not inaccurate to say that the words conferring the power are equivalent to saying that the donee must exercise it. It by no means follows that because there is a duty cast on the donee of a power to exercise it, that mandamus lies to enforce it : that depends on the nature of the duty and the position of the donee. " 7. The principle laid down above has been followed consistently by this court whenever it has been contended that the word " may " carries with it the obligation to exercise a power in a particular manner or direction. In such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discretion conferred upon the donee of the power. If the conditions in which the power is to be exereised in particular cases are also specified by a statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner. This is the principle we deduce from the cases of this court cited before us : Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad [1963] 3 SCR 312 (SC), State of Uttar Pradesh v. Jogendra Singh [1964] 2 SCR 197 (SC), Sardar Govindrao v. State of M.P [1965] 1 SCR 678(SC), A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Mst. Ram Kali [1968] 1 SCR 205(SC), Bashira v. State of U.P. [1969] 1 SCR 32 (SC) and Prakash Chand Agarwal v. Hindustan Steel Ltd. [1972] 2 SCR 405 (SC).In the statutory provision under consideration now before us the power to stay a proceeding is not annexed with the obligation to necessarily stay on proof of certain conditions although there are conditions prescribed for the making of the application for stay and the period during which the power to stay can be exercised. The question whether it should, on the facts of a particular case, be exercised or not will have to be examined and then decided by the court to which the application is made. If the applicant can make out, on facts, that the objects of the power conferred by sections 442 and 446 of the Act can only be carried out by a stay order, it could perhaps be urged that an obligation to do so has become annexed to it by proof of those facts. That would be the position not because the word " may " itself must be equated with " shall " but because judicial power has necessarily to be exercised justly, properly and reasonably to enforce the principle that rights created must be enforced. 8. In the case before us, the only right which could be said to have been created is the right to get speedier adjudication from the court where the winding-up proceeding is taking place. That is the object of the provisions. On facts disclosed in this case, we find that the application seems to have been made with the object of delaying decisions on claims made. In such a case, there could be no doubt that the application should be rejected outright as the learned company judge did. 9. Secondly, an attempt was made to urge that as the power to grant or not to grant or to grant a stay upon certain conditions, assuming the power to be discretionary, is to be exercised by the courts in which that discretion is vested, this court should not interfere with the exercise of discretion by the Division Bench to which an appeal from the order of the company judge lay. The effective answer to this contention is that, where the learned company judge had himself exercised his discretion on a correct appreciation of the object of the provisions of sections 442 and 446 of the Act, even though he did not state the object or refer to all the facts, the appellate court should not have interfered by granting a conditional stay without giving sufficient reasons to override the discretion of the learned company judge to refuse stay. We think that a questions of general principle arises in this case which has to be clarified so that an interference by this court under article 136 of the Constitution, in order to vindicate a correct principle and to meet the ends of justice, is called for.Thirdly, learned counsel for the respondent submitted that the order under appeal before us is not final so that we need not interfere under article 136 of the Constitution for this reason. It is true that this court does not, as a rule, interfere with interlocutory orders. It is not necessary for us to embark on this occasion on a discussion of the meaning of a " final " order. That is certainly a question fraught with difficulties. It is sufficient for us to observe that our powers of interference under article 136 of the Constitution are not confined to those in respect of final orders, although finality of an order is a test which this court generally applies in considering whether it should interfere under article 136 of the Constitution with it. We think that we have indicated sufficiently why, despite the fact that an order staying proceedings under section 442(b) of the Act may not, strictly speaking, be final, yet a question of general principle of wide application, as to the circumstances in which an apparently discretionary power may become annexed with a duty to exercise it in a particular way, having arisen here, we consider this to be a fit-case for interference under article 136 of the Constitution. 10.
### Response:
1
### Explanation:
must " or " shall " in such a context. In fact, it is not quite accurate to say that the word " may ", by itself, acquires the meaning of " must " or " shall " sometimes. This word, however, always signifies a conferment of power. That power may, having regard to the context in which it occurs, and the requirements contemplated for its exercise, have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises. In other words, it is the context which can attach the obligation to the power compelling its exercise in a certain way. The context, both legal and factual, may impart to the power that obligatorinessThe principle laid down above has been followed consistently by this court whenever it has been contended that the word " may " carries with it the obligation to exercise a power in a particular manner or direction. In such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discretion conferred upon the donee of the power. If the conditions in which the power is to be exereised in particular cases are also specified by a statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner. This is the principle we deduce from the cases of this court cited before us : Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad [1963] 3 SCR 312 (SC), State of Uttar Pradesh v. Jogendra Singh [1964] 2 SCR 197 (SC), Sardar Govindrao v. State of M.P [1965] 1 SCR 678(SC), A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Mst. Ram Kali [1968] 1 SCR 205(SC), Bashira v. State of U.P. [1969] 1 SCR 32 (SC) and Prakash Chand Agarwal v. Hindustan Steel Ltd. [1972] 2 SCR 405 (SC).In the statutory provision under consideration now before us the power to stay a proceeding is not annexed with the obligation to necessarily stay on proof of certain conditions although there are conditions prescribed for the making of the application for stay and the period during which the power to stay can be exercised. The question whether it should, on the facts of a particular case, be exercised or not will have to be examined and then decided by the court to which the application is made. If the applicant can make out, on facts, that the objects of the power conferred by sections 442 and 446 of the Act can only be carried out by a stay order, it could perhaps be urged that an obligation to do so has become annexed to it by proof of those facts. That would be the position not because the word " may " itself must be equated with " shall " but because judicial power has necessarily to be exercised justly, properly and reasonably to enforce the principle that rights created must be enforcedIn the case before us, the only right which could be said to have been created is the right to get speedier adjudication from the court where the winding-up proceeding is taking place. That is the object of the provisions. On facts disclosed in this case, we find that the application seems to have been made with the object of delaying decisions on claims made. In such a case, there could be no doubt that the application should be rejected outright as the learned company judge didSecondly, an attempt was made to urge that as the power to grant or not to grant or to grant a stay upon certain conditions, assuming the power to be discretionary, is to be exercised by the courts in which that discretion is vested, this court should not interfere with the exercise of discretion by the Division Bench to which an appeal from the order of the company judge lay. The effective answer to this contention is that, where the learned company judge had himself exercised his discretion on a correct appreciation of the object of the provisions of sections 442 and 446 of the Act, even though he did not state the object or refer to all the facts, the appellate court should not have interfered by granting a conditional stay without giving sufficient reasons to override the discretion of the learned company judge to refuse stay. We think that a questions of general principle arises in this case which has to be clarified so that an interference by this court under article 136 of the Constitution, in order to vindicate a correct principle and to meet the ends of justice, is called for.Thirdly, learned counsel for the respondent submitted that the order under appeal before us is not final so that we need not interfere under article 136 of the Constitution for this reason. It is true that this court does not, as a rule, interfere with interlocutory orders. It is not necessary for us to embark on this occasion on a discussion of the meaning of a " final " order. That is certainly a question fraught with difficulties. It is sufficient for us to observe that our powers of interference under article 136 of the Constitution are not confined to those in respect of final orders, although finality of an order is a test which this court generally applies in considering whether it should interfere under article 136 of the Constitution with it. We think that we have indicated sufficiently why, despite the fact that an order staying proceedings under section 442(b) of the Act may not, strictly speaking, be final, yet a question of general principle of wide application, as to the circumstances in which an apparently discretionary power may become annexed with a duty to exercise it in a particular way, having arisen here, we consider this to be a fit-case for interference under article 136 of the Constitution.
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SUBHASH KUMAR Vs. THE STATE OF BIHAR & ORS | 2020 relegated the petitioner to Bihar Education Service on a justification being tendered that action has been taken in compliance of the order of this Court dated 23rd October, 2019 which is a subject matter of challenge at the instance of the petitioner in the instant proceedings. 7. Learned counsel for the petitioner submits that petitioner has no demur regarding appointment of Baldeo Choudhary who has finally succeeded in his own rights on dismissal of the appeal preferred by the Commission before this Court in Civil Appeal No.3307 of 2015 but he is aggrieved of relegating his cadre from Bihar Administrative Service to Bihar Education Service after he had rendered almost 15 years of service who was neither arrayed as a party to the writ petition nor been heard at any stage, is in violation of the principles of natural justice and in disregard of the order of this Court dated 23rd October, 2019. 8. Learned counsel further submits that this Court under its order dated 23rd October, 2019 confined consideration for appointment of Baldeo Choudhary in his own rights w.e.f. 29th November, 2012 but the directions of this Court have been completely misread by the authorities and the wholesome revision of the merit list has been undertaken by the Commission which was never intended by this Court in its order dated 23rd October, 2019 disturbing the cadre allotment of the persons who were selected on the recommendation made by the Commission held pursuant to an advertisement dated 29th December, 2001 and rightly so, since none of them was arrayed as party to the writ petition nor been heard and further submits that overturning the select list after 15 years and passing of an order dated 23rd July, 2020 having adverse civil consequences without hearing the person is indeed in violation of principles of natural Justice and such action of the respondents in the given facts and circumstances at least qua the petitioner is not sustainable in law. 9. Per contra, learned counsel for the respondents, while supporting the order impugned, submits that the commission has no option but to revise the select list in compliance of the order of this Court dated 23rd October, 2019 after placing Baldeo Choudhary at his place in the order of merit and in consequence, the petitioner being last in the open category in Bihar Administrative Service, rightly relegated from Bihar Administrative Service to Bihar Education Service vide order dated 23rd July, 2020 and submits that their action being in compliance of the order of this Court needs no interference. 10. We have heard the learned counsel for the parties and with their assistance perused the material available on record. 11. This Court was conscious of the fact that although the Division Bench of the High Court in its judgment dated 29th November, 2012 moulded the relief confined to the writ petitioner Baldeo Choudhary as his case is sui generis, disturbing the select list which was recommended by the Commission of the candidates who had participated in the 45th Combined Competitive Examination held pursuant to an advertisement dated 29th December, 2001 after serving for almost 15 years in their respective cadre assigned by the State Government will not be in the interest of justice. But as the Commission had an apprehension in implementing order of the Division Bench dated 29th November, 2012, this Court ruled out the apprehension and made a further clarification under its order dated 23rd October, 2019. 12. In the given circumstances, what was required for the respondents was to place the writ petitioner (Baldeo Choudhary) at the appropriate place in the select list which was recommended by the Commission in reference to 45th Combined Competitive Examination and to be considered for appointment to a particular service to whom he was suitable as per his revised placement in the select list with seniority and other notional benefits of service including continuity of service, increment, etc., to which he was entitled for in compliance of the order of this Court dated 23rd October, 2019. 13. We find justification in what being contended by learned counsel for the petitioner to hold that relegating the petitioner to Bihar Education Service after he had rendered 15 years of service as member of the Bihar Administrative Service entail adverse civil consequences and indeed the order impugned dated 23rd July, 2020 could not have been passed by the respondents without affording him an opportunity of hearing and is in violation of the principles of natural justice. 14. The defence which has been tendered by the respondents in their counter affidavit that impugned action has been taken in compliance of the order of this Court dated 23rd October, 2019 which in our view is completely misplaced and this Court under its order dated 23rd October, 2019, left no manner of doubt in its implementation and there was no justification left for the Commission to hold an exercise and revise the select list of 45th Combined Competitive Examination held pursuant to the advertisement dated 29th December, 2001 and acted upon in 2005 after a lapse of 15 years at the same time the case of Baldeo Choudhary being sui generis was to be considered for appointment w.e.f. 29th November, 2012 in terms of the revised recommendations made by the Commission qua him without disturbing the cadre/seniority of the persons including the petitioner in Bihar Administrative Service to which he was otherwise entitled for in compliance of the order of this Court dated 23rd October, 2019 assigning him seniority and the consequential benefits etc. w.e.f. 29th November, 2012. 15. The respondents in our view, were not at all justified in passing of the order impugned dated 23rd July, 2020 which was neither observed by the Division Bench of the High Court nor expressed by this Court in its order dated 23rd October, 2019 relegating the petitioner from Bihar Administrative Service to Bihar Education Service after he had rendered 15 years of substantive service in the cadre of Bihar Administrative Service. | 1[ds]11. This Court was conscious of the fact that although the Division Bench of the High Court in its judgment dated 29th November, 2012 moulded the relief confined to the writ petitioner Baldeo Choudhary as his case is sui generis, disturbing the select list which was recommended by the Commission of the candidates who had participated in the 45th Combined Competitive Examination held pursuant to an advertisement dated 29th December, 2001 after serving for almost 15 years in their respective cadre assigned by the State Government will not be in the interest of justice. But as the Commission had an apprehension in implementing order of the Division Bench dated 29th November, 2012, this Court ruled out the apprehension and made a further clarification under its order dated 23rd October, 2019.12. In the given circumstances, what was required for the respondents was to place the writ petitioner (Baldeo Choudhary) at the appropriate place in the select list which was recommended by the Commission in reference to 45th Combined Competitive Examination and to be considered for appointment to a particular service to whom he was suitable as per his revised placement in the select list with seniority and other notional benefits of service including continuity of service, increment, etc., to which he was entitled for in compliance of the order of this Court dated 23rd October, 2019.13. We find justification in what being contended by learned counsel for the petitioner to hold that relegating the petitioner to Bihar Education Service after he had rendered 15 years of service as member of the Bihar Administrative Service entail adverse civil consequences and indeed the order impugned dated 23rd July, 2020 could not have been passed by the respondents without affording him an opportunity of hearing and is in violation of the principles of natural justice.14. The defence which has been tendered by the respondents in their counter affidavit that impugned action has been taken in compliance of the order of this Court dated 23rd October, 2019 which in our view is completely misplaced and this Court under its order dated 23rd October, 2019, left no manner of doubt in its implementation and there was no justification left for the Commission to hold an exercise and revise the select list of 45th Combined Competitive Examination held pursuant to the advertisement dated 29th December, 2001 and acted upon in 2005 after a lapse of 15 years at the same time the case of Baldeo Choudhary being sui generis was to be considered for appointment w.e.f. 29th November, 2012 in terms of the revised recommendations made by the Commission qua him without disturbing the cadre/seniority of the persons including the petitioner in Bihar Administrative Service to which he was otherwise entitled for in compliance of the order of this Court dated 23rd October, 2019 assigning him seniority and the consequential benefits etc. w.e.f. 29th November, 2012.15. The respondents in our view, were not at all justified in passing of the order impugned dated 23rd July, 2020 which was neither observed by the Division Bench of the High Court nor expressed by this Court in its order dated 23rd October, 2019 relegating the petitioner from Bihar Administrative Service to Bihar Education Service after he had rendered 15 years of substantive service in the cadre of Bihar Administrative Service. | 1 | 2,220 | 588 | ### Instruction:
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2020 relegated the petitioner to Bihar Education Service on a justification being tendered that action has been taken in compliance of the order of this Court dated 23rd October, 2019 which is a subject matter of challenge at the instance of the petitioner in the instant proceedings. 7. Learned counsel for the petitioner submits that petitioner has no demur regarding appointment of Baldeo Choudhary who has finally succeeded in his own rights on dismissal of the appeal preferred by the Commission before this Court in Civil Appeal No.3307 of 2015 but he is aggrieved of relegating his cadre from Bihar Administrative Service to Bihar Education Service after he had rendered almost 15 years of service who was neither arrayed as a party to the writ petition nor been heard at any stage, is in violation of the principles of natural justice and in disregard of the order of this Court dated 23rd October, 2019. 8. Learned counsel further submits that this Court under its order dated 23rd October, 2019 confined consideration for appointment of Baldeo Choudhary in his own rights w.e.f. 29th November, 2012 but the directions of this Court have been completely misread by the authorities and the wholesome revision of the merit list has been undertaken by the Commission which was never intended by this Court in its order dated 23rd October, 2019 disturbing the cadre allotment of the persons who were selected on the recommendation made by the Commission held pursuant to an advertisement dated 29th December, 2001 and rightly so, since none of them was arrayed as party to the writ petition nor been heard and further submits that overturning the select list after 15 years and passing of an order dated 23rd July, 2020 having adverse civil consequences without hearing the person is indeed in violation of principles of natural Justice and such action of the respondents in the given facts and circumstances at least qua the petitioner is not sustainable in law. 9. Per contra, learned counsel for the respondents, while supporting the order impugned, submits that the commission has no option but to revise the select list in compliance of the order of this Court dated 23rd October, 2019 after placing Baldeo Choudhary at his place in the order of merit and in consequence, the petitioner being last in the open category in Bihar Administrative Service, rightly relegated from Bihar Administrative Service to Bihar Education Service vide order dated 23rd July, 2020 and submits that their action being in compliance of the order of this Court needs no interference. 10. We have heard the learned counsel for the parties and with their assistance perused the material available on record. 11. This Court was conscious of the fact that although the Division Bench of the High Court in its judgment dated 29th November, 2012 moulded the relief confined to the writ petitioner Baldeo Choudhary as his case is sui generis, disturbing the select list which was recommended by the Commission of the candidates who had participated in the 45th Combined Competitive Examination held pursuant to an advertisement dated 29th December, 2001 after serving for almost 15 years in their respective cadre assigned by the State Government will not be in the interest of justice. But as the Commission had an apprehension in implementing order of the Division Bench dated 29th November, 2012, this Court ruled out the apprehension and made a further clarification under its order dated 23rd October, 2019. 12. In the given circumstances, what was required for the respondents was to place the writ petitioner (Baldeo Choudhary) at the appropriate place in the select list which was recommended by the Commission in reference to 45th Combined Competitive Examination and to be considered for appointment to a particular service to whom he was suitable as per his revised placement in the select list with seniority and other notional benefits of service including continuity of service, increment, etc., to which he was entitled for in compliance of the order of this Court dated 23rd October, 2019. 13. We find justification in what being contended by learned counsel for the petitioner to hold that relegating the petitioner to Bihar Education Service after he had rendered 15 years of service as member of the Bihar Administrative Service entail adverse civil consequences and indeed the order impugned dated 23rd July, 2020 could not have been passed by the respondents without affording him an opportunity of hearing and is in violation of the principles of natural justice. 14. The defence which has been tendered by the respondents in their counter affidavit that impugned action has been taken in compliance of the order of this Court dated 23rd October, 2019 which in our view is completely misplaced and this Court under its order dated 23rd October, 2019, left no manner of doubt in its implementation and there was no justification left for the Commission to hold an exercise and revise the select list of 45th Combined Competitive Examination held pursuant to the advertisement dated 29th December, 2001 and acted upon in 2005 after a lapse of 15 years at the same time the case of Baldeo Choudhary being sui generis was to be considered for appointment w.e.f. 29th November, 2012 in terms of the revised recommendations made by the Commission qua him without disturbing the cadre/seniority of the persons including the petitioner in Bihar Administrative Service to which he was otherwise entitled for in compliance of the order of this Court dated 23rd October, 2019 assigning him seniority and the consequential benefits etc. w.e.f. 29th November, 2012. 15. The respondents in our view, were not at all justified in passing of the order impugned dated 23rd July, 2020 which was neither observed by the Division Bench of the High Court nor expressed by this Court in its order dated 23rd October, 2019 relegating the petitioner from Bihar Administrative Service to Bihar Education Service after he had rendered 15 years of substantive service in the cadre of Bihar Administrative Service.
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11. This Court was conscious of the fact that although the Division Bench of the High Court in its judgment dated 29th November, 2012 moulded the relief confined to the writ petitioner Baldeo Choudhary as his case is sui generis, disturbing the select list which was recommended by the Commission of the candidates who had participated in the 45th Combined Competitive Examination held pursuant to an advertisement dated 29th December, 2001 after serving for almost 15 years in their respective cadre assigned by the State Government will not be in the interest of justice. But as the Commission had an apprehension in implementing order of the Division Bench dated 29th November, 2012, this Court ruled out the apprehension and made a further clarification under its order dated 23rd October, 2019.12. In the given circumstances, what was required for the respondents was to place the writ petitioner (Baldeo Choudhary) at the appropriate place in the select list which was recommended by the Commission in reference to 45th Combined Competitive Examination and to be considered for appointment to a particular service to whom he was suitable as per his revised placement in the select list with seniority and other notional benefits of service including continuity of service, increment, etc., to which he was entitled for in compliance of the order of this Court dated 23rd October, 2019.13. We find justification in what being contended by learned counsel for the petitioner to hold that relegating the petitioner to Bihar Education Service after he had rendered 15 years of service as member of the Bihar Administrative Service entail adverse civil consequences and indeed the order impugned dated 23rd July, 2020 could not have been passed by the respondents without affording him an opportunity of hearing and is in violation of the principles of natural justice.14. The defence which has been tendered by the respondents in their counter affidavit that impugned action has been taken in compliance of the order of this Court dated 23rd October, 2019 which in our view is completely misplaced and this Court under its order dated 23rd October, 2019, left no manner of doubt in its implementation and there was no justification left for the Commission to hold an exercise and revise the select list of 45th Combined Competitive Examination held pursuant to the advertisement dated 29th December, 2001 and acted upon in 2005 after a lapse of 15 years at the same time the case of Baldeo Choudhary being sui generis was to be considered for appointment w.e.f. 29th November, 2012 in terms of the revised recommendations made by the Commission qua him without disturbing the cadre/seniority of the persons including the petitioner in Bihar Administrative Service to which he was otherwise entitled for in compliance of the order of this Court dated 23rd October, 2019 assigning him seniority and the consequential benefits etc. w.e.f. 29th November, 2012.15. The respondents in our view, were not at all justified in passing of the order impugned dated 23rd July, 2020 which was neither observed by the Division Bench of the High Court nor expressed by this Court in its order dated 23rd October, 2019 relegating the petitioner from Bihar Administrative Service to Bihar Education Service after he had rendered 15 years of substantive service in the cadre of Bihar Administrative Service.
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Rajappa Neelakantan Vs. State of Tamil Nadu and Others | but we did not interfere with the said order as per the judgment of this Court dated 2-3-2000 Mainly three points have been raised by the petitioner in challenge of the detention order passed against him. They are 1. The sponsoring authority (the Customs Department) did not place relevant and vital documents for consideration before the detaining authority 2. There was delay in considering and disposing of the representation made by the petitioner before the Central Government 3. There was no compelling necessity to preventively detain the petitionerFor elaborating the first ground learned counsel contended that records connected with the detention of the co-traveller Radhakrishnan Prabhakaran were not placed before the detaining authority. Had those records been placed, perhaps, the detaining authority would have come to a different conclusion, contended learned counsel We cannot appreciate the said contention for two reasons. First is that the detention order in respect of the present petitioner should be based principally on the facts centred on what he had done in collaboration with his co-traveller. In other words, if the detention order and the connected records relating to the co-traveller were to be placed before the detaining authority there could possibly be an apprehension that the detaining authority would be biased against the petitioner because of the various allegations contained therein. Second is that the detaining authority cannot be said to be totally ignorant of the fact that Radhakrishnan Prabhakaran was also detained under a separate order, for, the aforesaid detention order against Radhakrishnan Prabhakaran was passed by the same detaining authority just six days prior to the impugned detention order. So we do not see much force in the said ground raised now While dealing with the second ground we initially thought that the petitioner has really a case to put forward because at the first blush it may appear that there was delay on the part of the Central Government in disposing of the representation made by the detenu. We may point out that the representation to the Central Government was actually made by the detenu on 1-9-1999 and the same was disposed of by the Central Government only on 15-9-1999. No doubt there was delay. It is not the law that whenever there is any delay the detention order would be vitiated. The law is that the delay should not be unexplainable and that the explanation offered must appear to the court to be reasonable and acceptableIn the present case the representation sent by the detenu to the Central Government on 1-9-1999 had reached the COFEPOSA Unit of the Finance Department only on 9-9-1999. Shri T. L. V. Iyer, learned Senior Counsel who argued for the Union on India submitted after verifying the documents that there is some lapse in the Department for mentioning the exact date on which the representation had reached the Secretary, Ministry of Finance, Department of Revenue, New Delhi. Normally, a seal would be affixed showing the date on which the representation was received in the Department, but such a seal is not seen affixed on the particular representation. Of course, that does not mean that the representation had not reached the Department at all at any time. It is a certainty that it would have reached the Department on a day prior to 9-9-1999. Learned Senior Counsel pointed out that as 3rd, 4th and 5th of September, 1999 were government holidays the representation would have possibly reached the Department either on 2nd evening or on the 6th of September. If that be so, the question is whether placing the said representation before the COFEPOSA Unit on 9-9-1999 can be treated as unreasonably delayed Learned Senior Counsel pointed out the practicalities involved in sifting and sorting various mails which would have heaped up in the Department by 6-9-1999 on account of the preceding government holidays for a continuous three days period. He submitted that it is not enough that somebody in the Department would see the outer cover of the representation. Every mail should have been opened, read and found out as to which Department it should be placed and only after such sorting process is made the representation could be sent to the appropriate section. We are inclined to accept the said explanation for the intervening period between 6th and 9th September for the representation to reach the COFEPOSA Unit. We may note here that there can possibly be no grievance that the order of disposal made on 15-5-1999 was vitiated by delay subsequent to 9-9-1999. We, therefore, hold that the grievance regarding delay in disposing of the representation made by the detenu to the Central Government is not valid in the circumstances of this caseWhile elaborating the third ground, i.e., want of compelling necessity to preventively detain the petitioner, Shri K. K. Mani, learned counsel for the petitioner vehemently stated that when the co-traveller was preventively detained there was no need to detain the petitioner separately as he had only accompanied him. On the other hand, Shri V. R. Reddy, learned Senior Counsel arguing for the State of Tamil Nadu pointed out the broad features surrounding the catch made at the airport on 25-4-1999. This was not the only occasion when the petitioner travelled to Singapore and the surrounding place. On a previous occasion also the petitioner had gone up to those places. It is pertinent to point out that on the previous occasion also the petitioner had gone to some places with the same co-traveller. On the second occasion when he came back with all the contraband articles it was for the detaining authority to subjectively satisfy whether this petitioner had acquired the wherewithal to continue with the nefarious activities. Considering the fact that the petitioner is a Public Relations Officer attached to the Tourism Department we cannot accept the contention of the learned counsel for the petitioner that he should be treated at a lesser degree than his co-traveller so far as the formation of subjective satisfaction of the detaining authority is concerned | 0[ds]We cannot appreciate the said contention for two reasons. First is that the detention order in respect of the present petitioner should be based principally on the facts centred on what he had done in collaboration with his. In other words, if the detention order and the connected records relating to ther were to be placed before the detaining authority there could possibly be an apprehension that the detaining authority would be biased against the petitioner because of the various allegations contained therein. Second is that the detaining authority cannot be said to be totally ignorant of the fact that Radhakrishnan Prabhakaran was also detained under a separate order, for, the aforesaid detention order against Radhakrishnan Prabhakaran was passed by the same detaining authority just six days prior to the impugned detention order. So we do not see much force in the said ground raised nowWhile dealing with the second ground we initially thought that the petitioner has really a case to put forward because at the first blush it may appear that there was delay on the part of the Central Government in disposing of the representation made by the detenu. We may point out that the representation to the Central Government was actually made by the detenu on9 and the same was disposed of by the Central Government only on. No doubt there was delay. It is not the law that whenever there is any delay the detention order would be vitiated. The law is that the delay should not be unexplainable and that the explanation offered must appear to the court to be reasonable and acceptableIn the present case the representation sent by the detenu to the Central Government onWe are inclined to accept the said explanation for the intervening period between 6th and 9th September for the representation to reach the COFEPOSA Unit. We may note here that there can possibly be no grievance that the order of disposal made on9 was vitiated by delay subsequent to. We, therefore, hold that the grievance regarding delay in disposing of the representation made by the detenu to the Central Government is not valid in the circumstances of this caseWhile elaborating the third ground, i.e., want of compelling necessity to preventively detain the petitioner,Shri K. K. Mani, learned counsel for the petitioner vehemently stated that when ther was preventively detained there was no need to detain the petitioner separately as he had only accompanied him.On the other hand, Shri V. R. Reddy, learned Senior Counsel arguing for the State of Tamil Nadu pointed out the broad features surrounding the catch made at the airport on. This was not the only occasion when the petitioner travelled to Singapore and the surrounding place. On a previous occasion also the petitioner had gone up to those places. It is pertinent to point out that on the previous occasion also the petitioner had gone to some places with the same. On the second occasion when he came back with all the contraband articles it was for the detaining authority to subjectively satisfy whether this petitioner had acquired the wherewithal to continue with the nefarious activities.Considering the fact that the petitioner is a Public Relations Officer attached to the Tourism Department we cannot accept the contention of the learned counsel for the petitioner that he should be treated at a lesser degree than hisr so far as the formation of subjective satisfaction of the detaining authority is concerned | 0 | 1,274 | 607 | ### 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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but we did not interfere with the said order as per the judgment of this Court dated 2-3-2000 Mainly three points have been raised by the petitioner in challenge of the detention order passed against him. They are 1. The sponsoring authority (the Customs Department) did not place relevant and vital documents for consideration before the detaining authority 2. There was delay in considering and disposing of the representation made by the petitioner before the Central Government 3. There was no compelling necessity to preventively detain the petitionerFor elaborating the first ground learned counsel contended that records connected with the detention of the co-traveller Radhakrishnan Prabhakaran were not placed before the detaining authority. Had those records been placed, perhaps, the detaining authority would have come to a different conclusion, contended learned counsel We cannot appreciate the said contention for two reasons. First is that the detention order in respect of the present petitioner should be based principally on the facts centred on what he had done in collaboration with his co-traveller. In other words, if the detention order and the connected records relating to the co-traveller were to be placed before the detaining authority there could possibly be an apprehension that the detaining authority would be biased against the petitioner because of the various allegations contained therein. Second is that the detaining authority cannot be said to be totally ignorant of the fact that Radhakrishnan Prabhakaran was also detained under a separate order, for, the aforesaid detention order against Radhakrishnan Prabhakaran was passed by the same detaining authority just six days prior to the impugned detention order. So we do not see much force in the said ground raised now While dealing with the second ground we initially thought that the petitioner has really a case to put forward because at the first blush it may appear that there was delay on the part of the Central Government in disposing of the representation made by the detenu. We may point out that the representation to the Central Government was actually made by the detenu on 1-9-1999 and the same was disposed of by the Central Government only on 15-9-1999. No doubt there was delay. It is not the law that whenever there is any delay the detention order would be vitiated. The law is that the delay should not be unexplainable and that the explanation offered must appear to the court to be reasonable and acceptableIn the present case the representation sent by the detenu to the Central Government on 1-9-1999 had reached the COFEPOSA Unit of the Finance Department only on 9-9-1999. Shri T. L. V. Iyer, learned Senior Counsel who argued for the Union on India submitted after verifying the documents that there is some lapse in the Department for mentioning the exact date on which the representation had reached the Secretary, Ministry of Finance, Department of Revenue, New Delhi. Normally, a seal would be affixed showing the date on which the representation was received in the Department, but such a seal is not seen affixed on the particular representation. Of course, that does not mean that the representation had not reached the Department at all at any time. It is a certainty that it would have reached the Department on a day prior to 9-9-1999. Learned Senior Counsel pointed out that as 3rd, 4th and 5th of September, 1999 were government holidays the representation would have possibly reached the Department either on 2nd evening or on the 6th of September. If that be so, the question is whether placing the said representation before the COFEPOSA Unit on 9-9-1999 can be treated as unreasonably delayed Learned Senior Counsel pointed out the practicalities involved in sifting and sorting various mails which would have heaped up in the Department by 6-9-1999 on account of the preceding government holidays for a continuous three days period. He submitted that it is not enough that somebody in the Department would see the outer cover of the representation. Every mail should have been opened, read and found out as to which Department it should be placed and only after such sorting process is made the representation could be sent to the appropriate section. We are inclined to accept the said explanation for the intervening period between 6th and 9th September for the representation to reach the COFEPOSA Unit. We may note here that there can possibly be no grievance that the order of disposal made on 15-5-1999 was vitiated by delay subsequent to 9-9-1999. We, therefore, hold that the grievance regarding delay in disposing of the representation made by the detenu to the Central Government is not valid in the circumstances of this caseWhile elaborating the third ground, i.e., want of compelling necessity to preventively detain the petitioner, Shri K. K. Mani, learned counsel for the petitioner vehemently stated that when the co-traveller was preventively detained there was no need to detain the petitioner separately as he had only accompanied him. On the other hand, Shri V. R. Reddy, learned Senior Counsel arguing for the State of Tamil Nadu pointed out the broad features surrounding the catch made at the airport on 25-4-1999. This was not the only occasion when the petitioner travelled to Singapore and the surrounding place. On a previous occasion also the petitioner had gone up to those places. It is pertinent to point out that on the previous occasion also the petitioner had gone to some places with the same co-traveller. On the second occasion when he came back with all the contraband articles it was for the detaining authority to subjectively satisfy whether this petitioner had acquired the wherewithal to continue with the nefarious activities. Considering the fact that the petitioner is a Public Relations Officer attached to the Tourism Department we cannot accept the contention of the learned counsel for the petitioner that he should be treated at a lesser degree than his co-traveller so far as the formation of subjective satisfaction of the detaining authority is concerned
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0
### Explanation:
We cannot appreciate the said contention for two reasons. First is that the detention order in respect of the present petitioner should be based principally on the facts centred on what he had done in collaboration with his. In other words, if the detention order and the connected records relating to ther were to be placed before the detaining authority there could possibly be an apprehension that the detaining authority would be biased against the petitioner because of the various allegations contained therein. Second is that the detaining authority cannot be said to be totally ignorant of the fact that Radhakrishnan Prabhakaran was also detained under a separate order, for, the aforesaid detention order against Radhakrishnan Prabhakaran was passed by the same detaining authority just six days prior to the impugned detention order. So we do not see much force in the said ground raised nowWhile dealing with the second ground we initially thought that the petitioner has really a case to put forward because at the first blush it may appear that there was delay on the part of the Central Government in disposing of the representation made by the detenu. We may point out that the representation to the Central Government was actually made by the detenu on9 and the same was disposed of by the Central Government only on. No doubt there was delay. It is not the law that whenever there is any delay the detention order would be vitiated. The law is that the delay should not be unexplainable and that the explanation offered must appear to the court to be reasonable and acceptableIn the present case the representation sent by the detenu to the Central Government onWe are inclined to accept the said explanation for the intervening period between 6th and 9th September for the representation to reach the COFEPOSA Unit. We may note here that there can possibly be no grievance that the order of disposal made on9 was vitiated by delay subsequent to. We, therefore, hold that the grievance regarding delay in disposing of the representation made by the detenu to the Central Government is not valid in the circumstances of this caseWhile elaborating the third ground, i.e., want of compelling necessity to preventively detain the petitioner,Shri K. K. Mani, learned counsel for the petitioner vehemently stated that when ther was preventively detained there was no need to detain the petitioner separately as he had only accompanied him.On the other hand, Shri V. R. Reddy, learned Senior Counsel arguing for the State of Tamil Nadu pointed out the broad features surrounding the catch made at the airport on. This was not the only occasion when the petitioner travelled to Singapore and the surrounding place. On a previous occasion also the petitioner had gone up to those places. It is pertinent to point out that on the previous occasion also the petitioner had gone to some places with the same. On the second occasion when he came back with all the contraband articles it was for the detaining authority to subjectively satisfy whether this petitioner had acquired the wherewithal to continue with the nefarious activities.Considering the fact that the petitioner is a Public Relations Officer attached to the Tourism Department we cannot accept the contention of the learned counsel for the petitioner that he should be treated at a lesser degree than hisr so far as the formation of subjective satisfaction of the detaining authority is concerned
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Anand Kumar Tiwari & Ors Vs. High Court of Madhya Pradesh & Ors | Ashok Kumar Sharma, learned Senior Counsel relied upon the judgment of this Court in All India Judges Association (supra) and an order passed at a later date directing the High Courts to amend the seniority Rule by including the roster system for determining the inter-se seniority of District Judges. The delay that occurred in the amendment of Rules cannot be detrimental to the interest of the directly recruited District Judges, and, therefore, according to the Petitioners, the seniority of District Judges has to be re-determined on the basis of roster by retrospective effect being given to the 2017 Rules. 8. On the other hand, Mr. Ravindra Shrivastava learned Senior Counsel appearing for the High Court of Madhya Pradesh submitted that the Full Court which met on several occasions after the judgment of this Court in All India Judges Association (supra) deferred the amendment to the seniority rule in view of the pendency of SLP (C) No.24437 of 2008 before this Court relating to the inter-se seniority of District Judges. Ultimately, the High Court has taken a decision in the year 2018 to amend the rule of seniority by introducing the roster as the basis for determining inter-se seniority. He asserted that the 2017 Rules are prospective and the representations preferred by the direct recruits for the benefit of roster system from a prior date were rejected by the Administrative Committee of the High Court of Madhya Pradesh. 9. The delay in the decision taken by the High Court to bring the seniority rule in accord with the directions given by this Court in All India Judges Association (supra) on the ground of pendency of SLP before this Court is not justified. The subject matter of the decision of the High Court of Madhya Pradesh in Y.D. Shuklas case is the validity of proviso to Rule 5 (1) (b) of the 1994 Rules, according to which recruitment to the post of District Judges shall be made on the basis of vacancies available on the attainment of required percentage. The question of inter-se seniority of promotees and direct recruits was not directly an issue in the said case. Moreover, the 2017 Rules were made during the pendency of the SLP which was dismissed later on 14.08.2018. However, the Petitioners are not entitled to the relief of the 2017 Rules being given retrospective effect. According to Rule 11 (1) of the 2017 Rules, the relative seniority of members of service working on the date of commencement of the Rules shall not be disturbed. The roster shall be prepared and maintained only after the commencement of operation of the Rules. The Petitioners cannot claim that their seniority has to be reworked on the basis of roster as directed by this Court in All India Judges Association (supra) case. 10. Dr. Harshvir Pratap Sharma, learned Senior Counsel submitted that the Petitioners were correctly shown above the District Judges promoted through LCE till 2013. He argued that the representations preferred by promotee District Judges through LCE ought not to have been accepted by the High Court to unsettle the seniority of direct recruits. He further submitted that the decision of the Special Committee is flawed as the date of appointment was taken to be the criteria for fixing inter-se seniority by resorting to Rule 12 (1) (e) of the Madhya Pradesh Civil Services (General Condition of Service) Rules, 1961 (for short, the 1961 Rules), which is not applicable for determining the seniority of the District Judges. Therefore, the decision taken by the Special Committee and approved by the Full Court of the Madhya Pradesh High Court is unsustainable. 11. It was contended on behalf of the High Court that there is no provision in the 1994 Rules by which inter-se seniority of promotees and directly recruited District Judges could be determined. Therefore, the High Court followed the principles of the 1961 Rules for determining the same. Moreover, in the absence of any rule for determination of inter-se seniority continuous officiation is a well-accepted principle. After carefully examining the recommendations made by the Special Committee which was approved by the Administrative Committee and the Full Court of the Madhya Pradesh High Court, we are in agreement with the submission made on behalf of the High Court that in the absence of any rule for determining inter-se seniority of direct recruits and promotees, the date of appointment/promotion can be taken into account for fixing seniority. In addition, there is no error committed by the High Court in adopting the principle of Rule 12 (1) of the 1961 Rules. 12. On 19.07.2014, the Full Court of the Madhya Pradesh High Court requested the Special Committee to examine the dispute of inter-se seniority of direct recruits and promotees through LCE in light of Rule 11 of 1994 Rules and Rule 12 of 1961 Rules. After giving an opportunity to all stakeholders, the Special Committee resolved to follow the 1961 Rules according to which the relative seniority of direct recruits and promotees was determined according to the date of appointment/ promotion order. Taking note of the absence of any provision for determining inter-se seniority of direct recruits and promotees, the Special Committee suggested amendment to the Rules. Realising that the principle of continuous officiation is well settled, especially where inter-se seniority is not dealt with in the Rules, the Full Court of the High Court correctly approved the resolution of the Special Committee. After the introduction of the 2017 Rules, seniority inter-se direct recruits and promotees shall be determined on the basis of Roster. 13. As we have answered the main issues against the Petitioners, it is not necessary to deal with the other submissions made on their behalf. Mr. Puneet Jain, learned counsel for Respondent No. 11 submitted that the service rendered by Respondent No.11 in the Fast-Track Court should be counted while computing his seniority. Respondent No. 11 is at liberty to pursue his remedies as this Court is not concerned with the said issue in these Writ Petitions. | 0[ds]9. The delay in the decision taken by the High Court to bring the seniority rule in accord with the directions given by this Court in All India Judges Association (supra) on the ground of pendency of SLP before this Court is not justified. The subject matter of the decision of the High Court of Madhya Pradesh in Y.D. Shuklas case is the validity of proviso to Rule 5 (1) (b) of the 1994 Rules, according to which recruitment to the post of District Judges shall be made on the basis of vacancies available on the attainment of required percentage. The question of inter-se seniority of promotees and direct recruits was not directly an issue in the said case. Moreover, the 2017 Rules were made during the pendency of the SLP which was dismissed later on 14.08.2018. However, the Petitioners are not entitled to the relief of the 2017 Rules being given retrospective effect. According to Rule 11 (1) of the 2017 Rules, the relative seniority of members of service working on the date of commencement of the Rules shall not be disturbed. The roster shall be prepared and maintained only after the commencement of operation of the Rules. The Petitioners cannot claim that their seniority has to be reworked on the basis of roster as directed by this Court in All India Judges Association (supra) case.After carefully examining the recommendations made by the Special Committee which was approved by the Administrative Committee and the Full Court of the Madhya Pradesh High Court, we are in agreement with the submission made on behalf of the High Court that in the absence of any rule for determining inter-se seniority of direct recruits and promotees, the date of appointment/promotion can be taken into account for fixing seniority. In addition, there is no error committed by the High Court in adopting the principle of Rule 12 (1) of the 1961 Rules.12. On 19.07.2014, the Full Court of the Madhya Pradesh High Court requested the Special Committee to examine the dispute of inter-se seniority of direct recruits and promotees through LCE in light of Rule 11 of 1994 Rules and Rule 12 of 1961 Rules. After giving an opportunity to all stakeholders, the Special Committee resolved to follow the 1961 Rules according to which the relative seniority of direct recruits and promotees was determined according to the date of appointment/ promotion order. Taking note of the absence of any provision for determining inter-se seniority of direct recruits and promotees, the Special Committee suggested amendment to the Rules. Realising that the principle of continuous officiation is well settled, especially where inter-se seniority is not dealt with in the Rules, the Full Court of the High Court correctly approved the resolution of the Special Committee. After the introduction of the 2017 Rules, seniority inter-se direct recruits and promotees shall be determined on the basis of Roster.13. As we have answered the main issues against the Petitioners, it is not necessary to deal with the other submissions made on their behalf.Mr. Puneet Jain, learned counsel for Respondent No. 11 submitted that the service rendered by Respondent No.11 in the Fast-Track Court should be counted while computing his seniority. Respondent No. 11 is at liberty to pursue his remedies as this Court is not concerned with the said issue in these Writ Petitions. | 0 | 2,732 | 608 | ### 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:
Ashok Kumar Sharma, learned Senior Counsel relied upon the judgment of this Court in All India Judges Association (supra) and an order passed at a later date directing the High Courts to amend the seniority Rule by including the roster system for determining the inter-se seniority of District Judges. The delay that occurred in the amendment of Rules cannot be detrimental to the interest of the directly recruited District Judges, and, therefore, according to the Petitioners, the seniority of District Judges has to be re-determined on the basis of roster by retrospective effect being given to the 2017 Rules. 8. On the other hand, Mr. Ravindra Shrivastava learned Senior Counsel appearing for the High Court of Madhya Pradesh submitted that the Full Court which met on several occasions after the judgment of this Court in All India Judges Association (supra) deferred the amendment to the seniority rule in view of the pendency of SLP (C) No.24437 of 2008 before this Court relating to the inter-se seniority of District Judges. Ultimately, the High Court has taken a decision in the year 2018 to amend the rule of seniority by introducing the roster as the basis for determining inter-se seniority. He asserted that the 2017 Rules are prospective and the representations preferred by the direct recruits for the benefit of roster system from a prior date were rejected by the Administrative Committee of the High Court of Madhya Pradesh. 9. The delay in the decision taken by the High Court to bring the seniority rule in accord with the directions given by this Court in All India Judges Association (supra) on the ground of pendency of SLP before this Court is not justified. The subject matter of the decision of the High Court of Madhya Pradesh in Y.D. Shuklas case is the validity of proviso to Rule 5 (1) (b) of the 1994 Rules, according to which recruitment to the post of District Judges shall be made on the basis of vacancies available on the attainment of required percentage. The question of inter-se seniority of promotees and direct recruits was not directly an issue in the said case. Moreover, the 2017 Rules were made during the pendency of the SLP which was dismissed later on 14.08.2018. However, the Petitioners are not entitled to the relief of the 2017 Rules being given retrospective effect. According to Rule 11 (1) of the 2017 Rules, the relative seniority of members of service working on the date of commencement of the Rules shall not be disturbed. The roster shall be prepared and maintained only after the commencement of operation of the Rules. The Petitioners cannot claim that their seniority has to be reworked on the basis of roster as directed by this Court in All India Judges Association (supra) case. 10. Dr. Harshvir Pratap Sharma, learned Senior Counsel submitted that the Petitioners were correctly shown above the District Judges promoted through LCE till 2013. He argued that the representations preferred by promotee District Judges through LCE ought not to have been accepted by the High Court to unsettle the seniority of direct recruits. He further submitted that the decision of the Special Committee is flawed as the date of appointment was taken to be the criteria for fixing inter-se seniority by resorting to Rule 12 (1) (e) of the Madhya Pradesh Civil Services (General Condition of Service) Rules, 1961 (for short, the 1961 Rules), which is not applicable for determining the seniority of the District Judges. Therefore, the decision taken by the Special Committee and approved by the Full Court of the Madhya Pradesh High Court is unsustainable. 11. It was contended on behalf of the High Court that there is no provision in the 1994 Rules by which inter-se seniority of promotees and directly recruited District Judges could be determined. Therefore, the High Court followed the principles of the 1961 Rules for determining the same. Moreover, in the absence of any rule for determination of inter-se seniority continuous officiation is a well-accepted principle. After carefully examining the recommendations made by the Special Committee which was approved by the Administrative Committee and the Full Court of the Madhya Pradesh High Court, we are in agreement with the submission made on behalf of the High Court that in the absence of any rule for determining inter-se seniority of direct recruits and promotees, the date of appointment/promotion can be taken into account for fixing seniority. In addition, there is no error committed by the High Court in adopting the principle of Rule 12 (1) of the 1961 Rules. 12. On 19.07.2014, the Full Court of the Madhya Pradesh High Court requested the Special Committee to examine the dispute of inter-se seniority of direct recruits and promotees through LCE in light of Rule 11 of 1994 Rules and Rule 12 of 1961 Rules. After giving an opportunity to all stakeholders, the Special Committee resolved to follow the 1961 Rules according to which the relative seniority of direct recruits and promotees was determined according to the date of appointment/ promotion order. Taking note of the absence of any provision for determining inter-se seniority of direct recruits and promotees, the Special Committee suggested amendment to the Rules. Realising that the principle of continuous officiation is well settled, especially where inter-se seniority is not dealt with in the Rules, the Full Court of the High Court correctly approved the resolution of the Special Committee. After the introduction of the 2017 Rules, seniority inter-se direct recruits and promotees shall be determined on the basis of Roster. 13. As we have answered the main issues against the Petitioners, it is not necessary to deal with the other submissions made on their behalf. Mr. Puneet Jain, learned counsel for Respondent No. 11 submitted that the service rendered by Respondent No.11 in the Fast-Track Court should be counted while computing his seniority. Respondent No. 11 is at liberty to pursue his remedies as this Court is not concerned with the said issue in these Writ Petitions.
### Response:
0
### Explanation:
9. The delay in the decision taken by the High Court to bring the seniority rule in accord with the directions given by this Court in All India Judges Association (supra) on the ground of pendency of SLP before this Court is not justified. The subject matter of the decision of the High Court of Madhya Pradesh in Y.D. Shuklas case is the validity of proviso to Rule 5 (1) (b) of the 1994 Rules, according to which recruitment to the post of District Judges shall be made on the basis of vacancies available on the attainment of required percentage. The question of inter-se seniority of promotees and direct recruits was not directly an issue in the said case. Moreover, the 2017 Rules were made during the pendency of the SLP which was dismissed later on 14.08.2018. However, the Petitioners are not entitled to the relief of the 2017 Rules being given retrospective effect. According to Rule 11 (1) of the 2017 Rules, the relative seniority of members of service working on the date of commencement of the Rules shall not be disturbed. The roster shall be prepared and maintained only after the commencement of operation of the Rules. The Petitioners cannot claim that their seniority has to be reworked on the basis of roster as directed by this Court in All India Judges Association (supra) case.After carefully examining the recommendations made by the Special Committee which was approved by the Administrative Committee and the Full Court of the Madhya Pradesh High Court, we are in agreement with the submission made on behalf of the High Court that in the absence of any rule for determining inter-se seniority of direct recruits and promotees, the date of appointment/promotion can be taken into account for fixing seniority. In addition, there is no error committed by the High Court in adopting the principle of Rule 12 (1) of the 1961 Rules.12. On 19.07.2014, the Full Court of the Madhya Pradesh High Court requested the Special Committee to examine the dispute of inter-se seniority of direct recruits and promotees through LCE in light of Rule 11 of 1994 Rules and Rule 12 of 1961 Rules. After giving an opportunity to all stakeholders, the Special Committee resolved to follow the 1961 Rules according to which the relative seniority of direct recruits and promotees was determined according to the date of appointment/ promotion order. Taking note of the absence of any provision for determining inter-se seniority of direct recruits and promotees, the Special Committee suggested amendment to the Rules. Realising that the principle of continuous officiation is well settled, especially where inter-se seniority is not dealt with in the Rules, the Full Court of the High Court correctly approved the resolution of the Special Committee. After the introduction of the 2017 Rules, seniority inter-se direct recruits and promotees shall be determined on the basis of Roster.13. As we have answered the main issues against the Petitioners, it is not necessary to deal with the other submissions made on their behalf.Mr. Puneet Jain, learned counsel for Respondent No. 11 submitted that the service rendered by Respondent No.11 in the Fast-Track Court should be counted while computing his seniority. Respondent No. 11 is at liberty to pursue his remedies as this Court is not concerned with the said issue in these Writ Petitions.
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N. Boman Behram (Dead) By L. Rs. & Anr Vs. State Of Mysore & Anr | 1961 Act is valid. The reason given by the High Court is that the Deputy Commissioner is an agent of the State Government and the compensation fixed in the award is an offer made on behalf of the Government. The reason for the proviso to Section 11 of the 1961 Act is to eliminate rare cases of Land Acquisition Officers being influenced by extraneous considerations in determining the amount of compensation in excess of the real market value.6. Counsel for the appellant contended that the proviso to Sec. 11 of the 1961 Act is unconstitutional. Section 11 of the 1961 Act deals with enquiry and award by Collector. Section 11 of the 1961 Act states that the Commissioner shall enquire into objections which any person interested has stated a prusuant to a notice given under Section 9 to the measurements made under Section 8 and into the value of the land at the date of the publication of the notification under Section 4 sub-section(1), and into the respective interests of the persons claiming the compensation. Section 11 of the 1961 Act further provides that the Deputy Commissioner shall make an award under his hand of (i) the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of claims, he has information, whether or not they have respectively appeared before him.7. Section 15-A of the 1961 Act states that the State Government may at any time before an award is made by the Deputy Commissioner under Section 11 call for and examine the record of any order passed by the Deputy Commissioner of any inquiry or proceedings of the Deputy Commissioner for the purpose of satisfying itself as to the legality or propriety of any order passed and as to the regularity of such proceedings. If, in any case, it shall appear to the State Government that any order or proceedings so called for should be modified, annulled or reversed, it may pass such order thereon as it deems fit.8. The proviso to Section 11 of the 1961 Act is that no such award shall be made by the Deputy Commissioner, without the previous approval of the State Government or such officer as the State Government may appoint in this behalf who in the case of an award made by an officer below the rank of the Deputy Commissioner of the District, may be the Deputy Commissioner of the District. Section 15-A of the 1961 Act is in aid of the proviso to Section 11 of the 1961 Act.9. Counsel for the appellant contended that the proviso to Section 11 of the 1961 Act offended Article 31 (2) of the Constitution. The Land Acquisition Act, 1894 is protected under Article 31(5) of the Constitution. The proviso came into existence by the Mysore Act No. 17 of 1961 and therefore counsel for the appellant challenges the same as an infraction of Article 31(2) of the Constitution. The contention is utterly unsound. The Land Acquisition Act is a piece of legislation which provides for acquisition of property for public purpose by authority of law for an amount which may be determined in accordance with the principles specified in the Land Acquisition Act.10. The proviso states that no award shall be made without the previous approval of the State Government. An award made under Section 11 of the 1961Act is an offer of compensation. The Deputy Commissioner makes an offer. The Deputy Commissioner us an agent of the Government. The Government is the ultimate authority to approve the award. Therefore, the proviso enjoins that no award shall be made without the previous approval of the State Government. It is wrong to suggest that any opinion of the Deputy Commissioner is being overreached by the State Government. The Deputy Commissioner is not acting in judicial or quasi-judicial capacity in making the award under Section 11 of the 1961 Act. The Deputy Commissioner acts in an administrative capacity as an agent of the State Government. The area of authority of the Deputy Commissioner is subject to approval by the State Government. The finality of the award under Section 11 of the 1961 Act rests with the State Government.11. Counsel for the appellant submitted that there were no guidelines for the approval by the State Government under the proviso to Section 11 of the 1961 Act. This is an erroneous submission. The Government in approving the award has to take into consideration the provisions of the Act. Any grievance with regard to the quantum of compensation or any other grievance on account of compensation is capable of being remedied under the provisions of the Act.12. The award made under Section 11 of the 1961 Act is required to be filed in the Collectors office. Under Section 15 of the 1961 Act the Collector in determining the amount of compensation shall be guided by the provisions contained in Sections 23 and 24 of the 1961 Act. Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court under Sec. 18 of the 1961 Act. The Court in determining the amount of compensation to be awarded shall take into consideration matters provided in Section 23 of the 1961 Act. Under Section 26 of the 1961 Act the award shall be deemed to be a decree. These provisions indicate that an award under Section 11 of the 1961 Act is not final as far as the appellant is concerned. The matters to be considered in determining the compensation as embodied in Section 23 of the 1961 Act are to be kept in mind not only by the Collector under Section 15 of the 1961 Act but also by the court under Section 23 of the 1961 Act. | 0[ds]Act.10. The proviso states that no award shall be made without the previous approval of the State Government. An award made under Section 11 of the 1961Act is an offer of compensation. The Deputy Commissioner makes an offer. The Deputy Commissioner us an agent of the Government. The Government is the ultimate authority to approve the award. Therefore, the proviso enjoins that no award shall be made without the previous approval of the State Government. It is wrong to suggest that any opinion of the Deputy Commissioner is being overreached by the State Government. The Deputy Commissioner is not acting in judicial or quasi-judicial capacity in making the award under Section 11 of the 1961 Act. The Deputy Commissioner acts in an administrative capacity as an agent of the State Government. The area of authority of the Deputy Commissioner is subject to approval by the State Government. The finality of the award under Section 11 of the 1961 Act rests with the State Government.11. Counsel for the appellant submitted that there were no guidelines for the approval by the State Government under the proviso to Section 11 of the 1961 Act. This is an erroneous submission. The Government in approving the award has to take into consideration the provisions of the Act. Any grievance with regard to the quantum of compensation or any other grievance on account of compensation is capable of being remedied under the provisions of the Act.12. The award made under Section 11 of the 1961 Act is required to be filed in the Collectors office. Under Section 15 of the 1961 Act the Collector in determining the amount of compensation shall be guided by the provisions contained in Sections 23 and 24 of the 1961 Act. Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court under Sec. 18 of the 1961 Act. The Court in determining the amount of compensation to be awarded shall take into consideration matters provided in Section 23 of the 1961 Act. Under Section 26 of the 1961 Act the award shall be deemed to be a decree. These provisions indicate that an award under Section 11 of the 1961 Act is not final as far as the appellant is concerned. The matters to be considered in determining the compensation as embodied in Section 23 of the 1961 Act are to be kept in mind not only by the Collector under Section 15 of the 1961 Act but also by the court under Section 23 of the 1961 Act. | 0 | 1,411 | 470 | ### 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:
1961 Act is valid. The reason given by the High Court is that the Deputy Commissioner is an agent of the State Government and the compensation fixed in the award is an offer made on behalf of the Government. The reason for the proviso to Section 11 of the 1961 Act is to eliminate rare cases of Land Acquisition Officers being influenced by extraneous considerations in determining the amount of compensation in excess of the real market value.6. Counsel for the appellant contended that the proviso to Sec. 11 of the 1961 Act is unconstitutional. Section 11 of the 1961 Act deals with enquiry and award by Collector. Section 11 of the 1961 Act states that the Commissioner shall enquire into objections which any person interested has stated a prusuant to a notice given under Section 9 to the measurements made under Section 8 and into the value of the land at the date of the publication of the notification under Section 4 sub-section(1), and into the respective interests of the persons claiming the compensation. Section 11 of the 1961 Act further provides that the Deputy Commissioner shall make an award under his hand of (i) the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of claims, he has information, whether or not they have respectively appeared before him.7. Section 15-A of the 1961 Act states that the State Government may at any time before an award is made by the Deputy Commissioner under Section 11 call for and examine the record of any order passed by the Deputy Commissioner of any inquiry or proceedings of the Deputy Commissioner for the purpose of satisfying itself as to the legality or propriety of any order passed and as to the regularity of such proceedings. If, in any case, it shall appear to the State Government that any order or proceedings so called for should be modified, annulled or reversed, it may pass such order thereon as it deems fit.8. The proviso to Section 11 of the 1961 Act is that no such award shall be made by the Deputy Commissioner, without the previous approval of the State Government or such officer as the State Government may appoint in this behalf who in the case of an award made by an officer below the rank of the Deputy Commissioner of the District, may be the Deputy Commissioner of the District. Section 15-A of the 1961 Act is in aid of the proviso to Section 11 of the 1961 Act.9. Counsel for the appellant contended that the proviso to Section 11 of the 1961 Act offended Article 31 (2) of the Constitution. The Land Acquisition Act, 1894 is protected under Article 31(5) of the Constitution. The proviso came into existence by the Mysore Act No. 17 of 1961 and therefore counsel for the appellant challenges the same as an infraction of Article 31(2) of the Constitution. The contention is utterly unsound. The Land Acquisition Act is a piece of legislation which provides for acquisition of property for public purpose by authority of law for an amount which may be determined in accordance with the principles specified in the Land Acquisition Act.10. The proviso states that no award shall be made without the previous approval of the State Government. An award made under Section 11 of the 1961Act is an offer of compensation. The Deputy Commissioner makes an offer. The Deputy Commissioner us an agent of the Government. The Government is the ultimate authority to approve the award. Therefore, the proviso enjoins that no award shall be made without the previous approval of the State Government. It is wrong to suggest that any opinion of the Deputy Commissioner is being overreached by the State Government. The Deputy Commissioner is not acting in judicial or quasi-judicial capacity in making the award under Section 11 of the 1961 Act. The Deputy Commissioner acts in an administrative capacity as an agent of the State Government. The area of authority of the Deputy Commissioner is subject to approval by the State Government. The finality of the award under Section 11 of the 1961 Act rests with the State Government.11. Counsel for the appellant submitted that there were no guidelines for the approval by the State Government under the proviso to Section 11 of the 1961 Act. This is an erroneous submission. The Government in approving the award has to take into consideration the provisions of the Act. Any grievance with regard to the quantum of compensation or any other grievance on account of compensation is capable of being remedied under the provisions of the Act.12. The award made under Section 11 of the 1961 Act is required to be filed in the Collectors office. Under Section 15 of the 1961 Act the Collector in determining the amount of compensation shall be guided by the provisions contained in Sections 23 and 24 of the 1961 Act. Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court under Sec. 18 of the 1961 Act. The Court in determining the amount of compensation to be awarded shall take into consideration matters provided in Section 23 of the 1961 Act. Under Section 26 of the 1961 Act the award shall be deemed to be a decree. These provisions indicate that an award under Section 11 of the 1961 Act is not final as far as the appellant is concerned. The matters to be considered in determining the compensation as embodied in Section 23 of the 1961 Act are to be kept in mind not only by the Collector under Section 15 of the 1961 Act but also by the court under Section 23 of the 1961 Act.
### Response:
0
### Explanation:
Act.10. The proviso states that no award shall be made without the previous approval of the State Government. An award made under Section 11 of the 1961Act is an offer of compensation. The Deputy Commissioner makes an offer. The Deputy Commissioner us an agent of the Government. The Government is the ultimate authority to approve the award. Therefore, the proviso enjoins that no award shall be made without the previous approval of the State Government. It is wrong to suggest that any opinion of the Deputy Commissioner is being overreached by the State Government. The Deputy Commissioner is not acting in judicial or quasi-judicial capacity in making the award under Section 11 of the 1961 Act. The Deputy Commissioner acts in an administrative capacity as an agent of the State Government. The area of authority of the Deputy Commissioner is subject to approval by the State Government. The finality of the award under Section 11 of the 1961 Act rests with the State Government.11. Counsel for the appellant submitted that there were no guidelines for the approval by the State Government under the proviso to Section 11 of the 1961 Act. This is an erroneous submission. The Government in approving the award has to take into consideration the provisions of the Act. Any grievance with regard to the quantum of compensation or any other grievance on account of compensation is capable of being remedied under the provisions of the Act.12. The award made under Section 11 of the 1961 Act is required to be filed in the Collectors office. Under Section 15 of the 1961 Act the Collector in determining the amount of compensation shall be guided by the provisions contained in Sections 23 and 24 of the 1961 Act. Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court under Sec. 18 of the 1961 Act. The Court in determining the amount of compensation to be awarded shall take into consideration matters provided in Section 23 of the 1961 Act. Under Section 26 of the 1961 Act the award shall be deemed to be a decree. These provisions indicate that an award under Section 11 of the 1961 Act is not final as far as the appellant is concerned. The matters to be considered in determining the compensation as embodied in Section 23 of the 1961 Act are to be kept in mind not only by the Collector under Section 15 of the 1961 Act but also by the court under Section 23 of the 1961 Act.
|
PARAKH VANIJYA PRIVATE LIMITED Vs. BAROMA AGRO PRODUCT | the order dated 01.03.2017 passed by the High Court of Calcutta in AOPT No.349 of 2016 affirming the order of the Single Judge in and by which it was held that the respondent-defendant is entitled to use the word ‘MALABAR? in conjunction with the mark ‘BAROMA? for selling its product - Biryani Rice. By the impugned order, the Division Bench has also affirmed the findings of the Single Judge that subject to the outcome of the suit, the respondents can pursue their application for registration of their label.3. Appellant-plaintiff claims to have been using the mark ‘MALABAR? for selling Biryani Rice from 2001. The appellant filed the suit CS No.27 of 2012 for infringement and passing off special Biryani Rice under the mark ?MALABAR GOLD? or other mark/trade name which is identical with and/or deceptively similar to the appellant?s trade mark ‘MALABAR?. On consideration of various features of the respondent?s then mark and other materials, the learned Single Judge vide order dated 02.07.2012 granted interim injunction observing that there was similarity between the two labels/marks and restrained the respondents/defendants from using the label mark ‘MALABAR?. The Division Bench declined to interfere with the said order by its order dated 14.09.2012.4. While the suit and application for temporary injunction was pending before the Single Judge, the respondents/defendants filed application for vacating the order dated 02.07.2012 inter alia on various grounds contending that the appellant is relying upon fabricated documents and that the appellant cannot claim exclusive right over the mark ‘MALABAR? and therefore, the interim order of injunction has to be vacated. The learned Single Judge by its order dated 05.07.2016 which was passed with the consent of the parties gave liberty to the respondents to file a supplementary affidavit to clearly indicate the device/mark that the respondents proposed to use. The respondents filed application indicating the proposed modification in their label by changing the get-up. After hearing the parties, the interim order of injunction initially passed, was modified vide order dated 08.08.2016 to the effect that the respondents shall be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? where all the words and letters must be in the same font but the word ‘MALABAR? may be increased with font size of not more than 25% than the rest of the words or letters. Being aggrieved, the appellant-plaintiff has preferred appeal before the Division Bench. The Division Bench dismissed the appeal by the impugned order holding that the Single Judge has passed the order balancing the interest of the parties who are having a substantial turn over in their respective business.5. We have heard Mr. Shyam Diwan, learned senior counsel appearing on behalf of the appellant and Mr. Gourab K. Banerji, learned senior counsel appearing on behalf of the respondents and perused the impugned order and considered the materials placed on record.6. The appellant is the registered owner of the label mark in Class-30 in respect of rice, flour and preparations made from cereals, bread, cakes, biscuits, pastry and spices. The appellant sells Biryani Rice and the most prominent feature of its label mark is the word ‘MALABAR?. The appellant-plaintiff is granted registration in Class-30 for its products. Class-30 of the classification of goods and services under the statute covers diverse spices and other edible materials as wheat, rice, coffee, tea etc. In the registration under Class-30, there is a disclaimer for the word ‘MALABAR?. The disclaimer is worded thus:-?Condition & Limitation: REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF WORD ‘MALABAR? AND ALL OTHER DESCRIPTIVE MATTERS? 7. The appellant though claims exclusive right over the word ‘MALABAR? since there is a disclaimer to the exclusive use of the word ‘MALABAR?, the appellant has no right over the exclusive use of the word ‘MALABAR?. The respondents have also inter alia brought on record the materials to show the registration of other goods under Class-30 with the word ‘MALABAR MONSOON? granted in favour of Amalgamated Bean Coffee Trading Company Limited for Coffee Cream, Coffee included in Class-30. The registration of the mark ‘MALABAR MONSOON? under Class-30 also contains similar disclaimer of the word ‘MALABAR?. Likewise, the label ‘MALABAR COAST? has been registered in Class-30 for Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats Private Limited which again contains a similar disclaimer for the exclusive use of the word ‘MALABAR COAST?. Having regard to the materials placed on record, we are of the view that the High Court rightly held that the appellant cannot claim exclusive right over the use of the word ‘MALABAR?.8. Insofar as the label mark used by the parties, we have perused the label mark of the appellant selling Biryani Rice with word ‘MALABAR? and also the modified label mark of the respondents. The label of the respondents containing the words ?BAROMA?, ?MALABAR?, ?GOLD? are circled having a different get-up from that of the appellant. By comparison of the two label marks, in our view, both appear to be substantially different. There appears to be no similarity between both the labels, more so, deceptive similarity. Keeping in view the interest of the respective parties who are said to be having substantial turn-over in their respective business, the High Court rightly held that the respondents would be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? with the different get-up as approved by the High Court. We do not find any serious infirmity warranting interference with the impugned order.9. Having regard to the various contentions raised by the parties, the High Court rightly held that subject to the outcome of the suit, the respondent can pursue their application for registration of the device. Both parties have inter alia raised various contentions. Since the suit and the respondent?s application for registration of its label with the marks thereon under Class-30 is pending, we are not inclined to go into the merits of those contentions. Lest, it would prejudicially affect the rights of the parties in the pending suit and proceedings. | 0[ds]The appellant is the registered owner of the label mark inin respect of rice, flour and preparations made from cereals, bread, cakes, biscuits, pastry and spices. The appellant sells Biryani Rice and the most prominent feature of its label mark is the word ‘MALABAR?. Theis granted registration infor its products.of the classification of goods and services under the statute covers diverse spices and other edible materials as wheat, rice, coffee, tea etc. In the registration underthere is a disclaimer for the word ‘MALABAR?. The disclaimer is worded& Limitation: REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF WORD ‘MALABAR? AND ALL OTHER DESCRIPTIVEappellant though claims exclusive right over the word ‘MALABAR? since there is a disclaimer to the exclusive use of the word ‘MALABAR?, the appellant has no right over the exclusive use of the word ‘MALABAR?. The respondents have also inter alia brought on record the materials to show the registration of other goods underwith the word ‘MALABAR MONSOON? granted in favour of Amalgamated Bean Coffee Trading Company Limited for Coffee Cream, Coffee included inThe registration of the mark ‘MALABAR MONSOON? underalso contains similar disclaimer of the word ‘MALABAR?. Likewise, the label ‘MALABAR COAST? has been registered infor Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats Private Limited which again contains a similar disclaimer for the exclusive use of the word ‘MALABAR COAST?. Having regard to the materials placed on record, we are of the view that the High Court rightly held that the appellant cannot claim exclusive right over the use of the wordas the label mark used by the parties, we have perused the label mark of the appellant selling Biryani Rice with word ‘MALABAR? and also the modified label mark of the respondents. The label of the respondents containing the words ?BAROMA?, ?MALABAR?, ?GOLD? are circled having a differentfrom that of the appellant. By comparison of the two label marks, in our view, both appear to be substantially different. There appears to be no similarity between both the labels, more so, deceptive similarity. Keeping in view the interest of the respective parties who are said to be having substantialin their respective business, the High Court rightly held that the respondents would be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? with the differentas approved by the High Court. We do not find any serious infirmity warranting interference with the impugnedregard to the various contentions raised by the parties, the High Court rightly held that subject to the outcome of the suit, the respondent can pursue their application for registration of the device. Both parties have inter alia raised various contentions. Since the suit and the respondent?s application for registration of its label with the marks thereon underis pending, we are not inclined to go into the merits of those contentions. Lest, it would prejudicially affect the rights of the parties in the pending suit and proceedings. | 0 | 1,158 | 576 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the order dated 01.03.2017 passed by the High Court of Calcutta in AOPT No.349 of 2016 affirming the order of the Single Judge in and by which it was held that the respondent-defendant is entitled to use the word ‘MALABAR? in conjunction with the mark ‘BAROMA? for selling its product - Biryani Rice. By the impugned order, the Division Bench has also affirmed the findings of the Single Judge that subject to the outcome of the suit, the respondents can pursue their application for registration of their label.3. Appellant-plaintiff claims to have been using the mark ‘MALABAR? for selling Biryani Rice from 2001. The appellant filed the suit CS No.27 of 2012 for infringement and passing off special Biryani Rice under the mark ?MALABAR GOLD? or other mark/trade name which is identical with and/or deceptively similar to the appellant?s trade mark ‘MALABAR?. On consideration of various features of the respondent?s then mark and other materials, the learned Single Judge vide order dated 02.07.2012 granted interim injunction observing that there was similarity between the two labels/marks and restrained the respondents/defendants from using the label mark ‘MALABAR?. The Division Bench declined to interfere with the said order by its order dated 14.09.2012.4. While the suit and application for temporary injunction was pending before the Single Judge, the respondents/defendants filed application for vacating the order dated 02.07.2012 inter alia on various grounds contending that the appellant is relying upon fabricated documents and that the appellant cannot claim exclusive right over the mark ‘MALABAR? and therefore, the interim order of injunction has to be vacated. The learned Single Judge by its order dated 05.07.2016 which was passed with the consent of the parties gave liberty to the respondents to file a supplementary affidavit to clearly indicate the device/mark that the respondents proposed to use. The respondents filed application indicating the proposed modification in their label by changing the get-up. After hearing the parties, the interim order of injunction initially passed, was modified vide order dated 08.08.2016 to the effect that the respondents shall be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? where all the words and letters must be in the same font but the word ‘MALABAR? may be increased with font size of not more than 25% than the rest of the words or letters. Being aggrieved, the appellant-plaintiff has preferred appeal before the Division Bench. The Division Bench dismissed the appeal by the impugned order holding that the Single Judge has passed the order balancing the interest of the parties who are having a substantial turn over in their respective business.5. We have heard Mr. Shyam Diwan, learned senior counsel appearing on behalf of the appellant and Mr. Gourab K. Banerji, learned senior counsel appearing on behalf of the respondents and perused the impugned order and considered the materials placed on record.6. The appellant is the registered owner of the label mark in Class-30 in respect of rice, flour and preparations made from cereals, bread, cakes, biscuits, pastry and spices. The appellant sells Biryani Rice and the most prominent feature of its label mark is the word ‘MALABAR?. The appellant-plaintiff is granted registration in Class-30 for its products. Class-30 of the classification of goods and services under the statute covers diverse spices and other edible materials as wheat, rice, coffee, tea etc. In the registration under Class-30, there is a disclaimer for the word ‘MALABAR?. The disclaimer is worded thus:-?Condition & Limitation: REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF WORD ‘MALABAR? AND ALL OTHER DESCRIPTIVE MATTERS? 7. The appellant though claims exclusive right over the word ‘MALABAR? since there is a disclaimer to the exclusive use of the word ‘MALABAR?, the appellant has no right over the exclusive use of the word ‘MALABAR?. The respondents have also inter alia brought on record the materials to show the registration of other goods under Class-30 with the word ‘MALABAR MONSOON? granted in favour of Amalgamated Bean Coffee Trading Company Limited for Coffee Cream, Coffee included in Class-30. The registration of the mark ‘MALABAR MONSOON? under Class-30 also contains similar disclaimer of the word ‘MALABAR?. Likewise, the label ‘MALABAR COAST? has been registered in Class-30 for Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats Private Limited which again contains a similar disclaimer for the exclusive use of the word ‘MALABAR COAST?. Having regard to the materials placed on record, we are of the view that the High Court rightly held that the appellant cannot claim exclusive right over the use of the word ‘MALABAR?.8. Insofar as the label mark used by the parties, we have perused the label mark of the appellant selling Biryani Rice with word ‘MALABAR? and also the modified label mark of the respondents. The label of the respondents containing the words ?BAROMA?, ?MALABAR?, ?GOLD? are circled having a different get-up from that of the appellant. By comparison of the two label marks, in our view, both appear to be substantially different. There appears to be no similarity between both the labels, more so, deceptive similarity. Keeping in view the interest of the respective parties who are said to be having substantial turn-over in their respective business, the High Court rightly held that the respondents would be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? with the different get-up as approved by the High Court. We do not find any serious infirmity warranting interference with the impugned order.9. Having regard to the various contentions raised by the parties, the High Court rightly held that subject to the outcome of the suit, the respondent can pursue their application for registration of the device. Both parties have inter alia raised various contentions. Since the suit and the respondent?s application for registration of its label with the marks thereon under Class-30 is pending, we are not inclined to go into the merits of those contentions. Lest, it would prejudicially affect the rights of the parties in the pending suit and proceedings.
### Response:
0
### Explanation:
The appellant is the registered owner of the label mark inin respect of rice, flour and preparations made from cereals, bread, cakes, biscuits, pastry and spices. The appellant sells Biryani Rice and the most prominent feature of its label mark is the word ‘MALABAR?. Theis granted registration infor its products.of the classification of goods and services under the statute covers diverse spices and other edible materials as wheat, rice, coffee, tea etc. In the registration underthere is a disclaimer for the word ‘MALABAR?. The disclaimer is worded& Limitation: REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF WORD ‘MALABAR? AND ALL OTHER DESCRIPTIVEappellant though claims exclusive right over the word ‘MALABAR? since there is a disclaimer to the exclusive use of the word ‘MALABAR?, the appellant has no right over the exclusive use of the word ‘MALABAR?. The respondents have also inter alia brought on record the materials to show the registration of other goods underwith the word ‘MALABAR MONSOON? granted in favour of Amalgamated Bean Coffee Trading Company Limited for Coffee Cream, Coffee included inThe registration of the mark ‘MALABAR MONSOON? underalso contains similar disclaimer of the word ‘MALABAR?. Likewise, the label ‘MALABAR COAST? has been registered infor Coffee, Tea, Cocoa, Sugar etc. in favour of Tropical Retreats Private Limited which again contains a similar disclaimer for the exclusive use of the word ‘MALABAR COAST?. Having regard to the materials placed on record, we are of the view that the High Court rightly held that the appellant cannot claim exclusive right over the use of the wordas the label mark used by the parties, we have perused the label mark of the appellant selling Biryani Rice with word ‘MALABAR? and also the modified label mark of the respondents. The label of the respondents containing the words ?BAROMA?, ?MALABAR?, ?GOLD? are circled having a differentfrom that of the appellant. By comparison of the two label marks, in our view, both appear to be substantially different. There appears to be no similarity between both the labels, more so, deceptive similarity. Keeping in view the interest of the respective parties who are said to be having substantialin their respective business, the High Court rightly held that the respondents would be entitled to use the word ‘MALABAR? in conjunction with ‘BAROMA? with the differentas approved by the High Court. We do not find any serious infirmity warranting interference with the impugnedregard to the various contentions raised by the parties, the High Court rightly held that subject to the outcome of the suit, the respondent can pursue their application for registration of the device. Both parties have inter alia raised various contentions. Since the suit and the respondent?s application for registration of its label with the marks thereon underis pending, we are not inclined to go into the merits of those contentions. Lest, it would prejudicially affect the rights of the parties in the pending suit and proceedings.
|
LAKHAN SINGH Vs. BETI BAI | R. Banumathi, J. 1. This appeal arises out of the judgment passed by the High Court of Madhya Pradesh, Jabalpur Bench at Gwalior dismissing the Second Appeal No.242 of 1998 dated 02.02.2006 and thereby confirming the judgment of the first appellate court. 2. It is not necessary to refer to the facts in detail. Brief facts are that: Mother of respondent No.1 Beti Bai (plaintiff) filed civil suit against the appellant and his father Nonitram (defendant) for declaration of title and recovery of possession. In the plaint, it was alleged that Nonitram who was brother-in-law of Khuman Singh, was cultivating the land of Khuman Singh. Taking advantage of Khuman Singhs illiteracy and ailing condition, Nonitram got the sale deed executed on 11.05.1966. The appellant got his name mutated in the revenue record also. Beti Bai filed the suit for declaration of title and for recovery of possession, alleging that the sale deed was taken from Khuman Singh for a meagre price and the same is not binding on Beti Bai. 3. The trial court decreed the suit of the respondent-plaintiff Beti Bai and held that the sale deed is null and void; declared the respondent-plaintiff as owner of the property and ordered for recovery of possession. Aggrieved by the judgment and decree passed by the trial court, the appellant filed the first appeal before the District Judge, Vidisha. The first appellate court partly allowed the appeal. The first appellate court held that the sale deed executed in favour of the appellant-defendant for the disputed land is null and void; however, so far as the house is concerned, the sale deed was found to be valid and to that extent, the judgment of the trial court was set aside. The appellant-defendants were ordered to deliver the possession of the disputed land to the respondent-plaintiffs. Being aggrieved, the appellants preferred second appeal before the High Court which affirmed the judgment of the first appellate court by the impugned judgment. Hence this appeal. 4. Learned counsel for the appellants Mr. Puneet Jain submitted that the sale deed dated 11.05.1966 executed by Khuman Singh in favour of the Lakhan Singh defendant was for valid consideration and the courts below erred in holding the sale deed null and void on the ground of inadequacy of consideration. It was submitted that during his life time, Khuman Singh never challenged the validity of the sale deed; nor the mother of Beti Bai who remained alive after the death of Khuman Singh for about six years, ever challenged the sale deed and this fact was not properly appreciated by the courts below. It was contended that by one sale deed executed in favour of the appellant Lakhan Singh, one house and agricultural lands were sold. It was submitted that the first appellate court confirmed the sale deed so far as it related to the house and no appeal was filed by the respondent-plaintiffs against that part of the judgment and, therefore, this finding regarding the house will have the effect of res judicata on the agricultural land also. Learned counsel prayed for reversal of the impugned judgment. 5. The learned Senior Counsel Mr. N.K. Mody appearing for the respondent-plaintiffs submitted that the courts below recorded concurrent findings that Khuman Singh was an illiterate and his eyesight was also poor and Nonitram, the brother-in-law of Khuman Singh had undue influence upon Khuman Singh and got the sale deed executed in his favour. It was further submitted that the sale deed covered 94 bighas of land and a house which were said to have been sold for merely Rs. 4,000/- and having regard to the meagre sale consideration, the courts below recorded the concurrent findings that the sale deed is null and void and it cannot be interfered with. 6. Courts below recorded the concurrent findings that Nonitram got the sale deed executed for 94 bighas of land and a house for merely Rs. 4,000/-; Nonitram had himself admitted in his cross-examination that he had sold 15 bighas of land for Rs. 3,000/- and, therefore, the sale deed dated 11.05.1966 is vitiated due to inadequacy of consideration. Courts below also recorded the concurrent findings that the eyesight of Khuman Singh was poor and that he was an illiterate and taking advantage of his position, Nonitram who was the brother-in-law of Khuman Singh got the sale deed executed in his favour. As observed by the courts below, the alleged sale deed was prepared at Basoda but was executed in Kurwai, District Vidisha which raises serious doubts about the execution of the sale deed. The findings of the first appellate court holding the validity of the sale deed, insofar as the house is concerned, will not in any way advance the case of the appellant insofar as the agricultural lands are concerned. When the courts below recorded the concurrent findings of fact which are based on evidence and material on record, we are not inclined to interfere with the impugned judgment. | 0[ds]6. Courts below recorded the concurrent findings that Nonitram got the sale deed executed for 94 bighas of land and a house for merely Rs. 4,000/-; Nonitram had himself admitted in his cross-examination that he had sold 15 bighas of land for Rs. 3,000/- and, therefore, the sale deed dated 11.05.1966 is vitiated due to inadequacy of consideration. Courts below also recorded the concurrent findings that the eyesight of Khuman Singh was poor and that he was an illiterate and taking advantage of his position, Nonitram who was the brother-in-law of Khuman Singh got the sale deed executed in his favour. As observed by the courts below, the alleged sale deed was prepared at Basoda but was executed in Kurwai, District Vidisha which raises serious doubts about the execution of the sale deed. The findings of the first appellate court holding the validity of the sale deed, insofar as the house is concerned, will not in any way advance the case of the appellant insofar as the agricultural lands are concerned. When the courts below recorded the concurrent findings of fact which are based on evidence and material on record, we are not inclined to interfere with the impugned judgment. | 0 | 903 | 221 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
R. Banumathi, J. 1. This appeal arises out of the judgment passed by the High Court of Madhya Pradesh, Jabalpur Bench at Gwalior dismissing the Second Appeal No.242 of 1998 dated 02.02.2006 and thereby confirming the judgment of the first appellate court. 2. It is not necessary to refer to the facts in detail. Brief facts are that: Mother of respondent No.1 Beti Bai (plaintiff) filed civil suit against the appellant and his father Nonitram (defendant) for declaration of title and recovery of possession. In the plaint, it was alleged that Nonitram who was brother-in-law of Khuman Singh, was cultivating the land of Khuman Singh. Taking advantage of Khuman Singhs illiteracy and ailing condition, Nonitram got the sale deed executed on 11.05.1966. The appellant got his name mutated in the revenue record also. Beti Bai filed the suit for declaration of title and for recovery of possession, alleging that the sale deed was taken from Khuman Singh for a meagre price and the same is not binding on Beti Bai. 3. The trial court decreed the suit of the respondent-plaintiff Beti Bai and held that the sale deed is null and void; declared the respondent-plaintiff as owner of the property and ordered for recovery of possession. Aggrieved by the judgment and decree passed by the trial court, the appellant filed the first appeal before the District Judge, Vidisha. The first appellate court partly allowed the appeal. The first appellate court held that the sale deed executed in favour of the appellant-defendant for the disputed land is null and void; however, so far as the house is concerned, the sale deed was found to be valid and to that extent, the judgment of the trial court was set aside. The appellant-defendants were ordered to deliver the possession of the disputed land to the respondent-plaintiffs. Being aggrieved, the appellants preferred second appeal before the High Court which affirmed the judgment of the first appellate court by the impugned judgment. Hence this appeal. 4. Learned counsel for the appellants Mr. Puneet Jain submitted that the sale deed dated 11.05.1966 executed by Khuman Singh in favour of the Lakhan Singh defendant was for valid consideration and the courts below erred in holding the sale deed null and void on the ground of inadequacy of consideration. It was submitted that during his life time, Khuman Singh never challenged the validity of the sale deed; nor the mother of Beti Bai who remained alive after the death of Khuman Singh for about six years, ever challenged the sale deed and this fact was not properly appreciated by the courts below. It was contended that by one sale deed executed in favour of the appellant Lakhan Singh, one house and agricultural lands were sold. It was submitted that the first appellate court confirmed the sale deed so far as it related to the house and no appeal was filed by the respondent-plaintiffs against that part of the judgment and, therefore, this finding regarding the house will have the effect of res judicata on the agricultural land also. Learned counsel prayed for reversal of the impugned judgment. 5. The learned Senior Counsel Mr. N.K. Mody appearing for the respondent-plaintiffs submitted that the courts below recorded concurrent findings that Khuman Singh was an illiterate and his eyesight was also poor and Nonitram, the brother-in-law of Khuman Singh had undue influence upon Khuman Singh and got the sale deed executed in his favour. It was further submitted that the sale deed covered 94 bighas of land and a house which were said to have been sold for merely Rs. 4,000/- and having regard to the meagre sale consideration, the courts below recorded the concurrent findings that the sale deed is null and void and it cannot be interfered with. 6. Courts below recorded the concurrent findings that Nonitram got the sale deed executed for 94 bighas of land and a house for merely Rs. 4,000/-; Nonitram had himself admitted in his cross-examination that he had sold 15 bighas of land for Rs. 3,000/- and, therefore, the sale deed dated 11.05.1966 is vitiated due to inadequacy of consideration. Courts below also recorded the concurrent findings that the eyesight of Khuman Singh was poor and that he was an illiterate and taking advantage of his position, Nonitram who was the brother-in-law of Khuman Singh got the sale deed executed in his favour. As observed by the courts below, the alleged sale deed was prepared at Basoda but was executed in Kurwai, District Vidisha which raises serious doubts about the execution of the sale deed. The findings of the first appellate court holding the validity of the sale deed, insofar as the house is concerned, will not in any way advance the case of the appellant insofar as the agricultural lands are concerned. When the courts below recorded the concurrent findings of fact which are based on evidence and material on record, we are not inclined to interfere with the impugned judgment.
### Response:
0
### Explanation:
6. Courts below recorded the concurrent findings that Nonitram got the sale deed executed for 94 bighas of land and a house for merely Rs. 4,000/-; Nonitram had himself admitted in his cross-examination that he had sold 15 bighas of land for Rs. 3,000/- and, therefore, the sale deed dated 11.05.1966 is vitiated due to inadequacy of consideration. Courts below also recorded the concurrent findings that the eyesight of Khuman Singh was poor and that he was an illiterate and taking advantage of his position, Nonitram who was the brother-in-law of Khuman Singh got the sale deed executed in his favour. As observed by the courts below, the alleged sale deed was prepared at Basoda but was executed in Kurwai, District Vidisha which raises serious doubts about the execution of the sale deed. The findings of the first appellate court holding the validity of the sale deed, insofar as the house is concerned, will not in any way advance the case of the appellant insofar as the agricultural lands are concerned. When the courts below recorded the concurrent findings of fact which are based on evidence and material on record, we are not inclined to interfere with the impugned judgment.
|
Padubidri Damodar Shenoy Vs. Indian Airlines Ltd. | in Local Govt. Board vs. South Stoneham Union ((1909) AC 57, p.62) as follows: "The proviso may be a qualification of the preceding enactment which is expressed in terms too general to be quite accurate". 29. In the case of Shah Bhoraj Kuverji Oil Mills and Ginning Factory vs. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596 ), this Court held, "...as a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment..." 30. In the case of CIT, Mysore etc. vs. Indo Mercantile Bank Ltd. (AIR 1959 SC 713 ), this court observed: " The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment". 31. In A.N. Sehgal & Ors1., upon which reliance has been placed by the learned counsel for the appellant, this Court stated as follows: "14. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.15. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect." 32. The use of the word `shall in the proviso, prima facie leads to an inference that provision is imperative. There is nothing in the context to suggest that it is merely directory. It is followed by the words, `subject to approval. The effect of the use of words `subject to is to introduce a condition. The expression, "shall be subject to approval" is indicative of its intendment that the voluntary retirement applied by the employees covered by clause (b) is effective only upon approval by the competent authority. The effect of these words is to introduce a condition and thereby make voluntary retirement applied by employees covered by category (b) conditional upon its approval by the competent authority. There is nothing to indicate in Regulation 12 that if employer decides to withhold approval of voluntary retirement, such refusal of approval must be communicated to the petitioner during the period of notice. True it is that notice of three months for voluntary retirement given by an employee covered by clause (b) remains valid even if no communication is received within notice period but it becomes effective only on its approval by the competent authority. As a matter of fact, this seems to have been understood by both the parties. The appellant issued a notice of voluntary retirement under Regulation 12 (b) on September 30, 2005. The notice period was to expire on December 31, 2005. It is an admitted position that the competent authority neither gave approval nor indicated disapproval to the appellant within the notice period of three months. The employee never treated that there has been cessation of employment on expiry of three months notice period inasmuch as he continued to attend his duties after December 31, 2005 until June 30, 2006. It is only by his letter dated June 8, 2006 that the appellant requested the respondent to relieve him in terms of his notice dated September 30, 2005 by June 30, 2006 and he stopped attending work from July 1, 2006. The letter dated June 8, 2006 does not make any material difference as the fact of the matter is that after expiry of notice period, the appellant continued to attend his duties for many months thereafter. By the letter dated September 15, 2006 the respondent communicated to the appellant that his application for voluntary retirement under Service Regulation 12(b) has not been acceded to by the competent authority. Since the notice for voluntary retirement by an employee who has not attained 55 years but has completed 20 years of continuous service, under proviso appended to Regulation 12(b), is subject to approval by the competent authority and that approval was not granted, the voluntary retirement of the respondent never came into effect.33. It may be that voluntary retirement under a particular scheme framed by an employer is different from voluntary retirement provided in the Service Regulations and some of the observations by the Division Bench with reference to voluntary retirement under a special scheme may not be relevant but the ultimate decision of the Division Bench does not suffer from any legal infirmity.34. By way of foot-note, we may record that before we proceeded with the hearing of the matter, we granted an opportunity to the parties to resolve the dispute amicably and an offer was made by the respondents to the appellant in this regard but the appellant showed his disinclination to accept the offer made by the respondents. | 0[ds]32. The use of the word `shall in the proviso, prima facie leads to an inference that provision is imperative. There is nothing in the context to suggest that it is merely directory. It is followed by the words, `subject to approval. The effect of the use of words `subject to is to introduce a condition. The expression, "shall be subject to approval" is indicative of its intendment that the voluntary retirement applied by the employees covered by clause (b) is effective only upon approval by the competent authority. The effect of these words is to introduce a condition and thereby make voluntary retirement applied by employees covered by category (b) conditional upon its approval by the competent authority. There is nothing to indicate in Regulation 12 that if employer decides to withhold approval of voluntary retirement, such refusal of approval must be communicated to the petitioner during the period of notice. True it is that notice of three months for voluntary retirement given by an employee covered by clause (b) remains valid even if no communication is received within notice period but it becomes effective only on its approval by the competent authority. As a matter of fact, this seems to have been understood by both the parties. The appellant issued a notice of voluntary retirement under Regulation 12 (b) on September 30, 2005. The notice period was to expire on December 31, 2005. It is an admitted position that the competent authority neither gave approval nor indicated disapproval to the appellant within the notice period of three months. The employee never treated that there has been cessation of employment on expiry of three months notice period inasmuch as he continued to attend his duties after December 31, 2005 until June 30, 2006. It is only by his letter dated June 8, 2006 that the appellant requested the respondent to relieve him in terms of his notice dated September 30, 2005 by June 30, 2006 and he stopped attending work from July 1, 2006. The letter dated June 8, 2006 does not make any material difference as the fact of the matter is that after expiry of notice period, the appellant continued to attend his duties for many months thereafter. By the letter dated September 15, 2006 the respondent communicated to the appellant that his application for voluntary retirement under Service Regulation 12(b) has not been acceded to by the competent authority. Since the notice for voluntary retirement by an employee who has not attained 55 years but has completed 20 years of continuous service, under proviso appended to Regulation 12(b), is subject to approval by the competent authority and that approval was not granted, the voluntary retirement of the respondent never came into effect.33. It may be that voluntary retirement under a particular scheme framed by an employer is different from voluntary retirement provided in the Service Regulations and some of the observations by the Division Bench with reference to voluntary retirement under a special scheme may not be relevant but the ultimate decision of the Division Bench does not suffer from any legal infirmity.34. By way ofwe may record that before we proceeded with the hearing of the matter, we granted an opportunity to the parties to resolve the dispute amicably and an offer was made by the respondents to the appellant in this regard but the appellant showed his disinclination to accept the offer made by the respondents. | 0 | 7,855 | 635 | ### 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:
in Local Govt. Board vs. South Stoneham Union ((1909) AC 57, p.62) as follows: "The proviso may be a qualification of the preceding enactment which is expressed in terms too general to be quite accurate". 29. In the case of Shah Bhoraj Kuverji Oil Mills and Ginning Factory vs. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596 ), this Court held, "...as a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment..." 30. In the case of CIT, Mysore etc. vs. Indo Mercantile Bank Ltd. (AIR 1959 SC 713 ), this court observed: " The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment". 31. In A.N. Sehgal & Ors1., upon which reliance has been placed by the learned counsel for the appellant, this Court stated as follows: "14. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.15. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect." 32. The use of the word `shall in the proviso, prima facie leads to an inference that provision is imperative. There is nothing in the context to suggest that it is merely directory. It is followed by the words, `subject to approval. The effect of the use of words `subject to is to introduce a condition. The expression, "shall be subject to approval" is indicative of its intendment that the voluntary retirement applied by the employees covered by clause (b) is effective only upon approval by the competent authority. The effect of these words is to introduce a condition and thereby make voluntary retirement applied by employees covered by category (b) conditional upon its approval by the competent authority. There is nothing to indicate in Regulation 12 that if employer decides to withhold approval of voluntary retirement, such refusal of approval must be communicated to the petitioner during the period of notice. True it is that notice of three months for voluntary retirement given by an employee covered by clause (b) remains valid even if no communication is received within notice period but it becomes effective only on its approval by the competent authority. As a matter of fact, this seems to have been understood by both the parties. The appellant issued a notice of voluntary retirement under Regulation 12 (b) on September 30, 2005. The notice period was to expire on December 31, 2005. It is an admitted position that the competent authority neither gave approval nor indicated disapproval to the appellant within the notice period of three months. The employee never treated that there has been cessation of employment on expiry of three months notice period inasmuch as he continued to attend his duties after December 31, 2005 until June 30, 2006. It is only by his letter dated June 8, 2006 that the appellant requested the respondent to relieve him in terms of his notice dated September 30, 2005 by June 30, 2006 and he stopped attending work from July 1, 2006. The letter dated June 8, 2006 does not make any material difference as the fact of the matter is that after expiry of notice period, the appellant continued to attend his duties for many months thereafter. By the letter dated September 15, 2006 the respondent communicated to the appellant that his application for voluntary retirement under Service Regulation 12(b) has not been acceded to by the competent authority. Since the notice for voluntary retirement by an employee who has not attained 55 years but has completed 20 years of continuous service, under proviso appended to Regulation 12(b), is subject to approval by the competent authority and that approval was not granted, the voluntary retirement of the respondent never came into effect.33. It may be that voluntary retirement under a particular scheme framed by an employer is different from voluntary retirement provided in the Service Regulations and some of the observations by the Division Bench with reference to voluntary retirement under a special scheme may not be relevant but the ultimate decision of the Division Bench does not suffer from any legal infirmity.34. By way of foot-note, we may record that before we proceeded with the hearing of the matter, we granted an opportunity to the parties to resolve the dispute amicably and an offer was made by the respondents to the appellant in this regard but the appellant showed his disinclination to accept the offer made by the respondents.
### Response:
0
### Explanation:
32. The use of the word `shall in the proviso, prima facie leads to an inference that provision is imperative. There is nothing in the context to suggest that it is merely directory. It is followed by the words, `subject to approval. The effect of the use of words `subject to is to introduce a condition. The expression, "shall be subject to approval" is indicative of its intendment that the voluntary retirement applied by the employees covered by clause (b) is effective only upon approval by the competent authority. The effect of these words is to introduce a condition and thereby make voluntary retirement applied by employees covered by category (b) conditional upon its approval by the competent authority. There is nothing to indicate in Regulation 12 that if employer decides to withhold approval of voluntary retirement, such refusal of approval must be communicated to the petitioner during the period of notice. True it is that notice of three months for voluntary retirement given by an employee covered by clause (b) remains valid even if no communication is received within notice period but it becomes effective only on its approval by the competent authority. As a matter of fact, this seems to have been understood by both the parties. The appellant issued a notice of voluntary retirement under Regulation 12 (b) on September 30, 2005. The notice period was to expire on December 31, 2005. It is an admitted position that the competent authority neither gave approval nor indicated disapproval to the appellant within the notice period of three months. The employee never treated that there has been cessation of employment on expiry of three months notice period inasmuch as he continued to attend his duties after December 31, 2005 until June 30, 2006. It is only by his letter dated June 8, 2006 that the appellant requested the respondent to relieve him in terms of his notice dated September 30, 2005 by June 30, 2006 and he stopped attending work from July 1, 2006. The letter dated June 8, 2006 does not make any material difference as the fact of the matter is that after expiry of notice period, the appellant continued to attend his duties for many months thereafter. By the letter dated September 15, 2006 the respondent communicated to the appellant that his application for voluntary retirement under Service Regulation 12(b) has not been acceded to by the competent authority. Since the notice for voluntary retirement by an employee who has not attained 55 years but has completed 20 years of continuous service, under proviso appended to Regulation 12(b), is subject to approval by the competent authority and that approval was not granted, the voluntary retirement of the respondent never came into effect.33. It may be that voluntary retirement under a particular scheme framed by an employer is different from voluntary retirement provided in the Service Regulations and some of the observations by the Division Bench with reference to voluntary retirement under a special scheme may not be relevant but the ultimate decision of the Division Bench does not suffer from any legal infirmity.34. By way ofwe may record that before we proceeded with the hearing of the matter, we granted an opportunity to the parties to resolve the dispute amicably and an offer was made by the respondents to the appellant in this regard but the appellant showed his disinclination to accept the offer made by the respondents.
|
State Bank of Travancore Vs. Goodland Plantations Private Limited | to get from the defendant the amount subscribed to the chitty was taken away and substituted with a liability to draw the prize amount on furnishing security for payment of future installments. This is a provision which is clearly inconsistent with the provisions of the Scheme. Exhibits P-3 and P-4 are, therefore in my view beyond the scope of the power conferred on the Central Government under sub-section (10) of section 45 of the Banking Companies Act." In regard to the question of constitutional validity of sub-section (10), however, the Division Bench concurred with the learned trial Judge and held that sub-section (10) did not suffer from excessive delegation of legislative power. Allowing the appeal, the Division Bench decreed the suit with costs of the proceedings in both the courts. 7. The question o f the constitutional validity of sub-section (10) of section 45 of the Banking Act has not been raised before us and all that we have to determine therefore is whether the impugned order falls within or outside the scope of that sub-section. 8. Shri Govindan Nair, learned counsel for the Company, has vehemently contended that one of the objects of the Scheme was to continue the chitties (which had earlier been conducted by the Orient Bank but had come to a termination by reason of the moratorium) to a "successful conclusion" as held by the learned trial Judge and that the finding to the contrary recorded in the impugned judgment is erroneous and after hearing him and learned counsel for the Travancore Bank at length we have no hesitation in agreeing with Shri Nairs contention. It is to be noted that the provision regarding chitties appears in the latter part of paragraph 2 of the Scheme, the earlier part of which may be quoted here with advantage: "(2) As from the d ate which the Central Government may specify for this purpose under sub-section (7) of section 45 of the said Act (hereinafter referred to as the prescribed date) all rights, powers, claims, demands, interests authorities, privileges, benefits, assets and properties of the transferor bank, movable and immovable, including premises subject to all incidents of tenure and to the rents and other sums of money and covenants reserved by or contained in the leases or agreements under which they are held, all office furniture, loose equipment, plant apparatus and appliances, books, papers, stocks of stationery, other stocks and stores, all investment in stocks shares and securities all bills receivable in hand and in transit, all cash in hand and on current or deposit account (including money at call or short notice) with banks, bullion, all books debts, mortgage debts and other debts with the benefit of the securities, or any guarantee therefore, all other, if any, property rights and assets of every description including all rights of action and benefit of all guarantees in connection with the business of the transferor bank shall, subject to the other provisions of this Scheme, stand transferred to, and become the properties and assets of, the transferee bank; and as from the prescribed date all the liabilities, duties and obligations of the transferor bank shall be and shall become the liabilities, duties and obligations of the transferee bank to the extent and in the manner provided hereinafter.Without prejudice to the generality of the foregoing provisions all contracts, deeds, bonds, agreements, power of attorney, grants of legal representation and other instruments of whatever nature subsisting or having effect immediately before the prescribed date shall be effective to the extent and in the manner hereinafter provided against or in favour of the transferee bank and may be acted upon as if instead of the transferor bank the transferee bank had been a party thereto or as if they had been issued in favour of the transferee bank." These pervasive provisions embraced within their ambit a complete transfer of all rights and liabilities of whatever nature, of the Orient Bank to the Travancore Bank and no special provision was therefore needed to be included in the Scheme in regard to chitties if they were not to be continued to a "successful conclusion". As it is, the portion of paragraph 2 extracted by us earlier did provide for chitties on a special footing which could not have been the case if the rights and liabilities of the Orient Bank in regard to chitties were sought to be transferred to the Travancore Bank on the basis of the termination of the chitties which h ad already become operative because of the moratorium and as a consequence of suspension of the chitty business by the Orient Bank. Nor was it necessary to provide in clause (1) occurring in paragraph 2 of the Scheme that "the transferee bank shall become the foreman.. and shall continue to exercise all powers and to do all such acts and things as would have been exercise or done by the transferor bank.." if the chitties were to be dealt with as having come to a termination. The special provision for the chitty business in the Scheme cannot be regarded as redundant and it was obviously made with a purpose which, in the circumstances of the case, could be nothing more or less than to provide for the continuation of the chitties in supersession of their termination. No other reasonable explanation of that special provision appears to us possible. And if that be so, the entire reasoning adopted in the impugned judgment for arriving at the conclusion that the impugned order was beyond the scope of sub-section (10) of section 45 of the Banking Act would become unacceptable; for, in that case, the difficulty which the impugned order sought to overcome would become very real so that the Central Government would be fully competent under the provisions of that sub-section to pass an order removing that difficulty and the order actually passed could not be considered to be inconsistent with the provisions of the Scheme to any extent or in any manner. | 1[ds]These pervasive provisions embraced within their ambit a complete transfer of all rights and liabilities of whatever nature, of the Orient Bank to the Travancore Bank and no special provision was therefore needed to be included in the Scheme in regard to chitties if they were not to be continued to a "successful conclusion". As it is, the portion of paragraph 2 extracted by us earlier did provide for chitties on a special footing which could not have been the case if the rights and liabilities of the Orient Bank in regard to chitties were sought to be transferred to the Travancore Bank on the basis of the termination of the chitties which h ad already become operative because of the moratorium and as a consequence of suspension of the chitty business by the Orient Bank. Nor was it necessary to provide in clause (1) occurring in paragraph 2 of the Scheme that "the transferee bank shall become the foreman.. and shall continue to exercise all powers and to do all such acts and things as would have been exercise or done by the transferor bank.." if the chitties were to be dealt with as having come to a termination. The special provision for the chitty business in the Scheme cannot be regarded as redundant and it was obviously made with a purpose which, in the circumstances of the case, could be nothing more or less than to provide for the continuation of the chitties in supersession of their termination. No other reasonable explanation of that special provision appears to us possible. And if that be so, the entire reasoning adopted in the impugned judgment for arriving at the conclusion that the impugned order was beyond the scope ofn (10) of section 45 of the Banking Act would become unacceptable; for, in that case, the difficulty which the impugned order sought to overcome would become very real so that the Central Government would be fully competent under the provisions of thatn to pass an order removing that difficulty and the order actually passed could not be considered to be inconsistent with the provisions of the Scheme to any extent or in any manner. | 1 | 4,773 | 392 | ### 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:
to get from the defendant the amount subscribed to the chitty was taken away and substituted with a liability to draw the prize amount on furnishing security for payment of future installments. This is a provision which is clearly inconsistent with the provisions of the Scheme. Exhibits P-3 and P-4 are, therefore in my view beyond the scope of the power conferred on the Central Government under sub-section (10) of section 45 of the Banking Companies Act." In regard to the question of constitutional validity of sub-section (10), however, the Division Bench concurred with the learned trial Judge and held that sub-section (10) did not suffer from excessive delegation of legislative power. Allowing the appeal, the Division Bench decreed the suit with costs of the proceedings in both the courts. 7. The question o f the constitutional validity of sub-section (10) of section 45 of the Banking Act has not been raised before us and all that we have to determine therefore is whether the impugned order falls within or outside the scope of that sub-section. 8. Shri Govindan Nair, learned counsel for the Company, has vehemently contended that one of the objects of the Scheme was to continue the chitties (which had earlier been conducted by the Orient Bank but had come to a termination by reason of the moratorium) to a "successful conclusion" as held by the learned trial Judge and that the finding to the contrary recorded in the impugned judgment is erroneous and after hearing him and learned counsel for the Travancore Bank at length we have no hesitation in agreeing with Shri Nairs contention. It is to be noted that the provision regarding chitties appears in the latter part of paragraph 2 of the Scheme, the earlier part of which may be quoted here with advantage: "(2) As from the d ate which the Central Government may specify for this purpose under sub-section (7) of section 45 of the said Act (hereinafter referred to as the prescribed date) all rights, powers, claims, demands, interests authorities, privileges, benefits, assets and properties of the transferor bank, movable and immovable, including premises subject to all incidents of tenure and to the rents and other sums of money and covenants reserved by or contained in the leases or agreements under which they are held, all office furniture, loose equipment, plant apparatus and appliances, books, papers, stocks of stationery, other stocks and stores, all investment in stocks shares and securities all bills receivable in hand and in transit, all cash in hand and on current or deposit account (including money at call or short notice) with banks, bullion, all books debts, mortgage debts and other debts with the benefit of the securities, or any guarantee therefore, all other, if any, property rights and assets of every description including all rights of action and benefit of all guarantees in connection with the business of the transferor bank shall, subject to the other provisions of this Scheme, stand transferred to, and become the properties and assets of, the transferee bank; and as from the prescribed date all the liabilities, duties and obligations of the transferor bank shall be and shall become the liabilities, duties and obligations of the transferee bank to the extent and in the manner provided hereinafter.Without prejudice to the generality of the foregoing provisions all contracts, deeds, bonds, agreements, power of attorney, grants of legal representation and other instruments of whatever nature subsisting or having effect immediately before the prescribed date shall be effective to the extent and in the manner hereinafter provided against or in favour of the transferee bank and may be acted upon as if instead of the transferor bank the transferee bank had been a party thereto or as if they had been issued in favour of the transferee bank." These pervasive provisions embraced within their ambit a complete transfer of all rights and liabilities of whatever nature, of the Orient Bank to the Travancore Bank and no special provision was therefore needed to be included in the Scheme in regard to chitties if they were not to be continued to a "successful conclusion". As it is, the portion of paragraph 2 extracted by us earlier did provide for chitties on a special footing which could not have been the case if the rights and liabilities of the Orient Bank in regard to chitties were sought to be transferred to the Travancore Bank on the basis of the termination of the chitties which h ad already become operative because of the moratorium and as a consequence of suspension of the chitty business by the Orient Bank. Nor was it necessary to provide in clause (1) occurring in paragraph 2 of the Scheme that "the transferee bank shall become the foreman.. and shall continue to exercise all powers and to do all such acts and things as would have been exercise or done by the transferor bank.." if the chitties were to be dealt with as having come to a termination. The special provision for the chitty business in the Scheme cannot be regarded as redundant and it was obviously made with a purpose which, in the circumstances of the case, could be nothing more or less than to provide for the continuation of the chitties in supersession of their termination. No other reasonable explanation of that special provision appears to us possible. And if that be so, the entire reasoning adopted in the impugned judgment for arriving at the conclusion that the impugned order was beyond the scope of sub-section (10) of section 45 of the Banking Act would become unacceptable; for, in that case, the difficulty which the impugned order sought to overcome would become very real so that the Central Government would be fully competent under the provisions of that sub-section to pass an order removing that difficulty and the order actually passed could not be considered to be inconsistent with the provisions of the Scheme to any extent or in any manner.
### Response:
1
### Explanation:
These pervasive provisions embraced within their ambit a complete transfer of all rights and liabilities of whatever nature, of the Orient Bank to the Travancore Bank and no special provision was therefore needed to be included in the Scheme in regard to chitties if they were not to be continued to a "successful conclusion". As it is, the portion of paragraph 2 extracted by us earlier did provide for chitties on a special footing which could not have been the case if the rights and liabilities of the Orient Bank in regard to chitties were sought to be transferred to the Travancore Bank on the basis of the termination of the chitties which h ad already become operative because of the moratorium and as a consequence of suspension of the chitty business by the Orient Bank. Nor was it necessary to provide in clause (1) occurring in paragraph 2 of the Scheme that "the transferee bank shall become the foreman.. and shall continue to exercise all powers and to do all such acts and things as would have been exercise or done by the transferor bank.." if the chitties were to be dealt with as having come to a termination. The special provision for the chitty business in the Scheme cannot be regarded as redundant and it was obviously made with a purpose which, in the circumstances of the case, could be nothing more or less than to provide for the continuation of the chitties in supersession of their termination. No other reasonable explanation of that special provision appears to us possible. And if that be so, the entire reasoning adopted in the impugned judgment for arriving at the conclusion that the impugned order was beyond the scope ofn (10) of section 45 of the Banking Act would become unacceptable; for, in that case, the difficulty which the impugned order sought to overcome would become very real so that the Central Government would be fully competent under the provisions of thatn to pass an order removing that difficulty and the order actually passed could not be considered to be inconsistent with the provisions of the Scheme to any extent or in any manner.
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Morgan Stanley Mutual Fund Vs. Kartick Das | case we have come to the conclusion that the District Consumer Forum will have no power to grant injunction yet in general cases it becomes necessary to evolve certain venue restrictions. 41. As to the effect of incorporation it is stated in Halsburys Laws of England (4th Edn., Vol. 7, p. 55, para 83) as under: "When incorporated, the company is a legal entity or persona distinct from its members, and its property is not the property of the members. The nationality and domicile of a company is determined by its place of registration. A company incorporated in the United Kingdom will normally have both British nationality and English or Scottish domicile, depending upon its place of registration, and it will be unable to change that domicile.... The residence of a company is of great importance in revenue law, and the place of incorporation is not conclusive on this question. In general, residence depends upon the place where the central control and management of the company i s located. It follows that if such central control is divided, the company may have more than one residence. The locality of the shares of a company is that of the register of sha res. The head office of a company is not, however, necessarily the registered office of the company, but is the place where the substantial business of the company is carried on and its negotiations conducted. Like an individual or a firm, a company can, for the purposes of the Rules of the Supreme Court, carry on business in more places than one." 42. As far as India is concerned, the residence of the company is where the registered office is located. Normally, cases should be filed only where the registered office of the company is situate. Courts outside the place where the registered office is located, if approached, must have regard to the following. Invariably, suits are filed seeking to injured either the allotment of shares or the meetings of the Board of Directors or again the meeting of general body. The Court is approached at the last minute. Could injunction be granted even without notice to the respondent which will cause immense hardship and administrative inconvenience. It may be sometimes difficult even to undo the damage by such an interim order.Therefore, the court must ensure that the plaintiff comes to court well in time so that notice may be served on the defendant and he may have his say before any interim order is passed. The reasons set out in the preceding paragraphs of our judgment in relation to the fact which should weigh with the court in the grant of ex parte injunction and the rulings of this Court must be borne in mind. 5: What is the scope of Section 14 of the Act? 43. The said section reads as under: "(1) If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to take one or more of the following things, namely: (a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (b) to replace the goods with new goods of similar description which shall be free from any defect; (c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant; (d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party. (2) Every order made by the District Forum under sub-section (1) shall be signed by all the members constituting it and, if there is any difference of opinion, the order of the majority of the members constituting it shall be the order of the District Forum. (3) Subject to the foregoing provisions, the procedure relating to the conduct of the meetings of the District Forum, its sittings and other matters shall be such as may be prescribed by the State Government." * 44. A careful reading of the above discloses that there is no power under the Act to grant any interim relief of (sic or) even an ad interim relief. Only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses+ mentioned under Section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience.45. We have dealt with in the preceding paragraphs as to the approval of SEBI and the compliance with the Regulation 27 of the Regulations, 1993. We have also explained what exactly is a concept of first come first served basis. On these two aspects , the respondent is suffering under a labyrinth of confusion. Therefore, we hold that the grounds urged by the respondent seeking to support the impugned order, are untenable.46. The appellant has suffered immensely because it has not even bee n served with copy of order of injunction. The application of the respondent is clearly actuated by mala fides. The Forum should have examined whether ex parte injunction without notice to the opposite side could ever be granted at + Ed.: Increased to nine clauses by Amendment Act 50 of 1993 (w.e.f. 18-6-1993). all. The grounds urged in the injunction application were insufficient for the grant of such a relief. 47.There is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the for a seem readily to oblige. We think such a tendency should be curbed. Having regard to the frivolous nature of the complaint, we think it is a fit case for award of costs, more so, when the appellant has suffered heavily. | 1[ds]To hold out, as the appellant has done, that the allotment of units will be based on firm allotment basis and with a changed sponsor in the advertisement, it is contended, is illegal in law, apart from it being violative of the norms and practices in the capital market. In such a case, the impending disaster could be avoided only by a quiatimet interference of the court. It is also urged that by piercing the corporate veil, it could be easily seen that the real sponsor is no other than the Morgan Stanley Group, New York. Therefore, SEBI should have acted in accordance with Section 11(2)(e) of the SEBI Act, 1992 for prohibiting fraudulent and unfair trade practices relating to securities market. It is also urged that the writ petition came to be filed and dismissed without consideration of these aspects. So, it requires interference of this Court.It has to be carefully noted that the disclaimer clause required to be incorporated at the beginning of offering circular by SEBI while approving the scheme is a standard requirement and nothing peculiar to the present case. The object of this is to bring to the notice of the investors that they should take the firm decision on the basis of the disclosures made in the documents. It is meant for the investors protection. In fact by such a course the SEBI informs the investors that they have approved the scheme but they did not recommend to the investors whether such investment is good or not and leave it to their discretion. In view of this, it will b e clear that the allegations of respondents that the SEBI has not approved the other documents is totallyappellants have made it very clear that those who applied during the opening period of scheme would be given full allotment. This was clarified by the appellant at a press conference held at Calcutta onRegular clarifications were issued in this regard by the appellant. The scheme came to be advertised by the appellant on1993. The respondents chose to make an application to the Consumer Forum on the eve of opening of the scheme. It was on that application, the impugned order came to be passed. In this factual background, we will take up the questions set out for determination.As far as India is concerned, the residence of the company is where the registered office is located. Normally, cases should be filed only where the registered office of the company is situate. Courts outside the place where the registered office is located, if approached, must have regard to the following. Invariably, suits are filed seeking to injured either the allotment of shares or the meetings of the Board of Directors or again the meeting of general body. The Court is approached at the last minute. Could injunction be granted even without notice to the respondent which will cause immense hardship and administrative inconvenience. It may be sometimes difficult even to undo the damage by such an interim order.Therefore, the court must ensure that the plaintiff comes to court well in time so that notice may be served on the defendant and he may have his say before any interim order is passed. The reasons set out in the preceding paragraphs of our judgment in relation to the fact which should weigh with the court in the grant of ex parte injunction and the rulings of this Court must be borne in mind.A careful reading of the above discloses that there is no power under the Act to grant any interim relief of (sic or) even an ad interim relief. Only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses+ mentioned under Section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience.45. We have dealt with in the preceding paragraphs as to the approval of SEBI and the compliance with the Regulation 27 of the Regulations, 1993. We have also explained what exactly is a concept of first come first served basis. On these two aspects , the respondent is suffering under a labyrinth of confusion. Therefore, we hold that the grounds urged by the respondent seeking to support the impugned order, are untenable.46. The appellant has suffered immensely because it has not even bee n served with copy of order of injunction. The application of the respondent is clearly actuated by mala fides. The Forum should have examined whether ex parte injunction without notice to the opposite side could ever be granted at + Ed.: Increased to nine clauses by Amendment Act 50 of 1993 (w.e.f.all. The grounds urged in the injunction application were insufficient for the grant of such ais an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the for a seem readily to oblige. We think such a tendency should be curbed. Having regard to the frivolous nature of the complaint, we think it is a fit case for award of costs, more so, when the appellant has suffered heavily. | 1 | 8,594 | 934 | ### 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:
case we have come to the conclusion that the District Consumer Forum will have no power to grant injunction yet in general cases it becomes necessary to evolve certain venue restrictions. 41. As to the effect of incorporation it is stated in Halsburys Laws of England (4th Edn., Vol. 7, p. 55, para 83) as under: "When incorporated, the company is a legal entity or persona distinct from its members, and its property is not the property of the members. The nationality and domicile of a company is determined by its place of registration. A company incorporated in the United Kingdom will normally have both British nationality and English or Scottish domicile, depending upon its place of registration, and it will be unable to change that domicile.... The residence of a company is of great importance in revenue law, and the place of incorporation is not conclusive on this question. In general, residence depends upon the place where the central control and management of the company i s located. It follows that if such central control is divided, the company may have more than one residence. The locality of the shares of a company is that of the register of sha res. The head office of a company is not, however, necessarily the registered office of the company, but is the place where the substantial business of the company is carried on and its negotiations conducted. Like an individual or a firm, a company can, for the purposes of the Rules of the Supreme Court, carry on business in more places than one." 42. As far as India is concerned, the residence of the company is where the registered office is located. Normally, cases should be filed only where the registered office of the company is situate. Courts outside the place where the registered office is located, if approached, must have regard to the following. Invariably, suits are filed seeking to injured either the allotment of shares or the meetings of the Board of Directors or again the meeting of general body. The Court is approached at the last minute. Could injunction be granted even without notice to the respondent which will cause immense hardship and administrative inconvenience. It may be sometimes difficult even to undo the damage by such an interim order.Therefore, the court must ensure that the plaintiff comes to court well in time so that notice may be served on the defendant and he may have his say before any interim order is passed. The reasons set out in the preceding paragraphs of our judgment in relation to the fact which should weigh with the court in the grant of ex parte injunction and the rulings of this Court must be borne in mind. 5: What is the scope of Section 14 of the Act? 43. The said section reads as under: "(1) If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to take one or more of the following things, namely: (a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (b) to replace the goods with new goods of similar description which shall be free from any defect; (c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant; (d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party. (2) Every order made by the District Forum under sub-section (1) shall be signed by all the members constituting it and, if there is any difference of opinion, the order of the majority of the members constituting it shall be the order of the District Forum. (3) Subject to the foregoing provisions, the procedure relating to the conduct of the meetings of the District Forum, its sittings and other matters shall be such as may be prescribed by the State Government." * 44. A careful reading of the above discloses that there is no power under the Act to grant any interim relief of (sic or) even an ad interim relief. Only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses+ mentioned under Section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience.45. We have dealt with in the preceding paragraphs as to the approval of SEBI and the compliance with the Regulation 27 of the Regulations, 1993. We have also explained what exactly is a concept of first come first served basis. On these two aspects , the respondent is suffering under a labyrinth of confusion. Therefore, we hold that the grounds urged by the respondent seeking to support the impugned order, are untenable.46. The appellant has suffered immensely because it has not even bee n served with copy of order of injunction. The application of the respondent is clearly actuated by mala fides. The Forum should have examined whether ex parte injunction without notice to the opposite side could ever be granted at + Ed.: Increased to nine clauses by Amendment Act 50 of 1993 (w.e.f. 18-6-1993). all. The grounds urged in the injunction application were insufficient for the grant of such a relief. 47.There is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the for a seem readily to oblige. We think such a tendency should be curbed. Having regard to the frivolous nature of the complaint, we think it is a fit case for award of costs, more so, when the appellant has suffered heavily.
### Response:
1
### Explanation:
To hold out, as the appellant has done, that the allotment of units will be based on firm allotment basis and with a changed sponsor in the advertisement, it is contended, is illegal in law, apart from it being violative of the norms and practices in the capital market. In such a case, the impending disaster could be avoided only by a quiatimet interference of the court. It is also urged that by piercing the corporate veil, it could be easily seen that the real sponsor is no other than the Morgan Stanley Group, New York. Therefore, SEBI should have acted in accordance with Section 11(2)(e) of the SEBI Act, 1992 for prohibiting fraudulent and unfair trade practices relating to securities market. It is also urged that the writ petition came to be filed and dismissed without consideration of these aspects. So, it requires interference of this Court.It has to be carefully noted that the disclaimer clause required to be incorporated at the beginning of offering circular by SEBI while approving the scheme is a standard requirement and nothing peculiar to the present case. The object of this is to bring to the notice of the investors that they should take the firm decision on the basis of the disclosures made in the documents. It is meant for the investors protection. In fact by such a course the SEBI informs the investors that they have approved the scheme but they did not recommend to the investors whether such investment is good or not and leave it to their discretion. In view of this, it will b e clear that the allegations of respondents that the SEBI has not approved the other documents is totallyappellants have made it very clear that those who applied during the opening period of scheme would be given full allotment. This was clarified by the appellant at a press conference held at Calcutta onRegular clarifications were issued in this regard by the appellant. The scheme came to be advertised by the appellant on1993. The respondents chose to make an application to the Consumer Forum on the eve of opening of the scheme. It was on that application, the impugned order came to be passed. In this factual background, we will take up the questions set out for determination.As far as India is concerned, the residence of the company is where the registered office is located. Normally, cases should be filed only where the registered office of the company is situate. Courts outside the place where the registered office is located, if approached, must have regard to the following. Invariably, suits are filed seeking to injured either the allotment of shares or the meetings of the Board of Directors or again the meeting of general body. The Court is approached at the last minute. Could injunction be granted even without notice to the respondent which will cause immense hardship and administrative inconvenience. It may be sometimes difficult even to undo the damage by such an interim order.Therefore, the court must ensure that the plaintiff comes to court well in time so that notice may be served on the defendant and he may have his say before any interim order is passed. The reasons set out in the preceding paragraphs of our judgment in relation to the fact which should weigh with the court in the grant of ex parte injunction and the rulings of this Court must be borne in mind.A careful reading of the above discloses that there is no power under the Act to grant any interim relief of (sic or) even an ad interim relief. Only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses+ mentioned under Section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience.45. We have dealt with in the preceding paragraphs as to the approval of SEBI and the compliance with the Regulation 27 of the Regulations, 1993. We have also explained what exactly is a concept of first come first served basis. On these two aspects , the respondent is suffering under a labyrinth of confusion. Therefore, we hold that the grounds urged by the respondent seeking to support the impugned order, are untenable.46. The appellant has suffered immensely because it has not even bee n served with copy of order of injunction. The application of the respondent is clearly actuated by mala fides. The Forum should have examined whether ex parte injunction without notice to the opposite side could ever be granted at + Ed.: Increased to nine clauses by Amendment Act 50 of 1993 (w.e.f.all. The grounds urged in the injunction application were insufficient for the grant of such ais an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the for a seem readily to oblige. We think such a tendency should be curbed. Having regard to the frivolous nature of the complaint, we think it is a fit case for award of costs, more so, when the appellant has suffered heavily.
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Shri Prithvi Cotton Mills Ltd. & Anr Vs. Broach Borough Municipality & Ors | of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the Courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax.5. The inquiry in this case may begin by asking whether the legislature possesses competence to pass a law imposing a tax on lands and buildings on the basis of a percentage of their capital value. If the legislature possesses that power then it can authorise the Municipality to levy that tax. To test the proposition we may consider Section 99 which has now been enacted in the Gujarat Municipalities Act. It reads:"99. Taxes which may be imposed.(1) Subject to any general or special orders which the State Government may make in this behalf and to the provisions of Section 101 and 102, a municipality may impose for the purposes of this Act any of the following taxes, namely:-(i) a tax on buildings or lands situate within the municipal borough to be based on the annual letting value or the capital value or a percentage of capital value of the buildings or lands or both;* * * * ** * * * *"6. Learned counsel for the appellants did not contend that this section was outside the powers of the legislature. In fact, he could not, in view of Entry 49 of List II of the Seventh Schedule to the Constitution. That entry reads: "Taxes on lands and buildings" and a tax on lands and buildings based upon capital value falls squarely within the entry. The doubt which is created by Entry 86 of List I "Taxes on the capital value of assets", no longer exists after the decision of this Court in Sudhir Chandra Nawn v. Wealth-tax Officer, Calcutta, AIR 1969 SC 59 . In that case the respective ambits of the two entries are explained. It is pointed out that unlike the tax contemplated by entry 49 (List II) the tax under entry 86 (List I) is not a direct tax on lands and buildings but on net assets, the components of which may be lands and buildings and other items of assets excluding such liabilities as may exist. The incidence of the tax is not on lands and buildings as units of taxation but on the net assets of which lands and buildings are only some of the components.This is not the case under entry 49 (List II) where the tax can be laid directly on lands and buildings as units of taxation. Therefore, a tax on lands and buildings is fully within the competence of the legislature and it is open to it to authorise the municipality to levy the same tax indicating the mode of levy. This the legislature has done by indiating the different modes which may be adopted in making the levy, one such mode being a percentage of the capital value.7. The legislature in Section 73 had not authorised the levy of a tax in this manner but had authorised the levy of a rate. That led to the discussion whether a rule putting the tax on capital value of buildings answered the description of the impost in the Act, namely, a rate on buildings or lands or both situate within the Municipal Borough. It was held that by this Court that it did not, because the word rate had acquired a special meaning in legislative practice. Faced with this situation the legislature exercised its undoubted powers of redefining rate so as to equate it to a tax on capital value and convert the tax purported to be collected as a rate into a tax on lands and buildings.8. The legislature in the Validation Act, therefore, provided for the following matters. First, it stated that no tax or rate by whichever name called and laid on the capital value of lands and buildings must be deemed to be invalidly assessed, imposed, collected or recovered simply on the ground that a rate is based on the annual letting value. Next it provided that the tax must be deemed to be validly assessed, imposed, collected or recovered and the imposition must be deemed to be always so authorised. The legislature by this enactment retrospectively imposed the tax on lands and buildings based on their capital value and as the tax was already imposed, levied and collected on that basis, made the imposition, levy, collection and recovery of the tax valid, notwithstanding the declaration by the Court that as rate, the levy was incompetent. The legislature not only equate the tax collected to a tax on lands and buildings, which it had the power to levy, but also to a rate giving a new meaning to the expression rate, and while doing so it put out of action the effect of the decisions of the Courts to the contrary. The exercise of power by the legislature was valid because the legislature does possess the power to levy a tax on lands and buildings based on capital value thereof and in validating the levy on that basis, the implication of the use of the word rate could be effectively removed and the tax on lands and buildings imposed instead. The tax, therefore, can no longer be questioned on the ground that Section 73 spoke of a rate and the imposition was not a rate as properly understood but a tax on capital value.In this view of the matter it is hardly necessary to invoke the 14th Clause of S.73 which contains a residuary power to impose any other tax not expressly mentioned.9. | 0[ds]The legislature in Section 73 had not authorised the levy of a tax in this manner but had authorised the levy of a rate. That led to the discussion whether a rule putting the tax on capital value of buildings answered the description of the impost in the Act, namely, a rate on buildings or lands or both situate within the Municipal Borough. It was held that by this Court that it did not, because the word rate had acquired a special meaning in legislative practice. Faced with this situation the legislature exercised its undoubted powers of redefining rate so as to equate it to a tax on capital value and convert the tax purported to be collected as a rate into a tax on lands and buildings.The legislature in the Validation Act, therefore, provided for the following matters. First, it stated that no tax or rate by whichever name called and laid on the capital value of lands and buildings must be deemed to be invalidly assessed, imposed, collected or recovered simply on the ground that a rate is based on the annual letting value. Next it provided that the tax must be deemed to be validly assessed, imposed, collected or recovered and the imposition must be deemed to be always so authorised. The legislature by this enactment retrospectively imposed the tax on lands and buildings based on their capital value and as the tax was already imposed, levied and collected on that basis, made the imposition, levy, collection and recovery of the tax valid, notwithstanding the declaration by the Court that as rate, the levy was incompetent. The legislature not only equate the tax collected to a tax on lands and buildings, which it had the power to levy, but also to a rate giving a new meaning to the expression rate, and while doing so it put out of action the effect of the decisions of the Courts to the contrary. The exercise of power by the legislature was valid because the legislature does possess the power to levy a tax on lands and buildings based on capital value thereof and in validating the levy on that basis, the implication of the use of the word rate could be effectively removed and the tax on lands and buildings imposed instead. The tax, therefore, can no longer be questioned on the ground that Section 73 spoke of a rate and the imposition was not a rate as properly understood but a tax on capital value.In this view of the matter it is hardly necessary to invoke the 14th Clause of S.73 which contains a residuary power to impose any other tax not expresslycounsel for the appellants did not contend that this section was outside the powers of the legislature. In fact, he could not, in view of Entry 49 of List II of the Seventh Schedule to the Constitution. That entry reads: "Taxes on lands and buildings" and a tax on lands and buildings based upon capital value falls squarely within the entry. The doubt which is created by Entry 86 of List I "Taxes on the capital value of assets", no longer exists after the decision of this Court in Sudhir Chandra Nawn v.Officer, Calcutta, AIR 1969 SC 59 . In that case the respective ambits of the two entries are explained. It is pointed out that unlike the tax contemplated by entry 49 (List II) the tax under entry 86 (List I) is not a direct tax on lands and buildings but on net assets, the components of which may be lands and buildings and other items of assets excluding such liabilities as may exist. The incidence of the tax is not on lands and buildings as units of taxation but on the net assets of which lands and buildings are only some of the components.This is not the case under entry 49 (List II) where the tax can be laid directly on lands and buildings as units of taxation. Therefore, a tax on lands and buildings is fully within the competence of the legislature and it is open to it to authorise the municipality to levy the same tax indicating the mode of levy. This the legislature has done by indiating the different modes which may be adopted in making the levy, one such mode being a percentage of the capital value. | 0 | 2,672 | 789 | ### 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:
of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the Courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax.5. The inquiry in this case may begin by asking whether the legislature possesses competence to pass a law imposing a tax on lands and buildings on the basis of a percentage of their capital value. If the legislature possesses that power then it can authorise the Municipality to levy that tax. To test the proposition we may consider Section 99 which has now been enacted in the Gujarat Municipalities Act. It reads:"99. Taxes which may be imposed.(1) Subject to any general or special orders which the State Government may make in this behalf and to the provisions of Section 101 and 102, a municipality may impose for the purposes of this Act any of the following taxes, namely:-(i) a tax on buildings or lands situate within the municipal borough to be based on the annual letting value or the capital value or a percentage of capital value of the buildings or lands or both;* * * * ** * * * *"6. Learned counsel for the appellants did not contend that this section was outside the powers of the legislature. In fact, he could not, in view of Entry 49 of List II of the Seventh Schedule to the Constitution. That entry reads: "Taxes on lands and buildings" and a tax on lands and buildings based upon capital value falls squarely within the entry. The doubt which is created by Entry 86 of List I "Taxes on the capital value of assets", no longer exists after the decision of this Court in Sudhir Chandra Nawn v. Wealth-tax Officer, Calcutta, AIR 1969 SC 59 . In that case the respective ambits of the two entries are explained. It is pointed out that unlike the tax contemplated by entry 49 (List II) the tax under entry 86 (List I) is not a direct tax on lands and buildings but on net assets, the components of which may be lands and buildings and other items of assets excluding such liabilities as may exist. The incidence of the tax is not on lands and buildings as units of taxation but on the net assets of which lands and buildings are only some of the components.This is not the case under entry 49 (List II) where the tax can be laid directly on lands and buildings as units of taxation. Therefore, a tax on lands and buildings is fully within the competence of the legislature and it is open to it to authorise the municipality to levy the same tax indicating the mode of levy. This the legislature has done by indiating the different modes which may be adopted in making the levy, one such mode being a percentage of the capital value.7. The legislature in Section 73 had not authorised the levy of a tax in this manner but had authorised the levy of a rate. That led to the discussion whether a rule putting the tax on capital value of buildings answered the description of the impost in the Act, namely, a rate on buildings or lands or both situate within the Municipal Borough. It was held that by this Court that it did not, because the word rate had acquired a special meaning in legislative practice. Faced with this situation the legislature exercised its undoubted powers of redefining rate so as to equate it to a tax on capital value and convert the tax purported to be collected as a rate into a tax on lands and buildings.8. The legislature in the Validation Act, therefore, provided for the following matters. First, it stated that no tax or rate by whichever name called and laid on the capital value of lands and buildings must be deemed to be invalidly assessed, imposed, collected or recovered simply on the ground that a rate is based on the annual letting value. Next it provided that the tax must be deemed to be validly assessed, imposed, collected or recovered and the imposition must be deemed to be always so authorised. The legislature by this enactment retrospectively imposed the tax on lands and buildings based on their capital value and as the tax was already imposed, levied and collected on that basis, made the imposition, levy, collection and recovery of the tax valid, notwithstanding the declaration by the Court that as rate, the levy was incompetent. The legislature not only equate the tax collected to a tax on lands and buildings, which it had the power to levy, but also to a rate giving a new meaning to the expression rate, and while doing so it put out of action the effect of the decisions of the Courts to the contrary. The exercise of power by the legislature was valid because the legislature does possess the power to levy a tax on lands and buildings based on capital value thereof and in validating the levy on that basis, the implication of the use of the word rate could be effectively removed and the tax on lands and buildings imposed instead. The tax, therefore, can no longer be questioned on the ground that Section 73 spoke of a rate and the imposition was not a rate as properly understood but a tax on capital value.In this view of the matter it is hardly necessary to invoke the 14th Clause of S.73 which contains a residuary power to impose any other tax not expressly mentioned.9.
### Response:
0
### Explanation:
The legislature in Section 73 had not authorised the levy of a tax in this manner but had authorised the levy of a rate. That led to the discussion whether a rule putting the tax on capital value of buildings answered the description of the impost in the Act, namely, a rate on buildings or lands or both situate within the Municipal Borough. It was held that by this Court that it did not, because the word rate had acquired a special meaning in legislative practice. Faced with this situation the legislature exercised its undoubted powers of redefining rate so as to equate it to a tax on capital value and convert the tax purported to be collected as a rate into a tax on lands and buildings.The legislature in the Validation Act, therefore, provided for the following matters. First, it stated that no tax or rate by whichever name called and laid on the capital value of lands and buildings must be deemed to be invalidly assessed, imposed, collected or recovered simply on the ground that a rate is based on the annual letting value. Next it provided that the tax must be deemed to be validly assessed, imposed, collected or recovered and the imposition must be deemed to be always so authorised. The legislature by this enactment retrospectively imposed the tax on lands and buildings based on their capital value and as the tax was already imposed, levied and collected on that basis, made the imposition, levy, collection and recovery of the tax valid, notwithstanding the declaration by the Court that as rate, the levy was incompetent. The legislature not only equate the tax collected to a tax on lands and buildings, which it had the power to levy, but also to a rate giving a new meaning to the expression rate, and while doing so it put out of action the effect of the decisions of the Courts to the contrary. The exercise of power by the legislature was valid because the legislature does possess the power to levy a tax on lands and buildings based on capital value thereof and in validating the levy on that basis, the implication of the use of the word rate could be effectively removed and the tax on lands and buildings imposed instead. The tax, therefore, can no longer be questioned on the ground that Section 73 spoke of a rate and the imposition was not a rate as properly understood but a tax on capital value.In this view of the matter it is hardly necessary to invoke the 14th Clause of S.73 which contains a residuary power to impose any other tax not expresslycounsel for the appellants did not contend that this section was outside the powers of the legislature. In fact, he could not, in view of Entry 49 of List II of the Seventh Schedule to the Constitution. That entry reads: "Taxes on lands and buildings" and a tax on lands and buildings based upon capital value falls squarely within the entry. The doubt which is created by Entry 86 of List I "Taxes on the capital value of assets", no longer exists after the decision of this Court in Sudhir Chandra Nawn v.Officer, Calcutta, AIR 1969 SC 59 . In that case the respective ambits of the two entries are explained. It is pointed out that unlike the tax contemplated by entry 49 (List II) the tax under entry 86 (List I) is not a direct tax on lands and buildings but on net assets, the components of which may be lands and buildings and other items of assets excluding such liabilities as may exist. The incidence of the tax is not on lands and buildings as units of taxation but on the net assets of which lands and buildings are only some of the components.This is not the case under entry 49 (List II) where the tax can be laid directly on lands and buildings as units of taxation. Therefore, a tax on lands and buildings is fully within the competence of the legislature and it is open to it to authorise the municipality to levy the same tax indicating the mode of levy. This the legislature has done by indiating the different modes which may be adopted in making the levy, one such mode being a percentage of the capital value.
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S.K. Ohab Vs. State of West Bengal & Others | Mathew, J.1. The petitioner challenges the validity of an order of detention passed under sub-section (1) read with sub-section (2) of section 3 of the Maintenance of Internal Security Act. 1971, on 18-3-1974 by the District Magistrate, Murshidabad.2. The grounds. of detention communicated to the detenu are:"That on 7-12-1972 at about 18.00 hrs. you carried weapons including unlicensed fire-arms, held secret meeting with your associate Kala Majhi of Bangla Desh and many others in the house of your associate Azimuddin Biswas at Bartanabad, P. S. Domkal and subsequently assembled in a jungle at Jitpore near Kalibari, participated in a dacoity in the house of Basi Charu Ullah Mandal at Radhakhatapore, P. S. Domkal at 23.00 hrs. assaulted inmates, fired several rounds from an un-licenced gun towards the approaching villagers and thereby disturbed the public order.That on 6-1-1973 morning you carried bombs and unlicensed fire arms at the village Bartanabad P. S. Domkal, inviting Kala Majhi and many unknown others from Bangle Desh, holding secret meeting at the house of your associate at the village, participating in a dacoity at 18.45 hrs. On the same day in the house of S. K. Golaz Murthuza at Palsa P. S. Nabagram, assaulted inmates, fired several rounds towards the approaching villagers from an un-licenced gun and killing one of them, looted away cash, ornaments, etc. from the house and escaped to Bangla Desh via. Bartanabad P. S. Domkal on the following morning and. thereby disturbed the public order "3. The, only contention raised by counsel for the petitioner as regards the validity of the detention order was that the first ground was vague inasmuch as it did not specify the duration of the secret meeting which the petitioner had with his associate Kala Majhi of Bangla Desh and many others in the house of his associate Azimuddin Biswas at Bartanabad in the ground and that although it is stated in the ground that it was at about 18:00 hrs. on 7-12-1972 that the petitioner carried weapons including unlicensed fire-arms and his participation in the dacoity in the house of Basi Charu Ullah Mandal at Radhakhatapore was at 23.00 hrs. there was no mention in the ground that it was on the same day.4.We do not think that there is any substance in the contention. The ground is reasonably specific and there can be no doubt that 23 hrs. mentioned in the ground must be on the same day. Any, reasonable person reading the, ground would, have no difficulty in understanding its content and could make an effective representation on the basis ,of the details given therein | 0[ds]3. The, only contention raised by counsel for the petitioner as regards the validity of the detention order was that the first ground was vague inasmuch as it did not specify the duration of the secret meeting which the petitioner had with his associate Kala Majhi of Bangla Desh and many others in the house of his associate Azimuddin Biswas at Bartanabad in the ground and that although it is stated in the ground that it was at about 18:00 hrs. onthat the petitioner carried weapons including unlicensedand his participation in the dacoity in the house of Basi Charu Ullah Mandal at Radhakhatapore was at 23.00 hrs. there was no mention in the ground that it was on the same day.4.We do not think that there is any substance in the contention. The ground is reasonably specific and there can be no doubt that 23 hrs. mentioned in the ground must be on the same day. Any, reasonable person reading the, ground would, have no difficulty in understanding its content and could make an effective representation on the basis ,of the details given therein | 0 | 477 | 199 | ### 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:
Mathew, J.1. The petitioner challenges the validity of an order of detention passed under sub-section (1) read with sub-section (2) of section 3 of the Maintenance of Internal Security Act. 1971, on 18-3-1974 by the District Magistrate, Murshidabad.2. The grounds. of detention communicated to the detenu are:"That on 7-12-1972 at about 18.00 hrs. you carried weapons including unlicensed fire-arms, held secret meeting with your associate Kala Majhi of Bangla Desh and many others in the house of your associate Azimuddin Biswas at Bartanabad, P. S. Domkal and subsequently assembled in a jungle at Jitpore near Kalibari, participated in a dacoity in the house of Basi Charu Ullah Mandal at Radhakhatapore, P. S. Domkal at 23.00 hrs. assaulted inmates, fired several rounds from an un-licenced gun towards the approaching villagers and thereby disturbed the public order.That on 6-1-1973 morning you carried bombs and unlicensed fire arms at the village Bartanabad P. S. Domkal, inviting Kala Majhi and many unknown others from Bangle Desh, holding secret meeting at the house of your associate at the village, participating in a dacoity at 18.45 hrs. On the same day in the house of S. K. Golaz Murthuza at Palsa P. S. Nabagram, assaulted inmates, fired several rounds towards the approaching villagers from an un-licenced gun and killing one of them, looted away cash, ornaments, etc. from the house and escaped to Bangla Desh via. Bartanabad P. S. Domkal on the following morning and. thereby disturbed the public order "3. The, only contention raised by counsel for the petitioner as regards the validity of the detention order was that the first ground was vague inasmuch as it did not specify the duration of the secret meeting which the petitioner had with his associate Kala Majhi of Bangla Desh and many others in the house of his associate Azimuddin Biswas at Bartanabad in the ground and that although it is stated in the ground that it was at about 18:00 hrs. on 7-12-1972 that the petitioner carried weapons including unlicensed fire-arms and his participation in the dacoity in the house of Basi Charu Ullah Mandal at Radhakhatapore was at 23.00 hrs. there was no mention in the ground that it was on the same day.4.We do not think that there is any substance in the contention. The ground is reasonably specific and there can be no doubt that 23 hrs. mentioned in the ground must be on the same day. Any, reasonable person reading the, ground would, have no difficulty in understanding its content and could make an effective representation on the basis ,of the details given therein
### Response:
0
### Explanation:
3. The, only contention raised by counsel for the petitioner as regards the validity of the detention order was that the first ground was vague inasmuch as it did not specify the duration of the secret meeting which the petitioner had with his associate Kala Majhi of Bangla Desh and many others in the house of his associate Azimuddin Biswas at Bartanabad in the ground and that although it is stated in the ground that it was at about 18:00 hrs. onthat the petitioner carried weapons including unlicensedand his participation in the dacoity in the house of Basi Charu Ullah Mandal at Radhakhatapore was at 23.00 hrs. there was no mention in the ground that it was on the same day.4.We do not think that there is any substance in the contention. The ground is reasonably specific and there can be no doubt that 23 hrs. mentioned in the ground must be on the same day. Any, reasonable person reading the, ground would, have no difficulty in understanding its content and could make an effective representation on the basis ,of the details given therein
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