Case Name
stringlengths 11
235
| Input
stringlengths 944
6.86k
| Output
stringlengths 11
196k
| Label
int64 0
1
| Count
int64 176
118k
| Decision_Count
int64 7
37.8k
| text
stringlengths 1.43k
13.9k
|
|---|---|---|---|---|---|---|
Shanti Fragrances Vs. Union of India (UOI) and Ors | Salmon disagreed on the law, and held that his claim was barred. Lord Pearson was stated to be the odd man out. He held that time did not run against Dodd, since Dodd did not appreciate that the Appellants were at fault and that his injuries were attributable to their fault. On that ground, he agreed with Lord Reid and Lord Morris, as a result of which Dodd succeeded. However, he went on to say that he agreed with the opinion of the minority as to the proper construction of the statute in law. Faced with this, Lord Denning M.R. set out four interesting propositions on how a ratio is to be discovered and or read in a judgment. He stated: How then do we stand on the law? We have listened to a most helpful discussion by counsel for the proposed Plaintiffs on the doctrine of precedent. One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that, if we can discover the reasoning on which the majority based their decision, then we should accept that as binding on us. The third proposition is that, if we can discover the reasoning on which the minority based their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that if we cannot discover the reasoning on which the majority based their decision we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House. (at page 446) He then went on to state as follows: Applying the propositions to the decision in Central Asbestos Co. Ltd. v. Dodd the position stands thus. (1) The actual decision of the House in favour of Dodd must be accepted as correct. We cannot accept any line of reasoning which would show it to be wrong. We cannot therefore accept the reasoning of a minority of two-Lord Simon of Glaisdale and Lord Salmon-on the law. It must be wrong because it led them to the wrong result. (2) We ought to accept the reasoning of the three in the majority if we can discover it. But it is not discoverable. The three were divided. Lord Reid and Lord Morris of Borth-y-Gest took one view of the law. Lord Pearson took another. We cannot say that Lord Reid and Lord Morris of Borth-y-Gest were correct, because we know that their reasoning on the law was in conflict with the reasoning of the other three. We cannot say that Lord Pearson was correct because we know that the reasoning which he accepted on the law led the other two (Lord Simon of Glaisdale and Lord Salmon) to a wrong conclusion. So we cannot say that any of the three in the majority was correct. (3) The result is that there is no discernible ratio among the majority of the House of Lords. In these circumstances I think we are at liberty to adopt the reasoning which appears to us to be correct. In my opinion we should adopt the reasoning which was accepted in this Court in the long line of cases before the decision of the House of Lords. None of these was overruled. They may therefore be said to be binding on us. But in any case we should follow their reasoning, especially as it was accepted by two of their Lordships who were in the majority and was expressed convincingly by Lord Morris of Borth-y-Gest in the passage I have quoted. (at page 446) Stephenson LJ. concurred. The learned Lord stated: I agree. I cannot find any discernible ratio decidendi common to the majority of the House of Lords in deciding Dodds case. Their Lordships were divided three to two in the decision to affirm the judgment of the Court of Appeal; but in the reasons for their decision they appeared to be divided two to two, Lord Pearson taking a third view which perhaps came closer to the view of the minority. In those circumstances I do not think that we can treat the reasoning of the majority of the majority-Lord Reid and Lord Morris of Borth-y-Gest-as the ratio decidendi of the house. It is the ratio given by only two out of five. Still less can we treat the ratio decidendi appearing from the speeches of the minority-Lord Simon of Glaisdale and Lord Salmon-as binding if added to Lord Pearsons. That seems to have been the view of Thesiger J; but having had the advantage denied to him of counsels argument, I respectfully disagree with him. We are therefore bound by the decision of the House of Lords affirming the decision of this Court, but not by the reasoning in the speeches of their Lordships. That, in my judgment, sends us back to the decision of this Court [1971] 3 All ER 204, [1972] 1 QB 244 and the ratio of its decision. If there is in the Court of Appeal a discernible reason for their decision common to the majority, it stands and binds us. I think that there is. I agree that we should take the same view of the 1963 Act as was taken by the Court of Appeal in Dodds case, confirmed as it is most persuasively by the approval of Lord Reid and Lord Morris of Borth-y-Gest in the House of Lords. Applying that construction of the Act to the circumstances of this case, I agree with Lord Denning MR that they are stronger on the facts, as we have them on affidavit only, than those which enabled Dodd to bring himself, not without difficulty, within the Act. I therefore concur in allowing this appeal and giving the Appellants leave. (at page 447) | 1[ds]This is obviously a case of legislation by incorporation as a result of which the only thing that is to be looked at is tobacco contained in this Schedule and not subsequent amendments that have been made after the introduction of the Central Excise (Tariff) Act, 1985 w.e.f. February, 1986.7. It is well settled that in the area of taxation, the question of going to the measure of a tax would arise only if it is found that the charge of tax is attracted. [See Tata Sky Limited v. State of Madhya Pradesh and Ors. (2013) 4 SCC 656 at para 29] Also, in a recent Constitution Bench judgment delivered by this Court in Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited, (2015) 1 SCC 1 , after referring to an earlier judgment of this Court, this Court stated that the components which enter into the concept of taxability are well known and distinct. The first is the imposition of tax which prescribes the taxable event attracting the levy. The second is an indication of the taxable person i.e. the person on whom the levy is imposed and who is obliged to pay the tax. The third is the rate at which tax is imposed. The fourth is the measure or value to which the levy will be applied for computing tax liability.10. It does appear that there is a direct conflict between Kothari Products (supra), Radheshyam Gudakhu Factory (supra) and Reliance Trading Company (supra) judgments on the one hand, and Agra Belting Works (supra), which was also followed by two other judgments, on the other. We may hasten to add that there are three Judge Bench decisions on both sides. Interestingly enough, in Agra Belting Works (supra), this Court held by a majority of two to one as follows:6. As has been pointed out above, Section 3 is the charging provision; Section 3-A authorises variation of the rate of tax and Section 4 provides for exemption from tax. All the three Sections are parts of the taxing scheme incorporated in the Act and the power both Under Section 3-A as also Under Section 4 is exercisable by the State Government only. When after a notification Under Section 4 granting exemption from liability, a subsequent notification Under Section 3-A prescribes the rate of tax, it is beyond doubt that the intention is to withdraw the exemption and make the sale liable to tax at the rate prescribed in the notification. As the power both for the grant of exemption and the variation of the rate of tax vests in the State Government and it is not the requirement of the statute that a notification of recall of exemption is a condition precedent to imposing tax at any prescribed rate by a valid notification Under Section 3-A, we see no force in the contention of the Assessee which has been upheld by the High Court. In fact, the second notification can easily be treated as a combined notification-both for withdrawal of exemption and also for providing higher tax. When power for both the operations vests in the State and the intention to levy the tax is clear we see no justification for not giving effect to the second notification. We would like to point out that the exemption was in regard to a class of goods and while the exemption continues, a specific item has now been notified Under Section 3-A of the Act.B.C. Ray, J. dissented from this view and followed the view of the Allahabad High Court, which accords the view of this Court in the Kothari Products (supra) and Reliance Trading Company (supra) judgments. One other interesting feature of this case is whether, after Union of India v. Raghubir Singh, 1989 (3) SCR 316 at 335-337, it can be stated that Judges of this Court do not sit in 2s and 3s for mere convenience, but that a Bench which is numerically superior will prevail over a Bench of lesser strength. If the doctrine of precedent, as applied by this Court, is to be a matter of numbers, then, interestingly enough, as has been held by Beaumont C.J. in Ningappa Ramappa Kurbar and Anr. v. Emperor AIR 1941 Bombay 408 at 409, the position in law could be as under:... The Court in that case consisted of five Judges, one of whom, Shah J., dissented from that proposition. The authority of the case may be open to question, since there had been a previous decision of a Full Bench of this Court of four Judges in Queen-Empress v. Mugappa, (1894) 18 Bom 377 (FB), which had reached a different conclusion. Apparently it was considered that five Judges, by a majority of four to one, could overrule a unanimous decision of four Judges, the net result being that the opinion of four Judges prevailed over the opinion of five Judges of co-ordinate jurisdiction. There seems to be very little authority on the powers and constitution of a Full Bench.There can be no doubt that a Full Bench can overrule a Division Bench, and that a Full Bench must consist of three or more Judges; but it would seem anomalous to hold that a later Full Bench can overrule an earlier Full Bench, merely because the later bench consists of more Judges than the earlier. If that were the rule, it would mean that a bench of seven Judges, by a majority of four to three, could overrule a unanimous decision of a bench of six Judges, though all the Judges were of co-ordinate jurisdiction. In Enatullah v. Kowsher Ali,(1926) 54 Cal 266, Sanderson C.J., stating the practice in Calcutta, seems to have been of opinion that a decision of a Full Bench could only be reversed by the Privy Council or by a bench specially constituted by the Chief Justice. Even if this be the true rule, there is nothing to show that the Chief Justice acted upon it in Emperor v. Purshottam Ishwar (1921) 45 Bom 834. I do not recollect myself ever to have constituted a Special Bench to consider the ruling of a Full Bench, though I have constituted many Full Benches to consider rulings of Division Benches. However, I need not pursue this subject further, since, for the purpose of the present appeal, I am prepared to assume that an alternative charge of perjury lies, and that it was a charge of that nature which the learned Additional Sessions Judge contemplated. The question then is whether it is expedient in the interests of justice that such a charge should be made.12. It may be pointed out that in the present case, if numbers are toted up, the Kothari Products (supra) line, as followed in Radheshyam Gudakhu Factory (supra) and Reliance Trading Company (supra), will go to a Bench strength, numerically speaking, of eight learned Judges, as against the Agra Belting Works (supra) line, which goes up to a numerical strength of six learned Judges. If the dissenting judgment of B.C. Ray, J. is to be added to the Kothari Products (supra) line, then we have a numerical strength of 9:6. The question of numerical strength gains poignancy when one judgment is overruled by another, as has been pointed by Beaumont C.J. in Ningappa Ramappa Kurbar (supra), and by Lokur, J. in Supreme Court Advocates-on-Record (supra).13. Let us consider a hypothetical example, where a 2 Judge Bench has laid down the law in a particular way. If nine other 2 Judge Benches have followed the first 2 Judge Bench decision, is it open for three learned Judges to overrule all of the 2 Judge Benches i.e. twenty learned Judges? The obvious answer would be yes, because the 3 Judge Bench is really overruling the first 2 Judge Bench decision, which was merely followed by nine other 2 Judge Benches. As against this, however, if a unanimous 5 Judge Bench decision is overruled by a 7 Judge Bench, with four learned Judges speaking for the majority, and three learned Judges speaking for the minority, can it be said that the 5 Judge Bench has been overruled? Under the present practice, it is clear that the view of four learned Judges speaking for the majority in a 7 Judge Bench will prevail over a unanimous 5 Judge Bench decision, because they happen to speak for a 7 Judge Bench. Has the time come to tear the judicial veil and hold that in reality a view of five learned Judges cannot be overruled by a view of four learned Judges speaking for a Bench of 7 learned Judges? This is a question which also needs to be addressed and answered.In Harper and Ors. v. National Coal Board [1974] 2 All ER 441, the Court of Appeal was faced with a judgment of the House of Lords in Central Asbestos Co. Ltd. v. Dodd [1972] 2 All ER 1135 by five learned Judges. Whereas Lord Reid and Lord Morris took a particular view of the law in favour of Dodd, stating that his claim was not barred, two other learned Judges namely, Lord Simon and Lord Salmon disagreed on the law, and held that his claim was barred. Lord Pearson was stated to be the odd man out. He held that time did not run against Dodd, since Dodd did not appreciate that the Appellants were at fault and that his injuries were attributable to their fault. On that ground, he agreed with Lord Reid and Lord Morris, as a result of which Dodd succeeded. However, he went on to say that he agreed with the opinion of the minority as to the proper construction of the statute in law. Faced with this, Lord Denning M.R. set out four interesting propositions on how a ratio is to be discovered and or read in a judgment. He stated:How then do we stand on the law? We have listened to a most helpful discussion by counsel for the proposed Plaintiffs on the doctrine of precedent. One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that, if we can discover the reasoning on which the majority based their decision, then we should accept that as binding on us. The third proposition is that, if we can discover the reasoning on which the minority based their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that if we cannot discover the reasoning on which the majority based their decision we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House.(at page 446)He then went on to state as follows:Applying the propositions to the decision in Central Asbestos Co. Ltd. v. Dodd the position stands thus. (1) The actual decision of the House in favour of Dodd must be accepted as correct. We cannot accept any line of reasoning which would show it to be wrong. We cannot therefore accept the reasoning of a minority of two-Lord Simon of Glaisdale and Lord Salmon-on the law. It must be wrong because it led them to the wrong result. (2) We ought to accept the reasoning of the three in the majority if we can discover it. But it is not discoverable. The three were divided. Lord Reid and Lord Morris of Borth-y-Gest took one view of the law. Lord Pearson took another. We cannot say that Lord Reid and Lord Morris of Borth-y-Gest were correct, because we know that their reasoning on the law was in conflict with the reasoning of the other three. We cannot say that Lord Pearson was correct because we know that the reasoning which he accepted on the law led the other two (Lord Simon of Glaisdale and Lord Salmon) to a wrong conclusion. So we cannot say that any of the three in the majority was correct. (3) The result is that there is no discernible ratio among the majority of the House of Lords. In these circumstances I think we are at liberty to adopt the reasoning which appears to us to be correct.In my opinion we should adopt the reasoning which was accepted in this Court in the long line of cases before the decision of the House of Lords. None of these was overruled. They may therefore be said to be binding on us. But in any case we should follow their reasoning, especially as it was accepted by two of their Lordships who were in the majority and was expressed convincingly by Lord Morris of Borth-y-Gest in the passage I have quoted.(at page 446)Stephenson LJ. concurred. The learned Lord stated:I agree. I cannot find any discernible ratio decidendi common to the majority of the House of Lords in deciding Dodds case. Their Lordships were divided three to two in the decision to affirm the judgment of the Court of Appeal; but in the reasons for their decision they appeared to be divided two to two, Lord Pearson taking a third view which perhaps came closer to the view of the minority. In those circumstances I do not think that we can treat the reasoning of the majority of the majority-Lord Reid and Lord Morris of Borth-y-Gest-as the ratio decidendi of the house. It is the ratio given by only two out of five. Still less can we treat the ratio decidendi appearing from the speeches of the minority-Lord Simon of Glaisdale and Lord Salmon-as binding if added to Lord Pearsons. That seems to have been the view of Thesiger J; but having had the advantage denied to him of counsels argument, I respectfully disagree with him. We are therefore bound by the decision of the House of Lords affirming the decision of this Court, but not by the reasoning in the speeches of their Lordships. That, in my judgment, sends us back to the decision of this Court [1971] 3 All ER 204, [1972] 1 QB 244 and the ratio of its decision. If there is in the Court of Appeal a discernible reason for their decision common to the majority, it stands and binds us. I think that there is. I agree that we should take the same view of the 1963 Act as was taken by the Court of Appeal in Dodds case, confirmed as it is most persuasively by the approval of Lord Reid and Lord Morris of Borth-y-Gest in the House of Lords. Applying that construction of the Act to the circumstances of this case, I agree with Lord Denning MR that they are stronger on the facts, as we have them on affidavit only, than those which enabled Dodd to bring himself, not without difficulty, within the Act. I therefore concur in allowing this appeal and giving the Appellants leave.(at page 447)5. The impugned judgment of the Delhi High Court dated 05.11.2004 has held, on a reading of the aforesaid provisions, that a notification dated 31.03.2000, which introduced as Item 46 in the First Schedule Pan Masala and Gutka w.e.f. 01.04.2000, would have to be read as eating into the exemption for tobacco generally, and that therefore, on and from this date, Pan Masala which includes tobacco would become exigible to sales tax.This was done on two bases; first, that, as was held by the Kerala High Court in Reliance Trading Company v. State of Kerala, (2000) 119 STC 321 (Ker.) , if there are two entries, one general and Anr. specific, the general entry must give way to the specific entry. The exemption entry being general in nature, therefore, must give way to the specific entry contained in the First Schedule, and that therefore, sales tax became payable on Pan Masala which includes tobacco. The other basis of the judgment is that there is a dichotomy between two lines of Supreme Court judgments. The first line is contained in Kothari Products Ltd. v. Government of A.P., (2000) 9 SCC 263 and State of Orissa v. Radheshyam Gudakhu Factory, (1987) 68 STC 92; the second line of decisions being Commissioner, Sales Tax U.P. v. M/s. Agra Belting Works, Agra (1987) 3 SCC 140 as followed in Sales Tax Officer, Section IX, Kanpur v. Dealing Dairy Products and Anr. 1994 Supp. (2) SCC 639 and State of Bihar and Ors. v. Krishna Kumar Kabra and Anr. (1998) 108 STC 1. Whereas the Kothari Products (supra) line of judgments had held that an entry under a sales tax statute which only specifies rate cannot be used to eat into an exemption entry, the Agra Belting Works (supra) line of judgments states the exact opposite, which is that the charging section, the rate of tax section, and the exemption Section all form part of one scheme, and when a notification is issued under a rate of tax section, which is subsequent to a notification exempting certain goods, the intention of the legislature is that such exemption then gets withdrawn and makes the sale of such goods liable to tax. The High Court preferred to follow the Agra Belting Works (supra) line, and therefore, dismissed the writ petition of the Assessees.6. To similar effect are the impugned judgments from the Allahabad and Madras High Courts which are contained in C.A. No. 8617/2014 and C.A. No. 8502/2011.It may only be noted that in the Madras High Court judgment, though this point was squarely raised and argued, the Madras High Court has preferred to rest its decision on only one point, which is that even though additional duty of excise may be levied on Pan Masala containing tobacco, the legislative competence of the State to enact a State sales tax levying sales tax on the same goods is not taken away. | 1 | 6,948 | 3,386 | ### 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:
Salmon disagreed on the law, and held that his claim was barred. Lord Pearson was stated to be the odd man out. He held that time did not run against Dodd, since Dodd did not appreciate that the Appellants were at fault and that his injuries were attributable to their fault. On that ground, he agreed with Lord Reid and Lord Morris, as a result of which Dodd succeeded. However, he went on to say that he agreed with the opinion of the minority as to the proper construction of the statute in law. Faced with this, Lord Denning M.R. set out four interesting propositions on how a ratio is to be discovered and or read in a judgment. He stated: How then do we stand on the law? We have listened to a most helpful discussion by counsel for the proposed Plaintiffs on the doctrine of precedent. One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that, if we can discover the reasoning on which the majority based their decision, then we should accept that as binding on us. The third proposition is that, if we can discover the reasoning on which the minority based their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that if we cannot discover the reasoning on which the majority based their decision we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House. (at page 446) He then went on to state as follows: Applying the propositions to the decision in Central Asbestos Co. Ltd. v. Dodd the position stands thus. (1) The actual decision of the House in favour of Dodd must be accepted as correct. We cannot accept any line of reasoning which would show it to be wrong. We cannot therefore accept the reasoning of a minority of two-Lord Simon of Glaisdale and Lord Salmon-on the law. It must be wrong because it led them to the wrong result. (2) We ought to accept the reasoning of the three in the majority if we can discover it. But it is not discoverable. The three were divided. Lord Reid and Lord Morris of Borth-y-Gest took one view of the law. Lord Pearson took another. We cannot say that Lord Reid and Lord Morris of Borth-y-Gest were correct, because we know that their reasoning on the law was in conflict with the reasoning of the other three. We cannot say that Lord Pearson was correct because we know that the reasoning which he accepted on the law led the other two (Lord Simon of Glaisdale and Lord Salmon) to a wrong conclusion. So we cannot say that any of the three in the majority was correct. (3) The result is that there is no discernible ratio among the majority of the House of Lords. In these circumstances I think we are at liberty to adopt the reasoning which appears to us to be correct. In my opinion we should adopt the reasoning which was accepted in this Court in the long line of cases before the decision of the House of Lords. None of these was overruled. They may therefore be said to be binding on us. But in any case we should follow their reasoning, especially as it was accepted by two of their Lordships who were in the majority and was expressed convincingly by Lord Morris of Borth-y-Gest in the passage I have quoted. (at page 446) Stephenson LJ. concurred. The learned Lord stated: I agree. I cannot find any discernible ratio decidendi common to the majority of the House of Lords in deciding Dodds case. Their Lordships were divided three to two in the decision to affirm the judgment of the Court of Appeal; but in the reasons for their decision they appeared to be divided two to two, Lord Pearson taking a third view which perhaps came closer to the view of the minority. In those circumstances I do not think that we can treat the reasoning of the majority of the majority-Lord Reid and Lord Morris of Borth-y-Gest-as the ratio decidendi of the house. It is the ratio given by only two out of five. Still less can we treat the ratio decidendi appearing from the speeches of the minority-Lord Simon of Glaisdale and Lord Salmon-as binding if added to Lord Pearsons. That seems to have been the view of Thesiger J; but having had the advantage denied to him of counsels argument, I respectfully disagree with him. We are therefore bound by the decision of the House of Lords affirming the decision of this Court, but not by the reasoning in the speeches of their Lordships. That, in my judgment, sends us back to the decision of this Court [1971] 3 All ER 204, [1972] 1 QB 244 and the ratio of its decision. If there is in the Court of Appeal a discernible reason for their decision common to the majority, it stands and binds us. I think that there is. I agree that we should take the same view of the 1963 Act as was taken by the Court of Appeal in Dodds case, confirmed as it is most persuasively by the approval of Lord Reid and Lord Morris of Borth-y-Gest in the House of Lords. Applying that construction of the Act to the circumstances of this case, I agree with Lord Denning MR that they are stronger on the facts, as we have them on affidavit only, than those which enabled Dodd to bring himself, not without difficulty, within the Act. I therefore concur in allowing this appeal and giving the Appellants leave. (at page 447)
### Response:
1
### Explanation:
the law led the other two (Lord Simon of Glaisdale and Lord Salmon) to a wrong conclusion. So we cannot say that any of the three in the majority was correct. (3) The result is that there is no discernible ratio among the majority of the House of Lords. In these circumstances I think we are at liberty to adopt the reasoning which appears to us to be correct.In my opinion we should adopt the reasoning which was accepted in this Court in the long line of cases before the decision of the House of Lords. None of these was overruled. They may therefore be said to be binding on us. But in any case we should follow their reasoning, especially as it was accepted by two of their Lordships who were in the majority and was expressed convincingly by Lord Morris of Borth-y-Gest in the passage I have quoted.(at page 446)Stephenson LJ. concurred. The learned Lord stated:I agree. I cannot find any discernible ratio decidendi common to the majority of the House of Lords in deciding Dodds case. Their Lordships were divided three to two in the decision to affirm the judgment of the Court of Appeal; but in the reasons for their decision they appeared to be divided two to two, Lord Pearson taking a third view which perhaps came closer to the view of the minority. In those circumstances I do not think that we can treat the reasoning of the majority of the majority-Lord Reid and Lord Morris of Borth-y-Gest-as the ratio decidendi of the house. It is the ratio given by only two out of five. Still less can we treat the ratio decidendi appearing from the speeches of the minority-Lord Simon of Glaisdale and Lord Salmon-as binding if added to Lord Pearsons. That seems to have been the view of Thesiger J; but having had the advantage denied to him of counsels argument, I respectfully disagree with him. We are therefore bound by the decision of the House of Lords affirming the decision of this Court, but not by the reasoning in the speeches of their Lordships. That, in my judgment, sends us back to the decision of this Court [1971] 3 All ER 204, [1972] 1 QB 244 and the ratio of its decision. If there is in the Court of Appeal a discernible reason for their decision common to the majority, it stands and binds us. I think that there is. I agree that we should take the same view of the 1963 Act as was taken by the Court of Appeal in Dodds case, confirmed as it is most persuasively by the approval of Lord Reid and Lord Morris of Borth-y-Gest in the House of Lords. Applying that construction of the Act to the circumstances of this case, I agree with Lord Denning MR that they are stronger on the facts, as we have them on affidavit only, than those which enabled Dodd to bring himself, not without difficulty, within the Act. I therefore concur in allowing this appeal and giving the Appellants leave.(at page 447)5. The impugned judgment of the Delhi High Court dated 05.11.2004 has held, on a reading of the aforesaid provisions, that a notification dated 31.03.2000, which introduced as Item 46 in the First Schedule Pan Masala and Gutka w.e.f. 01.04.2000, would have to be read as eating into the exemption for tobacco generally, and that therefore, on and from this date, Pan Masala which includes tobacco would become exigible to sales tax.This was done on two bases; first, that, as was held by the Kerala High Court in Reliance Trading Company v. State of Kerala, (2000) 119 STC 321 (Ker.) , if there are two entries, one general and Anr. specific, the general entry must give way to the specific entry. The exemption entry being general in nature, therefore, must give way to the specific entry contained in the First Schedule, and that therefore, sales tax became payable on Pan Masala which includes tobacco. The other basis of the judgment is that there is a dichotomy between two lines of Supreme Court judgments. The first line is contained in Kothari Products Ltd. v. Government of A.P., (2000) 9 SCC 263 and State of Orissa v. Radheshyam Gudakhu Factory, (1987) 68 STC 92; the second line of decisions being Commissioner, Sales Tax U.P. v. M/s. Agra Belting Works, Agra (1987) 3 SCC 140 as followed in Sales Tax Officer, Section IX, Kanpur v. Dealing Dairy Products and Anr. 1994 Supp. (2) SCC 639 and State of Bihar and Ors. v. Krishna Kumar Kabra and Anr. (1998) 108 STC 1. Whereas the Kothari Products (supra) line of judgments had held that an entry under a sales tax statute which only specifies rate cannot be used to eat into an exemption entry, the Agra Belting Works (supra) line of judgments states the exact opposite, which is that the charging section, the rate of tax section, and the exemption Section all form part of one scheme, and when a notification is issued under a rate of tax section, which is subsequent to a notification exempting certain goods, the intention of the legislature is that such exemption then gets withdrawn and makes the sale of such goods liable to tax. The High Court preferred to follow the Agra Belting Works (supra) line, and therefore, dismissed the writ petition of the Assessees.6. To similar effect are the impugned judgments from the Allahabad and Madras High Courts which are contained in C.A. No. 8617/2014 and C.A. No. 8502/2011.It may only be noted that in the Madras High Court judgment, though this point was squarely raised and argued, the Madras High Court has preferred to rest its decision on only one point, which is that even though additional duty of excise may be levied on Pan Masala containing tobacco, the legislative competence of the State to enact a State sales tax levying sales tax on the same goods is not taken away.
|
Medmeme, LLC and Ors Vs. Ihorse BPO Solutions Pvt. Ltd | respect of the dues which were payable by the Appellant-company to the Respondent-company for the services rendered by the Respondent to the Appellant-company. Because of the aforesaid disputes, the Appellant-company sent legal notice dated 20.06.2012 to the Respondent-company invoking the arbitration clause contained in the agreement dated 01.12.2010 and nominating Mr. Justice Mohan Ram, a retired Judge of the Madras High Court as Arbitrator and requested the Respondent to also accept the said Arbitrator for adjudication of disputes between the parties. In response to the said notice, the Respondent sent communication dated 18.07.2012 wherein the Respondent informed that it had already filed Criminal Complaint No. 142 of 2012 against the Appellants alleging that the Appellants had committed offence of cheating and misappropriation punishable Under Sections 420, 406, 409 read with 120(B) of the Indian Penal Code and in the said complaint, after recording the statement of the complainant, the learned Magistrate had issued summons dated 05.04.2012 to the Appellants finding that prima facie case under the aforesaid provisions was made out. 6. The Appellants challenged the aforesaid summoning orders by filing petition Under Section 482 of the Code of Criminal Procedure, 1973, in the High Court of Madras. This petition has been dismissed by the High Court vide impugned judgment dated 11.11.2014 and challenging this judgment, the instant petition has been preferred by the Appellants wherein leave has been granted hereinabove. 7. To record the events that have taken place thereafter and have a bearing on the present case, we may note that when the Respondent-company had refuted the allegations of the legal notice dated 20.06.2012 sent by the Appellants for appointment of the Arbitrator, the Appellant-company filed petition Under Section 11(6) of the Arbitration and Conciliation Act, 1996, for appointment of an Arbitrator in this Court in terms of the arbitration agreement. Though this application was contested by the Respondent, ultimately, on a consensus being arrived at between the parties, orders dated 08.10.2014 were passed in the said arbitration application of the Appellants, appointing Mr. Justice Doraiswamy Raju, a former Judge of this Court, as the sole arbitrator to adjudicate the claims and counter claims of both the parties. It is also a matter of record that arbitration proceedings are going on before the learned Arbitrator. We are informed that both the parties have filed claims against each other. Evidence of both the parties is substantially over and the proceedings are at an advanced stage. We were also informed that the arbitration award is expected in near future. 8. Coming to the case at hand, a perusal of the judgment of the High Court would show that the High Court formulated the following three questions for determination: (i) Whether the complaint is liable to be quashed on the ground that the allegations made in the complaint do not constitute any offence Under Section 420 Indian Penal Code? (ii) Whether the criminal law can be set in motion in this case, since the agreement comprises a provision for arbitration? (iii) Whether the Magistrate has conducted the enquiry Under Section 202 Code of Criminal Procedure, since the Petitioners are residing outside the jurisdiction of the Court? 9. The High Court was of the view that the allegations contained in the complaint filed by the Respondent, particularly in paragraph 7 thereto, satisfy the ingredients of the offences for which the Appellants are implicated. But the High Court further observed that merely because arbitration proceedings were pending between the parties, it would not preclude the Respondent from launching criminal prosecution when prima facie criminal case was also made out against the Appellants. In the three question formulated, the High Court took the view that the Magistrate had conducted a proper inquiry Under Section 202 of the Code of Criminal Procedure before proceeding against the Appellants. 10. The moot question before us revolves around Question No. 1 which was formulated by the High Court and it is to be seen as to whether dispute between the parties is essentially of a civil nature or any case is made out against the Appellants for launching criminal prosecution under the aforesaid Sections. 11. After going through the allegations contained in the complaint and the material on record, we are of firm conclusion that the matter entirely pertains to civil jurisdiction and not even a prima facie case is made out for offences Under Sections 420, 406, 409 read with Section 120B of Indian Penal Code even if the allegations contained in the complaint are to be taken on their face value. The complaint gives a clear impression that it was primarily a case where the Respondent had alleged breach of contract on the part of the Appellants in not making the entire payments for the services rendered to the Appellants. On the other hand, it is not in dispute that substantial amounts have been paid by the Appellants to the Respondent-company for the services rendered. 12. Reason for non-payment of the balance amount as given by the Appellants is that the services rendered by the Respondent-company were not in terms of the agreement entered into between the parties and were deficient in nature. For this reason, even the Appellants have filed claims against the Respondent-company alleging that Appellant suffered losses because of the defective services provided by the Respondent. 13. On the basis of it, we find that it cannot be said that at the time of entering into the agreement, either the first agreement or even the second agreement, there was any intention on the part of the Appellants to cheat the Respondent. No suspicion of any nature was shown or even alleged. It is also not the allegation of the Respondent in the complaint that the agreement was entered into with fraudulent or dishonest intention on the part of the Appellants in inducing the Respondent to enter into such a contract. At best, the dispute between the parties is of a civil nature, proceedings in respect of which are pending before the learned Arbitrator. | 1[ds]We are informed that both the parties have filed claims against each other. Evidence of both the parties is substantially over and the proceedings are at an advanced stage. We were also informed that the arbitration award is expected in near future11. After going through the allegations contained in the complaint and the material on record, we are of firm conclusion that the matter entirely pertains to civil jurisdiction and not even a prima facie case is made out for offences Under Sections 420, 406, 409 read with Section 120B of Indian Penal Code even if the allegations contained in the complaint are to be taken on their face value. The complaint gives a clear impression that it was primarily a case where the Respondent had alleged breach of contract on the part of the Appellants in not making the entire payments for the services rendered to the Appellants. On the other hand, it is not in dispute that substantial amounts have been paid by the Appellants to the Respondent-company for the services rendered12. Reason for non-payment of the balance amount as given by the Appellants is that the services rendered by the Respondent-company were not in terms of the agreement entered into between the parties and were deficient in nature. For this reason, even the Appellants have filed claims against the Respondent-company alleging that Appellant suffered losses because of the defective services provided by the Respondent13. On the basis of it, we find that it cannot be said that at the time of entering into the agreement, either the first agreement or even the second agreement, there was any intention on the part of the Appellants to cheat the Respondent. No suspicion of any nature was shown or even alleged. It is also not the allegation of the Respondent in the complaint that the agreement was entered into with fraudulent or dishonest intention on the part of the Appellants in inducing the Respondent to enter into such a contract. At best, the dispute between the parties is of a civil nature, proceedings in respect of which are pending before the learned Arbitrator. | 1 | 1,785 | 380 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
respect of the dues which were payable by the Appellant-company to the Respondent-company for the services rendered by the Respondent to the Appellant-company. Because of the aforesaid disputes, the Appellant-company sent legal notice dated 20.06.2012 to the Respondent-company invoking the arbitration clause contained in the agreement dated 01.12.2010 and nominating Mr. Justice Mohan Ram, a retired Judge of the Madras High Court as Arbitrator and requested the Respondent to also accept the said Arbitrator for adjudication of disputes between the parties. In response to the said notice, the Respondent sent communication dated 18.07.2012 wherein the Respondent informed that it had already filed Criminal Complaint No. 142 of 2012 against the Appellants alleging that the Appellants had committed offence of cheating and misappropriation punishable Under Sections 420, 406, 409 read with 120(B) of the Indian Penal Code and in the said complaint, after recording the statement of the complainant, the learned Magistrate had issued summons dated 05.04.2012 to the Appellants finding that prima facie case under the aforesaid provisions was made out. 6. The Appellants challenged the aforesaid summoning orders by filing petition Under Section 482 of the Code of Criminal Procedure, 1973, in the High Court of Madras. This petition has been dismissed by the High Court vide impugned judgment dated 11.11.2014 and challenging this judgment, the instant petition has been preferred by the Appellants wherein leave has been granted hereinabove. 7. To record the events that have taken place thereafter and have a bearing on the present case, we may note that when the Respondent-company had refuted the allegations of the legal notice dated 20.06.2012 sent by the Appellants for appointment of the Arbitrator, the Appellant-company filed petition Under Section 11(6) of the Arbitration and Conciliation Act, 1996, for appointment of an Arbitrator in this Court in terms of the arbitration agreement. Though this application was contested by the Respondent, ultimately, on a consensus being arrived at between the parties, orders dated 08.10.2014 were passed in the said arbitration application of the Appellants, appointing Mr. Justice Doraiswamy Raju, a former Judge of this Court, as the sole arbitrator to adjudicate the claims and counter claims of both the parties. It is also a matter of record that arbitration proceedings are going on before the learned Arbitrator. We are informed that both the parties have filed claims against each other. Evidence of both the parties is substantially over and the proceedings are at an advanced stage. We were also informed that the arbitration award is expected in near future. 8. Coming to the case at hand, a perusal of the judgment of the High Court would show that the High Court formulated the following three questions for determination: (i) Whether the complaint is liable to be quashed on the ground that the allegations made in the complaint do not constitute any offence Under Section 420 Indian Penal Code? (ii) Whether the criminal law can be set in motion in this case, since the agreement comprises a provision for arbitration? (iii) Whether the Magistrate has conducted the enquiry Under Section 202 Code of Criminal Procedure, since the Petitioners are residing outside the jurisdiction of the Court? 9. The High Court was of the view that the allegations contained in the complaint filed by the Respondent, particularly in paragraph 7 thereto, satisfy the ingredients of the offences for which the Appellants are implicated. But the High Court further observed that merely because arbitration proceedings were pending between the parties, it would not preclude the Respondent from launching criminal prosecution when prima facie criminal case was also made out against the Appellants. In the three question formulated, the High Court took the view that the Magistrate had conducted a proper inquiry Under Section 202 of the Code of Criminal Procedure before proceeding against the Appellants. 10. The moot question before us revolves around Question No. 1 which was formulated by the High Court and it is to be seen as to whether dispute between the parties is essentially of a civil nature or any case is made out against the Appellants for launching criminal prosecution under the aforesaid Sections. 11. After going through the allegations contained in the complaint and the material on record, we are of firm conclusion that the matter entirely pertains to civil jurisdiction and not even a prima facie case is made out for offences Under Sections 420, 406, 409 read with Section 120B of Indian Penal Code even if the allegations contained in the complaint are to be taken on their face value. The complaint gives a clear impression that it was primarily a case where the Respondent had alleged breach of contract on the part of the Appellants in not making the entire payments for the services rendered to the Appellants. On the other hand, it is not in dispute that substantial amounts have been paid by the Appellants to the Respondent-company for the services rendered. 12. Reason for non-payment of the balance amount as given by the Appellants is that the services rendered by the Respondent-company were not in terms of the agreement entered into between the parties and were deficient in nature. For this reason, even the Appellants have filed claims against the Respondent-company alleging that Appellant suffered losses because of the defective services provided by the Respondent. 13. On the basis of it, we find that it cannot be said that at the time of entering into the agreement, either the first agreement or even the second agreement, there was any intention on the part of the Appellants to cheat the Respondent. No suspicion of any nature was shown or even alleged. It is also not the allegation of the Respondent in the complaint that the agreement was entered into with fraudulent or dishonest intention on the part of the Appellants in inducing the Respondent to enter into such a contract. At best, the dispute between the parties is of a civil nature, proceedings in respect of which are pending before the learned Arbitrator.
### Response:
1
### Explanation:
We are informed that both the parties have filed claims against each other. Evidence of both the parties is substantially over and the proceedings are at an advanced stage. We were also informed that the arbitration award is expected in near future11. After going through the allegations contained in the complaint and the material on record, we are of firm conclusion that the matter entirely pertains to civil jurisdiction and not even a prima facie case is made out for offences Under Sections 420, 406, 409 read with Section 120B of Indian Penal Code even if the allegations contained in the complaint are to be taken on their face value. The complaint gives a clear impression that it was primarily a case where the Respondent had alleged breach of contract on the part of the Appellants in not making the entire payments for the services rendered to the Appellants. On the other hand, it is not in dispute that substantial amounts have been paid by the Appellants to the Respondent-company for the services rendered12. Reason for non-payment of the balance amount as given by the Appellants is that the services rendered by the Respondent-company were not in terms of the agreement entered into between the parties and were deficient in nature. For this reason, even the Appellants have filed claims against the Respondent-company alleging that Appellant suffered losses because of the defective services provided by the Respondent13. On the basis of it, we find that it cannot be said that at the time of entering into the agreement, either the first agreement or even the second agreement, there was any intention on the part of the Appellants to cheat the Respondent. No suspicion of any nature was shown or even alleged. It is also not the allegation of the Respondent in the complaint that the agreement was entered into with fraudulent or dishonest intention on the part of the Appellants in inducing the Respondent to enter into such a contract. At best, the dispute between the parties is of a civil nature, proceedings in respect of which are pending before the learned Arbitrator.
|
Orissa Cement Ltd And Ors. Etc. Etc Vs. State Of Orissa And Ors. Etc. Etc | Hegde, J. 1. In this appeal by special leave, the question for consideration is whether the appellant is entitled to the rebate provided in Section 13 (8) of the Orissa Sales Tax Act, 1947, as amended by Orissa Sales Tax (Amendment) Act, 1962 (to be hereinafter referred to as the Orissa Act) read with Section 9 (3) of the Central Sales Tax Act, 1956 (to be hereinafter referred to as the Central Act). 2. The appellant is an incorporated company and it is a registered dealer under the Central Act. The appellant company was assessed to sales tax under the Central Act for the two quarters ending 31st December 1962 and 31st March, 1963. During the first quarter its tax liability was Rupees 62,061-86 P. and during the second quarter its tax liability was Rupees 47,266-21 P. The tax levied was paid by the assesse within the time fixed under Section 13(4) (d) of the Orissa Act. 3. Section 13 (8) of the Orissa Act provides : "A rebate of one per centum on the amount of tax payable by a dealer shall be allowed if such tax is paid by the dealer on or before the due date of payment". 4. Section 9 (3) of the Central Act as it stood at the relevant time provided: "The authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, and subject to any rules made under this Act, assess, collect and enforce payment of any tax including any penalty payable by a dealer under this Act, in the same manner as the tax on the sale and purchase of goods under the general sales tax law of the State is assessed, paid and collected and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law including the provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly." 5. The question for consideration is whether in view of Section 9 (3) of the Central Act, the assessee is entitled to the rebate provided in Section 13 (8) of the Orissa Act. Quite clearly the rebate for payment of the tax levied within the time prescribed under the Orissa Act was provided as a stimulus for prompt payment. The question is whether such a stimulus is a part of the manner of collection. The rebate is offered to facilitate and expedite collection. It is intended to stimulate the collection. Therefore, it is a part of the process of collection. In that view, it is proper to hold that in view of Section 9 (3) of the Central Act, the rebate provided in Section 13 (8) of the Orissa Act is payable to the assessees under the Central Act, if they pay the tax assessed within the prescribed time. The power to collect the tax assessed in the same manner as the tax on the sale and purchase of goods under the General Sales Tax law of the State provided in Section 9(3) of the Act includes within itself all concessions given under the Orissa Act for payment within the prescribed time. | 1[ds]5. The question for consideration is whether in view of Section 9 (3) of the Central Act, the assessee is entitled to the rebate provided in Section 13 (8) of the OrissaAct.Quite clearly the rebate for payment of the tax levied within the time prescribed under the Orissa Act was provided as a stimulus for prompt payment. The question is whether such a stimulus is a part of the manner of collection.The rebate is offered to facilitate and expedite collection. It is intended to stimulate the collection. Therefore, it is a part of the process of collection. In that view, it is proper to hold that in view of Section 9 (3) of the Central Act, the rebate provided in Section 13 (8) of the Orissa Act is payable to the assessees under the Central Act, if they pay the tax assessed within the prescribed time. The power to collect the tax assessed in the same manner as the tax on the sale and purchase of goods under the General Sales Tax law of the State provided in Section 9(3) of the Act includes within itself all concessions given under the Orissa Act for payment within the prescribed time. | 1 | 637 | 226 | ### 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:
Hegde, J. 1. In this appeal by special leave, the question for consideration is whether the appellant is entitled to the rebate provided in Section 13 (8) of the Orissa Sales Tax Act, 1947, as amended by Orissa Sales Tax (Amendment) Act, 1962 (to be hereinafter referred to as the Orissa Act) read with Section 9 (3) of the Central Sales Tax Act, 1956 (to be hereinafter referred to as the Central Act). 2. The appellant is an incorporated company and it is a registered dealer under the Central Act. The appellant company was assessed to sales tax under the Central Act for the two quarters ending 31st December 1962 and 31st March, 1963. During the first quarter its tax liability was Rupees 62,061-86 P. and during the second quarter its tax liability was Rupees 47,266-21 P. The tax levied was paid by the assesse within the time fixed under Section 13(4) (d) of the Orissa Act. 3. Section 13 (8) of the Orissa Act provides : "A rebate of one per centum on the amount of tax payable by a dealer shall be allowed if such tax is paid by the dealer on or before the due date of payment". 4. Section 9 (3) of the Central Act as it stood at the relevant time provided: "The authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, and subject to any rules made under this Act, assess, collect and enforce payment of any tax including any penalty payable by a dealer under this Act, in the same manner as the tax on the sale and purchase of goods under the general sales tax law of the State is assessed, paid and collected and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law including the provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly." 5. The question for consideration is whether in view of Section 9 (3) of the Central Act, the assessee is entitled to the rebate provided in Section 13 (8) of the Orissa Act. Quite clearly the rebate for payment of the tax levied within the time prescribed under the Orissa Act was provided as a stimulus for prompt payment. The question is whether such a stimulus is a part of the manner of collection. The rebate is offered to facilitate and expedite collection. It is intended to stimulate the collection. Therefore, it is a part of the process of collection. In that view, it is proper to hold that in view of Section 9 (3) of the Central Act, the rebate provided in Section 13 (8) of the Orissa Act is payable to the assessees under the Central Act, if they pay the tax assessed within the prescribed time. The power to collect the tax assessed in the same manner as the tax on the sale and purchase of goods under the General Sales Tax law of the State provided in Section 9(3) of the Act includes within itself all concessions given under the Orissa Act for payment within the prescribed time.
### Response:
1
### Explanation:
5. The question for consideration is whether in view of Section 9 (3) of the Central Act, the assessee is entitled to the rebate provided in Section 13 (8) of the OrissaAct.Quite clearly the rebate for payment of the tax levied within the time prescribed under the Orissa Act was provided as a stimulus for prompt payment. The question is whether such a stimulus is a part of the manner of collection.The rebate is offered to facilitate and expedite collection. It is intended to stimulate the collection. Therefore, it is a part of the process of collection. In that view, it is proper to hold that in view of Section 9 (3) of the Central Act, the rebate provided in Section 13 (8) of the Orissa Act is payable to the assessees under the Central Act, if they pay the tax assessed within the prescribed time. The power to collect the tax assessed in the same manner as the tax on the sale and purchase of goods under the General Sales Tax law of the State provided in Section 9(3) of the Act includes within itself all concessions given under the Orissa Act for payment within the prescribed time.
|
Kesaven Velayudha Panicker Vs. State of Kerala | that time the deceased was lying on the ground. The deceased died on the spot. The appellant, who was accompanied by his son, ran away from the spot with the blood-stained chopper. Meanwhile the wife of the deceased, N. Salomi (P.W. 1), was informed by some body about the occurrence and she came running to the spot when she saw the appellant standing by the side of her husband holding the blood-stained chopper in his hand and then the appellant and his son ran away from the spot the former carrying the chopper in his hand. P.W. 1 found that her husband had already died. She remained by the side of the dead body throughout the night and next morning she informed the police at Vidura Police Station which is 9 kilometers away from the place of occurrence. The Police, Inspector (P.W. 10) recorded the first information report at 9.30 A.M. on the following morning of the occurrence and a case was registered against the appellant and his son. After investigation both the appellant and his son were charge sheeted and committed for trial before the Sessions Judge who acquitted the son and convicted the appellant as stated above.3. There are four eye-witnesses to the occurrence, namely, R. Rajan (P.W. 2), P. Balkrishna Pillai (P.W. 3), Balkrishnan Pillai (P.W. 4) and Valayudhan Pillai (P.W. 6), Dr. V. Bhaskaran (P.W. 5) held the postmortem examination on 22nd July, 1972 and found 18 incised antemortem injuries and an abrasion on the forehead. The 4th injury is an incised transverse gaping wound at the upper part of the left side of the neck 9x3x2 1/2 cm., and 5 cm. below the wound No. 3 which is another gaping wound on the lef ear lobe. The 6th injury is another incited transverse gaping wound, 11x4x4 cm., on the left side of the neck. The 7th injury is also a transversely gaping incised wound 12x4x4 1/2 c.m., on the lower part of the neck. The other incised wounds are on the different parts of the body. According to the Doctor, injury Nos. 4, 6 and 7 are fatal and are sufficient to cause death in the ordinary course of nature. According to him after sustaining the injuries the injured must have died within ten or fifteen minutes.4. The appellant surrendered at the Vidura Police Station on 27th, 1972 and P.W. 10 took him to custody. On questioning him the appellant told the Circle inspector (P.W. 10) that the chopper and his cloth and shirt had been kept by him in the crevice of a marotti tree on the southern side of the bridge. The appellant who was taken there took out and produced before P.W. 10 the chopper and his cloth and shirt and a mahzar (Ext. P-14) was prepared by the officer in the presence of witnesses. It is mentioned in Ext. P.14 that"the chopper is one having an iron hook at the end of its handle, having a wooden handle, having a length of 37 cm. including its handle and having the edge portion of the blade broken. The blade portion has a length of 15 cm. and the head portion of the blade has width of 10 cm."This has to be particularly noted because some point was made by the learned counsel for the appellant appearing as amicus curiae that since the blade of the chopper was blunt these incised wounds could not have been caused with it. It is, however, clear that the blade might have been in the present state on account of its being thrust in the crevice of the marotti tree or even otherwise. We are not prepared to give too much importance to this aspect in this case.5. Coming to the evidence of the eye-witnesses, the shops of P. Ws. 2 and 6 are on the eastern side of the road opposite to the place of occurrence while the residence of P.W. 3 is on the western side of the road. P.W. 4 lived close to the shop of P.W. 2. These witnesses saw the incident from about 10-30 feet from the place of occurrence at about 7.00 P.M. When darkness had not set in full. The evidence is that there was sufficient light in those shops and the residences of the eye-witnesses to enable them to see the incident. While P.Ws. 3 and 4 saw the entire assault P.Ws. 2 and 6 saw only the subsequent cutting of the deceased by the appellant when the latter was lying on the ground. These witnesses are neighbour witnesses and would be the most natural witnesses and would be the occurrence as to what they had actually seen. They had no animus against the deceased although it is brought out in the evidence that the deceased would pick up quarrels very easily with others and was perhaps a haughty person. There is no reason to suppose that they would combine to implicate the appellant falsely. We have been taken through the entire evidence and we have no reason what-soever to differ from the conclusion of the High Court in the matter of appreciation of the same.6. The defence of the appellant is clear denial. After having heard the counsel for the appellant we are unable to agree that the conviction of the appellant under Section 302 is not proper.7. We are now next to consider whether we should at all interfere with sentence of death in this case. The injuries are too many and are very serious and we would have ordinarily been disinclined to interfere with the sentence in such a case. We, however, find that the deceased was a quarrelsome person and there had been a quarrel on the previous day of the occurrence as well as on the day of the occurrence between the deceased and the appellant. The actual origin of the quarrel at the time of the assault is not known. Some amount of probation from the deceased may not be ruled out completely. | 0[ds]5. Coming to the evidence of thethe shops of P. Ws. 2 and 6 are on the eastern side of the road opposite to the place of occurrence while the residence of P.W. 3 is on the western side of the road. P.W. 4 lived close to the shop of P.W. 2. These witnesses saw the incident from aboutfeet from the place of occurrence at about 7.00 P.M. When darkness had not set in full. The evidence is that there was sufficient light in those shops and the residences of theto enable them to see the incident. While P.Ws. 3 and 4 saw the entire assault P.Ws. 2 and 6 saw only the subsequent cutting of the deceased by the appellant when the latter was lying on the ground. These witnesses are neighbour witnesses and would be the most natural witnesses and would be the occurrence as to what they had actually seen. They had no animus against the deceased although it is brought out in the evidence that the deceased would pick up quarrels very easily with others and was perhaps a haughty person. There is no reason to suppose that they would combine to implicate the appellant falsely. We have been taken through the entire evidence and we have no reasonto differ from the conclusion of the High Court in the matter of appreciation of the same.6. The defence of the appellant is clear denial. After having heard the counsel for the appellant we are unable to agree that the conviction of the appellant under Section 302 is nothowever, find that the deceased was a quarrelsome person and there had been a quarrel on the previous day of the occurrence as well as on the day of the occurrence between the deceased and the appellant. The actual origin of the quarrel at the time of the assault is not known. Some amount of probation from the deceased may not be ruled out completely. | 0 | 1,370 | 351 | ### 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:
that time the deceased was lying on the ground. The deceased died on the spot. The appellant, who was accompanied by his son, ran away from the spot with the blood-stained chopper. Meanwhile the wife of the deceased, N. Salomi (P.W. 1), was informed by some body about the occurrence and she came running to the spot when she saw the appellant standing by the side of her husband holding the blood-stained chopper in his hand and then the appellant and his son ran away from the spot the former carrying the chopper in his hand. P.W. 1 found that her husband had already died. She remained by the side of the dead body throughout the night and next morning she informed the police at Vidura Police Station which is 9 kilometers away from the place of occurrence. The Police, Inspector (P.W. 10) recorded the first information report at 9.30 A.M. on the following morning of the occurrence and a case was registered against the appellant and his son. After investigation both the appellant and his son were charge sheeted and committed for trial before the Sessions Judge who acquitted the son and convicted the appellant as stated above.3. There are four eye-witnesses to the occurrence, namely, R. Rajan (P.W. 2), P. Balkrishna Pillai (P.W. 3), Balkrishnan Pillai (P.W. 4) and Valayudhan Pillai (P.W. 6), Dr. V. Bhaskaran (P.W. 5) held the postmortem examination on 22nd July, 1972 and found 18 incised antemortem injuries and an abrasion on the forehead. The 4th injury is an incised transverse gaping wound at the upper part of the left side of the neck 9x3x2 1/2 cm., and 5 cm. below the wound No. 3 which is another gaping wound on the lef ear lobe. The 6th injury is another incited transverse gaping wound, 11x4x4 cm., on the left side of the neck. The 7th injury is also a transversely gaping incised wound 12x4x4 1/2 c.m., on the lower part of the neck. The other incised wounds are on the different parts of the body. According to the Doctor, injury Nos. 4, 6 and 7 are fatal and are sufficient to cause death in the ordinary course of nature. According to him after sustaining the injuries the injured must have died within ten or fifteen minutes.4. The appellant surrendered at the Vidura Police Station on 27th, 1972 and P.W. 10 took him to custody. On questioning him the appellant told the Circle inspector (P.W. 10) that the chopper and his cloth and shirt had been kept by him in the crevice of a marotti tree on the southern side of the bridge. The appellant who was taken there took out and produced before P.W. 10 the chopper and his cloth and shirt and a mahzar (Ext. P-14) was prepared by the officer in the presence of witnesses. It is mentioned in Ext. P.14 that"the chopper is one having an iron hook at the end of its handle, having a wooden handle, having a length of 37 cm. including its handle and having the edge portion of the blade broken. The blade portion has a length of 15 cm. and the head portion of the blade has width of 10 cm."This has to be particularly noted because some point was made by the learned counsel for the appellant appearing as amicus curiae that since the blade of the chopper was blunt these incised wounds could not have been caused with it. It is, however, clear that the blade might have been in the present state on account of its being thrust in the crevice of the marotti tree or even otherwise. We are not prepared to give too much importance to this aspect in this case.5. Coming to the evidence of the eye-witnesses, the shops of P. Ws. 2 and 6 are on the eastern side of the road opposite to the place of occurrence while the residence of P.W. 3 is on the western side of the road. P.W. 4 lived close to the shop of P.W. 2. These witnesses saw the incident from about 10-30 feet from the place of occurrence at about 7.00 P.M. When darkness had not set in full. The evidence is that there was sufficient light in those shops and the residences of the eye-witnesses to enable them to see the incident. While P.Ws. 3 and 4 saw the entire assault P.Ws. 2 and 6 saw only the subsequent cutting of the deceased by the appellant when the latter was lying on the ground. These witnesses are neighbour witnesses and would be the most natural witnesses and would be the occurrence as to what they had actually seen. They had no animus against the deceased although it is brought out in the evidence that the deceased would pick up quarrels very easily with others and was perhaps a haughty person. There is no reason to suppose that they would combine to implicate the appellant falsely. We have been taken through the entire evidence and we have no reason what-soever to differ from the conclusion of the High Court in the matter of appreciation of the same.6. The defence of the appellant is clear denial. After having heard the counsel for the appellant we are unable to agree that the conviction of the appellant under Section 302 is not proper.7. We are now next to consider whether we should at all interfere with sentence of death in this case. The injuries are too many and are very serious and we would have ordinarily been disinclined to interfere with the sentence in such a case. We, however, find that the deceased was a quarrelsome person and there had been a quarrel on the previous day of the occurrence as well as on the day of the occurrence between the deceased and the appellant. The actual origin of the quarrel at the time of the assault is not known. Some amount of probation from the deceased may not be ruled out completely.
### Response:
0
### Explanation:
5. Coming to the evidence of thethe shops of P. Ws. 2 and 6 are on the eastern side of the road opposite to the place of occurrence while the residence of P.W. 3 is on the western side of the road. P.W. 4 lived close to the shop of P.W. 2. These witnesses saw the incident from aboutfeet from the place of occurrence at about 7.00 P.M. When darkness had not set in full. The evidence is that there was sufficient light in those shops and the residences of theto enable them to see the incident. While P.Ws. 3 and 4 saw the entire assault P.Ws. 2 and 6 saw only the subsequent cutting of the deceased by the appellant when the latter was lying on the ground. These witnesses are neighbour witnesses and would be the most natural witnesses and would be the occurrence as to what they had actually seen. They had no animus against the deceased although it is brought out in the evidence that the deceased would pick up quarrels very easily with others and was perhaps a haughty person. There is no reason to suppose that they would combine to implicate the appellant falsely. We have been taken through the entire evidence and we have no reasonto differ from the conclusion of the High Court in the matter of appreciation of the same.6. The defence of the appellant is clear denial. After having heard the counsel for the appellant we are unable to agree that the conviction of the appellant under Section 302 is nothowever, find that the deceased was a quarrelsome person and there had been a quarrel on the previous day of the occurrence as well as on the day of the occurrence between the deceased and the appellant. The actual origin of the quarrel at the time of the assault is not known. Some amount of probation from the deceased may not be ruled out completely.
|
Sangrur Sales Corporation Vs. United India Insurance Company Limited & Anr | annum from the date of the institution of the complaint. The order of the District Forum was upheld by the State Consumer Disputes Redressal Commission (SCDRC) , Punjab on 5 May 2016. However, in a revision filed by the insurer, the NCDRC reversed the order awarding the claim. 5. Notice was issued in the present proceedings on 22 April 2019. The office report indicates that the insurer has been served. There is no appearance on its behalf. 6. The dispute between the parties turns on a construction of clause VIII (e) of the policy of insurance. Before adverting to the exclusions, it is necessary to extract the relevant part of the insurance policy, which reads as follows: In consideration of the insured named in the Schedule hereto having paid to the United India Insurance Company Limited (hereinafter called the Company) the full premium mentioned in the said schedule, the company agrees, (subject to the conditions and exclusions contained herein or endorsed or otherwise expressed hereon) that if after payment of the premium the Property insured described in the said Schedule or any part of the such property to be destroyed or damaged by any of the perils specified hereunder during the period of insurance named in the said schedule or of any subsequent period in respect of which the Insured shall have paid and the Company shall have accepted the premium required for the renewal of the policy, the Company shall pay to the Insured the value of the Property at the time of the happening of its destruction or the amount of such damage or at its option reinstate or replace such property or any part thereof. 7. Clause VIII is in the following terms: VIII. Subsidence and Landslide including Rock slide: Loss, destruction or damage directly caused by subsidence of part of the site on which the property stands or land slide/rock slide excluding: a) the normal cracking, settlement or bedding down of new structures b) the settlement or movement of made up ground c) coastal or river erosion d) defective design or workmanship or use of defective materials e) demolition, construction, structural alterations or repair of any property or groundworks or excavations. 8. Clause VIII brings within the purview of the insured perils a loss, destruction or damage directly caused by subsidence of a part of the site on which the property stands or a land slide/rock slide, but excludes, what is stipulated in sub-clauses (a) to (e) thereafter. The exclusion in subclause (a) refers to the normal cracking, settlement or bedding down of new structures. The exclusion in clause (d) refers to defective design or workmanship or use of defective materials. The crucial exclusion is the one in sub-clause (e) which has weighed with the NCDRC. Clause (e) relates to the demolition, construction or structural alterations or repair of any property or groundworks or excavations. 9. In the present case, the appellant was not engaged in any work of demolition, construction or structural alterations nor was it engaged in any repair of its property. The excavation which was the cause of the loss, was being carried on in a neighbouring plot and not by the appellant in his own property. In the absence of a specific qualification indicating that the exclusion will apply to an excavation being carried on by a third party, the reasonable construction of sub-clause (e) of Clause VIII is that it should apply only to a situation where the excavation is being carried on by the insured himself in his own property. Significantly, the words of any property qualify the words preceding them namely, demolition, construction, structural alterations or repair and not the words that follow. 10. It is well-settled that in the event that the two constructions are possible or in the event of an ambiguity, that construction which is beneficial to the insured should be accepted consistent with the purpose for which the policy was taken, namely to cover the risk on the happening of a certain event. [See in this context, the decision of this Court in United India Insurance Co Ltd v Pushpalaya Printers (2004) 3 SCC 694 . 11. The NCDRC, in reversing the concurrent views of the District Forum and the SCDRC, held thus: On bare reading of the above, it is clear that as per the above noted condition, the loss caused to the insured property due to demolition, construction, structural alterations or repair of any property or ground works or excavations is excluded from the risk covered. On perusal of para 3(b) of the copy of complaint placed on record, it is evident that as per the stand taken by the complainant on 29.03.2012 the insured showroom had fallen accidentally as a result of subsidence and land sliding due to digging work being carried out by the neighbour in adjacent plot. It is also alleged in the said paragraph that a daily diary report no.54 dated 30.03.2012 regarding the incident was duly lodged with the P.S. Sangrur. From the aforesaid admission on the part of the complainant, it is evident that loss was caused to the insured because of collapse of the insured building as a result of excavation work being carried out in the adjacent plot resulting in subsidence and land sliding. Thus, in my view, in view of the above noted specific exclusion clause, the petitioner/ insurance company was justified in repudiating the insurance claim. 12. The error of the NCDRC lies in reading the exclusion in regard to excavations as being applicable in a situation such as the present where the cause which resulted in the damage was a work of a third party which was carrying on an excavation in independent premises. It is not in dispute that no part of the excavation was attributable to any act or omission on the part of the appellant. Hence, to read the exclusion, as being attracted in the present case, would not be to a reasonable construction of the policy of insurance. | 1[ds]8. Clause VIII brings within the purview of the insured perils a loss, destruction or damage directly caused by subsidence of a part of the site on which the property stands or a land slide/rock slide, but excludes, what is stipulated in sub-clauses (a) to (e) thereafter. The exclusion in subclause (a) refers to the normal cracking, settlement or bedding down of new structures. The exclusion in clause (d) refers to defective design or workmanship or use of defective materials. The crucial exclusion is the one in sub-clause (e) which has weighed with the NCDRC. Clause (e) relates to the demolition, construction or structural alterations or repair of any property or groundworks or excavations9. In the present case, the appellant was not engaged in any work of demolition, construction or structural alterations nor was it engaged in any repair of its property. The excavation which was the cause of the loss, was being carried on in a neighbouring plot and not by the appellant in his own property. In the absence of a specific qualification indicating that the exclusion will apply to an excavation being carried on by a third party, the reasonable construction of sub-clause (e) of Clause VIII is that it should apply only to a situation where the excavation is being carried on by the insured himself in his own property. Significantly, the words of any property qualify the words preceding them namely, demolition, construction, structural alterations or repair and not the words that follow10. It is well-settled that in the event that the two constructions are possible or in the event of an ambiguity, that construction which is beneficial to the insured should be accepted consistent with the purpose for which the policy was taken, namely to cover the risk on the happening of a certain event. [See in this context, the decision of this Court in United India Insurance Co Ltd v Pushpalaya Printers (2004) 3 SCC 694 12. The error of the NCDRC lies in reading the exclusion in regard to excavations as being applicable in a situation such as the present where the cause which resulted in the damage was a work of a third party which was carrying on an excavation in independent premises. It is not in dispute that no part of the excavation was attributable to any act or omission on the part of the appellant. Hence, to read the exclusion, as being attracted in the present case, would not be to a reasonable construction of the policy of insurance. | 1 | 1,334 | 475 | ### 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:
annum from the date of the institution of the complaint. The order of the District Forum was upheld by the State Consumer Disputes Redressal Commission (SCDRC) , Punjab on 5 May 2016. However, in a revision filed by the insurer, the NCDRC reversed the order awarding the claim. 5. Notice was issued in the present proceedings on 22 April 2019. The office report indicates that the insurer has been served. There is no appearance on its behalf. 6. The dispute between the parties turns on a construction of clause VIII (e) of the policy of insurance. Before adverting to the exclusions, it is necessary to extract the relevant part of the insurance policy, which reads as follows: In consideration of the insured named in the Schedule hereto having paid to the United India Insurance Company Limited (hereinafter called the Company) the full premium mentioned in the said schedule, the company agrees, (subject to the conditions and exclusions contained herein or endorsed or otherwise expressed hereon) that if after payment of the premium the Property insured described in the said Schedule or any part of the such property to be destroyed or damaged by any of the perils specified hereunder during the period of insurance named in the said schedule or of any subsequent period in respect of which the Insured shall have paid and the Company shall have accepted the premium required for the renewal of the policy, the Company shall pay to the Insured the value of the Property at the time of the happening of its destruction or the amount of such damage or at its option reinstate or replace such property or any part thereof. 7. Clause VIII is in the following terms: VIII. Subsidence and Landslide including Rock slide: Loss, destruction or damage directly caused by subsidence of part of the site on which the property stands or land slide/rock slide excluding: a) the normal cracking, settlement or bedding down of new structures b) the settlement or movement of made up ground c) coastal or river erosion d) defective design or workmanship or use of defective materials e) demolition, construction, structural alterations or repair of any property or groundworks or excavations. 8. Clause VIII brings within the purview of the insured perils a loss, destruction or damage directly caused by subsidence of a part of the site on which the property stands or a land slide/rock slide, but excludes, what is stipulated in sub-clauses (a) to (e) thereafter. The exclusion in subclause (a) refers to the normal cracking, settlement or bedding down of new structures. The exclusion in clause (d) refers to defective design or workmanship or use of defective materials. The crucial exclusion is the one in sub-clause (e) which has weighed with the NCDRC. Clause (e) relates to the demolition, construction or structural alterations or repair of any property or groundworks or excavations. 9. In the present case, the appellant was not engaged in any work of demolition, construction or structural alterations nor was it engaged in any repair of its property. The excavation which was the cause of the loss, was being carried on in a neighbouring plot and not by the appellant in his own property. In the absence of a specific qualification indicating that the exclusion will apply to an excavation being carried on by a third party, the reasonable construction of sub-clause (e) of Clause VIII is that it should apply only to a situation where the excavation is being carried on by the insured himself in his own property. Significantly, the words of any property qualify the words preceding them namely, demolition, construction, structural alterations or repair and not the words that follow. 10. It is well-settled that in the event that the two constructions are possible or in the event of an ambiguity, that construction which is beneficial to the insured should be accepted consistent with the purpose for which the policy was taken, namely to cover the risk on the happening of a certain event. [See in this context, the decision of this Court in United India Insurance Co Ltd v Pushpalaya Printers (2004) 3 SCC 694 . 11. The NCDRC, in reversing the concurrent views of the District Forum and the SCDRC, held thus: On bare reading of the above, it is clear that as per the above noted condition, the loss caused to the insured property due to demolition, construction, structural alterations or repair of any property or ground works or excavations is excluded from the risk covered. On perusal of para 3(b) of the copy of complaint placed on record, it is evident that as per the stand taken by the complainant on 29.03.2012 the insured showroom had fallen accidentally as a result of subsidence and land sliding due to digging work being carried out by the neighbour in adjacent plot. It is also alleged in the said paragraph that a daily diary report no.54 dated 30.03.2012 regarding the incident was duly lodged with the P.S. Sangrur. From the aforesaid admission on the part of the complainant, it is evident that loss was caused to the insured because of collapse of the insured building as a result of excavation work being carried out in the adjacent plot resulting in subsidence and land sliding. Thus, in my view, in view of the above noted specific exclusion clause, the petitioner/ insurance company was justified in repudiating the insurance claim. 12. The error of the NCDRC lies in reading the exclusion in regard to excavations as being applicable in a situation such as the present where the cause which resulted in the damage was a work of a third party which was carrying on an excavation in independent premises. It is not in dispute that no part of the excavation was attributable to any act or omission on the part of the appellant. Hence, to read the exclusion, as being attracted in the present case, would not be to a reasonable construction of the policy of insurance.
### Response:
1
### Explanation:
8. Clause VIII brings within the purview of the insured perils a loss, destruction or damage directly caused by subsidence of a part of the site on which the property stands or a land slide/rock slide, but excludes, what is stipulated in sub-clauses (a) to (e) thereafter. The exclusion in subclause (a) refers to the normal cracking, settlement or bedding down of new structures. The exclusion in clause (d) refers to defective design or workmanship or use of defective materials. The crucial exclusion is the one in sub-clause (e) which has weighed with the NCDRC. Clause (e) relates to the demolition, construction or structural alterations or repair of any property or groundworks or excavations9. In the present case, the appellant was not engaged in any work of demolition, construction or structural alterations nor was it engaged in any repair of its property. The excavation which was the cause of the loss, was being carried on in a neighbouring plot and not by the appellant in his own property. In the absence of a specific qualification indicating that the exclusion will apply to an excavation being carried on by a third party, the reasonable construction of sub-clause (e) of Clause VIII is that it should apply only to a situation where the excavation is being carried on by the insured himself in his own property. Significantly, the words of any property qualify the words preceding them namely, demolition, construction, structural alterations or repair and not the words that follow10. It is well-settled that in the event that the two constructions are possible or in the event of an ambiguity, that construction which is beneficial to the insured should be accepted consistent with the purpose for which the policy was taken, namely to cover the risk on the happening of a certain event. [See in this context, the decision of this Court in United India Insurance Co Ltd v Pushpalaya Printers (2004) 3 SCC 694 12. The error of the NCDRC lies in reading the exclusion in regard to excavations as being applicable in a situation such as the present where the cause which resulted in the damage was a work of a third party which was carrying on an excavation in independent premises. It is not in dispute that no part of the excavation was attributable to any act or omission on the part of the appellant. Hence, to read the exclusion, as being attracted in the present case, would not be to a reasonable construction of the policy of insurance.
|
Chairman & M.D. Sipcot Vs. Contromix P. Ltd | that rightly no grievance had been made that there was anything illegal in SIPCOT taking possession of the unit because in spite of the fact that several opportunities were given to respondent No. 1 for repaying the amount as per the instalments, it failed to repay. The only fault that has been found in the action taken by SIPCOT is in the matter of the procedure followed for sale of the mortgaged assets of respondent No. 1. The learned single Judge as well as the Division Bench of the High Court have held that the said sale was not conducted in accordance with the guidelines laid down by this Court in Mahesh Chandra case (1992 AIR SCW 3629) (supra) inasmuch as (i) the sale was not held by auction and was held by inviting tenders followed by negotiations; (ii) there price for which the properties were sold was low; and (iii) before accepting the offer of Rs. 38 lakhs made by respondent No. 2, no intimation was given to respondent No. 1 so as to enable it to make a higher offer. 12. In the matter of sale of public property, the dominant consideration is to secure the best price for the property to be sold. This can be achieved only when there is maximum public participation in the process of sale and every body has an opportunity of making an offer. Public auction after adequate publicity ensures participation of every person who is interested in purchasing the property and generally secures the best price. But many times it may not be possible to secure the best price by public auction when the bidders join together so as to depress the bid or the nature of the property to be sold is such that suitable bid may not be received at public auction. In the event, the other suitable mode for selling of property can be by inviting tenders. In order to ensure that such sale by calling tenders does not escape attention of an intending participant, it is essential that every endeavour should be made to give wide publicity so as to get the maximum price. These considerations which govern the sale of public property have been held to be applicable to a sale of property by the State Financial Corporations under Section 29 of the Act in Mahesh Chandra case (1992 AIR SCW 3629 (supra). In that case this Court has held that sale by public auction is universally recognised to be the best and most fair method and is beyond reproach and, if it is not possible to adopt the said method, sale may be held by inviting tenders, but in that event every endeavour should be made to give wide publicity to get the maximum price. The said decision cannot, therefore, be construed as laying down that a sale by tender is impermissible and invalid. The learned judges, in that case, have referred to the decisions of this Court in Sachidananda Pandey v. State of West Bengal, 1987(2) SCR 223 and Haji T.M. Hassan v. Kerala Financial Corporation, 1988(1) SCR 1079 wherein it has been held that one of the modes of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. It cannot, therefore, be said that a sale by inviting tenders is ipso facto invalid. The validity of such a sale will have to be considered in the light of the facts and circumstances of the particular case. 13. In the facts and circumtances of this case, it cannot be said that the failure on the part of SIPCOT to sell the property by public auction and selling it to respondent No. 2 by inviting tenders is bad for the reason that the said property has not received the best price in the market. As indicated earlier in response to the first advertisement no offer was received from anybody and in response to the second advertisement also only one offer was received from respondent No. 2 and that too was only for Rs. 14.26 lakhs. Through negotiations SIPCOT was able to secure a revised offer of Rs. 38 lakhs, which was more than the amount of Rs. 36.44 lakhs, at which the unit had been valued. Respondent No. 1 had suficient opportunity, during the pendency of the matter in the High Court as well as in this Court, to secure an offer higher than Rs. 38 lakhs made by respondent No. 2, but he has not been able to bring any higher offer. In the circumstances it cannot be said that the price at which the unit was sold was low. The sanction of the loan of Rs. 44.80 lakhs in 1987 cannot afford a basis for holding that the value of the unit in 1993 could not be less than Rs. 44.80 lakhs. The value of the plant and machinery could have fallen on account of its being used during the period from 1987 to 1993 or due to the same getting outdated. If the value of the unit was higher than Rs. 38 lakhs it would have been possible for respondent No. 2 to obtain a better offer. His failure to do so negatives the inference that the sale price of Rs. 38 lakhs is low. Similarly, the failure on the part of SIPCOT to give intimation to respondent No. 1 before accepting the offer of Rs. 38 lakhs made by respondent No. 2, is of little consequence in the facts of this case because respondent No. 1 has had sufficient opportunity both before the High Court as well as in this Court to obtain a higher offer, but he has failed to do so.14. In these circumstances no fault can be found with the action of SIPCOT in selling the unit to respondent No. 2 for Rs. 38 lakhs and the Judgment of the High Court, in setting aside the said sale cannot be upheld. | 1[ds]12. In the matter of sale of public property, the dominant consideration is to secure the best price for the property to be sold. This can be achieved only when there is maximum public participation in the process of sale and every body has an opportunity of making an offer. Public auction after adequate publicity ensures participation of every person who is interested in purchasing the property and generally secures the best price. But many times it may not be possible to secure the best price by public auction when the bidders join together so as to depress the bid or the nature of the property to be sold is such that suitable bid may not be received at public auction. In the event, the other suitable mode for selling of property can be by inviting tenders. In order to ensure that such sale by calling tenders does not escape attention of an intending participant, it is essential that every endeavour should be made to give wide publicity so as to get the maximum price.These considerations which govern the sale of public property have been held to be applicable to a sale of property by the State Financial Corporations under Section 29 of the Act in Mahesh Chandra case (1992 AIR SCW 3629 (supra). In that case this Court has held that sale by public auction is universally recognised to be the best and most fair method and is beyond reproach and, if it is not possible to adopt the said method, sale may be held by inviting tenders, but in that event every endeavour should be made to give wide publicity to get the maximum price.The said decision cannot, therefore, be construed as laying down that a sale by tender is impermissible and invalid. The learned judges, in that case, have referred to the decisions of this Court in Sachidananda Pandey v. State of West Bengal, 1987(2) SCR 223 and Haji T.M. Hassan v. Kerala Financial Corporation, 1988(1) SCR 1079 wherein it has been held that one of the modes of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. It cannot, therefore, be said that a sale by inviting tenders is ipso facto invalid. The validity of such a sale will have to be considered in the light of the facts and circumstances of the particular case.In the facts and circumtances of this case, it cannot be said that the failure on the part of SIPCOT to sell the property by public auction and selling it to respondent No. 2 by inviting tenders is bad for the reason that the said property has not received the best price in the market. As indicated earlier in response to the first advertisement no offer was received from anybody and in response to the second advertisement also only one offer was received from respondent No. 2 and that too was only for Rs. 14.26 lakhs. Through negotiations SIPCOT was able to secure a revised offer of Rs. 38 lakhs, which was more than the amount of Rs. 36.44 lakhs, at which the unit had been valued. Respondent No. 1 had suficient opportunity, during the pendency of the matter in the High Court as well as in this Court, to secure an offer higher than Rs. 38 lakhs made by respondent No. 2, but he has not been able to bring any higher offer. In the circumstances it cannot be said that the price at which the unit was sold was low. The sanction of the loan of Rs. 44.80 lakhs in 1987 cannot afford a basis for holding that the value of the unit in 1993 could not be less than Rs. 44.80 lakhs. The value of the plant and machinery could have fallen on account of its being used during the period from 1987 to 1993 or due to the same getting outdated. If the value of the unit was higher than Rs. 38 lakhs it would have been possible for respondent No. 2 to obtain a better offer. His failure to do so negatives the inference that the sale price of Rs. 38 lakhs is low. Similarly, the failure on the part of SIPCOT to give intimation to respondent No. 1 before accepting the offer of Rs. 38 lakhs made by respondent No. 2, is of little consequence in the facts of this case because respondent No. 1 has had sufficient opportunity both before the High Court as well as in this Court to obtain a higher offer, but he has failed to do so.14. In these circumstances no fault can be found with the action of SIPCOT in selling the unit to respondent No. 2 for Rs. 38 lakhs and the Judgment of the High Court, in setting aside the said sale cannot be upheld. | 1 | 3,732 | 900 | ### 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:
that rightly no grievance had been made that there was anything illegal in SIPCOT taking possession of the unit because in spite of the fact that several opportunities were given to respondent No. 1 for repaying the amount as per the instalments, it failed to repay. The only fault that has been found in the action taken by SIPCOT is in the matter of the procedure followed for sale of the mortgaged assets of respondent No. 1. The learned single Judge as well as the Division Bench of the High Court have held that the said sale was not conducted in accordance with the guidelines laid down by this Court in Mahesh Chandra case (1992 AIR SCW 3629) (supra) inasmuch as (i) the sale was not held by auction and was held by inviting tenders followed by negotiations; (ii) there price for which the properties were sold was low; and (iii) before accepting the offer of Rs. 38 lakhs made by respondent No. 2, no intimation was given to respondent No. 1 so as to enable it to make a higher offer. 12. In the matter of sale of public property, the dominant consideration is to secure the best price for the property to be sold. This can be achieved only when there is maximum public participation in the process of sale and every body has an opportunity of making an offer. Public auction after adequate publicity ensures participation of every person who is interested in purchasing the property and generally secures the best price. But many times it may not be possible to secure the best price by public auction when the bidders join together so as to depress the bid or the nature of the property to be sold is such that suitable bid may not be received at public auction. In the event, the other suitable mode for selling of property can be by inviting tenders. In order to ensure that such sale by calling tenders does not escape attention of an intending participant, it is essential that every endeavour should be made to give wide publicity so as to get the maximum price. These considerations which govern the sale of public property have been held to be applicable to a sale of property by the State Financial Corporations under Section 29 of the Act in Mahesh Chandra case (1992 AIR SCW 3629 (supra). In that case this Court has held that sale by public auction is universally recognised to be the best and most fair method and is beyond reproach and, if it is not possible to adopt the said method, sale may be held by inviting tenders, but in that event every endeavour should be made to give wide publicity to get the maximum price. The said decision cannot, therefore, be construed as laying down that a sale by tender is impermissible and invalid. The learned judges, in that case, have referred to the decisions of this Court in Sachidananda Pandey v. State of West Bengal, 1987(2) SCR 223 and Haji T.M. Hassan v. Kerala Financial Corporation, 1988(1) SCR 1079 wherein it has been held that one of the modes of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. It cannot, therefore, be said that a sale by inviting tenders is ipso facto invalid. The validity of such a sale will have to be considered in the light of the facts and circumstances of the particular case. 13. In the facts and circumtances of this case, it cannot be said that the failure on the part of SIPCOT to sell the property by public auction and selling it to respondent No. 2 by inviting tenders is bad for the reason that the said property has not received the best price in the market. As indicated earlier in response to the first advertisement no offer was received from anybody and in response to the second advertisement also only one offer was received from respondent No. 2 and that too was only for Rs. 14.26 lakhs. Through negotiations SIPCOT was able to secure a revised offer of Rs. 38 lakhs, which was more than the amount of Rs. 36.44 lakhs, at which the unit had been valued. Respondent No. 1 had suficient opportunity, during the pendency of the matter in the High Court as well as in this Court, to secure an offer higher than Rs. 38 lakhs made by respondent No. 2, but he has not been able to bring any higher offer. In the circumstances it cannot be said that the price at which the unit was sold was low. The sanction of the loan of Rs. 44.80 lakhs in 1987 cannot afford a basis for holding that the value of the unit in 1993 could not be less than Rs. 44.80 lakhs. The value of the plant and machinery could have fallen on account of its being used during the period from 1987 to 1993 or due to the same getting outdated. If the value of the unit was higher than Rs. 38 lakhs it would have been possible for respondent No. 2 to obtain a better offer. His failure to do so negatives the inference that the sale price of Rs. 38 lakhs is low. Similarly, the failure on the part of SIPCOT to give intimation to respondent No. 1 before accepting the offer of Rs. 38 lakhs made by respondent No. 2, is of little consequence in the facts of this case because respondent No. 1 has had sufficient opportunity both before the High Court as well as in this Court to obtain a higher offer, but he has failed to do so.14. In these circumstances no fault can be found with the action of SIPCOT in selling the unit to respondent No. 2 for Rs. 38 lakhs and the Judgment of the High Court, in setting aside the said sale cannot be upheld.
### Response:
1
### Explanation:
12. In the matter of sale of public property, the dominant consideration is to secure the best price for the property to be sold. This can be achieved only when there is maximum public participation in the process of sale and every body has an opportunity of making an offer. Public auction after adequate publicity ensures participation of every person who is interested in purchasing the property and generally secures the best price. But many times it may not be possible to secure the best price by public auction when the bidders join together so as to depress the bid or the nature of the property to be sold is such that suitable bid may not be received at public auction. In the event, the other suitable mode for selling of property can be by inviting tenders. In order to ensure that such sale by calling tenders does not escape attention of an intending participant, it is essential that every endeavour should be made to give wide publicity so as to get the maximum price.These considerations which govern the sale of public property have been held to be applicable to a sale of property by the State Financial Corporations under Section 29 of the Act in Mahesh Chandra case (1992 AIR SCW 3629 (supra). In that case this Court has held that sale by public auction is universally recognised to be the best and most fair method and is beyond reproach and, if it is not possible to adopt the said method, sale may be held by inviting tenders, but in that event every endeavour should be made to give wide publicity to get the maximum price.The said decision cannot, therefore, be construed as laying down that a sale by tender is impermissible and invalid. The learned judges, in that case, have referred to the decisions of this Court in Sachidananda Pandey v. State of West Bengal, 1987(2) SCR 223 and Haji T.M. Hassan v. Kerala Financial Corporation, 1988(1) SCR 1079 wherein it has been held that one of the modes of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. It cannot, therefore, be said that a sale by inviting tenders is ipso facto invalid. The validity of such a sale will have to be considered in the light of the facts and circumstances of the particular case.In the facts and circumtances of this case, it cannot be said that the failure on the part of SIPCOT to sell the property by public auction and selling it to respondent No. 2 by inviting tenders is bad for the reason that the said property has not received the best price in the market. As indicated earlier in response to the first advertisement no offer was received from anybody and in response to the second advertisement also only one offer was received from respondent No. 2 and that too was only for Rs. 14.26 lakhs. Through negotiations SIPCOT was able to secure a revised offer of Rs. 38 lakhs, which was more than the amount of Rs. 36.44 lakhs, at which the unit had been valued. Respondent No. 1 had suficient opportunity, during the pendency of the matter in the High Court as well as in this Court, to secure an offer higher than Rs. 38 lakhs made by respondent No. 2, but he has not been able to bring any higher offer. In the circumstances it cannot be said that the price at which the unit was sold was low. The sanction of the loan of Rs. 44.80 lakhs in 1987 cannot afford a basis for holding that the value of the unit in 1993 could not be less than Rs. 44.80 lakhs. The value of the plant and machinery could have fallen on account of its being used during the period from 1987 to 1993 or due to the same getting outdated. If the value of the unit was higher than Rs. 38 lakhs it would have been possible for respondent No. 2 to obtain a better offer. His failure to do so negatives the inference that the sale price of Rs. 38 lakhs is low. Similarly, the failure on the part of SIPCOT to give intimation to respondent No. 1 before accepting the offer of Rs. 38 lakhs made by respondent No. 2, is of little consequence in the facts of this case because respondent No. 1 has had sufficient opportunity both before the High Court as well as in this Court to obtain a higher offer, but he has failed to do so.14. In these circumstances no fault can be found with the action of SIPCOT in selling the unit to respondent No. 2 for Rs. 38 lakhs and the Judgment of the High Court, in setting aside the said sale cannot be upheld.
|
A. K. Gupta And Sons Vs. Damodar Valley Corporation | refer to what was said by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, 48 Ind App 214: (AIR 1922 PC 249). In that case the Privy Council had to consider whether the amendment allowed by the Judicial Commissioner, on appeal against the order of the District Judge, could be allowed in law or not. It observed at p. 216 (of Ind App) : (at p. 250 of AIR):"All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but none the less no power has yet been given to enable one distinct cause of action to be substituted for another nor to change, by means of amendment, the subject-matter of the suit." It was held that the claim after amendment would be based on a different cause of action from that on which the original claim was based and, therefore, was not the real question in controversy between the parties in that suit. To allow the new claim would be to go outside the provisions of O. 6, R. 17, C. P. C. 38. I may now consider whether the facts of the present case are such as would justify the amendment of the plaint sought by the plaintiff-appellant. The plaint in the present case gives no facts which are necessary to establish before the plaintiff can get a decree for Rs. 65,000 or which may justify a decree for accounting. The schedule, attached to the tender, Annexure A, shows that different rates of payment were agreed upon on different basis as unit of calculation for different type of work. The plaint nowhere indicates the amount of work done under each category and unless the plaintiff sets out the amount of work done he cannot certainly make out any claim for payment to him. It is said that the amount due to the plaintiff can be worked out on accounting on the basis of the bills tendered by him and to which the defendant had not raised any objection. No reference to such bills has been made in the plaint. Nothing is said in the plaint that the defendant had agreed to the bills tendered. To allow the amendment of the plaint would necessarily lead to a further request for the furnishing of these details about the work done and that would necessarily lead to the defendants being afforded an opportunity to put in a further written statement in connection with the fresh facts which would come on the record. In fact the amendment sought would necessitate practically a de novo trial on the question as to what amount the plaintiff is entitled from the defendant on account of the work done. The amended claim cannot be decreed on the facts on the record. 39. When the plaintiff cannot get the relief, sought to be added as a result of the amendment on the facts mentioned in the plaint originally, it is clear that the cause of action for a decree for Rs. 65,000 is different from the cause of action on which the suit for declaration was founded. For the suit as originally instituted the plaintiff had merely to prove the terms of the contract between the parties and to show that his interpretation of these terms was the correct one and that interpretation justified the declaration sought. A suit based on one cause of action cannot be allowed to be changed into a suit based on another cause of action. 40. It cannot be said that the plaintiff intended to sue the defendant for the recovery of Rs. 65,000 but failed to express himself clearly in the plaint and that, therefore he be allowed to make the plaint precise and clear in that regard. The plaintiff knew that he could make a claim for money and in Para. 14 reserved the right under O 2, R. 2, C. P. C. to omit to sue in respect of that amount that be found due upon interpretation placed by him on CL 17 of the tender. This indicates that he did not intend to sue for the amount due to him and that he anticipated the possibility of later suing for the recovery of the amount deliberately not sued for in the suit. This circumstance also justified the rejection of his prayer for amendment. The fact that the trial Court, by its judgment, allowed leave under O. 2, R. 2 of the Code to sue for the amount due subsequently is no circumstance to justify the amendment now sought. The omission of the defendant to press any objection against the prayer of the plaintiff for leave under O. 2, R. 2 is not such a special circumstance which should justify the amendment sought. Leave under O. 2, R. 2 can be sought by the plaintiff and can be given by the Court with respect to a plaintiffs not suing for certain relief arising out of the same cause of action as sub-r. (3) provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not, afterwards, sue for any relief omitted. It has been shown above that the cause of action for the relief of declaration was different from the cause of action for the claim of money. The relief for the money due did not arise from the cause of action on which the relief for declaration was based. 41. I am, therefore, of opinion that the High Court was right in not allowing the amendment sought by the plaintiff. The appeal, therefore, fails and I would dismiss it with costs. ORDER | 1[ds]10. Now, how does the present case stand on these principles? Does the amendment introduce a new cause of action or a new case?We do not think it does. The suit was on the contract. It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the suit was based. The amendment seeks to introduce a claim based on the same cause of action, that is, the same contract. It introduces no new case of facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be made by amendment, was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. The respondent had notice of it. It is quite clear that the interpretation of the clause was sought only for quantifying the money claim. In the written statement the respondent specifically expressed its willingness to pay the appellants legitimate dues which could only mean such amount as might be due according to the rates applicable on a proper interpretation of the clause. The respondent was fully aware that the ultimate object of the appellant in filing the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had led the appellant to believe that it would pay whatever the court legitimately found to be due. It in fact said so in the written statement. If there was any case where the respondent was not entitled to the benefit of the law of limitation, the present is that one. The respondent cannot legitimately claim that the amendment will prejudicially affect his right under that law for really he had no such right. It is a case in which the claim for money was in substance in the plaint from the beginning though it had not formally been made11. This, therefore seems to us to be pre-eminently a case for allowing the amendment. The authorities also lead us to the same view. In L. J Leach and Cos case, 1957 SCR 438 : (AIR 1957 SC 357 ), a suit for damages for conversion was by amendment allowed to be converted into a suit for damages for breach of contract after that claim had become barred, the necessary facts, as in the case in hand being already in the plaint. In Charan Dass case, 47 Ind App 255: (AIR 1921 PC 50) an amendment adding a claim for possession after a suit for such claim had become barred was allowed in a suit which originally had only claimed a declaration of a right to pre-empt. In the last mentioned case, the plaintiff had in spite of warning at the earliest stage refused to make the amendment which he later sought and got. It was therefore, a case where the plaintiff had initially deliberately refused to make a claim and an amendment being allowed later permitting that claim to be raised after it had become barred. It was in a sense a stronger case than the present one where the plaintiff had omitted to make the claim initially on a wrong notion and a wrong legal advice. Punishing of mistakes is, of course, not administration of justice12. It is true that the plaint does not set out the details of the work done. But there never was any dispute about them. Indeed the respondent had prepared a final bill of the appellants dues for the work done under the contract and the appellant had accepted that bill as correct except on the question as to the proper rate chargeable under the clause. Strictly the details of the work done were not necessary in the plaint for it would be a waste of time of a court to go into them, it not being unusual to direct an enquiry by a commissioner or a subordinate officer about such details when as in the present case, the items of work done are innumerable. It would be enough in such cases to file the details before the authority making the enquiry. Besides, in Pirgonda Hongonda Patis case, 1957 SCR 585 (AIR 1957 SC 363) , in a suit for a declaration of title, this Court permitted an amendment setting out the detailed facts on which the title was claimed after the suit had become time barred. The absence of the details of the work does not furnish a legitimate ground for refusing the amendment13. It may be that as a result of the amendment, if the respondent chooses to raise a controversy about the work done, that is, about the quantity, quality and other things concerning it, which it had never raised so long the matter will have to be gone into. That again would not justify a refusal of leave to amend. It would not mean any waste of time or money or any duplication of work. That investigation would now be made for the first time and nothing done so far would become futile. Such an enquiry was indeed directed in L. J. Leach and Co.s case. 1957 SCR 438 : (AIR 1957 SC 357 )14. The amendment sought is necessary for a decision of the real dispute between the parties which is what are their rights under the contract ? That dispute was clearly involved in the plaint as originally framed. All the necessary basic facts had been stated. Only through a misconception a relief which could be asked on those facts had not been asked. It would not have been necessary to ask for it unless the plaintiff had at a late stage taken the point that the suit should fail without more in the absence of that relief. We find the present case indistinguishable from Charan Dass case, 47 Ind App 255: (AIR 1921 PC 50). | 1 | 8,884 | 1,103 | ### 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:
refer to what was said by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, 48 Ind App 214: (AIR 1922 PC 249). In that case the Privy Council had to consider whether the amendment allowed by the Judicial Commissioner, on appeal against the order of the District Judge, could be allowed in law or not. It observed at p. 216 (of Ind App) : (at p. 250 of AIR):"All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but none the less no power has yet been given to enable one distinct cause of action to be substituted for another nor to change, by means of amendment, the subject-matter of the suit." It was held that the claim after amendment would be based on a different cause of action from that on which the original claim was based and, therefore, was not the real question in controversy between the parties in that suit. To allow the new claim would be to go outside the provisions of O. 6, R. 17, C. P. C. 38. I may now consider whether the facts of the present case are such as would justify the amendment of the plaint sought by the plaintiff-appellant. The plaint in the present case gives no facts which are necessary to establish before the plaintiff can get a decree for Rs. 65,000 or which may justify a decree for accounting. The schedule, attached to the tender, Annexure A, shows that different rates of payment were agreed upon on different basis as unit of calculation for different type of work. The plaint nowhere indicates the amount of work done under each category and unless the plaintiff sets out the amount of work done he cannot certainly make out any claim for payment to him. It is said that the amount due to the plaintiff can be worked out on accounting on the basis of the bills tendered by him and to which the defendant had not raised any objection. No reference to such bills has been made in the plaint. Nothing is said in the plaint that the defendant had agreed to the bills tendered. To allow the amendment of the plaint would necessarily lead to a further request for the furnishing of these details about the work done and that would necessarily lead to the defendants being afforded an opportunity to put in a further written statement in connection with the fresh facts which would come on the record. In fact the amendment sought would necessitate practically a de novo trial on the question as to what amount the plaintiff is entitled from the defendant on account of the work done. The amended claim cannot be decreed on the facts on the record. 39. When the plaintiff cannot get the relief, sought to be added as a result of the amendment on the facts mentioned in the plaint originally, it is clear that the cause of action for a decree for Rs. 65,000 is different from the cause of action on which the suit for declaration was founded. For the suit as originally instituted the plaintiff had merely to prove the terms of the contract between the parties and to show that his interpretation of these terms was the correct one and that interpretation justified the declaration sought. A suit based on one cause of action cannot be allowed to be changed into a suit based on another cause of action. 40. It cannot be said that the plaintiff intended to sue the defendant for the recovery of Rs. 65,000 but failed to express himself clearly in the plaint and that, therefore he be allowed to make the plaint precise and clear in that regard. The plaintiff knew that he could make a claim for money and in Para. 14 reserved the right under O 2, R. 2, C. P. C. to omit to sue in respect of that amount that be found due upon interpretation placed by him on CL 17 of the tender. This indicates that he did not intend to sue for the amount due to him and that he anticipated the possibility of later suing for the recovery of the amount deliberately not sued for in the suit. This circumstance also justified the rejection of his prayer for amendment. The fact that the trial Court, by its judgment, allowed leave under O. 2, R. 2 of the Code to sue for the amount due subsequently is no circumstance to justify the amendment now sought. The omission of the defendant to press any objection against the prayer of the plaintiff for leave under O. 2, R. 2 is not such a special circumstance which should justify the amendment sought. Leave under O. 2, R. 2 can be sought by the plaintiff and can be given by the Court with respect to a plaintiffs not suing for certain relief arising out of the same cause of action as sub-r. (3) provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not, afterwards, sue for any relief omitted. It has been shown above that the cause of action for the relief of declaration was different from the cause of action for the claim of money. The relief for the money due did not arise from the cause of action on which the relief for declaration was based. 41. I am, therefore, of opinion that the High Court was right in not allowing the amendment sought by the plaintiff. The appeal, therefore, fails and I would dismiss it with costs. ORDER
### Response:
1
### Explanation:
action or a new case?We do not think it does. The suit was on the contract. It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the suit was based. The amendment seeks to introduce a claim based on the same cause of action, that is, the same contract. It introduces no new case of facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be made by amendment, was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. The respondent had notice of it. It is quite clear that the interpretation of the clause was sought only for quantifying the money claim. In the written statement the respondent specifically expressed its willingness to pay the appellants legitimate dues which could only mean such amount as might be due according to the rates applicable on a proper interpretation of the clause. The respondent was fully aware that the ultimate object of the appellant in filing the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had led the appellant to believe that it would pay whatever the court legitimately found to be due. It in fact said so in the written statement. If there was any case where the respondent was not entitled to the benefit of the law of limitation, the present is that one. The respondent cannot legitimately claim that the amendment will prejudicially affect his right under that law for really he had no such right. It is a case in which the claim for money was in substance in the plaint from the beginning though it had not formally been made11. This, therefore seems to us to be pre-eminently a case for allowing the amendment. The authorities also lead us to the same view. In L. J Leach and Cos case, 1957 SCR 438 : (AIR 1957 SC 357 ), a suit for damages for conversion was by amendment allowed to be converted into a suit for damages for breach of contract after that claim had become barred, the necessary facts, as in the case in hand being already in the plaint. In Charan Dass case, 47 Ind App 255: (AIR 1921 PC 50) an amendment adding a claim for possession after a suit for such claim had become barred was allowed in a suit which originally had only claimed a declaration of a right to pre-empt. In the last mentioned case, the plaintiff had in spite of warning at the earliest stage refused to make the amendment which he later sought and got. It was therefore, a case where the plaintiff had initially deliberately refused to make a claim and an amendment being allowed later permitting that claim to be raised after it had become barred. It was in a sense a stronger case than the present one where the plaintiff had omitted to make the claim initially on a wrong notion and a wrong legal advice. Punishing of mistakes is, of course, not administration of justice12. It is true that the plaint does not set out the details of the work done. But there never was any dispute about them. Indeed the respondent had prepared a final bill of the appellants dues for the work done under the contract and the appellant had accepted that bill as correct except on the question as to the proper rate chargeable under the clause. Strictly the details of the work done were not necessary in the plaint for it would be a waste of time of a court to go into them, it not being unusual to direct an enquiry by a commissioner or a subordinate officer about such details when as in the present case, the items of work done are innumerable. It would be enough in such cases to file the details before the authority making the enquiry. Besides, in Pirgonda Hongonda Patis case, 1957 SCR 585 (AIR 1957 SC 363) , in a suit for a declaration of title, this Court permitted an amendment setting out the detailed facts on which the title was claimed after the suit had become time barred. The absence of the details of the work does not furnish a legitimate ground for refusing the amendment13. It may be that as a result of the amendment, if the respondent chooses to raise a controversy about the work done, that is, about the quantity, quality and other things concerning it, which it had never raised so long the matter will have to be gone into. That again would not justify a refusal of leave to amend. It would not mean any waste of time or money or any duplication of work. That investigation would now be made for the first time and nothing done so far would become futile. Such an enquiry was indeed directed in L. J. Leach and Co.s case. 1957 SCR 438 : (AIR 1957 SC 357 )14. The amendment sought is necessary for a decision of the real dispute between the parties which is what are their rights under the contract ? That dispute was clearly involved in the plaint as originally framed. All the necessary basic facts had been stated. Only through a misconception a relief which could be asked on those facts had not been asked. It would not have been necessary to ask for it unless the plaintiff had at a late stage taken the point that the suit should fail without more in the absence of that relief. We find the present case indistinguishable from Charan Dass case, 47 Ind App 255: (AIR 1921 PC 50).
|
State of Himachal Pradesh Vs. Shri Manohar Singh Thakur | other witnesses. There is no reason why the evidence of Mathru Devi and Durga Dass should be disbelieved. The High Court has rejected her evidence merely because there are more details in her evidence than her statement. It has failed to note that the statement was recorded at a time when Mathru Devi had suffered grievous head injuries and had been unconscious as a result, for several hours. The medical evidence relating to the post-mortem disclosing death on account of injuries caused on the head of the deceased by a heavy blunt object such as the back of the head of an axe is also unequivocal. The injuries on the head of Mathru Devi are similar. The evidence of Mathru Devi, an injured witness, ought not to have been discarded. The entire approach of the High Court is unsatisfactory. For example, (P.W.9) Mauji Ram, the brother of the deceased has deposed that he was not present at village Deola on 3rd of September, 1985 since he had gone to Shimla to receive his pension. On 4th of September, 1985 while returning he learnt about the murder of the deceased. The High Court has commented that it is surprising that Mauji Ram never saw the accused entering the house of Kula Datt. If Mauji Ram was not present at his house on 3rd of September, 1985 and was returning to the village only on 4th of September, 1985, one fails to see how he could be expected to have seen the accused on 3rd of September, 1985. Mauji Ram seeing or not seeing the accused on any other occasion is not of much significance when there is clear evidence of the accused being present on 3.9.1985 in village Deola at the house of the deceased.The High Court has also observed that there is no direct or circumstantial evidence to establish that the accused had inflicted head injury to Kula Datt as a result of which he died. But the Sessions Court has set out the entire chain of circumstances leading to this inference alone. The evidence establishes that Kula Datt was last seen alive on the morning of 3rd of September, 1985 going to Village Bagh in the company of the accused. The accused returned alone to the house of Mathru Devi within 3 hours at 10 a.m. on 3rd of September, 1985 an d gave Mathru Devi an excuse for the absence of Kula Datt. The fact that Mathru Devi was searching for her husband on 3rd of September, 1985 is corroborated by the evidence of Durga Dass. He has deposed that the deceased was not seen by him in th e village that day. The presence of the accused at the house of the deceased on 3rd September, 1985 is also corroborated by the evidence of Bimla Devi. The entire narration of events by Mathur Devi has not been shaken in cross examination. She is an injured witness. She has deposed that the key of the box which used to be with the deceased was produced by the accused. She had given detailed evidence as to how she came to sustain those injuries at the hands of the accused and how she was duped by the accused into going to Panchayat Ghar at night with valuables which were taken away by the accused. There was no reason why her evidence would have been discarded by the High Court. There is also no reason why Mathru Devi should have falsely implicated the accused. The High Court ought not to have disbelieved Mathru Devi on the ground that the events as narrated by Mathru Devi were not convincing because the accused could have killed the old couple in their own house. These are pure conjectures. It is true that some details of the evidence given by Mathru Devi are missing in her initial statement to the police. But her statement substantially contains the entire narration of events to which she has deposed in he r evidence before the court. The Sessions Judge has rightly observed that the statement of Mathru Devi was recorded when she was in an injured and shocked condition and her mental faculties were not up to the mark. It is possible that she may have missed out some of the details. Thus the evidence of Mathru Devi clearly establishes the guilt of the accused under Section 307/394 read with Section 397 of the Indian Penal Code.There is also sufficient circumstantial evidence against the accused to convict him under Section 302. The accused and the deceased were last seen together. The deceased gave a false explanation to Mathru Devi about the deceased having stayed back in the village; the key which used to remain on the person of the deceased was in the possession of the accused on the night of 3rd of September, 1985. The dead body of the deceased was found at bagh nulla - in the direction in which the accused and the deceased were observed as going. The death occurred on 3.9.1985. The injuries which were inflicted by the accused on the head of Mathru Devi on the night of 3.9.1985 are similar to the injuries which were found on the dead body of Kula Datt as per medical evidence. The axe of the acc used was found as directed by the accused who stated that he had delivered the axe for sharpening on 5th of September, 1985. The currency notes of Rs.2, 000/- were also found on the person of the accused when he was arrested.Looking to the totality of evidence the Sessions Judge rightly convicted the accused of all the charges. The observation of the Sessions Judge, however, that this was one of the rarest of rare crimes does not appear to be justified. Crimes such as murder are committed for gain and there is nothing exceptionally gruesome about the manner of committing this murder. A murder by its very nature is shocking. But that per se does not justify death penalty. | 1[ds]The injuries which were inflicted by the accused on the head of Mathru Devi on the night of 3.9.1985 are similar to the injuries which were found on the dead body of Kula Datt as per medical evidence. The axe of the acc used was found as directed by the accused who stated that he had delivered the axe for sharpening on 5th of September, 1985. The currency notes of Rs.2, 000/were also found on the person of the accused when he was arrested.Looking to the totality of evidence the Sessions Judge rightly convicted the accused of all the charges. The observation of the Sessions Judge, however, that this was one of the rarest of rare crimes does not appear to be justified. Crimes such as murder are committed for gain and there is nothing exceptionally gruesome about the manner of committing this murder. A murder by its very nature is shocking. But that per se does not justify death penalty. | 1 | 3,583 | 176 | ### 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:
other witnesses. There is no reason why the evidence of Mathru Devi and Durga Dass should be disbelieved. The High Court has rejected her evidence merely because there are more details in her evidence than her statement. It has failed to note that the statement was recorded at a time when Mathru Devi had suffered grievous head injuries and had been unconscious as a result, for several hours. The medical evidence relating to the post-mortem disclosing death on account of injuries caused on the head of the deceased by a heavy blunt object such as the back of the head of an axe is also unequivocal. The injuries on the head of Mathru Devi are similar. The evidence of Mathru Devi, an injured witness, ought not to have been discarded. The entire approach of the High Court is unsatisfactory. For example, (P.W.9) Mauji Ram, the brother of the deceased has deposed that he was not present at village Deola on 3rd of September, 1985 since he had gone to Shimla to receive his pension. On 4th of September, 1985 while returning he learnt about the murder of the deceased. The High Court has commented that it is surprising that Mauji Ram never saw the accused entering the house of Kula Datt. If Mauji Ram was not present at his house on 3rd of September, 1985 and was returning to the village only on 4th of September, 1985, one fails to see how he could be expected to have seen the accused on 3rd of September, 1985. Mauji Ram seeing or not seeing the accused on any other occasion is not of much significance when there is clear evidence of the accused being present on 3.9.1985 in village Deola at the house of the deceased.The High Court has also observed that there is no direct or circumstantial evidence to establish that the accused had inflicted head injury to Kula Datt as a result of which he died. But the Sessions Court has set out the entire chain of circumstances leading to this inference alone. The evidence establishes that Kula Datt was last seen alive on the morning of 3rd of September, 1985 going to Village Bagh in the company of the accused. The accused returned alone to the house of Mathru Devi within 3 hours at 10 a.m. on 3rd of September, 1985 an d gave Mathru Devi an excuse for the absence of Kula Datt. The fact that Mathru Devi was searching for her husband on 3rd of September, 1985 is corroborated by the evidence of Durga Dass. He has deposed that the deceased was not seen by him in th e village that day. The presence of the accused at the house of the deceased on 3rd September, 1985 is also corroborated by the evidence of Bimla Devi. The entire narration of events by Mathur Devi has not been shaken in cross examination. She is an injured witness. She has deposed that the key of the box which used to be with the deceased was produced by the accused. She had given detailed evidence as to how she came to sustain those injuries at the hands of the accused and how she was duped by the accused into going to Panchayat Ghar at night with valuables which were taken away by the accused. There was no reason why her evidence would have been discarded by the High Court. There is also no reason why Mathru Devi should have falsely implicated the accused. The High Court ought not to have disbelieved Mathru Devi on the ground that the events as narrated by Mathru Devi were not convincing because the accused could have killed the old couple in their own house. These are pure conjectures. It is true that some details of the evidence given by Mathru Devi are missing in her initial statement to the police. But her statement substantially contains the entire narration of events to which she has deposed in he r evidence before the court. The Sessions Judge has rightly observed that the statement of Mathru Devi was recorded when she was in an injured and shocked condition and her mental faculties were not up to the mark. It is possible that she may have missed out some of the details. Thus the evidence of Mathru Devi clearly establishes the guilt of the accused under Section 307/394 read with Section 397 of the Indian Penal Code.There is also sufficient circumstantial evidence against the accused to convict him under Section 302. The accused and the deceased were last seen together. The deceased gave a false explanation to Mathru Devi about the deceased having stayed back in the village; the key which used to remain on the person of the deceased was in the possession of the accused on the night of 3rd of September, 1985. The dead body of the deceased was found at bagh nulla - in the direction in which the accused and the deceased were observed as going. The death occurred on 3.9.1985. The injuries which were inflicted by the accused on the head of Mathru Devi on the night of 3.9.1985 are similar to the injuries which were found on the dead body of Kula Datt as per medical evidence. The axe of the acc used was found as directed by the accused who stated that he had delivered the axe for sharpening on 5th of September, 1985. The currency notes of Rs.2, 000/- were also found on the person of the accused when he was arrested.Looking to the totality of evidence the Sessions Judge rightly convicted the accused of all the charges. The observation of the Sessions Judge, however, that this was one of the rarest of rare crimes does not appear to be justified. Crimes such as murder are committed for gain and there is nothing exceptionally gruesome about the manner of committing this murder. A murder by its very nature is shocking. But that per se does not justify death penalty.
### Response:
1
### Explanation:
The injuries which were inflicted by the accused on the head of Mathru Devi on the night of 3.9.1985 are similar to the injuries which were found on the dead body of Kula Datt as per medical evidence. The axe of the acc used was found as directed by the accused who stated that he had delivered the axe for sharpening on 5th of September, 1985. The currency notes of Rs.2, 000/were also found on the person of the accused when he was arrested.Looking to the totality of evidence the Sessions Judge rightly convicted the accused of all the charges. The observation of the Sessions Judge, however, that this was one of the rarest of rare crimes does not appear to be justified. Crimes such as murder are committed for gain and there is nothing exceptionally gruesome about the manner of committing this murder. A murder by its very nature is shocking. But that per se does not justify death penalty.
|
M/S. Coastal Paper Ltd Vs. Commnr. Of Central Excise, Visakhapatnam | (38) E.L.T. 741 (S.C.) = (1989-1 S.C.C. 345 at p.357) and Tata Oil Mills Co. Ltd. v. C.C.E., 1989 (43) E.L.T. 183 (S.C.) = (1989-4 SCC 541 at p. 545-6) in interpreting the scope of any notification, the Court has first to keep in mind the object and purpose of the notification. All parts of it should be read harmoniously in aid of, and not in derogation, of that purpose. In this case, the aim and object of the notification is to grant a concession to small scale factories which manufacture paper with unconventional raw materials. The question naturally arises: Could there have been any particular object intended to be achieved by introducing the exceptions set out in the proviso? Instead of proceeding on the premise that it is not necessary to look for any reason in a taxing statute, it is necessary to have a closer look at the wording of the proviso. If the proviso had referred only to coated paper, no special object or purpose would have been discernible and perhaps there would have been no justification to look beyond it and enter into a speculation as to why the notification should have thought of exempting only coated paper manufactured by these factories from the purview of the exemption. But the notification excepts not one but a group of items. If the items mentioned in the group were totally dissimilar and it were impossible to see any common thread running through them again, it may be permissible to give the exceptions their widest latitude. But when four of them-undoubtedly, at least three of them-can be brought under an intelligible classification and it is also conceivable that the Government might well have thought that these small scale factories should not be eligible for the concession contemplated by the notification where they manufacture paper catering to industrial purposes, there is a purpose in the limitation prescribed and there is no reason why the rationally logical restriction should not be placed on the proviso based on this classification. In our view, the only reasonable way of interpreting the proviso is by understanding the words coated paper in a narrower sense consistent with the other expressions used therein.” 22) The aforesaid discussion would be sufficient to hold that pulp from the waste of jute bags or gunny bags would not be covered by the term rags appearing in Notification dated 01-03-1994 as it could never be the intention to exclude non-conventional material from the benefit of the aforesaid Notification when that was precisely the purpose for which this Notification was issued to encourage use of non-conventional material for the purposes of manufacturing paper or paper products. Still, we would now like to take note of the dictionary meaning that is assigned to the aforesaid terms, that too from the Dictionary of Paper by American Paper and Pulp Association, which obviously is the most relevant and authenticated dictionary for the purpose of the present case as what is in vogue and understood in paper industry is contained in such a dictionary. 23) The Dictionary of Paper by American Paper and Pulp Association clearly makes a distinction between rag pulp and jute. Relevant portion of the book (contained at pages 22 and 26) is reproduced below: “Cotton fibre or rag pulps are used principally in the manufacture of fine and technical papers as listed below, and in the manufacture of roofing papers..”Jute Pulp is used in the manufacture of wrapping paper and tag stock. It is also used to some extent in buff drawing paper. The major supply of jute comes from old sacking, burlap and string...”Jute … Old gunny and sacking are used as raw materials in papermaking” 24) The book Pulp and Paper Chemistry and Chemical Technology by James P. Casey again distinguishes between rags and jute in the following manner: “Use of Rags for PapermakingHigh-grade cotton and, to some extent, linen rags are used to make the best grades of bond, writing and technical papers, where permanence, high strength, and distinctive quality are of interest.Pulping of JuteWhole jute is rarely used for pulp and papermaking. Salvaged products, such as old jute sacks and burlap, are the materials available to the paper mills. Waste jute is cut into small pieces and dusted before cooking.. Jute pulps are used for the manufacture of high-strength bags, wrappings, drawing papers, and tags.” 25) Dictionary of Paper by TAPPI defines rag pulps as under: “Papermaking fibers made from new or old cotton textile cuttings. The term may also apply to cotton linters, i.e., the short fibers which adhere to the cotton seed after the ginning process. Rag pulps are used in papers where permanence and durability are needed, e.g., ledger, blueprint, map, currency papers etc.” 26) Indian Standard Glossary of Terms used in Paper Trade and Industry – IS 4661 : 1999 defines jute and rag pulp as under: “Jute : (a) An Indian bast fibre, white jute (Corchorus Capsularis) and tossa jute (C. Olitorius) which is used for the manufacture of coarse sacking and bags (gunny sack). Old gunny and sacking are used as raw materials in papermaking...Rag Pulps: Papermaking fibres of cotton made from materials like new or old cotton textile cuttings or cotton linters, mill run, fly cotton, cotton waste etc. Rag pulps are used in papers where permanence and durability are needed, for example, ledger, blueprint, map, currency papers etc." 27) Thus, almost all the books on the subject uniformly define rag or rag pulp as one which is made from cotton waste or cotton textile material. On the other hand, the learned counsel appearing for the Revenue could not point out to a single dictionary or could take us through any technical literature which even remotely suggests that jute gunny bags come under the category of rags in the context of paper technology.28) The Tribunal has simply brushed aside the aforesaid material with a mere observation that it is not relevant and this approach of the Tribunal cannot be justified. | 1[ds]We are of the view that the expression rags appearing in the Notification has to be construed having regard to the attendant circumstances, the context in which the same is used in the said Notification as well as the purpose for which this term has appeared in the Notification. At the same time, it is also necessary to go behind the objective for which Notification itself is issued thereby giving it a purposive interpretation, which has become cardinal rule of interpretation. In our opinion, it is only after examining all these factors that the final decision should be arrivedThe tenor and language of various Notifications issued in this behalf from time to time also reflect the experience which was gained over a period of time. Whereas in the beginning, Notification(s) prescribed the Positive List of the materials that had to be used to get the benefit of concessional rate of duty, the thrust underwent a conceptual transformation and changed to the Negative List, i.e. mentioning only those materials use whereof will not entail the benefit, thereby making the benefit available to all other forms ofmaterials. This was because of the reason that experience has shown that it was not proper to mention thematerial by putting them in a straitjacket and to provide that all kinds ofmaterials used for the manufacture of paper should qualify for concessional rate excepting only those which need not be given such a benefit. This thrust, therefore, from Positive List to Negative List is of great significance and has to be kept inNo doubt, such exemption Notifications call for strict interpretation. However, at the same time when the expression rags is not defined in the Notification, it has to be assigned a particular meaning which defines the purpose for which such a Notification was issued giving by plain meaning, even when there is a total disconnect between the said meaning and the Notification, may lead to absurd results as it would exclude thematerial in the form of waste from jute bags or gunny bags even when this very material was there in the Positive List and qualified for exemption.Thus, almost all the books on the subject uniformly define rag or rag pulp as one which is made from cotton waste or cotton textile material. On the other hand, the learned counsel appearing for the Revenue could not point out to a single dictionary or could take us through any technical literature which even remotely suggests that jute gunny bags come under the category of rags in the context of paper technology.28) The Tribunal has simply brushed aside the aforesaid material with a mere observation that it is not relevant and this approach of the Tribunal cannot be justified. | 1 | 7,022 | 487 | ### 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:
(38) E.L.T. 741 (S.C.) = (1989-1 S.C.C. 345 at p.357) and Tata Oil Mills Co. Ltd. v. C.C.E., 1989 (43) E.L.T. 183 (S.C.) = (1989-4 SCC 541 at p. 545-6) in interpreting the scope of any notification, the Court has first to keep in mind the object and purpose of the notification. All parts of it should be read harmoniously in aid of, and not in derogation, of that purpose. In this case, the aim and object of the notification is to grant a concession to small scale factories which manufacture paper with unconventional raw materials. The question naturally arises: Could there have been any particular object intended to be achieved by introducing the exceptions set out in the proviso? Instead of proceeding on the premise that it is not necessary to look for any reason in a taxing statute, it is necessary to have a closer look at the wording of the proviso. If the proviso had referred only to coated paper, no special object or purpose would have been discernible and perhaps there would have been no justification to look beyond it and enter into a speculation as to why the notification should have thought of exempting only coated paper manufactured by these factories from the purview of the exemption. But the notification excepts not one but a group of items. If the items mentioned in the group were totally dissimilar and it were impossible to see any common thread running through them again, it may be permissible to give the exceptions their widest latitude. But when four of them-undoubtedly, at least three of them-can be brought under an intelligible classification and it is also conceivable that the Government might well have thought that these small scale factories should not be eligible for the concession contemplated by the notification where they manufacture paper catering to industrial purposes, there is a purpose in the limitation prescribed and there is no reason why the rationally logical restriction should not be placed on the proviso based on this classification. In our view, the only reasonable way of interpreting the proviso is by understanding the words coated paper in a narrower sense consistent with the other expressions used therein.” 22) The aforesaid discussion would be sufficient to hold that pulp from the waste of jute bags or gunny bags would not be covered by the term rags appearing in Notification dated 01-03-1994 as it could never be the intention to exclude non-conventional material from the benefit of the aforesaid Notification when that was precisely the purpose for which this Notification was issued to encourage use of non-conventional material for the purposes of manufacturing paper or paper products. Still, we would now like to take note of the dictionary meaning that is assigned to the aforesaid terms, that too from the Dictionary of Paper by American Paper and Pulp Association, which obviously is the most relevant and authenticated dictionary for the purpose of the present case as what is in vogue and understood in paper industry is contained in such a dictionary. 23) The Dictionary of Paper by American Paper and Pulp Association clearly makes a distinction between rag pulp and jute. Relevant portion of the book (contained at pages 22 and 26) is reproduced below: “Cotton fibre or rag pulps are used principally in the manufacture of fine and technical papers as listed below, and in the manufacture of roofing papers..”Jute Pulp is used in the manufacture of wrapping paper and tag stock. It is also used to some extent in buff drawing paper. The major supply of jute comes from old sacking, burlap and string...”Jute … Old gunny and sacking are used as raw materials in papermaking” 24) The book Pulp and Paper Chemistry and Chemical Technology by James P. Casey again distinguishes between rags and jute in the following manner: “Use of Rags for PapermakingHigh-grade cotton and, to some extent, linen rags are used to make the best grades of bond, writing and technical papers, where permanence, high strength, and distinctive quality are of interest.Pulping of JuteWhole jute is rarely used for pulp and papermaking. Salvaged products, such as old jute sacks and burlap, are the materials available to the paper mills. Waste jute is cut into small pieces and dusted before cooking.. Jute pulps are used for the manufacture of high-strength bags, wrappings, drawing papers, and tags.” 25) Dictionary of Paper by TAPPI defines rag pulps as under: “Papermaking fibers made from new or old cotton textile cuttings. The term may also apply to cotton linters, i.e., the short fibers which adhere to the cotton seed after the ginning process. Rag pulps are used in papers where permanence and durability are needed, e.g., ledger, blueprint, map, currency papers etc.” 26) Indian Standard Glossary of Terms used in Paper Trade and Industry – IS 4661 : 1999 defines jute and rag pulp as under: “Jute : (a) An Indian bast fibre, white jute (Corchorus Capsularis) and tossa jute (C. Olitorius) which is used for the manufacture of coarse sacking and bags (gunny sack). Old gunny and sacking are used as raw materials in papermaking...Rag Pulps: Papermaking fibres of cotton made from materials like new or old cotton textile cuttings or cotton linters, mill run, fly cotton, cotton waste etc. Rag pulps are used in papers where permanence and durability are needed, for example, ledger, blueprint, map, currency papers etc." 27) Thus, almost all the books on the subject uniformly define rag or rag pulp as one which is made from cotton waste or cotton textile material. On the other hand, the learned counsel appearing for the Revenue could not point out to a single dictionary or could take us through any technical literature which even remotely suggests that jute gunny bags come under the category of rags in the context of paper technology.28) The Tribunal has simply brushed aside the aforesaid material with a mere observation that it is not relevant and this approach of the Tribunal cannot be justified.
### Response:
1
### Explanation:
We are of the view that the expression rags appearing in the Notification has to be construed having regard to the attendant circumstances, the context in which the same is used in the said Notification as well as the purpose for which this term has appeared in the Notification. At the same time, it is also necessary to go behind the objective for which Notification itself is issued thereby giving it a purposive interpretation, which has become cardinal rule of interpretation. In our opinion, it is only after examining all these factors that the final decision should be arrivedThe tenor and language of various Notifications issued in this behalf from time to time also reflect the experience which was gained over a period of time. Whereas in the beginning, Notification(s) prescribed the Positive List of the materials that had to be used to get the benefit of concessional rate of duty, the thrust underwent a conceptual transformation and changed to the Negative List, i.e. mentioning only those materials use whereof will not entail the benefit, thereby making the benefit available to all other forms ofmaterials. This was because of the reason that experience has shown that it was not proper to mention thematerial by putting them in a straitjacket and to provide that all kinds ofmaterials used for the manufacture of paper should qualify for concessional rate excepting only those which need not be given such a benefit. This thrust, therefore, from Positive List to Negative List is of great significance and has to be kept inNo doubt, such exemption Notifications call for strict interpretation. However, at the same time when the expression rags is not defined in the Notification, it has to be assigned a particular meaning which defines the purpose for which such a Notification was issued giving by plain meaning, even when there is a total disconnect between the said meaning and the Notification, may lead to absurd results as it would exclude thematerial in the form of waste from jute bags or gunny bags even when this very material was there in the Positive List and qualified for exemption.Thus, almost all the books on the subject uniformly define rag or rag pulp as one which is made from cotton waste or cotton textile material. On the other hand, the learned counsel appearing for the Revenue could not point out to a single dictionary or could take us through any technical literature which even remotely suggests that jute gunny bags come under the category of rags in the context of paper technology.28) The Tribunal has simply brushed aside the aforesaid material with a mere observation that it is not relevant and this approach of the Tribunal cannot be justified.
|
K. Samantaray Vs. National Insurance Company Ltd | Ors. (AIR 1967 SC 1910 ) are significant: The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest i the post immediately below. But the trouble with the seniority system s that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones; an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem, therefore, is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policy. 7. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid in seniority, though it is not the determinative factor, while in the latter merit is the determinative factor, while in the latter merit is the determinative factor. In The State of Mysore and Anr. vs. Syed Mahamood and Ors. (AIR 1968 SC 1113 ), it was observed that in the background of Rule 4(3)(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, that the rule required promotion to be made by selection on the basis of seniority subject to fitness of the candidate to discharge the duties of the post from among persons eligible for promotion. It was pointed out that 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 and 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. But these are not the only modes for deciding whether promotion is to be granted or not. 8. Before we analyse the legal position further, it would be appropriate to extract some of the relevant paragraphs of the promotion policy. 1.1 The main objective is to rationalise and codify the existing guidelines relating to promotions within the Officers cadre (Class I) and to formulate a well defined promotion policy with built in motivation, providing therein reasonable opportunities to Officers to move up in hierarchy, keeping in view the legitimate aspirations of the Officers to shoulder higher responsibilities. 1.2 This is aimed to be achieved by providing for promotion of officers through a process of selection on the basis of their seniority-cum-merit. While seniority is a known fact depending upon the number of years of service put in, merit, would inter-alia comprise of job knowledge, past performance, suitability and growth potential. These are to be assessed on the basis of performance appraisal system. Suitability and growth potential can be assessed from recommendations and remarks of Officers in the appraisals and interviews, were applicable. 7. CRITERIA FOR PROMOTION AND WEIGHTAGE: 7.1 Selection for promotion shall be based on seniority, insurance qualifications and merit-cum-seniority potential, as brought out in performance appraisals. In addition, for promotion to the cadre of Manager there shall be interview before selection. In assessment, maximum weightage in terms of numerical marks for various criteria shall be worked out as under:- NOTE: Marks for Insurance Qualification shall come into effect for promotion exercise for 1992 and onwards. Till then Total marks for A.A.O. to A.O. and A.O. to A.M. shall be 90 to 92 respectively. 9. As the figurative data extracted from the policy goes to show the service structure is like a pyramid. The higher one goes in the ladder of promotional posts remarkably the seniority loses importance, and merit gets primacy. 10. In Syndicate Bank case (supra) observations in para 14 throw considerable light on the controversy. The third mode (apart from seniority-cum-merit and merit-cum-seniority modes) has been recognized. It has been described as a hybrid mode of promotion. In other words, there is a third category of cases where seniority is duly respected and merit is appropriately recognized. 11. While laying down the promotion policy or rule, it is always open to the employer to specify area and parameter of weightage to be given in respect of merit and seniority separately so long as policy is not colourable exercise of power, or has the effect of violating of any statutorily scope of interference and other relatable. The decision in B.V. Sivaiah case (supra) is clearly distinguishable on facts and in law. That was a case where statutory rules governed the field. This Court, inter alia, held that fixing terms which are at variance with the statutory rules is impermissible. In the case at hand, prior to the formulation of policy in February, 1990, there were no codified prescriptions. It was the stand of the respondent-employer that prior to the formulation of the policy, certain guidelines existed and the objectives of the policy were to rationalize and codify the existing guidelines relating to promotions within officers cadre. There is no statutory rule operating. It is for the employer to stipulate the criteria for promotion, the same pertaining really to the area of policy making. It was, therefore, permissible for the respondent to have their own criteria for adjudging claims on the principle of seniority-cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirements of efficiency for such posts. | 0[ds]11. While laying down the promotion policy or rule, it is always open to the employer to specify area and parameter of weightage to be given in respect of merit and seniority separately so long as policy is not colourable exercise of power, or has the effect of violating of any statutorily scope of interference and other relatable. The decision in B.V. Sivaiah case (supra) is clearly distinguishable on facts and in law. That was a case where statutory rules governed the field. This Court, inter alia, held that fixing terms which are at variance with the statutory rules is impermissible. In the case at hand, prior to the formulation of policy in February, 1990, there were no codified prescriptions. It was the stand of ther that prior to the formulation of the policy, certain guidelines existed and the objectives of the policy were to rationalize and codify the existing guidelines relating to promotions within officers cadre. There is no statutory rule operating. It is for the employer to stipulate the criteria for promotion, the same pertaining really to the area of policy making. It was, therefore, permissible for the respondent to have their own criteria for adjudging claims on the principle oft giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirements of efficiency for such posts | 0 | 2,001 | 259 | ### 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:
Ors. (AIR 1967 SC 1910 ) are significant: The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest i the post immediately below. But the trouble with the seniority system s that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones; an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem, therefore, is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policy. 7. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid in seniority, though it is not the determinative factor, while in the latter merit is the determinative factor, while in the latter merit is the determinative factor. In The State of Mysore and Anr. vs. Syed Mahamood and Ors. (AIR 1968 SC 1113 ), it was observed that in the background of Rule 4(3)(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, that the rule required promotion to be made by selection on the basis of seniority subject to fitness of the candidate to discharge the duties of the post from among persons eligible for promotion. It was pointed out that 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 and 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. But these are not the only modes for deciding whether promotion is to be granted or not. 8. Before we analyse the legal position further, it would be appropriate to extract some of the relevant paragraphs of the promotion policy. 1.1 The main objective is to rationalise and codify the existing guidelines relating to promotions within the Officers cadre (Class I) and to formulate a well defined promotion policy with built in motivation, providing therein reasonable opportunities to Officers to move up in hierarchy, keeping in view the legitimate aspirations of the Officers to shoulder higher responsibilities. 1.2 This is aimed to be achieved by providing for promotion of officers through a process of selection on the basis of their seniority-cum-merit. While seniority is a known fact depending upon the number of years of service put in, merit, would inter-alia comprise of job knowledge, past performance, suitability and growth potential. These are to be assessed on the basis of performance appraisal system. Suitability and growth potential can be assessed from recommendations and remarks of Officers in the appraisals and interviews, were applicable. 7. CRITERIA FOR PROMOTION AND WEIGHTAGE: 7.1 Selection for promotion shall be based on seniority, insurance qualifications and merit-cum-seniority potential, as brought out in performance appraisals. In addition, for promotion to the cadre of Manager there shall be interview before selection. In assessment, maximum weightage in terms of numerical marks for various criteria shall be worked out as under:- NOTE: Marks for Insurance Qualification shall come into effect for promotion exercise for 1992 and onwards. Till then Total marks for A.A.O. to A.O. and A.O. to A.M. shall be 90 to 92 respectively. 9. As the figurative data extracted from the policy goes to show the service structure is like a pyramid. The higher one goes in the ladder of promotional posts remarkably the seniority loses importance, and merit gets primacy. 10. In Syndicate Bank case (supra) observations in para 14 throw considerable light on the controversy. The third mode (apart from seniority-cum-merit and merit-cum-seniority modes) has been recognized. It has been described as a hybrid mode of promotion. In other words, there is a third category of cases where seniority is duly respected and merit is appropriately recognized. 11. While laying down the promotion policy or rule, it is always open to the employer to specify area and parameter of weightage to be given in respect of merit and seniority separately so long as policy is not colourable exercise of power, or has the effect of violating of any statutorily scope of interference and other relatable. The decision in B.V. Sivaiah case (supra) is clearly distinguishable on facts and in law. That was a case where statutory rules governed the field. This Court, inter alia, held that fixing terms which are at variance with the statutory rules is impermissible. In the case at hand, prior to the formulation of policy in February, 1990, there were no codified prescriptions. It was the stand of the respondent-employer that prior to the formulation of the policy, certain guidelines existed and the objectives of the policy were to rationalize and codify the existing guidelines relating to promotions within officers cadre. There is no statutory rule operating. It is for the employer to stipulate the criteria for promotion, the same pertaining really to the area of policy making. It was, therefore, permissible for the respondent to have their own criteria for adjudging claims on the principle of seniority-cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirements of efficiency for such posts.
### Response:
0
### Explanation:
11. While laying down the promotion policy or rule, it is always open to the employer to specify area and parameter of weightage to be given in respect of merit and seniority separately so long as policy is not colourable exercise of power, or has the effect of violating of any statutorily scope of interference and other relatable. The decision in B.V. Sivaiah case (supra) is clearly distinguishable on facts and in law. That was a case where statutory rules governed the field. This Court, inter alia, held that fixing terms which are at variance with the statutory rules is impermissible. In the case at hand, prior to the formulation of policy in February, 1990, there were no codified prescriptions. It was the stand of ther that prior to the formulation of the policy, certain guidelines existed and the objectives of the policy were to rationalize and codify the existing guidelines relating to promotions within officers cadre. There is no statutory rule operating. It is for the employer to stipulate the criteria for promotion, the same pertaining really to the area of policy making. It was, therefore, permissible for the respondent to have their own criteria for adjudging claims on the principle oft giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirements of efficiency for such posts
|
Hari Ram Vs. Hira Singh & Ors | the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials."5. After going through the judgment of the High Court and the application of the respondent-petitioner for inspection of the documents concerned. We are satisfied that no. case for inspection was at all made out and the High Court erred in allowing the prayers of the respondent and acted against the settled principles as extracted above.6. To begin with, the High Court seems to have been under the impression that the Court had ample powers to direct production of any document under S. 165 of the Indian Evidence Act. In doing so with due deference the High Court overlooked that the Representation of the people Act was a special Act and provisions of the Evidence Act or the Code of Civil Procedure would only apply where they are not excluded. Thus at the very outset, with due respect, the approach of the High Court was legally incorrect. Furthermore, in the case of Ram Sewak Yadav v. Hussain Kamil Kidwai, (1964) 6 SCR 238 : (AIR 1964 SC 1249 ) this Court while interpreting the provisions of Rule 93 of the Conduct of Election Rules, 1961 framed under the Act, made the following observations : -"By Rule 93 of the Conduct of Election Rules, 1961, it is provided that :"(1) While in the custody of the returning officer -(a) the packets of unused ballot papers :(b) the packets of used ballot papers whether valid, tendered or rejected :(c) the packets of the marked copy of the electoral roll or, as the case may be the list maintained under sub-section (1) or sub-section (2) of S. 152; and(d) the packets of the declarations by electors and the attestation of their signatures :shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent court or tribunal.(2) All other papers relating to the election shall be open to public inspection subject to such conditions and to the payment of such fee, if any, as the Election Commission may direct.(3) Copies of the returns by the Returning officer forwarded under R. 64 or as the case may be under sub-rule (3) of Rule 84 shall be furnished by the chief electoral officer of the State concerned on payment of a fee of two rupees for each such copy.The rule makes a clear distinction between ballot papers and other election papers : ballot papers may be inspected only under the order of a competent court or tribunal, but other documents are subject to certain conditions open to public inspection."The Court further observed : -"The Returning Officer is not a party to an election petition and an order for production of the ballot papers cannot be made under O. 11, Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers .........An order for inspection may not be granted as a matter of course having regard to the insistence upon the secrecy of the ballot papers the court would be justified in granting an order for inspection provided two conditions are fulfilled :(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case and(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.An order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts."7. A perusal of this rule clearly shows that the Legislature intended to make a clear distinction between one set of documents and another. So far as the counterfoils and the marked copy of the electoral rolls were concerned, there was a strict prohibition for opening these documents unless the Court was fully satisfied that a cast-iron case was made out for the same whereas documents mentioned in clauses (a) &(b) of sub-rule (2) of Rule 93 (as amended) could be liberally allowed to be inspected.8. We are afraid that the High Court has not kept these principles in view while allowing the prayers of the respondent. The main ground put forward by the respondent was that there were a number of dead persons for whom also votes were cast. Despite this allegation no. details and particulars were given nor was it even mentioned whether the Polling Agent of the respondent had made any note of the fact that votes were actually cast for dead persons and the number of these votes. The allegations made by the respondent-petitioner in his application for inspection are frightfully vague. There is no. allegation as to whether any vote was cast for the dead persons and this is what the respondent sought to find out by inspecting the marked electoral rolls. It is manifest that this attempt of the respondent was nothing but to fish out the material for challenging the election of the appellant and it clearly violated the sanctity and secrecy of the electoral process. Thus, the High Court was clearly wrong in allowing such prayers for inspection. As far as the inspection of counterfoils was concerned, even the respondent did not press for the same realising that he had not made out any strong case for such an action. | 1[ds]8. We are afraid that the High Court has not kept these principles in view while allowing the prayers of the respondent. The main ground put forward by the respondent was that there were a number of dead persons for whom also votes were cast. Despite this allegation no. details and particulars were given nor was it even mentioned whether the Polling Agent of the respondent had made any note of the fact that votes were actually cast for dead persons and the number of these votes. The allegations made by the respondent-petitioner in his application for inspection are frightfully vague. There is no. allegation as to whether any vote was cast for the dead persons and this is what the respondent sought to find out by inspecting the marked electoral rolls. It is manifest that this attempt of the respondent was nothing but to fish out the material for challenging the election of the appellant and it clearly violated the sanctity and secrecy of the electoral process. Thus, the High Court was clearly wrong in allowing such prayers for inspection. As far as the inspection of counterfoils was concerned, even the respondent did not press for the same realising that he had not made out any strong case for such an action. | 1 | 1,648 | 230 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials."5. After going through the judgment of the High Court and the application of the respondent-petitioner for inspection of the documents concerned. We are satisfied that no. case for inspection was at all made out and the High Court erred in allowing the prayers of the respondent and acted against the settled principles as extracted above.6. To begin with, the High Court seems to have been under the impression that the Court had ample powers to direct production of any document under S. 165 of the Indian Evidence Act. In doing so with due deference the High Court overlooked that the Representation of the people Act was a special Act and provisions of the Evidence Act or the Code of Civil Procedure would only apply where they are not excluded. Thus at the very outset, with due respect, the approach of the High Court was legally incorrect. Furthermore, in the case of Ram Sewak Yadav v. Hussain Kamil Kidwai, (1964) 6 SCR 238 : (AIR 1964 SC 1249 ) this Court while interpreting the provisions of Rule 93 of the Conduct of Election Rules, 1961 framed under the Act, made the following observations : -"By Rule 93 of the Conduct of Election Rules, 1961, it is provided that :"(1) While in the custody of the returning officer -(a) the packets of unused ballot papers :(b) the packets of used ballot papers whether valid, tendered or rejected :(c) the packets of the marked copy of the electoral roll or, as the case may be the list maintained under sub-section (1) or sub-section (2) of S. 152; and(d) the packets of the declarations by electors and the attestation of their signatures :shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent court or tribunal.(2) All other papers relating to the election shall be open to public inspection subject to such conditions and to the payment of such fee, if any, as the Election Commission may direct.(3) Copies of the returns by the Returning officer forwarded under R. 64 or as the case may be under sub-rule (3) of Rule 84 shall be furnished by the chief electoral officer of the State concerned on payment of a fee of two rupees for each such copy.The rule makes a clear distinction between ballot papers and other election papers : ballot papers may be inspected only under the order of a competent court or tribunal, but other documents are subject to certain conditions open to public inspection."The Court further observed : -"The Returning Officer is not a party to an election petition and an order for production of the ballot papers cannot be made under O. 11, Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers .........An order for inspection may not be granted as a matter of course having regard to the insistence upon the secrecy of the ballot papers the court would be justified in granting an order for inspection provided two conditions are fulfilled :(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case and(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.An order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts."7. A perusal of this rule clearly shows that the Legislature intended to make a clear distinction between one set of documents and another. So far as the counterfoils and the marked copy of the electoral rolls were concerned, there was a strict prohibition for opening these documents unless the Court was fully satisfied that a cast-iron case was made out for the same whereas documents mentioned in clauses (a) &(b) of sub-rule (2) of Rule 93 (as amended) could be liberally allowed to be inspected.8. We are afraid that the High Court has not kept these principles in view while allowing the prayers of the respondent. The main ground put forward by the respondent was that there were a number of dead persons for whom also votes were cast. Despite this allegation no. details and particulars were given nor was it even mentioned whether the Polling Agent of the respondent had made any note of the fact that votes were actually cast for dead persons and the number of these votes. The allegations made by the respondent-petitioner in his application for inspection are frightfully vague. There is no. allegation as to whether any vote was cast for the dead persons and this is what the respondent sought to find out by inspecting the marked electoral rolls. It is manifest that this attempt of the respondent was nothing but to fish out the material for challenging the election of the appellant and it clearly violated the sanctity and secrecy of the electoral process. Thus, the High Court was clearly wrong in allowing such prayers for inspection. As far as the inspection of counterfoils was concerned, even the respondent did not press for the same realising that he had not made out any strong case for such an action.
### Response:
1
### Explanation:
8. We are afraid that the High Court has not kept these principles in view while allowing the prayers of the respondent. The main ground put forward by the respondent was that there were a number of dead persons for whom also votes were cast. Despite this allegation no. details and particulars were given nor was it even mentioned whether the Polling Agent of the respondent had made any note of the fact that votes were actually cast for dead persons and the number of these votes. The allegations made by the respondent-petitioner in his application for inspection are frightfully vague. There is no. allegation as to whether any vote was cast for the dead persons and this is what the respondent sought to find out by inspecting the marked electoral rolls. It is manifest that this attempt of the respondent was nothing but to fish out the material for challenging the election of the appellant and it clearly violated the sanctity and secrecy of the electoral process. Thus, the High Court was clearly wrong in allowing such prayers for inspection. As far as the inspection of counterfoils was concerned, even the respondent did not press for the same realising that he had not made out any strong case for such an action.
|
Goppulal Vs. Thakurji Shriji Shriji Dwarkadheeshji & Another | landlord for sub-letting the two shops. In the absence of any pleading and any issue on this point the first two courts were in error in holding that the two shops were sub-let with the permission of the landlord. The permission of the landlord for the sub-letting is not established from the mere fact that the landlord realised rent after the subletting in the absence of proof that the landlord had then clear knowledge of the sub-lease.7. The date of the sub-letting of the two shops is not mentioned in the plaint. In the absence of any pleading and any issue on this question the High Court was in error in recording the finding that the two shops were sub-let towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force. We can only say that the sub-letting was sometime after 1945.8. As to the third question: Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 provides:-"Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied-"The sub-section then sets out several grounds of ejectment under twelve main heads. Clause (e) mentions the following ground:-"that the tenant had assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord."The appellants contention is that subletting before the Act came into force is not within the purview of clause (e). The High Court held that the two shops were sub-let after October 15, 1947 when the Jaipur Rent Control Order, 1947 came into force, that the sub-letting was a ground of ejectment under Paragraph 8 (1) (b) (ii) of that Order and that the tenants liability for eviction on this ground continued after the promulgation of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. With regard to this line of reasoning it is sufficient to say that the plaintiffs have not established that the sub-letting was after October 15, 1947. The case must be decided on the footing that on the date of the sub-letting, no Rent Control legislation was in force.9. The question whether a sub-letting before the coming into force of the Act is within the purview of clause (e) of Section 13 (1) depends upon the construction of that clause. The relevant words are "has sub-let." The present perfect tense contemplates a completed event connected in some way with the present time. The words take within their sweep any sub-letting which was made in the past and has continued up to the present time. It does not matter that the subletting was either before or after the Act came into force. All such sub-lettings are within the purview of clause (e).10. Sections 26 and 27 (1) of the Act throw considerable light on the construction of Section 13 (1). They are as follows:-"26. No decree for the eviction of a tenant from any premises in areas to which this Act extends for the time being, passed before the date of commencement of this Act shall in so far as it relates to the eviction of such tenant be executed against him, as long as this Act, remains in force therein, except on any of the grounds mentioned in Section 13 and under the circumstances specified in this Act.27. (1) In all suits for eviction of tenants from any premises in areas to which this Act has been extended under Section 2, pending on the date specified in the notification under that Section, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 13 and under the circumstances specified in this Act."Section 26 bars the execution of a decree for eviction passed before the commencement of the Act except on any of the grounds mentioned in Section 13 and under the circumstances specified in the Act. Likewise, Section 27 (1) bars the passing of a decree for eviction in a pending suit except on one or more of the grounds under Section 13 and under the circumstances specified in the Act. Sections 26 and 27 (1) clearly contemplate that the grounds of eviction mentioned in Section 13 may have arisen before the Act came into force.11. The argument that Section 13 (1) (e) takes away vested rights and should not be given a retrospective effect is based on fallacious assumptions. Apart from the Rent Act the landlord is entitled to eject the tenant on the expiry of the period mentioned in the notice to quit. Section 13 (1) protects the tenant from eviction except in certain specified cases. If one of the grounds of ejectment is made out the tenant does not qualify for protection from eviction. We find no reason for presuming that Section 13 (1) (e) is not intended to apply to sub-lettings before the Act came into force.If the "tenant" has sub-let the premises without the permission of the landlord either before or after the coming into force of the Act, he is not protected from eviction under Section 13 (1) (e), and it matters not that he had the right to sub-let the premises under Section 108 (j) of the Transfer of Property Act.12. The plaintiffs have thus established the ground of eviction under Section 13 (1) (e) with regard to the two shops on the northern side of the staircase of the temple. With regard to the four other shops the Courts below concurrently found that they were sub-let with the permission of the landlord. In our opinion, the plaintiffs are entitled to a decree for ejectment of the defandant from the two shops and the claim for eviction from the other four shops should be dismissed. | 1[ds]4. As to the first question, we find that four shops were let to the defendant in 1944 and the other two shops on the northern side of the staircase of the temple were let to him in 1945. The rent of the four shops was Rs. 150 per month. The rent of the other two shops was Rs. 65 per month. In paragraph 5 of the plaint it was pleaded that in 1953, the defendant agreed to pay a consolidated rent of Rs. 251/8/- per month for all the six shops and to vacate them by July 31, 1957. In paragraph 5 of the written statement the defendant denied this contract and alleged that in 1953 there was only an enhancement of rent. The first two courts found that in 1953 there was no new contract of tenancy, that there was only an increase of rent and that the other terms and conditions of the tenancy remained unaltered. This finding was not vitiated by any error of law.As to the second question the defendant denied that he sub-let the two shops. The Courts below concurrently found that this denial was false and that he sub-let the two shops to his brother-in-law Ram Gopal. There was no pleading nor any issue that the sub-letting of the two shops was made with the permission of the landlord. It was not the case of the defendant at any stage of the trial that he had obtained the permission of the landlord for sub-letting the two shops. In the absence of any pleading and any issue on this point the first two courts were in error in holding that the two shops were sub-let with the permission of the landlord. The permission of the landlord for the sub-letting is not established from the mere fact that the landlord realised rent after the subletting in the absence of proof that the landlord had then clear knowledge of the sub-lease.7. The date of the sub-letting of the two shops is not mentioned in the plaint. In the absence of any pleading and any issue on this question the High Court was in error in recording the finding that the two shops were sub-let towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force. We can only say that the sub-letting was sometime after 1945.The argument that Section 13 (1) (e) takes away vested rights and should not be given a retrospective effect is based on fallacious assumptions. Apart from the Rent Act the landlord is entitled to eject the tenant on the expiry of the period mentioned in the notice to quit. Section 13 (1) protects the tenant from eviction except in certain specified cases. If one of the grounds of ejectment is made out the tenant does not qualify for protection from eviction. We find no reason for presuming that Section 13 (1) (e) is not intended to apply to sub-lettings before the Act came intothe "tenant" has sub-let the premises without the permission of the landlord either before or after the coming into force of the Act, he is not protected from eviction under Section 13 (1) (e), and it matters not that he had the right to sub-let the premises under Section 108 (j) of the Transfer of Property Act.12. The plaintiffs have thus established the ground of eviction under Section 13 (1) (e) with regard to the two shops on the northern side of the staircase of the temple. With regard to the four other shops the Courts below concurrently found that they were sub-let with the permission of the landlord. In our opinion, the plaintiffs are entitled to a decree for ejectment of the defandant from the two shops and the claim for eviction from the other four shops should be dismissed. | 1 | 2,125 | 696 | ### 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:
landlord for sub-letting the two shops. In the absence of any pleading and any issue on this point the first two courts were in error in holding that the two shops were sub-let with the permission of the landlord. The permission of the landlord for the sub-letting is not established from the mere fact that the landlord realised rent after the subletting in the absence of proof that the landlord had then clear knowledge of the sub-lease.7. The date of the sub-letting of the two shops is not mentioned in the plaint. In the absence of any pleading and any issue on this question the High Court was in error in recording the finding that the two shops were sub-let towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force. We can only say that the sub-letting was sometime after 1945.8. As to the third question: Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 provides:-"Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied-"The sub-section then sets out several grounds of ejectment under twelve main heads. Clause (e) mentions the following ground:-"that the tenant had assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord."The appellants contention is that subletting before the Act came into force is not within the purview of clause (e). The High Court held that the two shops were sub-let after October 15, 1947 when the Jaipur Rent Control Order, 1947 came into force, that the sub-letting was a ground of ejectment under Paragraph 8 (1) (b) (ii) of that Order and that the tenants liability for eviction on this ground continued after the promulgation of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. With regard to this line of reasoning it is sufficient to say that the plaintiffs have not established that the sub-letting was after October 15, 1947. The case must be decided on the footing that on the date of the sub-letting, no Rent Control legislation was in force.9. The question whether a sub-letting before the coming into force of the Act is within the purview of clause (e) of Section 13 (1) depends upon the construction of that clause. The relevant words are "has sub-let." The present perfect tense contemplates a completed event connected in some way with the present time. The words take within their sweep any sub-letting which was made in the past and has continued up to the present time. It does not matter that the subletting was either before or after the Act came into force. All such sub-lettings are within the purview of clause (e).10. Sections 26 and 27 (1) of the Act throw considerable light on the construction of Section 13 (1). They are as follows:-"26. No decree for the eviction of a tenant from any premises in areas to which this Act extends for the time being, passed before the date of commencement of this Act shall in so far as it relates to the eviction of such tenant be executed against him, as long as this Act, remains in force therein, except on any of the grounds mentioned in Section 13 and under the circumstances specified in this Act.27. (1) In all suits for eviction of tenants from any premises in areas to which this Act has been extended under Section 2, pending on the date specified in the notification under that Section, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 13 and under the circumstances specified in this Act."Section 26 bars the execution of a decree for eviction passed before the commencement of the Act except on any of the grounds mentioned in Section 13 and under the circumstances specified in the Act. Likewise, Section 27 (1) bars the passing of a decree for eviction in a pending suit except on one or more of the grounds under Section 13 and under the circumstances specified in the Act. Sections 26 and 27 (1) clearly contemplate that the grounds of eviction mentioned in Section 13 may have arisen before the Act came into force.11. The argument that Section 13 (1) (e) takes away vested rights and should not be given a retrospective effect is based on fallacious assumptions. Apart from the Rent Act the landlord is entitled to eject the tenant on the expiry of the period mentioned in the notice to quit. Section 13 (1) protects the tenant from eviction except in certain specified cases. If one of the grounds of ejectment is made out the tenant does not qualify for protection from eviction. We find no reason for presuming that Section 13 (1) (e) is not intended to apply to sub-lettings before the Act came into force.If the "tenant" has sub-let the premises without the permission of the landlord either before or after the coming into force of the Act, he is not protected from eviction under Section 13 (1) (e), and it matters not that he had the right to sub-let the premises under Section 108 (j) of the Transfer of Property Act.12. The plaintiffs have thus established the ground of eviction under Section 13 (1) (e) with regard to the two shops on the northern side of the staircase of the temple. With regard to the four other shops the Courts below concurrently found that they were sub-let with the permission of the landlord. In our opinion, the plaintiffs are entitled to a decree for ejectment of the defandant from the two shops and the claim for eviction from the other four shops should be dismissed.
### Response:
1
### Explanation:
4. As to the first question, we find that four shops were let to the defendant in 1944 and the other two shops on the northern side of the staircase of the temple were let to him in 1945. The rent of the four shops was Rs. 150 per month. The rent of the other two shops was Rs. 65 per month. In paragraph 5 of the plaint it was pleaded that in 1953, the defendant agreed to pay a consolidated rent of Rs. 251/8/- per month for all the six shops and to vacate them by July 31, 1957. In paragraph 5 of the written statement the defendant denied this contract and alleged that in 1953 there was only an enhancement of rent. The first two courts found that in 1953 there was no new contract of tenancy, that there was only an increase of rent and that the other terms and conditions of the tenancy remained unaltered. This finding was not vitiated by any error of law.As to the second question the defendant denied that he sub-let the two shops. The Courts below concurrently found that this denial was false and that he sub-let the two shops to his brother-in-law Ram Gopal. There was no pleading nor any issue that the sub-letting of the two shops was made with the permission of the landlord. It was not the case of the defendant at any stage of the trial that he had obtained the permission of the landlord for sub-letting the two shops. In the absence of any pleading and any issue on this point the first two courts were in error in holding that the two shops were sub-let with the permission of the landlord. The permission of the landlord for the sub-letting is not established from the mere fact that the landlord realised rent after the subletting in the absence of proof that the landlord had then clear knowledge of the sub-lease.7. The date of the sub-letting of the two shops is not mentioned in the plaint. In the absence of any pleading and any issue on this question the High Court was in error in recording the finding that the two shops were sub-let towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force. We can only say that the sub-letting was sometime after 1945.The argument that Section 13 (1) (e) takes away vested rights and should not be given a retrospective effect is based on fallacious assumptions. Apart from the Rent Act the landlord is entitled to eject the tenant on the expiry of the period mentioned in the notice to quit. Section 13 (1) protects the tenant from eviction except in certain specified cases. If one of the grounds of ejectment is made out the tenant does not qualify for protection from eviction. We find no reason for presuming that Section 13 (1) (e) is not intended to apply to sub-lettings before the Act came intothe "tenant" has sub-let the premises without the permission of the landlord either before or after the coming into force of the Act, he is not protected from eviction under Section 13 (1) (e), and it matters not that he had the right to sub-let the premises under Section 108 (j) of the Transfer of Property Act.12. The plaintiffs have thus established the ground of eviction under Section 13 (1) (e) with regard to the two shops on the northern side of the staircase of the temple. With regard to the four other shops the Courts below concurrently found that they were sub-let with the permission of the landlord. In our opinion, the plaintiffs are entitled to a decree for ejectment of the defandant from the two shops and the claim for eviction from the other four shops should be dismissed.
|
Sadanand Puthran Vs. United India Insurance Company Limited | Oral Judgment: (Anoop V. Mohta, J.)1. The petitioner who is aged 73 years has filed present petition on 19th December 2013, thereby praying to grant him benefit of pension under the General Insurance (Employees Pension) Scheme, 1995 (for short "1995 Scheme") from the date of his retirement from service on 1st December 1993 with 12% interest. The respondent has filed reply and opposed the averments as well as prayers by making reference to the provisions then existing Scheme i.e. General Insurance (Termination, Superannuation and Retirement of Officers and Development Staff) Scheme, 1976 (for short "1976 Scheme").2. Parties have also filed written submissions and relied upon judgments referred to by them. Admittedly, the petitioner was appointed as a clerk with the respondent on 13th August 1960. He was ultimately promoted as Administrative Officer. He completed uninterruted service of 32 years. However, for the reasons so recorded, he tendered a resignation letter dated 1st October 2013, which reads as under:-"I would like to resign from the company due to family reasons. I would request you to treat this resignation as premature retirement to enable me to claim future benefits, if any. The notice period of three months starts from today. However, I would request you to relieve me at your earliest convenience."3. Respondents have, on 30th November 1993, accepted the resignation, with effect from 30th November 1993. The contents of the letter show that resignation was accepted and not accepted the case of the petitioner and not treated the same as "premature retirement", since, as per the 1976 scheme, no officer is permitted to seek voluntary retirement unless he completes 55 years of age. Admittedly, the petitioner had not attained age of 55 years on that date.4. There is no issue that 1995 Scheme came into force with effect from 1st November 1993 though notified on 28th June 1995. The petitioner, therefore, for the first time by communication dated 4th April 2013, made a representation to the respondents to grant him pension on the basis of the scheme and in view of the judgment of Supreme Court in Sheelkumar Jain Vs. New India Assurance Company Ltd., (2011) 12 S.C.C. 197. As there was no response, the petitioner on 19th December 2013 filed the present petition.5. The Supreme Court in the judgment (Sheelkumar Jain) (supra) dealing with the pension scheme, on facts, recorded as under:-"30. The aforesaid authorities would show that the court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory provisions, the court will have to keep in mind the purposes of the statutory provisions."6. The Apex Court, therefore, based upon the facts granted benefit of the scheme to the party who moved and represented immediately after the 1995 scheme. In the present case, the petitioner had resigned. There was no case of voluntary retirement. The respondents accepted the resignation. The submission that the petitioner was not aware of the scheme and further the respondents never communicated and/or intimated to the petitioner about his entitlement based upon the 1995 scheme and, therefore, there was no occasion for the petitioner to apply within time and/or within reasonable time, is not acceptable.7. We have also noted that the 1995 scheme itself provides that the same would be applicable to the employees who have retired on and after 1st day of November 1993 but before notified date. It is also necessary for the employees to exercise option in writing within 120 days from the notified date to become member of the fund and also require to refund the amount of provident fund (employers contribution" and the interest accrued thereon within 60 days after the expiry of the period of 120 days, as per clause (B). These two elements are also missing in the present case as the petitioner never opted in writing within the requisite period and never refunded the amount so required.8. Another factor in the matter is clause 22 of 1995 scheme, whereby it is recorded as under:-"22. Forfeiture of service:-Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the corporation or a company shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits".9. The petitioner has tendered resignation and the same was accepted. He is not entitled to the pension so claimed after more than 21 years. In our view, this ground is also sufficient to reject the case of the petitioner. | 0[ds]6. The Apex Court, therefore, based upon the facts granted benefit of the scheme to the party who moved and represented immediately after the 1995 scheme. In the present case, the petitioner had resigned. There was no case of voluntary retirement. The respondents accepted the resignation. The submission that the petitioner was not aware of the scheme and further the respondents never communicated and/or intimated to the petitioner about his entitlement based upon the 1995 scheme and, therefore, there was no occasion for the petitioner to apply within time and/or within reasonable time, is not acceptable.7. We have also noted that the 1995 scheme itself provides that the same would be applicable to the employees who have retired on and after 1st day of November 1993 but before notified date. It is also necessary for the employees to exercise option in writing within 120 days from the notified date to become member of the fund and also require to refund the amount of provident fund (employers contribution" and the interest accrued thereon within 60 days after the expiry of the period of 120 days, as per clause (B). These two elements are also missing in the present case as the petitioner never opted in writing within the requisite period and never refunded the amount so required.The petitioner has tendered resignation and the same was accepted. He is not entitled to the pension so claimed after more than 21 years. In our view, this ground is also sufficient to reject the case of the petitioner. | 0 | 886 | 281 | ### 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:
Oral Judgment: (Anoop V. Mohta, J.)1. The petitioner who is aged 73 years has filed present petition on 19th December 2013, thereby praying to grant him benefit of pension under the General Insurance (Employees Pension) Scheme, 1995 (for short "1995 Scheme") from the date of his retirement from service on 1st December 1993 with 12% interest. The respondent has filed reply and opposed the averments as well as prayers by making reference to the provisions then existing Scheme i.e. General Insurance (Termination, Superannuation and Retirement of Officers and Development Staff) Scheme, 1976 (for short "1976 Scheme").2. Parties have also filed written submissions and relied upon judgments referred to by them. Admittedly, the petitioner was appointed as a clerk with the respondent on 13th August 1960. He was ultimately promoted as Administrative Officer. He completed uninterruted service of 32 years. However, for the reasons so recorded, he tendered a resignation letter dated 1st October 2013, which reads as under:-"I would like to resign from the company due to family reasons. I would request you to treat this resignation as premature retirement to enable me to claim future benefits, if any. The notice period of three months starts from today. However, I would request you to relieve me at your earliest convenience."3. Respondents have, on 30th November 1993, accepted the resignation, with effect from 30th November 1993. The contents of the letter show that resignation was accepted and not accepted the case of the petitioner and not treated the same as "premature retirement", since, as per the 1976 scheme, no officer is permitted to seek voluntary retirement unless he completes 55 years of age. Admittedly, the petitioner had not attained age of 55 years on that date.4. There is no issue that 1995 Scheme came into force with effect from 1st November 1993 though notified on 28th June 1995. The petitioner, therefore, for the first time by communication dated 4th April 2013, made a representation to the respondents to grant him pension on the basis of the scheme and in view of the judgment of Supreme Court in Sheelkumar Jain Vs. New India Assurance Company Ltd., (2011) 12 S.C.C. 197. As there was no response, the petitioner on 19th December 2013 filed the present petition.5. The Supreme Court in the judgment (Sheelkumar Jain) (supra) dealing with the pension scheme, on facts, recorded as under:-"30. The aforesaid authorities would show that the court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory provisions, the court will have to keep in mind the purposes of the statutory provisions."6. The Apex Court, therefore, based upon the facts granted benefit of the scheme to the party who moved and represented immediately after the 1995 scheme. In the present case, the petitioner had resigned. There was no case of voluntary retirement. The respondents accepted the resignation. The submission that the petitioner was not aware of the scheme and further the respondents never communicated and/or intimated to the petitioner about his entitlement based upon the 1995 scheme and, therefore, there was no occasion for the petitioner to apply within time and/or within reasonable time, is not acceptable.7. We have also noted that the 1995 scheme itself provides that the same would be applicable to the employees who have retired on and after 1st day of November 1993 but before notified date. It is also necessary for the employees to exercise option in writing within 120 days from the notified date to become member of the fund and also require to refund the amount of provident fund (employers contribution" and the interest accrued thereon within 60 days after the expiry of the period of 120 days, as per clause (B). These two elements are also missing in the present case as the petitioner never opted in writing within the requisite period and never refunded the amount so required.8. Another factor in the matter is clause 22 of 1995 scheme, whereby it is recorded as under:-"22. Forfeiture of service:-Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the corporation or a company shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits".9. The petitioner has tendered resignation and the same was accepted. He is not entitled to the pension so claimed after more than 21 years. In our view, this ground is also sufficient to reject the case of the petitioner.
### Response:
0
### Explanation:
6. The Apex Court, therefore, based upon the facts granted benefit of the scheme to the party who moved and represented immediately after the 1995 scheme. In the present case, the petitioner had resigned. There was no case of voluntary retirement. The respondents accepted the resignation. The submission that the petitioner was not aware of the scheme and further the respondents never communicated and/or intimated to the petitioner about his entitlement based upon the 1995 scheme and, therefore, there was no occasion for the petitioner to apply within time and/or within reasonable time, is not acceptable.7. We have also noted that the 1995 scheme itself provides that the same would be applicable to the employees who have retired on and after 1st day of November 1993 but before notified date. It is also necessary for the employees to exercise option in writing within 120 days from the notified date to become member of the fund and also require to refund the amount of provident fund (employers contribution" and the interest accrued thereon within 60 days after the expiry of the period of 120 days, as per clause (B). These two elements are also missing in the present case as the petitioner never opted in writing within the requisite period and never refunded the amount so required.The petitioner has tendered resignation and the same was accepted. He is not entitled to the pension so claimed after more than 21 years. In our view, this ground is also sufficient to reject the case of the petitioner.
|
United India Insurance Company Ltd Vs. Kantika Colour Lab | to undertake such repair work on account of the high cost involved in the same especially when the repair may not exclude the possibility of any future complications arising in the working of the machines. The witness also referred to manufacturers letter dated 7th January, 1999 informing the insured about the price of Noritsu QSS-1923 Printer Process and QSF-V50 Film Processor after deducting the value of the optional accessories. According to the witness the price of Printer Process QSS-1923 works out to Singapore $ 62,100. The witness asserted that M/s Satyam Equipment Services Ltd. were appointed as authorized sales representatives during early 1996 but since their services were not found to be satisfactory the agreement between the parties was terminated. He has further stated that respondent no.2- company had not trained any engineer to repair the Printer Process QSS-1923. 17. Not much has been extracted from the witness in cross-examination who has stuck to his version that the machine is not at all repairable, and that the cost of getting the machine repaired in Japan would be much more than the cost of a new machine.18. Two aspects stand out from the above evidence. Firstly, it is clear that the damage has been caused only to the printer model QSS-1923 and not to the film processor QSF-V50 which was found to be in working condition and about which there was only an apprehension and no more that its working may run into difficulty in future. We, however, see no real basis for such an apprehension. In any case in the absence of proved damage affecting the performance of the machine, it is difficult to assume that the film processor was also damaged either wholly or in part so as to call any repair or replacement of the said machine.19. Contracts of Insurance are generally in the nature of contracts of indemnity. Except in the case of contracts of Life Insurance, personal accident and sickness or contracts of contingency insurance, all other contracts of insurance entitle the assured for the reimbursement of actual loss that is proved to have been suffered by him. The happening of the event against which insurance cover has been taken does not by itself entitle the assured to claim the amount stipulated in the policy. It is only upon proof of the actual loss, that the assured can claim reimbursement of the loss to the extent it is established, not exceeding the amount stipulated in the contract of Insurance which signifies the outer limit of the insurance companys liability. The amount mentioned in the policy does not signify that the insurance company guarantees payment of the said amount regardless of the actual loss suffered by the insured. The law on the subject in this country is no different from that prevalent in England; which has been summed up in Halsburys Laws of England - 4th Edition in the following words: "The happening of the event does not of itself entitle the assured to payment of the sum stipulated in the policy; the event must, in fact, result in a pecuniary loss to the assured, who then becomes entitled to be indemnified subject to the limitations of his contract. He cannot recover more than the sum insured for that sum is all that he has stipulated for by his premiums and it fixes the maximum liability of the insurers. Even with in that limit, however, he cannot recover more than what he establishes to be the actual amount of his loss. The contract being one of indemnity only, he can recover the actual amount of his loss and no more, whatever may have been his estimate of what his loss would be likely to be, and whatever the premiums he may have paid, calculated on the basis of that estimate." 20. The other aspect that is established is that printer model QSS-1923 has been extensively damaged and the manufacturing company has no arrangement in this country for carrying out the repairs to the damaged machine. The Insurance Companys version that M/s Satyam Equipment Services Ltd. undertakes the repairs does not appear to us to be acceptable specially when the manufacturing companys authorized representatives has in no uncertain terms denied the competence of the M/s Satyam Equipment Services Ltd. to undertake any such repairs. Such being the position, the National Commission was, in our opinion, justified in holding that the printer processor model QSS-1923 being extensively damaged requires complete replacement.21. The question, however, is as to what is the cost of such replacement. Shri Taposh Dev, has referred to letter dated 7th January 1999 addressed by the manufacturing company to the insured M/s Kantiak Colour Lab and stated that the price of a brand new printer processor model QSS-1923, works out to Singapore $62100. We see no reason why the said amount can not be awarded to the insured by way of compensation for the damage caused to the machine. Besides the cost of the machines the insured would also be entitled to the customs duty component paid on the import of the said machine. From the Surveyors report submitted by Mr. P.M. Patel and Co. it is evident that the invoice value of the goods comprising the printer processor and the film processor was Singapore $ 104000 with an assessable value of Rs.27,36,292/-. A sum of Rs.21,32,776/- was on that value paid towards customs duty on the import of the said equipment. The duty payable on a machine valuing Singapore $ 62100 would, therefore, come to Rs.21,32,776X62100/104000=Rs.12,73,513.36.22. To sum up the total amount payable to the insured by way of compensation for the damage caused to the machine in question would work out to rupees equivalent of Singapore $ 62100 at the exchange rate prevalent as on the date of this judgment plus a custom duty component of Rs.12,73,513.36 rounded off to Rs.12,74,000/-. The sum total of the two figures would be payable with interest @ 10% p.a. for the period mentioned in the National Commissions order. | 1[ds]16. We may at this stage refer to the deposition of Shri Taposh Dev, Senior Sales and Service Engineer of respondent no.2 the manufacturer of the machines in question. In the affidavit filed by the said witness it is, inter alia, stated that a thorough visual inspection of the machines in question was made by the engineers of respondent no.2 company and a report based on the said inspection submitted on 21st December, 1998. The witness on the basis of the said inspection report stated that Noritsuprinter process was subjected to a strong impact from the sides during transit from Mumbai to Hardwar resulting in severe damage, especially to the Paper Processor & Dryer Section thereof. The mechanical alignment and the optical accessories also had been badly affected. The witness also stated that it was not economical to undertake such repair work on account of the high cost involved in the same especially when the repair may not exclude the possibility of any future complications arising in the working of the machines. The witness also referred to manufacturers letter dated 7th January, 1999 informing the insured about the price of NoritsuPrinter Process andFilm Processor after deducting the value of the optional accessories. According to the witness the price of Printer Processworks out to Singapore $ 62,100. The witness asserted that M/s Satyam Equipment Services Ltd. were appointed as authorized sales representatives during early 1996 but since their services were not found to be satisfactory the agreement between the parties was terminated. He has further stated that respondent no.2Not much has been extracted from the witness inwho has stuck to his version that the machine is not at all repairable, and that the cost of getting the machine repaired in Japan would be much more than the cost of a new machine.18. Two aspects stand out from the above evidence. Firstly, it is clear that the damage has been caused only to the printer modeland not to the film processorwhich was found to be in working condition and about which there was only an apprehension and no more that its working may run into difficulty in future. We, however, see no real basis for such an apprehension. In any case in the absence of proved damage affecting the performance of the machine, it is difficult to assume that the film processor was also damaged either wholly or in part so as to call any repair or replacement of the said machine.19. Contracts of Insurance are generally in the nature of contracts of indemnity. Except in the case of contracts of Life Insurance, personal accident and sickness or contracts of contingency insurance, all other contracts of insurance entitle the assured for the reimbursement of actual loss that is proved to have been suffered by him. The happening of the event against which insurance cover has been taken does not by itself entitle the assured to claim the amount stipulated in the policy. It is only upon proof of the actual loss, that the assured can claim reimbursement of the loss to the extent it is established, not exceeding the amount stipulated in the contract of Insurance which signifies the outer limit of the insurance companys liability. The amount mentioned in the policy does not signify that the insurance company guarantees payment of the said amount regardless of the actual loss suffered by the insured.The other aspect that is established is that printer modelhas been extensively damaged and the manufacturing company has no arrangement in this country for carrying out the repairs to the damaged machine. The Insurance Companys version that M/s Satyam Equipment Services Ltd. undertakes the repairs does not appear to us to be acceptable specially when the manufacturing companys authorized representatives has in no uncertain terms denied the competence of the M/s Satyam Equipment Services Ltd. to undertake any such repairs. Such being the position, the National Commission was, in our opinion, justified in holding that the printer processor modelbeing extensively damaged requires complete replacement.21. The question, however, is as to what is the cost of such replacement. Shri Taposh Dev, has referred to letter dated 7th January 1999 addressed by the manufacturing company to the insured M/s Kantiak Colour Lab and stated that the price of a brand new printer processor modelworks out to Singapore $62100. We see no reason why the said amount can not be awarded to the insured by way of compensation for the damage caused to the machine. Besides the cost of the machines the insured would also be entitled to the customs duty component paid on the import of the said machine. From the Surveyors report submitted by Mr. P.M. Patel and Co. it is evident that the invoice value of the goods comprising the printer processor and the film processor was Singapore $ 104000 with an assessable value of Rs.A sum of Rs.21,32,776/was on that value paid towards customs duty on the import of the said equipment. The duty payable on a machine valuing Singapore $ 62100 would, therefore, come to Rs.21,32,776X62100/104000=Rs.12,73,513.36.22. To sum up the total amount payable to the insured by way of compensation for the damage caused to the machine in question would work out to rupees equivalent of Singapore $ 62100 at the exchange rate prevalent as on the date of this judgment plus a custom duty component of Rs.12,73,513.36 rounded off to Rs.The sum total of the two figures would be payable with interest @ 10% p.a. for the period mentioned in the National Commissions order. | 1 | 3,019 | 977 | ### 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 undertake such repair work on account of the high cost involved in the same especially when the repair may not exclude the possibility of any future complications arising in the working of the machines. The witness also referred to manufacturers letter dated 7th January, 1999 informing the insured about the price of Noritsu QSS-1923 Printer Process and QSF-V50 Film Processor after deducting the value of the optional accessories. According to the witness the price of Printer Process QSS-1923 works out to Singapore $ 62,100. The witness asserted that M/s Satyam Equipment Services Ltd. were appointed as authorized sales representatives during early 1996 but since their services were not found to be satisfactory the agreement between the parties was terminated. He has further stated that respondent no.2- company had not trained any engineer to repair the Printer Process QSS-1923. 17. Not much has been extracted from the witness in cross-examination who has stuck to his version that the machine is not at all repairable, and that the cost of getting the machine repaired in Japan would be much more than the cost of a new machine.18. Two aspects stand out from the above evidence. Firstly, it is clear that the damage has been caused only to the printer model QSS-1923 and not to the film processor QSF-V50 which was found to be in working condition and about which there was only an apprehension and no more that its working may run into difficulty in future. We, however, see no real basis for such an apprehension. In any case in the absence of proved damage affecting the performance of the machine, it is difficult to assume that the film processor was also damaged either wholly or in part so as to call any repair or replacement of the said machine.19. Contracts of Insurance are generally in the nature of contracts of indemnity. Except in the case of contracts of Life Insurance, personal accident and sickness or contracts of contingency insurance, all other contracts of insurance entitle the assured for the reimbursement of actual loss that is proved to have been suffered by him. The happening of the event against which insurance cover has been taken does not by itself entitle the assured to claim the amount stipulated in the policy. It is only upon proof of the actual loss, that the assured can claim reimbursement of the loss to the extent it is established, not exceeding the amount stipulated in the contract of Insurance which signifies the outer limit of the insurance companys liability. The amount mentioned in the policy does not signify that the insurance company guarantees payment of the said amount regardless of the actual loss suffered by the insured. The law on the subject in this country is no different from that prevalent in England; which has been summed up in Halsburys Laws of England - 4th Edition in the following words: "The happening of the event does not of itself entitle the assured to payment of the sum stipulated in the policy; the event must, in fact, result in a pecuniary loss to the assured, who then becomes entitled to be indemnified subject to the limitations of his contract. He cannot recover more than the sum insured for that sum is all that he has stipulated for by his premiums and it fixes the maximum liability of the insurers. Even with in that limit, however, he cannot recover more than what he establishes to be the actual amount of his loss. The contract being one of indemnity only, he can recover the actual amount of his loss and no more, whatever may have been his estimate of what his loss would be likely to be, and whatever the premiums he may have paid, calculated on the basis of that estimate." 20. The other aspect that is established is that printer model QSS-1923 has been extensively damaged and the manufacturing company has no arrangement in this country for carrying out the repairs to the damaged machine. The Insurance Companys version that M/s Satyam Equipment Services Ltd. undertakes the repairs does not appear to us to be acceptable specially when the manufacturing companys authorized representatives has in no uncertain terms denied the competence of the M/s Satyam Equipment Services Ltd. to undertake any such repairs. Such being the position, the National Commission was, in our opinion, justified in holding that the printer processor model QSS-1923 being extensively damaged requires complete replacement.21. The question, however, is as to what is the cost of such replacement. Shri Taposh Dev, has referred to letter dated 7th January 1999 addressed by the manufacturing company to the insured M/s Kantiak Colour Lab and stated that the price of a brand new printer processor model QSS-1923, works out to Singapore $62100. We see no reason why the said amount can not be awarded to the insured by way of compensation for the damage caused to the machine. Besides the cost of the machines the insured would also be entitled to the customs duty component paid on the import of the said machine. From the Surveyors report submitted by Mr. P.M. Patel and Co. it is evident that the invoice value of the goods comprising the printer processor and the film processor was Singapore $ 104000 with an assessable value of Rs.27,36,292/-. A sum of Rs.21,32,776/- was on that value paid towards customs duty on the import of the said equipment. The duty payable on a machine valuing Singapore $ 62100 would, therefore, come to Rs.21,32,776X62100/104000=Rs.12,73,513.36.22. To sum up the total amount payable to the insured by way of compensation for the damage caused to the machine in question would work out to rupees equivalent of Singapore $ 62100 at the exchange rate prevalent as on the date of this judgment plus a custom duty component of Rs.12,73,513.36 rounded off to Rs.12,74,000/-. The sum total of the two figures would be payable with interest @ 10% p.a. for the period mentioned in the National Commissions order.
### Response:
1
### Explanation:
16. We may at this stage refer to the deposition of Shri Taposh Dev, Senior Sales and Service Engineer of respondent no.2 the manufacturer of the machines in question. In the affidavit filed by the said witness it is, inter alia, stated that a thorough visual inspection of the machines in question was made by the engineers of respondent no.2 company and a report based on the said inspection submitted on 21st December, 1998. The witness on the basis of the said inspection report stated that Noritsuprinter process was subjected to a strong impact from the sides during transit from Mumbai to Hardwar resulting in severe damage, especially to the Paper Processor & Dryer Section thereof. The mechanical alignment and the optical accessories also had been badly affected. The witness also stated that it was not economical to undertake such repair work on account of the high cost involved in the same especially when the repair may not exclude the possibility of any future complications arising in the working of the machines. The witness also referred to manufacturers letter dated 7th January, 1999 informing the insured about the price of NoritsuPrinter Process andFilm Processor after deducting the value of the optional accessories. According to the witness the price of Printer Processworks out to Singapore $ 62,100. The witness asserted that M/s Satyam Equipment Services Ltd. were appointed as authorized sales representatives during early 1996 but since their services were not found to be satisfactory the agreement between the parties was terminated. He has further stated that respondent no.2Not much has been extracted from the witness inwho has stuck to his version that the machine is not at all repairable, and that the cost of getting the machine repaired in Japan would be much more than the cost of a new machine.18. Two aspects stand out from the above evidence. Firstly, it is clear that the damage has been caused only to the printer modeland not to the film processorwhich was found to be in working condition and about which there was only an apprehension and no more that its working may run into difficulty in future. We, however, see no real basis for such an apprehension. In any case in the absence of proved damage affecting the performance of the machine, it is difficult to assume that the film processor was also damaged either wholly or in part so as to call any repair or replacement of the said machine.19. Contracts of Insurance are generally in the nature of contracts of indemnity. Except in the case of contracts of Life Insurance, personal accident and sickness or contracts of contingency insurance, all other contracts of insurance entitle the assured for the reimbursement of actual loss that is proved to have been suffered by him. The happening of the event against which insurance cover has been taken does not by itself entitle the assured to claim the amount stipulated in the policy. It is only upon proof of the actual loss, that the assured can claim reimbursement of the loss to the extent it is established, not exceeding the amount stipulated in the contract of Insurance which signifies the outer limit of the insurance companys liability. The amount mentioned in the policy does not signify that the insurance company guarantees payment of the said amount regardless of the actual loss suffered by the insured.The other aspect that is established is that printer modelhas been extensively damaged and the manufacturing company has no arrangement in this country for carrying out the repairs to the damaged machine. The Insurance Companys version that M/s Satyam Equipment Services Ltd. undertakes the repairs does not appear to us to be acceptable specially when the manufacturing companys authorized representatives has in no uncertain terms denied the competence of the M/s Satyam Equipment Services Ltd. to undertake any such repairs. Such being the position, the National Commission was, in our opinion, justified in holding that the printer processor modelbeing extensively damaged requires complete replacement.21. The question, however, is as to what is the cost of such replacement. Shri Taposh Dev, has referred to letter dated 7th January 1999 addressed by the manufacturing company to the insured M/s Kantiak Colour Lab and stated that the price of a brand new printer processor modelworks out to Singapore $62100. We see no reason why the said amount can not be awarded to the insured by way of compensation for the damage caused to the machine. Besides the cost of the machines the insured would also be entitled to the customs duty component paid on the import of the said machine. From the Surveyors report submitted by Mr. P.M. Patel and Co. it is evident that the invoice value of the goods comprising the printer processor and the film processor was Singapore $ 104000 with an assessable value of Rs.A sum of Rs.21,32,776/was on that value paid towards customs duty on the import of the said equipment. The duty payable on a machine valuing Singapore $ 62100 would, therefore, come to Rs.21,32,776X62100/104000=Rs.12,73,513.36.22. To sum up the total amount payable to the insured by way of compensation for the damage caused to the machine in question would work out to rupees equivalent of Singapore $ 62100 at the exchange rate prevalent as on the date of this judgment plus a custom duty component of Rs.12,73,513.36 rounded off to Rs.The sum total of the two figures would be payable with interest @ 10% p.a. for the period mentioned in the National Commissions order.
|
J. K. Cotton Spinning and Weaving Mills Company Limited Vs. State of Uttar Pradesh and Others | 2(oo). In Hindustan Steel Ltd. ((1976) 4 SCC 222 ) the termination of service was by efflux of time. Placing reliance on the law laid down in Sundara Money case ((1976) 1 SCC 822 ) and the proviso to Section 25-F(a), this Court held that the termination of service was by way of retrenchment. In the case of Delhi Cloth Mills ((1977) 4 SCC 415 ) the employees name was taken as automatically removed from the rolls of the company under the Standing Order for continued absence without prior intimation. The striking off the name was clearly an act of the employer resulting in termination of service amounting to retrenchment. Santosh Gupta ((1980) 3 SCC 340 ) was a case of termination of service on account of her failure to pass the prescribed test. That was the reason for terminating her service. All the same it was the employers action which resulted in the termination of her service attracting Section 2(oo). In the case of Robert DSouza ((1982) 1 SCC 645 ) the termination was founded on the ground of unauthorised absence from duty which clearly was an act of the employer. In all the above cases on which the High Court placed reliance, no question of termination of service on the employee voluntarily tendering his resignation arose for consideration. These cases are, therefore, not helpful since they turn on their own special facts. None of them deals with a case of voluntary resignation tendered by an employee. 10. We may now examine the question from another angle, namely, whether an employee whose resignation has been accepted by the employer falls within the first exclusion clause to the definition of the term retrenchment. There can be no doubt that a resignation must be voluntarily tendered for if it is tendered on account of duress or coercion, it ceases it be a voluntary act of the employee expressing a desire to quit service. In the present case the High Court has come to the conclusion that the employee had tendered his resignation voluntarily. Does termination of service brought about by the acceptance of resignation fall within the expression voluntary retirement ? The meaning of the terms resign and retire in different dictionaries is as under: Blacks Law Dictionary Formal renouncement To terminate (5th edn.) or relinquishment of employment or an office service upon reaching retirement age Shorter Oxford English To relinquish, surr- The act of Dictionary ender, give up or retiring or (Revised edn. of 1973) hand over (something); withdrawing esp., an office, posit- to or from ion, right, claim, etc. a place or To give up an office or position position; to retire The Random House To give up an office, To withdraw Dictionary (College edn.) position etc.; to from office relinquish (right claim, business or agreement etc.) active life 11. From the aforesaid dictionary meanings it becomes clear that when an employee resigns his office, he formally relinquishes or withdraws from his office. It implies that he has taken a mental decision to serve his relationship with his employer and thereby put an end to the contract of service. As pointed out earlier just as an employer can terminate the services of his employee under the contract, so also an employee can inform his employer that he does not desire to serve him any more. Albeit, the employee would have to give notice of his intention to snap the existing relationship to enable the employer to make alternative arrangements so that his work does not suffer. The period of notice will depend on the period prescribed by the terms of employment and if no such period is prescribed, a reasonable time must be given before the relationship is determined. If an employee is not permitted by the terms of his contract to determine the relationship of master and servant, such an employment may be branded as bonded labour. That is why in Central Inland Water Transport Corporation v. Brojo Nath Ganguly ((1986) 3 SCC 156 , 228) this Court observed as under : (SCC p. 228, para 111) "By entering into a contract of employment a person does not sign a bond of slavery and a permanent employee cannot be deprived of his right to resign. A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective" 12. In the present case the employees request contained in the letter of resignation was accepted by the employer and that brought an end to the contract of service. The meaning of term resign as found in the Shorter Oxford Dictionary includes retirement. Therefore, when an employee voluntarily tenders tenders his resignation it is an act by which he voluntarily gives up his job. We are, therefore, of the opinion that such a situation would be covered by the expression voluntary retirement within the meaning of clause (i) of Section 2(s) of the State Act. In Santosh Gupta case ((1980) 3 SCC 340 ) Chinnappa Reddy, J. observed as under : (SCC p. 342, para 5) "Voluntary retrenchment of a workman or the retrenchment of the workman on reaching the age of superannuation can hardly be described as termination, by the employer, of the service of a workman" (Here the word retrenchment has reference to retirement.) The above observation clearly supports the view which commends itself to us. We are, therefore, of the opinion that the High Court was not right in concluding that because the employer accepted the resignation offer voluntarily made by the employee, he terminated the service of the employee and such termination, therefore, fell within the expression retrenchment rendering him liable to compensate the employee under Section 6-N. We are also of the view that this was a case of voluntary retirement within the meaning of the first exception to Section 2(s) and therefore the question of grant of compensation under Section 6-N does not arise. We, therefore, cannot allow the view of the High Court to stand. 13. | 1[ds]It becomes clear on a plain reading of the definition of the term retrenchment that it comprises of two part; the first part is the inclusive part which defines retrenchment whereas the second part is in the nature of an exception and excludes two types of cases from the scope and ambit of the saidthis correspondence it is crystal clear that the employee desired to serve his relations with the appellant company on account of his family circumstances. But for this request made by the employee there was no reason for the appellant-company to terminate the contract of service on its own. Just as an employer has a right to terminate the service of an employee, an employee too has a right to put an end to the contract of employment by informing his employer of his intention to give up the job. This right is specifically conferred by clause 21 of the Standing Orders certified under Section 5 of the Industrial Employment (Standing Orders) Act,would be unfair to saddle the employer with the liability to pay compensation even where the service is terminated on the specific request of the employee. Such an intention cannot be attributed to the legislature. We are, therefore, of the opinion that where a contract of service is determined on the employee exercising his right to quit, such termination cannot be said to be at the instance of the employer to fall within the first part of the definition of retrenchment in Section 2(s) of the Statecases are, therefore, not helpful since they turn on their own special facts. None of them deals with a case of voluntary resignation tendered by ancan be no doubt that a resignation must be voluntarily tendered for if it is tendered on account of duress or coercion, it ceases it be a voluntary act of the employee expressing a desire to quit service. In the present case the High Court has come to the conclusion that the employee had tendered his resignation voluntarily.From the aforesaid dictionary meanings it becomes clear that when an employee resigns his office, he formally relinquishes or withdraws from his office. It implies that he has taken a mental decision to serve his relationship with his employer and thereby put an end to the contract of service. As pointed out earlier just as an employer can terminate the services of his employee under the contract, so also an employee can inform his employer that he does not desire to serve him any more. Albeit, the employee would have to give notice of his intention to snap the existing relationship to enable the employer to make alternative arrangements so that his work does not suffer. The period of notice will depend on the period prescribed by the terms of employment and if no such period is prescribed, a reasonable time must be given before the relationship is determined. If an employee is not permitted by the terms of his contract to determine the relationship of master and servant, such an employment may be branded as bonded labour.In the present case the employees request contained in the letter of resignation was accepted by the employer and that brought an end to the contract of service. The meaning of term resign as found in the Shorter Oxford Dictionary includes retirement. Therefore, when an employee voluntarily tenders tenders his resignation it is an act by which he voluntarily gives up his job. We are, therefore, of the opinion that such a situation would be covered by the expression voluntary retirement within the meaning of clause (i) of Section 2(s) of the Stateabove observation clearly supports the view which commends itself to us. We are, therefore, of the opinion that the High Court was not right in concluding that because the employer accepted the resignation offer voluntarily made by the employee, he terminated the service of the employee and such termination, therefore, fell within the expression retrenchment rendering him liable to compensate the employee under Section 6-N. We are also of the view that this was a case of voluntary retirement within the meaning of the first exception to Section 2(s) and therefore the question of grant of compensation under Section 6-N does not arise. We, therefore, cannot allow the view of the High Court to stand | 1 | 4,247 | 779 | ### 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:
2(oo). In Hindustan Steel Ltd. ((1976) 4 SCC 222 ) the termination of service was by efflux of time. Placing reliance on the law laid down in Sundara Money case ((1976) 1 SCC 822 ) and the proviso to Section 25-F(a), this Court held that the termination of service was by way of retrenchment. In the case of Delhi Cloth Mills ((1977) 4 SCC 415 ) the employees name was taken as automatically removed from the rolls of the company under the Standing Order for continued absence without prior intimation. The striking off the name was clearly an act of the employer resulting in termination of service amounting to retrenchment. Santosh Gupta ((1980) 3 SCC 340 ) was a case of termination of service on account of her failure to pass the prescribed test. That was the reason for terminating her service. All the same it was the employers action which resulted in the termination of her service attracting Section 2(oo). In the case of Robert DSouza ((1982) 1 SCC 645 ) the termination was founded on the ground of unauthorised absence from duty which clearly was an act of the employer. In all the above cases on which the High Court placed reliance, no question of termination of service on the employee voluntarily tendering his resignation arose for consideration. These cases are, therefore, not helpful since they turn on their own special facts. None of them deals with a case of voluntary resignation tendered by an employee. 10. We may now examine the question from another angle, namely, whether an employee whose resignation has been accepted by the employer falls within the first exclusion clause to the definition of the term retrenchment. There can be no doubt that a resignation must be voluntarily tendered for if it is tendered on account of duress or coercion, it ceases it be a voluntary act of the employee expressing a desire to quit service. In the present case the High Court has come to the conclusion that the employee had tendered his resignation voluntarily. Does termination of service brought about by the acceptance of resignation fall within the expression voluntary retirement ? The meaning of the terms resign and retire in different dictionaries is as under: Blacks Law Dictionary Formal renouncement To terminate (5th edn.) or relinquishment of employment or an office service upon reaching retirement age Shorter Oxford English To relinquish, surr- The act of Dictionary ender, give up or retiring or (Revised edn. of 1973) hand over (something); withdrawing esp., an office, posit- to or from ion, right, claim, etc. a place or To give up an office or position position; to retire The Random House To give up an office, To withdraw Dictionary (College edn.) position etc.; to from office relinquish (right claim, business or agreement etc.) active life 11. From the aforesaid dictionary meanings it becomes clear that when an employee resigns his office, he formally relinquishes or withdraws from his office. It implies that he has taken a mental decision to serve his relationship with his employer and thereby put an end to the contract of service. As pointed out earlier just as an employer can terminate the services of his employee under the contract, so also an employee can inform his employer that he does not desire to serve him any more. Albeit, the employee would have to give notice of his intention to snap the existing relationship to enable the employer to make alternative arrangements so that his work does not suffer. The period of notice will depend on the period prescribed by the terms of employment and if no such period is prescribed, a reasonable time must be given before the relationship is determined. If an employee is not permitted by the terms of his contract to determine the relationship of master and servant, such an employment may be branded as bonded labour. That is why in Central Inland Water Transport Corporation v. Brojo Nath Ganguly ((1986) 3 SCC 156 , 228) this Court observed as under : (SCC p. 228, para 111) "By entering into a contract of employment a person does not sign a bond of slavery and a permanent employee cannot be deprived of his right to resign. A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective" 12. In the present case the employees request contained in the letter of resignation was accepted by the employer and that brought an end to the contract of service. The meaning of term resign as found in the Shorter Oxford Dictionary includes retirement. Therefore, when an employee voluntarily tenders tenders his resignation it is an act by which he voluntarily gives up his job. We are, therefore, of the opinion that such a situation would be covered by the expression voluntary retirement within the meaning of clause (i) of Section 2(s) of the State Act. In Santosh Gupta case ((1980) 3 SCC 340 ) Chinnappa Reddy, J. observed as under : (SCC p. 342, para 5) "Voluntary retrenchment of a workman or the retrenchment of the workman on reaching the age of superannuation can hardly be described as termination, by the employer, of the service of a workman" (Here the word retrenchment has reference to retirement.) The above observation clearly supports the view which commends itself to us. We are, therefore, of the opinion that the High Court was not right in concluding that because the employer accepted the resignation offer voluntarily made by the employee, he terminated the service of the employee and such termination, therefore, fell within the expression retrenchment rendering him liable to compensate the employee under Section 6-N. We are also of the view that this was a case of voluntary retirement within the meaning of the first exception to Section 2(s) and therefore the question of grant of compensation under Section 6-N does not arise. We, therefore, cannot allow the view of the High Court to stand. 13.
### Response:
1
### Explanation:
It becomes clear on a plain reading of the definition of the term retrenchment that it comprises of two part; the first part is the inclusive part which defines retrenchment whereas the second part is in the nature of an exception and excludes two types of cases from the scope and ambit of the saidthis correspondence it is crystal clear that the employee desired to serve his relations with the appellant company on account of his family circumstances. But for this request made by the employee there was no reason for the appellant-company to terminate the contract of service on its own. Just as an employer has a right to terminate the service of an employee, an employee too has a right to put an end to the contract of employment by informing his employer of his intention to give up the job. This right is specifically conferred by clause 21 of the Standing Orders certified under Section 5 of the Industrial Employment (Standing Orders) Act,would be unfair to saddle the employer with the liability to pay compensation even where the service is terminated on the specific request of the employee. Such an intention cannot be attributed to the legislature. We are, therefore, of the opinion that where a contract of service is determined on the employee exercising his right to quit, such termination cannot be said to be at the instance of the employer to fall within the first part of the definition of retrenchment in Section 2(s) of the Statecases are, therefore, not helpful since they turn on their own special facts. None of them deals with a case of voluntary resignation tendered by ancan be no doubt that a resignation must be voluntarily tendered for if it is tendered on account of duress or coercion, it ceases it be a voluntary act of the employee expressing a desire to quit service. In the present case the High Court has come to the conclusion that the employee had tendered his resignation voluntarily.From the aforesaid dictionary meanings it becomes clear that when an employee resigns his office, he formally relinquishes or withdraws from his office. It implies that he has taken a mental decision to serve his relationship with his employer and thereby put an end to the contract of service. As pointed out earlier just as an employer can terminate the services of his employee under the contract, so also an employee can inform his employer that he does not desire to serve him any more. Albeit, the employee would have to give notice of his intention to snap the existing relationship to enable the employer to make alternative arrangements so that his work does not suffer. The period of notice will depend on the period prescribed by the terms of employment and if no such period is prescribed, a reasonable time must be given before the relationship is determined. If an employee is not permitted by the terms of his contract to determine the relationship of master and servant, such an employment may be branded as bonded labour.In the present case the employees request contained in the letter of resignation was accepted by the employer and that brought an end to the contract of service. The meaning of term resign as found in the Shorter Oxford Dictionary includes retirement. Therefore, when an employee voluntarily tenders tenders his resignation it is an act by which he voluntarily gives up his job. We are, therefore, of the opinion that such a situation would be covered by the expression voluntary retirement within the meaning of clause (i) of Section 2(s) of the Stateabove observation clearly supports the view which commends itself to us. We are, therefore, of the opinion that the High Court was not right in concluding that because the employer accepted the resignation offer voluntarily made by the employee, he terminated the service of the employee and such termination, therefore, fell within the expression retrenchment rendering him liable to compensate the employee under Section 6-N. We are also of the view that this was a case of voluntary retirement within the meaning of the first exception to Section 2(s) and therefore the question of grant of compensation under Section 6-N does not arise. We, therefore, cannot allow the view of the High Court to stand
|
Sheikh Abdul Kayum Vs. Mulla Alibhai | within the properties mentioned in these clauses of the trust deed. As regards Cl. 5 of the trust deed which has been set out above and which states that "All the movable and immovable properties connected with the said school shall come to vest in the trustees," the learned Counsel states that the six settlors who executed this trust deed of September, 1909 have not been shown to have had any title to these movable and immovable properties connected with the school. The school, argues the learned Counsel, is merely a beneficiary of the trust and the properties of the school do not become trust properties entrusted to these trustees merely because the settlor have created a trust in respect of other properties. There is no question therefore of any property -- other than the properties mentioned in paragraphs 7 to 12 of the deed-having been vested in the trustees appointed by the deed, or their divesting themselves of the same. It is only in so far as the defendants 1 to 11 claim to be the trustees of the properties mentioned in Cls. 7 to 12 of this deed that they can be considered to be not validly appointed trustees. Mr. Sen submits that his clients do not claim to be trustees in respect of these properties, viz., those which are mentioned in Cls. 7 to 12 of the deed. In so far as they manage these properties an order may be made against them removing them from the management of these and they may be asked to render accounts in respect of these properties only. In respect of other properties, which according to Mr. Sen are the properties belonging to the beneficiary school, however, no order could properly be made, as they are outside the Burhanpur trust that came into existence by the trust deed of September, 1909.23. The argument appears attractive at first sight and even plausible. Unfortunately, however, for the respondents, this case which their Counsel now seeks to make was never their case in the Courts below. Far from saying that some of the properties mentioned in the plaint as trust properties of the Burhanpur trust are not in fact covered by the trust deed, these respondents have all along made the definite case that they were validly appointed trustees of those properties in accordance with the trust deed of September 1909. Their case in this matter may best be described in the words used in Para 4 of the written statement thus :"It is admitted that on or about 19th March, 17, seven persons signed a Memorandum of 4ssociation and registered themselves as members of the Society under Act XXI of 1860. Defendant says that se; these persons were the trustees and in the management of the trust properties under trust deed dated 15-9-1909 and were either appointed under that trust or under the rules framed thereunder, and in whom the properties of the institution vested and the same continued to be vested after the registration of the Society."24. This paragraph unambiguously accepts the plaintiff’s case that all the properties specified in the Schedule M attached to the plaint are properties covered by the trust in question and it pleads that defendants 2 to 11 are validly appointed trustees of the said trust. The Judgment of the Trial Court and the High Court also clearly show that before them, these defendants claimed to be trustees-- validly appointed in accordance with the trust of September, 1909 -- of all the properties that were mentioned as trust properties of that deed in the plaint. Nothing appears to have been pleaded either in the written statement or at the trial or during the arguments that the settlers, of this deed of September, 1909 could not create a trust in respect of "all the movable and immovable properties connected with the said school ", as those properties did not belong to them. On the contrary, the respondents claimed all along to have become trustees in respect of not only of the properties mentioned in Cls. 7 to 12 of the deed but also of all other properties of the school on the strength of this very trust deed. Mr. Sens contention that some items of the properties mentioned in the plaint as trust properties covered by the trust deed of September 15, 1909 were not so covered cannot therefore be accepted.25. We find it established therefore that defendants 1 to 11 were not validly appointed trustees in respect of the trust properties mentioned in the plaint. Their possession and management of these properties must therefore be held to be only in the character of trustee de son tort. They are liable therefore to account for their ensue period of management.26. From the very fact that they have no legal right to remain in possession of the trust properties, not having been validly appointed as trustees, it is equally dear that the plaintiffs are entitled to a decree that these defendants 1 to 11 be removed from the management of the properties.27. The learned Solicitor-General challenged the correctness of the findings of the courts below that these defendants (defendants 1 to11) did not by their misapplication or trust funds to the extent of Rs. 15,596-5-8 and Rs.900 commit misappropriation and also that the admission of students who did not belong to the Daudi Bohra Community was not inconsistent with the object of the trust. We think it unnecessary however to consider these matters in as much as even if these findings of the courts below are correct the plaintiffs are entitled to the reliefs they have asked for in this suit. Besides the amount of Rs. 15,000 and odd has been already paid by defendants 2 to 11 under the decree of the Trial Court. It is unnecessary to mention the fact that an assurance was given to us by the learned Solicitor-General that in any case the interests of the non-Bohra students will be safeguarded in this school. | 1[ds]16.There cannot, in our opinion, be any doubt about the correctness of the legal position that trustees cannot transfer their duties, functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries. A person who is appointed a trustee is not bound to accept the trust; but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself. Nor can a trustee delegate his office or any of his functions except in some specified cases. The rules against renunciation of the trust by a trustee and against delegation of his functions by a trustee are embodied, in respect of trusts to which the Indian Trusts Act applies, in Ss. 46 and 47 of that Act.It is true that S. 1 of the Indian Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments; and so, these sections may not in terms apply to the trust now in question. These sections however embody nothing more or less than the principles which have been applied to all trusts in all countries. The principle of the rule against delegation with which we are concerned in the present case, is clear : a fiduciary relationship having been created, it is against the interests of society in general that such relationship should be allowed to be terminated unilaterally. That is why the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart from delegation "in the regular course of business" that is, all such functions which a prudent man of business would ordinarily delegate in connect ion with his own affairs.18. What we have got in the present case is not delegation of some functions only, but delegation of all functions and of all powers and is nothing short of abdication in favour of a new body of men. Necessarily there is also the attempt by the old trustees to divest themselves of all properties vested in them by the settlor and vesting them in another body of persons. We know of no principle of law and of no authority which permits such abdication of trust in favour of another body or persons.19. In the deed itself there is nothing which contemplates or allows such an abdication and the substitution of the old trustees by a new body of trustees. It is necessary in this connection to consider the terms of Cl. 5 of the trust deed.The provision for the appointment of new trustees cannot by any stretch of imagination be held to mean the substitution of the old body of trustees by a new body. That provision only permits the old trustees to add to their number. Nor does the power to frame rules and regulations for the benefit and efficient running of the school authorise the trustees to give up the management of the school themselves or to divest themselves of the properties entrusted to them by the trust deed and vest them in other persons. We are satisfied therefore that Cl. 5 of the trust deed not in any manner authorise the trustees appointed by the deed to abdicate in favour of another body of persons or to constitute that body as trustees in their own place.21. There is no question here also of the beneficiary, i.e., the school consenting to such abdication. There is therefore no escape from the conclusion that the act of the trustees, who were appointed by the trust deed, in handing over the management of the school of the Hakimia Society and the properties of the school to the members of the governing body of the Hakimia Society was illegal and void in law. The members of the Society or the members of the governing body did not therefore become trustees in respect of the properties which are covered by the Burhanpurhowever, for the respondents, this case which their Counsel now seeks to make was never their case in the Courts below. Far from saying that some of the properties mentioned in the plaint as trust properties of the Burhanpur trust are not in fact covered by the trust deed, these respondents have all along made the definite case that they were validly appointed trustees of those properties in accordance with the trust deed of September 1909.This paragraph unambiguously accepts thecase that all the properties specified in the Schedule M attached to the plaint are properties covered by the trust in question and it pleads that defendants 2 to 11 are validly appointed trustees of the said trust. The Judgment of the Trial Court and the High Court also clearly show that before them, these defendants claimed to be trustees-- validly appointed in accordance with the trust of September, 1909 -- of all the properties that were mentioned as trust properties of that deed in the plaint. Nothing appears to have been pleaded either in the written statement or at the trial or during the arguments that the settlers, of this deed of September, 1909 could not create a trust in respect of "all the movable and immovable properties connected with the said school ", as those properties did not belong to them. On the contrary, the respondents claimed all along to have become trustees in respect of not only of the properties mentioned in Cls. 7 to 12 of the deed but also of all other properties of the school on the strength of this very trust deed. Mr. Sens contention that some items of the properties mentioned in the plaint as trust properties covered by the trust deed of September 15, 1909 were not so covered cannot therefore be accepted.25. We find it established therefore that defendants 1 to 11 were not validly appointed trustees in respect of the trust properties mentioned in the plaint. Their possession and management of these properties must therefore be held to be only in the character of trustee de son tort. They are liable therefore to account for their ensue period of management.26. From the very fact that they have no legal right to remain in possession of the trust properties, not having been validly appointed as trustees, it is equally dear that the plaintiffs are entitled to a decree that these defendants 1 to 11 be removed from the management of thethink it unnecessary however to consider these matters in as much as even if these findings of the courts below are correct the plaintiffs are entitled to the reliefs they have asked for in this suit. Besides the amount of Rs. 15,000 and odd has been already paid by defendants 2 to 11 under the decree of the Trial Court. It is unnecessary to mention the fact that an assurance was given to us by the learned Solicitor-General that in any case the interests of the non-Bohra students will be safeguarded in this school. | 1 | 5,565 | 1,282 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
within the properties mentioned in these clauses of the trust deed. As regards Cl. 5 of the trust deed which has been set out above and which states that "All the movable and immovable properties connected with the said school shall come to vest in the trustees," the learned Counsel states that the six settlors who executed this trust deed of September, 1909 have not been shown to have had any title to these movable and immovable properties connected with the school. The school, argues the learned Counsel, is merely a beneficiary of the trust and the properties of the school do not become trust properties entrusted to these trustees merely because the settlor have created a trust in respect of other properties. There is no question therefore of any property -- other than the properties mentioned in paragraphs 7 to 12 of the deed-having been vested in the trustees appointed by the deed, or their divesting themselves of the same. It is only in so far as the defendants 1 to 11 claim to be the trustees of the properties mentioned in Cls. 7 to 12 of this deed that they can be considered to be not validly appointed trustees. Mr. Sen submits that his clients do not claim to be trustees in respect of these properties, viz., those which are mentioned in Cls. 7 to 12 of the deed. In so far as they manage these properties an order may be made against them removing them from the management of these and they may be asked to render accounts in respect of these properties only. In respect of other properties, which according to Mr. Sen are the properties belonging to the beneficiary school, however, no order could properly be made, as they are outside the Burhanpur trust that came into existence by the trust deed of September, 1909.23. The argument appears attractive at first sight and even plausible. Unfortunately, however, for the respondents, this case which their Counsel now seeks to make was never their case in the Courts below. Far from saying that some of the properties mentioned in the plaint as trust properties of the Burhanpur trust are not in fact covered by the trust deed, these respondents have all along made the definite case that they were validly appointed trustees of those properties in accordance with the trust deed of September 1909. Their case in this matter may best be described in the words used in Para 4 of the written statement thus :"It is admitted that on or about 19th March, 17, seven persons signed a Memorandum of 4ssociation and registered themselves as members of the Society under Act XXI of 1860. Defendant says that se; these persons were the trustees and in the management of the trust properties under trust deed dated 15-9-1909 and were either appointed under that trust or under the rules framed thereunder, and in whom the properties of the institution vested and the same continued to be vested after the registration of the Society."24. This paragraph unambiguously accepts the plaintiff’s case that all the properties specified in the Schedule M attached to the plaint are properties covered by the trust in question and it pleads that defendants 2 to 11 are validly appointed trustees of the said trust. The Judgment of the Trial Court and the High Court also clearly show that before them, these defendants claimed to be trustees-- validly appointed in accordance with the trust of September, 1909 -- of all the properties that were mentioned as trust properties of that deed in the plaint. Nothing appears to have been pleaded either in the written statement or at the trial or during the arguments that the settlers, of this deed of September, 1909 could not create a trust in respect of "all the movable and immovable properties connected with the said school ", as those properties did not belong to them. On the contrary, the respondents claimed all along to have become trustees in respect of not only of the properties mentioned in Cls. 7 to 12 of the deed but also of all other properties of the school on the strength of this very trust deed. Mr. Sens contention that some items of the properties mentioned in the plaint as trust properties covered by the trust deed of September 15, 1909 were not so covered cannot therefore be accepted.25. We find it established therefore that defendants 1 to 11 were not validly appointed trustees in respect of the trust properties mentioned in the plaint. Their possession and management of these properties must therefore be held to be only in the character of trustee de son tort. They are liable therefore to account for their ensue period of management.26. From the very fact that they have no legal right to remain in possession of the trust properties, not having been validly appointed as trustees, it is equally dear that the plaintiffs are entitled to a decree that these defendants 1 to 11 be removed from the management of the properties.27. The learned Solicitor-General challenged the correctness of the findings of the courts below that these defendants (defendants 1 to11) did not by their misapplication or trust funds to the extent of Rs. 15,596-5-8 and Rs.900 commit misappropriation and also that the admission of students who did not belong to the Daudi Bohra Community was not inconsistent with the object of the trust. We think it unnecessary however to consider these matters in as much as even if these findings of the courts below are correct the plaintiffs are entitled to the reliefs they have asked for in this suit. Besides the amount of Rs. 15,000 and odd has been already paid by defendants 2 to 11 under the decree of the Trial Court. It is unnecessary to mention the fact that an assurance was given to us by the learned Solicitor-General that in any case the interests of the non-Bohra students will be safeguarded in this school.
### Response:
1
### Explanation:
sections however embody nothing more or less than the principles which have been applied to all trusts in all countries. The principle of the rule against delegation with which we are concerned in the present case, is clear : a fiduciary relationship having been created, it is against the interests of society in general that such relationship should be allowed to be terminated unilaterally. That is why the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart from delegation "in the regular course of business" that is, all such functions which a prudent man of business would ordinarily delegate in connect ion with his own affairs.18. What we have got in the present case is not delegation of some functions only, but delegation of all functions and of all powers and is nothing short of abdication in favour of a new body of men. Necessarily there is also the attempt by the old trustees to divest themselves of all properties vested in them by the settlor and vesting them in another body of persons. We know of no principle of law and of no authority which permits such abdication of trust in favour of another body or persons.19. In the deed itself there is nothing which contemplates or allows such an abdication and the substitution of the old trustees by a new body of trustees. It is necessary in this connection to consider the terms of Cl. 5 of the trust deed.The provision for the appointment of new trustees cannot by any stretch of imagination be held to mean the substitution of the old body of trustees by a new body. That provision only permits the old trustees to add to their number. Nor does the power to frame rules and regulations for the benefit and efficient running of the school authorise the trustees to give up the management of the school themselves or to divest themselves of the properties entrusted to them by the trust deed and vest them in other persons. We are satisfied therefore that Cl. 5 of the trust deed not in any manner authorise the trustees appointed by the deed to abdicate in favour of another body of persons or to constitute that body as trustees in their own place.21. There is no question here also of the beneficiary, i.e., the school consenting to such abdication. There is therefore no escape from the conclusion that the act of the trustees, who were appointed by the trust deed, in handing over the management of the school of the Hakimia Society and the properties of the school to the members of the governing body of the Hakimia Society was illegal and void in law. The members of the Society or the members of the governing body did not therefore become trustees in respect of the properties which are covered by the Burhanpurhowever, for the respondents, this case which their Counsel now seeks to make was never their case in the Courts below. Far from saying that some of the properties mentioned in the plaint as trust properties of the Burhanpur trust are not in fact covered by the trust deed, these respondents have all along made the definite case that they were validly appointed trustees of those properties in accordance with the trust deed of September 1909.This paragraph unambiguously accepts thecase that all the properties specified in the Schedule M attached to the plaint are properties covered by the trust in question and it pleads that defendants 2 to 11 are validly appointed trustees of the said trust. The Judgment of the Trial Court and the High Court also clearly show that before them, these defendants claimed to be trustees-- validly appointed in accordance with the trust of September, 1909 -- of all the properties that were mentioned as trust properties of that deed in the plaint. Nothing appears to have been pleaded either in the written statement or at the trial or during the arguments that the settlers, of this deed of September, 1909 could not create a trust in respect of "all the movable and immovable properties connected with the said school ", as those properties did not belong to them. On the contrary, the respondents claimed all along to have become trustees in respect of not only of the properties mentioned in Cls. 7 to 12 of the deed but also of all other properties of the school on the strength of this very trust deed. Mr. Sens contention that some items of the properties mentioned in the plaint as trust properties covered by the trust deed of September 15, 1909 were not so covered cannot therefore be accepted.25. We find it established therefore that defendants 1 to 11 were not validly appointed trustees in respect of the trust properties mentioned in the plaint. Their possession and management of these properties must therefore be held to be only in the character of trustee de son tort. They are liable therefore to account for their ensue period of management.26. From the very fact that they have no legal right to remain in possession of the trust properties, not having been validly appointed as trustees, it is equally dear that the plaintiffs are entitled to a decree that these defendants 1 to 11 be removed from the management of thethink it unnecessary however to consider these matters in as much as even if these findings of the courts below are correct the plaintiffs are entitled to the reliefs they have asked for in this suit. Besides the amount of Rs. 15,000 and odd has been already paid by defendants 2 to 11 under the decree of the Trial Court. It is unnecessary to mention the fact that an assurance was given to us by the learned Solicitor-General that in any case the interests of the non-Bohra students will be safeguarded in this school.
|
MOHD. SAHID Vs. RAZIYA KHANAM (DIED) THR. LRS | to 09.05.2013 though may not reflect the averments in the application for condonation of delay, in our view, does not affect the correctness of the impugned order. 15. The statement of the appellants that they got knowledge about the judgment of the trial court in Suit No.591 of 1979 dated 10.05.2012 for the first time on 06.05.2013 is incorrect. As pointed out by the First Appellate court as well as by the High Court, certified copy of the order sheet dated 11.10.2011 and 14.10.2011 in Suit No.591 of 1979 shows that on 11.10.2011, parties were present in the trial court and the attention of the court was drawn by the respondents-plaintiffs regarding the order passed in Writ Petition(C) No.19550 of 1985 (20.02.2001). On 11.10.2011, the trial court heard the parties for deciding the issues No.2 and 3 and the order sheet indicates the presence of the parties as seen from the following:-"Order dated 11.10.2011 ………… Disposal of Issue Nos.2 and 3 Today the parties made the prayer for deciding the issues No.2 and 3 after hearing the same. On the prayer of the parties, both parties are heard on the issues No.2 and 3 with respect to valuation and court fee paid and the record is perused. In this case the issue No.2 was framed – ?Whether valuation of this suit is shown lesser?? and the issue No.3 was framed – ?Whether the court fee paid by plaintiff is deficient?? No such fact was put up by the parties so that it could appear that valuation of the suit was not fixed correctly and the court fee paid was deficient. So in view of the aforesaid facts and circumstances the issues No.2 and 3 are decided in negative. The record be put up for recording of the evidence by the plaintiff on 14.10.2011.?Thereafter, the case was put up for recording of evidence by the respondent-plaintiff on 14.10.2011. As per the order sheet dated 14.10.2011, the case was called out and the parties were present and the case was again adjourned to 18.10.2011. On 18.10.2011, the affidavit of the respondent-plaintiff was filed and thereafter, in spite of several opportunities, the appellants-defendants did not appear and the suit was decreed ex-parte on 10.05.2012. In the said judgment dated 10.05.2012, the trial court has recorded that in spite of opportunities, the appellants-defendants did not appear as seen from the following:-?In the present case, the defendants have filed their objection at 17 A1 but they had remained absent at the time of adducing evidence. Therefore, on 09.11.2011, their opportunity of adducing evidence was closed and they were declared ex-parte and ex-parte proceeding continued. ……….. In support of their pleadings, the plaintiffs had examined PW-1 Seraj Ahmmed, PW-2 Firoz Alam and PW-3 Salauddin as witnesses. The evidences on affidavit of these witnesses have been placed on records as the Document No.120A2, 128A2 and 129A2. The defendants did not remain present for the cross- examination of the aforementioned witnesses………?16. After referring to the order sheets dated 11.10.2011 and 18.10.2011 and the subsequent hearings in the Suit No.591 of 1979, the First Appellate Court as well as the High Court rightly recorded concurrent findings that the appellants had full knowledge about the proceedings of the original Suit No.591 of 1979 and also about the vacation of stay order passed in Writ Petition(C) No.19550 of 1985. The High Court has rightly observed that the appellants-defendants have not come out with the correct facts. 17. The averments in the application that the appellants got knowledge about the judgment in Suit No.591 of 1979 dated 10.05.2012 only on 06.05.2013 through a constable is incorrect. On behalf of the respondents, it is stated that in the proceedings before the Sub-Divisional Magistrate, the appellants filed the application on 23.11.2012 (Objection Paper No.23C2) wherein the judgment dated 10.05.2012 of the civil court was mentioned and it was even averred that the said judgment was passed wrongly. It is thus clear that the appellants had knowledge about the judgment and decree in Suit No.591 of 1979 even on 23.11.2012. While so, the appellants- defendants have filed application with incorrect averments that they got knowledge about the judgment and decree only on 06.05.2013 at Tehsil Ghosi when constable of the Police Station gave them the information. The High Court rightly rejected the contention of the appellants that they came to know about the judgment dated 10.05.2012 in Suit No.591 of 1979 only on 06.05.2013 through a constable of the Police Station in Tehsil Ghosi, District Mau when he had gone there to Pairvi in another case. 18. It is also pertinent to note that in Suit No.591 of the year 1979, the appellants have not filed the written statement in spite of ample opportunities given and earlier the suit was decreed ex-parte against them on 16.04.1981. The appellants filed appeal in CA No.395 of 1981 and it was dismissed for default and the same was restored on 14.11.1983. By order dated 29.11.1985, CA No.395 of 1981 was allowed and the ex-parte decree dated 16.04.1981 was set aside and the matter was remanded back for decision on merits afresh with condition of depositing cost of Rs.50/-. Of course, Writ Petition(C) No.19550 of 1985 was filed challenging the same; the suit being of the year 1979 and earlier being set ex-parte and the matter having been remitted at the instance of the appellants, the appellants ought to have been vigilant in pursuing the matter. 19. The order sheet and other materials placed on record clearly show that the appellants had full knowledge about the proceedings of the Original Suit No.591 of 1979 and also about the disposal of the Writ Petition(C) No.19550 of 1985 and the appellants have filed application for condonation of delay with incorrect facts. Both the First Appellate Court and the High Court recorded concurrent findings that the appellants have filed the application for condonation of delay with incorrect facts and were negligent in pursuing the matter and rightly refused to condone the delay. | 0[ds]17. The averments in the application that the appellants got knowledge about the judgment in Suit No.591 of 1979 dated 10.05.2012 only on 06.05.2013 through a constable is incorrect. On behalf of the respondents, it is stated that in the proceedings before theMagistrate, the appellants filed the application on 23.11.2012 (Objection Paper No.23C2) wherein the judgment dated 10.05.2012 of the civil court was mentioned and it was even averred that the said judgment was passed wrongly. It is thus clear that the appellants had knowledge about the judgment and decree in Suit No.591 of 1979 even on 23.11.2012. While so, the appellantsdefendants have filed application with incorrect averments that they got knowledge about the judgment and decree only on 06.05.2013 at Tehsil Ghosi when constable of the Police Station gave them the information. The High Court rightly rejected the contention of the appellants that they came to know about the judgment dated 10.05.2012 in Suit No.591 of 1979 only on 06.05.2013 through a constable of the Police Station in Tehsil Ghosi, District Mau when he had gone there to Pairvi in another case.It is also pertinent to note that in Suit No.591 of the year 1979, the appellants have not filed the written statement in spite of ample opportunities given and earlier the suit was decreedagainst them on 16.04.1981. The appellants filed appeal in CA No.395 of 1981 and it was dismissed for default and the same was restored on 14.11.1983. By order dated 29.11.1985, CA No.395 of 1981 was allowed and thedecree dated 16.04.1981 was set aside and the matter was remanded back for decision on merits afresh with condition of depositing cost of Rs.Of course, Writ Petition(C) No.19550 of 1985 was filed challenging the same; the suit being of the year 1979 and earlier being setand the matter having been remitted at the instance of the appellants, the appellants ought to have been vigilant in pursuing the matter.The order sheet and other materials placed on record clearly show that the appellants had full knowledge about the proceedings of the Original Suit No.591 of 1979 and also about the disposal of the Writ Petition(C) No.19550 of 1985 and the appellants have filed application for condonation of delay with incorrect facts. Both the First Appellate Court and the High Court recorded concurrent findings that the appellants have filed the application for condonation of delay with incorrect facts and were negligent in pursuing the matter and rightly refused to condone the delay. | 0 | 2,597 | 441 | ### 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:
to 09.05.2013 though may not reflect the averments in the application for condonation of delay, in our view, does not affect the correctness of the impugned order. 15. The statement of the appellants that they got knowledge about the judgment of the trial court in Suit No.591 of 1979 dated 10.05.2012 for the first time on 06.05.2013 is incorrect. As pointed out by the First Appellate court as well as by the High Court, certified copy of the order sheet dated 11.10.2011 and 14.10.2011 in Suit No.591 of 1979 shows that on 11.10.2011, parties were present in the trial court and the attention of the court was drawn by the respondents-plaintiffs regarding the order passed in Writ Petition(C) No.19550 of 1985 (20.02.2001). On 11.10.2011, the trial court heard the parties for deciding the issues No.2 and 3 and the order sheet indicates the presence of the parties as seen from the following:-"Order dated 11.10.2011 ………… Disposal of Issue Nos.2 and 3 Today the parties made the prayer for deciding the issues No.2 and 3 after hearing the same. On the prayer of the parties, both parties are heard on the issues No.2 and 3 with respect to valuation and court fee paid and the record is perused. In this case the issue No.2 was framed – ?Whether valuation of this suit is shown lesser?? and the issue No.3 was framed – ?Whether the court fee paid by plaintiff is deficient?? No such fact was put up by the parties so that it could appear that valuation of the suit was not fixed correctly and the court fee paid was deficient. So in view of the aforesaid facts and circumstances the issues No.2 and 3 are decided in negative. The record be put up for recording of the evidence by the plaintiff on 14.10.2011.?Thereafter, the case was put up for recording of evidence by the respondent-plaintiff on 14.10.2011. As per the order sheet dated 14.10.2011, the case was called out and the parties were present and the case was again adjourned to 18.10.2011. On 18.10.2011, the affidavit of the respondent-plaintiff was filed and thereafter, in spite of several opportunities, the appellants-defendants did not appear and the suit was decreed ex-parte on 10.05.2012. In the said judgment dated 10.05.2012, the trial court has recorded that in spite of opportunities, the appellants-defendants did not appear as seen from the following:-?In the present case, the defendants have filed their objection at 17 A1 but they had remained absent at the time of adducing evidence. Therefore, on 09.11.2011, their opportunity of adducing evidence was closed and they were declared ex-parte and ex-parte proceeding continued. ……….. In support of their pleadings, the plaintiffs had examined PW-1 Seraj Ahmmed, PW-2 Firoz Alam and PW-3 Salauddin as witnesses. The evidences on affidavit of these witnesses have been placed on records as the Document No.120A2, 128A2 and 129A2. The defendants did not remain present for the cross- examination of the aforementioned witnesses………?16. After referring to the order sheets dated 11.10.2011 and 18.10.2011 and the subsequent hearings in the Suit No.591 of 1979, the First Appellate Court as well as the High Court rightly recorded concurrent findings that the appellants had full knowledge about the proceedings of the original Suit No.591 of 1979 and also about the vacation of stay order passed in Writ Petition(C) No.19550 of 1985. The High Court has rightly observed that the appellants-defendants have not come out with the correct facts. 17. The averments in the application that the appellants got knowledge about the judgment in Suit No.591 of 1979 dated 10.05.2012 only on 06.05.2013 through a constable is incorrect. On behalf of the respondents, it is stated that in the proceedings before the Sub-Divisional Magistrate, the appellants filed the application on 23.11.2012 (Objection Paper No.23C2) wherein the judgment dated 10.05.2012 of the civil court was mentioned and it was even averred that the said judgment was passed wrongly. It is thus clear that the appellants had knowledge about the judgment and decree in Suit No.591 of 1979 even on 23.11.2012. While so, the appellants- defendants have filed application with incorrect averments that they got knowledge about the judgment and decree only on 06.05.2013 at Tehsil Ghosi when constable of the Police Station gave them the information. The High Court rightly rejected the contention of the appellants that they came to know about the judgment dated 10.05.2012 in Suit No.591 of 1979 only on 06.05.2013 through a constable of the Police Station in Tehsil Ghosi, District Mau when he had gone there to Pairvi in another case. 18. It is also pertinent to note that in Suit No.591 of the year 1979, the appellants have not filed the written statement in spite of ample opportunities given and earlier the suit was decreed ex-parte against them on 16.04.1981. The appellants filed appeal in CA No.395 of 1981 and it was dismissed for default and the same was restored on 14.11.1983. By order dated 29.11.1985, CA No.395 of 1981 was allowed and the ex-parte decree dated 16.04.1981 was set aside and the matter was remanded back for decision on merits afresh with condition of depositing cost of Rs.50/-. Of course, Writ Petition(C) No.19550 of 1985 was filed challenging the same; the suit being of the year 1979 and earlier being set ex-parte and the matter having been remitted at the instance of the appellants, the appellants ought to have been vigilant in pursuing the matter. 19. The order sheet and other materials placed on record clearly show that the appellants had full knowledge about the proceedings of the Original Suit No.591 of 1979 and also about the disposal of the Writ Petition(C) No.19550 of 1985 and the appellants have filed application for condonation of delay with incorrect facts. Both the First Appellate Court and the High Court recorded concurrent findings that the appellants have filed the application for condonation of delay with incorrect facts and were negligent in pursuing the matter and rightly refused to condone the delay.
### Response:
0
### Explanation:
17. The averments in the application that the appellants got knowledge about the judgment in Suit No.591 of 1979 dated 10.05.2012 only on 06.05.2013 through a constable is incorrect. On behalf of the respondents, it is stated that in the proceedings before theMagistrate, the appellants filed the application on 23.11.2012 (Objection Paper No.23C2) wherein the judgment dated 10.05.2012 of the civil court was mentioned and it was even averred that the said judgment was passed wrongly. It is thus clear that the appellants had knowledge about the judgment and decree in Suit No.591 of 1979 even on 23.11.2012. While so, the appellantsdefendants have filed application with incorrect averments that they got knowledge about the judgment and decree only on 06.05.2013 at Tehsil Ghosi when constable of the Police Station gave them the information. The High Court rightly rejected the contention of the appellants that they came to know about the judgment dated 10.05.2012 in Suit No.591 of 1979 only on 06.05.2013 through a constable of the Police Station in Tehsil Ghosi, District Mau when he had gone there to Pairvi in another case.It is also pertinent to note that in Suit No.591 of the year 1979, the appellants have not filed the written statement in spite of ample opportunities given and earlier the suit was decreedagainst them on 16.04.1981. The appellants filed appeal in CA No.395 of 1981 and it was dismissed for default and the same was restored on 14.11.1983. By order dated 29.11.1985, CA No.395 of 1981 was allowed and thedecree dated 16.04.1981 was set aside and the matter was remanded back for decision on merits afresh with condition of depositing cost of Rs.Of course, Writ Petition(C) No.19550 of 1985 was filed challenging the same; the suit being of the year 1979 and earlier being setand the matter having been remitted at the instance of the appellants, the appellants ought to have been vigilant in pursuing the matter.The order sheet and other materials placed on record clearly show that the appellants had full knowledge about the proceedings of the Original Suit No.591 of 1979 and also about the disposal of the Writ Petition(C) No.19550 of 1985 and the appellants have filed application for condonation of delay with incorrect facts. Both the First Appellate Court and the High Court recorded concurrent findings that the appellants have filed the application for condonation of delay with incorrect facts and were negligent in pursuing the matter and rightly refused to condone the delay.
|
New India Assurance Co. Ltd Vs. Asha Rani & Others | the insurer must be held liable and accordingly directed the compensation amount to be paid by the insurance company. The insurer carried an appeal to the High Court, but the High Court disposed of the appeal solely on the ground that the case is covered by the decision of this Court in the case of New India Assurance Company vs. Sat Pal Singh and others (2000) 1 Supreme Court Cases 237 . 6. Mr. Rawat, learned counsel appearing for the appellant contended that the decision in Mallawwas case on which the Tribunal relied upon is a decision interpreting the provisions of the old Act of 1939, and in fact that decision cannot be of any assistance. In view of the fact that Section 95(1) proviso (ii) of Motor Vehicles Act, 1939, is not the same as Section 147 (2) of the Motor Vehicles Act, 1988 as it stood prior to its amendment of 1994. Mr. Rawat contended that the decision of this Court in New India Assurance Co. vs. Satpal Singh is undoubtedly based on an interpretation of the proviso to Section 147(1) of the Motor Vehicles Act, 1988, but that decision cannot be held to be good law in as much as the Court has not borne in mind the relevant provisions as it stood nor has it considered the effect of the amendment that was brought about in 1994 as well as the purpose of such amendment. The learned counsel for the respondents on the other hand contended that the subsequent amendment that was brought about in the year 1994 is merely clarificatory in nature and does not bring about any substantive change and further the Act being a beneficial one, construction which is beneficial to the victims of the accident should be followed. Judged from that angle, the decision of this Court in New India Assurance Company vs. Sat Pal Singh and others (supra) does not require any re-consideration. 7. Under the Motor Vehicles Act of 1939 the requirements of policies and limits of liability had been provided in Section 95. Proviso to Section 95(1) of the said Act unequivocally states that the policy shall not be required in case of a good vehicle for passengers being carried in the said vehicle. In Mallawwa (Smt.) and others vs. Oriental Insurance Co. Ltd. and others (supra) while approving the earlier decision of the Court in Pushpabai Purshottam Udeshis case - (1977) 2 SCC 749, the Court construed the provisions of Section 95(1)(b) of the Motor Vehicles Act, 1939 and held that while the expression any person and the expression every motor vehicle are in wide terms but by proviso (ii) it restricts the generality of the main provision by confining the requirement to cases where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, therefore, the vehicle had to be vehicle in which passengers are carried. The Court further held that the goods vehicle cannot be held to be a passenger vehicle even if the vehicle was found to be used on some stray occasions for carrying passengers for hire or reward. Undoubtedly Mallawwas case (supra) was dealing with a situation under the Motor Vehicles Act, 1939. 8. In Satpals case (supra) the Court assumed that the provisions of Section 95(1) of Motor Vehicles Act 1939 are identical with Section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amended Act of 1994 is examined, particularly Section 46 of Act 6 of 1991 by which expression injury to any person in the original Act stood substituted by the expression injury to any person including owner of the goods or his authorised representative carried in the vehicle the conclusion is irresistible that prior to the aforesaid amendment Act of 1994, even if widest interpretation is given to the expression to any person it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of clause 46 also states that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the Insurance Policy. It is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression including owner of the goods or his authorised representative carried in the vehicle which was added to the pre-existed expression injury to any person is either clarificatory or amplification of the pre-existing statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. | 1[ds]On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amended Act of 1994 is examined, particularly Section 46 of Act 6 of 1991 by which expression injury to any person in the original Act stood substituted by the expression injury to any person including owner of the goods or his authorised representative carried in the vehicle the conclusion is irresistible that prior to the aforesaid amendment Act of 1994, even if widest interpretation is given to the expression to any person it will not cover either the owner of the goods or his authorised representative being carried in the vehicleIt is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression including owner of the goods or his authorised representative carried in the vehicle which was added to the pre-existed expression injury to any person is either clarificatory or amplification of the pre-existing statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. | 1 | 3,640 | 348 | ### 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:
the insurer must be held liable and accordingly directed the compensation amount to be paid by the insurance company. The insurer carried an appeal to the High Court, but the High Court disposed of the appeal solely on the ground that the case is covered by the decision of this Court in the case of New India Assurance Company vs. Sat Pal Singh and others (2000) 1 Supreme Court Cases 237 . 6. Mr. Rawat, learned counsel appearing for the appellant contended that the decision in Mallawwas case on which the Tribunal relied upon is a decision interpreting the provisions of the old Act of 1939, and in fact that decision cannot be of any assistance. In view of the fact that Section 95(1) proviso (ii) of Motor Vehicles Act, 1939, is not the same as Section 147 (2) of the Motor Vehicles Act, 1988 as it stood prior to its amendment of 1994. Mr. Rawat contended that the decision of this Court in New India Assurance Co. vs. Satpal Singh is undoubtedly based on an interpretation of the proviso to Section 147(1) of the Motor Vehicles Act, 1988, but that decision cannot be held to be good law in as much as the Court has not borne in mind the relevant provisions as it stood nor has it considered the effect of the amendment that was brought about in 1994 as well as the purpose of such amendment. The learned counsel for the respondents on the other hand contended that the subsequent amendment that was brought about in the year 1994 is merely clarificatory in nature and does not bring about any substantive change and further the Act being a beneficial one, construction which is beneficial to the victims of the accident should be followed. Judged from that angle, the decision of this Court in New India Assurance Company vs. Sat Pal Singh and others (supra) does not require any re-consideration. 7. Under the Motor Vehicles Act of 1939 the requirements of policies and limits of liability had been provided in Section 95. Proviso to Section 95(1) of the said Act unequivocally states that the policy shall not be required in case of a good vehicle for passengers being carried in the said vehicle. In Mallawwa (Smt.) and others vs. Oriental Insurance Co. Ltd. and others (supra) while approving the earlier decision of the Court in Pushpabai Purshottam Udeshis case - (1977) 2 SCC 749, the Court construed the provisions of Section 95(1)(b) of the Motor Vehicles Act, 1939 and held that while the expression any person and the expression every motor vehicle are in wide terms but by proviso (ii) it restricts the generality of the main provision by confining the requirement to cases where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, therefore, the vehicle had to be vehicle in which passengers are carried. The Court further held that the goods vehicle cannot be held to be a passenger vehicle even if the vehicle was found to be used on some stray occasions for carrying passengers for hire or reward. Undoubtedly Mallawwas case (supra) was dealing with a situation under the Motor Vehicles Act, 1939. 8. In Satpals case (supra) the Court assumed that the provisions of Section 95(1) of Motor Vehicles Act 1939 are identical with Section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amended Act of 1994 is examined, particularly Section 46 of Act 6 of 1991 by which expression injury to any person in the original Act stood substituted by the expression injury to any person including owner of the goods or his authorised representative carried in the vehicle the conclusion is irresistible that prior to the aforesaid amendment Act of 1994, even if widest interpretation is given to the expression to any person it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of clause 46 also states that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the Insurance Policy. It is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression including owner of the goods or his authorised representative carried in the vehicle which was added to the pre-existed expression injury to any person is either clarificatory or amplification of the pre-existing statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury.
### Response:
1
### Explanation:
On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amended Act of 1994 is examined, particularly Section 46 of Act 6 of 1991 by which expression injury to any person in the original Act stood substituted by the expression injury to any person including owner of the goods or his authorised representative carried in the vehicle the conclusion is irresistible that prior to the aforesaid amendment Act of 1994, even if widest interpretation is given to the expression to any person it will not cover either the owner of the goods or his authorised representative being carried in the vehicleIt is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression including owner of the goods or his authorised representative carried in the vehicle which was added to the pre-existed expression injury to any person is either clarificatory or amplification of the pre-existing statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury.
|
Dr. Ram Krishan Bhardwaj Vs. The State Of Delhi And Others | is more formidable. As already stated para, 1 of the statement of grounds, while it sets out the unlawful activities of the three political bodies, does not directly implicate the petitioner in any of them. Paragraph 2 shows how the petitioner was concerned in those activities. It begins by stating."The following facts show that you are personally helping and actively participating in the above mentioned movement which has resulted in violence and threat to maintenance of public order."Then follow four sub-paras. (a) to (d) which refer to private meetings of the Working Committee of the Jan Sangh in January and February 1953, where, it is alleged, it was decided to launch and intensify the campaign and the petitioner made inflammatory speeches. Sub-paragraph (e) on which this contention is based runs thus :(e) You have been organising the movement by enrolling volunteers among the refugees in your capacity as President of the Refugee Association of the Bara Hindu Rao, a local area in Delhi. It is argued by Mr. Veda Vyas that this ground is extremely vague and gives no particulars to enable the petitioner to make an adequate representation against the order of detention and thus infringes the constitutional safeguard provided in Art, 22 (5). Learned counsel relies on the decision in State of Bombay v. Atma Ram Shridhar Vaidya A. I. R. 1951 S. C. 157(A) where this Court held by a majority that the person detained is entitled, in addition to the right to have the grounds of his detention communicated to him, to a further right to have particulars "as full and adequate as the circumstance permit" furnished to him so as to enable him to make a representation against the order of detention. It was further held that the sufficiency of the particulars conveyed in the "second communication" is a justiciable issue, the test being whether it is sufficient to enable the detained person to make a representation "which on being considered, may give relief to the detained person." On this interpretation of Art. 22 (5) Two questions arise for consideration : first, whether the ground mentioned in sub-para (e) is so vagae as to render it difficult, if not impossible, for the petitioner to make in adequate representation to the appropriate authorities and second if it is vague, whether one vague ground among others, which are clear and definite, would infringe the constitutional safeguard provided in Art. 22 (5).4. On the first question, the Attorney-General argued that the grounds must be read as a. whole and so read, the ground mentioned in sub-para, (e) could reasonably be taken to mean, that the petitioner was organizing the movement by enrolling volunteers from the 4th to 10th March in the area known as Bara Hindu Rao. This interpretation is plausible, but the petitioner, who is a layman not experienced in the interpretation of documents, can hardly be expected without legal aid, which is denied to him, to interpret the ground in the sense explained by the Attorney-General. Surely, it is up to the detaining authority to make his meaning clear beyond doubt, without leaving the person detained to his own resource for interpreting the grounds. We must, therefore. hold that the ground mentioned in sub-para. (e) of para 2 is vague in the sense explained above.5. On the second question, there is no considered pronouncement by this Court, though in some cases it would appear to have been assumed in the absence of any argument, that one or two vague grounds could not affect the validity of the detention where there are other sufficiently clear and definite grounds to support the detention. Mr. Veda Vyas now argues that even though the petitioner might succeed in rebutting the other grounds to the satisfaction of the Advisory Board, his representation might fail to carry conviction so far as the ground mentioned in sub-para. (e) was concerned in the absence of particulars which he could rebut, and the Advisory Board might, therefore, recommend the continuance of his detention. The argument is not without force, as the possibility suggested cannot altogether be ruled out. The Attorney-General drew attention to the recent amendment of S. 10, Preventive Detention Act, as a result of which the petitioner would be entitled to be heard in person before the Advisory Board if he so desires and, it was said that he would thus have the opportunity of getting the necessary particulars through the Board who could call upon the appropriate Government to furnish particulars if the Board thought that the demand for them was in the circumstances just and reasonable. The petitioner would thus suffer no hardship or prejudice by reason of sufficient particulars not having been already furnished to him. The question, however, is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case, the petitioner has the right, under Art 22 (5). is interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him." We are of opinion that this constitutional, requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under c1. (6) of Art. 22. That not having been done in regard to the ground mentioned in sub-para (e) of para. 2 of the statement of grounds, the petitioners detention cannot be held to be in accordance with the procedure established by law within the meaning of Art. 21: The petitioner is therefore, entitled to be released and we accordingly direct him to be set at liberty forthwith.6. | 1[ds]The learned Attorney-General explained that the incidents of the 11th March were referred to not as a ground for the arrest and detention of the petitioner. but merely as evidencing the unlawful activities of the movement organized by the Jan Sangh and the other political bodies of which the petitioner was an activemember. The explanation is hardly convincing and we cannot but regard this lapse in chronology as a mark of carelessness. Notwithstanding repeated admonition by this Court that due care and attention must be bestowed upon matters involving the liberty of the individual, it is distressing to find that such matters are dealt with in a careless and casual manner. In view, however, of the statements in the affidavit filed by the District Magistrate before us that he carefully perused and considered the reports and materials placed before him by responsible Intelligence Officers and that he was fully satisfied that the petitioner was assisting the movement and agitation started by the Jan Sangh etc. we are not prepared to hold the District Magistrate failed to apply his mind to the relevant considerations before he made the detention order as suggested for the petitioner.This interpretation is plausible, but the petitioner, who is a layman not experienced in the interpretation of documents, can hardly be expected without legal aid, which is denied to him, to interpret the ground in the sense explained by the Attorney-General. Surely, it is up to the detaining authority to make his meaning clear beyond doubt, without leaving the person detained to his own resource for interpreting the grounds. We must, therefore. hold that the ground mentioned in sub-para. (e) of para 2 is vague in the sense explained above.The question, however, is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case, the petitioner has the right, under Art 22 (5). is interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him." We are of opinion that this constitutional, requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under c1. (6) of Art. 22. That not having been done in regard to the ground mentioned in sub-para (e) of para. 2 of the statement of grounds, the petitioners detention cannot be held to be in accordance with the procedure established by law within the meaning of Art. 21: The petitioner is therefore, entitled to be released | 1 | 1,789 | 540 | ### 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:
is more formidable. As already stated para, 1 of the statement of grounds, while it sets out the unlawful activities of the three political bodies, does not directly implicate the petitioner in any of them. Paragraph 2 shows how the petitioner was concerned in those activities. It begins by stating."The following facts show that you are personally helping and actively participating in the above mentioned movement which has resulted in violence and threat to maintenance of public order."Then follow four sub-paras. (a) to (d) which refer to private meetings of the Working Committee of the Jan Sangh in January and February 1953, where, it is alleged, it was decided to launch and intensify the campaign and the petitioner made inflammatory speeches. Sub-paragraph (e) on which this contention is based runs thus :(e) You have been organising the movement by enrolling volunteers among the refugees in your capacity as President of the Refugee Association of the Bara Hindu Rao, a local area in Delhi. It is argued by Mr. Veda Vyas that this ground is extremely vague and gives no particulars to enable the petitioner to make an adequate representation against the order of detention and thus infringes the constitutional safeguard provided in Art, 22 (5). Learned counsel relies on the decision in State of Bombay v. Atma Ram Shridhar Vaidya A. I. R. 1951 S. C. 157(A) where this Court held by a majority that the person detained is entitled, in addition to the right to have the grounds of his detention communicated to him, to a further right to have particulars "as full and adequate as the circumstance permit" furnished to him so as to enable him to make a representation against the order of detention. It was further held that the sufficiency of the particulars conveyed in the "second communication" is a justiciable issue, the test being whether it is sufficient to enable the detained person to make a representation "which on being considered, may give relief to the detained person." On this interpretation of Art. 22 (5) Two questions arise for consideration : first, whether the ground mentioned in sub-para (e) is so vagae as to render it difficult, if not impossible, for the petitioner to make in adequate representation to the appropriate authorities and second if it is vague, whether one vague ground among others, which are clear and definite, would infringe the constitutional safeguard provided in Art. 22 (5).4. On the first question, the Attorney-General argued that the grounds must be read as a. whole and so read, the ground mentioned in sub-para, (e) could reasonably be taken to mean, that the petitioner was organizing the movement by enrolling volunteers from the 4th to 10th March in the area known as Bara Hindu Rao. This interpretation is plausible, but the petitioner, who is a layman not experienced in the interpretation of documents, can hardly be expected without legal aid, which is denied to him, to interpret the ground in the sense explained by the Attorney-General. Surely, it is up to the detaining authority to make his meaning clear beyond doubt, without leaving the person detained to his own resource for interpreting the grounds. We must, therefore. hold that the ground mentioned in sub-para. (e) of para 2 is vague in the sense explained above.5. On the second question, there is no considered pronouncement by this Court, though in some cases it would appear to have been assumed in the absence of any argument, that one or two vague grounds could not affect the validity of the detention where there are other sufficiently clear and definite grounds to support the detention. Mr. Veda Vyas now argues that even though the petitioner might succeed in rebutting the other grounds to the satisfaction of the Advisory Board, his representation might fail to carry conviction so far as the ground mentioned in sub-para. (e) was concerned in the absence of particulars which he could rebut, and the Advisory Board might, therefore, recommend the continuance of his detention. The argument is not without force, as the possibility suggested cannot altogether be ruled out. The Attorney-General drew attention to the recent amendment of S. 10, Preventive Detention Act, as a result of which the petitioner would be entitled to be heard in person before the Advisory Board if he so desires and, it was said that he would thus have the opportunity of getting the necessary particulars through the Board who could call upon the appropriate Government to furnish particulars if the Board thought that the demand for them was in the circumstances just and reasonable. The petitioner would thus suffer no hardship or prejudice by reason of sufficient particulars not having been already furnished to him. The question, however, is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case, the petitioner has the right, under Art 22 (5). is interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him." We are of opinion that this constitutional, requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under c1. (6) of Art. 22. That not having been done in regard to the ground mentioned in sub-para (e) of para. 2 of the statement of grounds, the petitioners detention cannot be held to be in accordance with the procedure established by law within the meaning of Art. 21: The petitioner is therefore, entitled to be released and we accordingly direct him to be set at liberty forthwith.6.
### Response:
1
### Explanation:
The learned Attorney-General explained that the incidents of the 11th March were referred to not as a ground for the arrest and detention of the petitioner. but merely as evidencing the unlawful activities of the movement organized by the Jan Sangh and the other political bodies of which the petitioner was an activemember. The explanation is hardly convincing and we cannot but regard this lapse in chronology as a mark of carelessness. Notwithstanding repeated admonition by this Court that due care and attention must be bestowed upon matters involving the liberty of the individual, it is distressing to find that such matters are dealt with in a careless and casual manner. In view, however, of the statements in the affidavit filed by the District Magistrate before us that he carefully perused and considered the reports and materials placed before him by responsible Intelligence Officers and that he was fully satisfied that the petitioner was assisting the movement and agitation started by the Jan Sangh etc. we are not prepared to hold the District Magistrate failed to apply his mind to the relevant considerations before he made the detention order as suggested for the petitioner.This interpretation is plausible, but the petitioner, who is a layman not experienced in the interpretation of documents, can hardly be expected without legal aid, which is denied to him, to interpret the ground in the sense explained by the Attorney-General. Surely, it is up to the detaining authority to make his meaning clear beyond doubt, without leaving the person detained to his own resource for interpreting the grounds. We must, therefore. hold that the ground mentioned in sub-para. (e) of para 2 is vague in the sense explained above.The question, however, is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case, the petitioner has the right, under Art 22 (5). is interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him." We are of opinion that this constitutional, requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under c1. (6) of Art. 22. That not having been done in regard to the ground mentioned in sub-para (e) of para. 2 of the statement of grounds, the petitioners detention cannot be held to be in accordance with the procedure established by law within the meaning of Art. 21: The petitioner is therefore, entitled to be released
|
Jagir Singh and Anr Vs. Jasdev Singh and Ors | was because the 1st respondent asked Nichhatar Singh to produce that paper in his office and get the payment. This reason does not seem to be a good enough one for the 1st respondent signing Ext. P.W, 1/4. Be that as it may we have no doubt that Ext P.W. 1/4 bears 1st respondents signature and the whole evidence establishes beyond doubt that the 1st respondent got the pamphlet printed. He probably did not expect that the manuscript would reach the hands of the 2nd respondent5. It is in this connection that it is necessary to refer to the tape-recorded conversation. The 1st respondent had stated before the High Court that the transcript of the tape-recorded conversation can be taken as correct in so far as what he had spoken was concerned. The other person concerned in the tape-recorded conversation was Bhagwant Singh, the husband of the 2nd respondent who was also her advocate before the High Court. Though he admitted his part in the conversation it would not be admissible in evidence because he was not examined as a witness. What he has stated there cannot be taken as an admission on behalf of the 2nd respondent. Such admission can only relate to matters in issue before the Court, admissions prejudicial to the case of the 2nd respondent. Leaving such questions aside for the moment one thing that is obvious is that Ext. P.W. 1/4 had reached the hands of the 2nd respondent during the course of the trial and the evidence of Bedi Raghbir Singh that Nichhatar Singh gave it to him to be produced in the Court is not true. This conversation was relied upon by the learned advocate appearing on behalf of the 1st respondent as establishing that the 1st respondent was surprised and bewildered at the fact that Ext. P.W, 1/4 bore his signature. We can see no such indication. It is to be remembered that when this conversation was being tape-recorded Bhagwant Singh was not aware of it and therefore was talking freely what was in his mind whereas the 1st respondent was quite conscious of what was going on and that he was merely laying a trap in order to trap Bhagwant Singh into saying something in his (1st respondents) favour without being aware of it. The tape-recorded conversation is absolutely unhelpful to the 1st respondents case.6. Though there are certain suspicious features in this case which the learned advocate for the 1st respondent tried to magnify and blow out of all proportion so as to obscure the real picture, we are satisfied that the central point in the case as to the responsibility of the 1st respondent in getting the offending poster printed has been established beyond all reasonable doubt. Once that is done the question of distribution falls into its proper place7. According to the petitioners the posters were distributed in the villages Laluchhi, Bakshiwala, Jhill, Dhansuri, Kutabanpur. Bhima Kheri Saidipur, Rajla, Khuda Dadpur, Bathoi Kalan and Chhitera. The distribution in Lalauchhi is spoken to by P.W. 2 an advocate, Mr. Balwant Singh. His evidence is attacked on behalf of the 1st respondent by saying that he was the junior under the 2nd respondents husband but it is seen that that was some time ago and he had even appeared against the husband of the 2nd respondent in a personal case. So his evidence cannot be attacked on this basis. The 1st respondent examined two advocates to prove that on the particular day when he was said to have distributed the poster in Lalauchhi he was in Patiala. Their evidence has been rightly disbelieved by the learned Judge. The learned Judge has stated that both these advocates have merely lent themselves to prove a false plea of alibi. The only criticism which the learned Judge has made of the evidence of Mr. Balwant Singh is that he is an Akali and his testimony cannot be accepted at its face value as he would be the last person to support the Congress candidate. We are of opinion that this is the very reason why Mr. Balwant Singhs evidence should be accepted and not the contrary.We are therefore satisfied on evidence that the conclusion of the learned Judge on this point could not be accented and the distribution in village Lalauchhi must be held to have been proved.8. As regards the distribution in village Bakshiwala. it is spoken to by P. W. 3, an employee of the C. I. D.Puniab. His father owns land in that village. The 1st respondent produced R.W. 19 to show that Sucha Singh, P. W. 3 did not come to him and in support of this he produced his register Ext. R.W. 19/1. The learned Judges comment on this register is "The less said about this register the better". R.W. 19 also admitted that there was a scuffle in the,village and Sucha Singh was injured. The learned Judge has held that R.W, 19 s evidence is such that much reliance cannot be placed on him, R.W. 21 also admits about the injury to sucha Singh. In this state of evidence the learned Judge has not recorded any finding about the distribution of the poster in village Bakshiwala.We are of opinion that the distribution has been satisfactorily established. We do not therefore feel it necessary to deal with the question of distribution in the other villages.9. The 2nd respondent is a Hindu lady married to a Sikh gentleman. Such marriages between Hindus and Sikhs have been very common. Indeed it appears that till recent times the first son of most Hindu families in Punjab became a Sikh. Still politics has driven a wedge between brothers. It has led to unfortunate situations like the one in this case where because the 2nd respondent happens to be a Hindu lady it was sought to be taken advantage of by the 1st respondent for his election purposes, even though he and the 2nd respondents husband would seem to have been good friends. | 1[ds]We are unable to agree that absence of complaint by respondent No. 2 necessarily leads to that conclusion. We are of opinion that the conclusion arrived at by the learned Judge is wholly unsustainable especially in view of his categorical findings recordedcarefully going through the evidence of C.W. 1, Nichhatar Singh we are satisfied that he is a witness who is anxious to help the 1st respondent and has brought Ext. C.W. 1/1 into existence for the purpose of helping him. Answers favourable to the petitioners had to be extracted out of his unwilling mouth , by cross-examination. Even he has put the date on Ext. C.W. 1/1 as 1st of March and his evidence is that it was printed on the 1st of March though he mentions only the name of C. W. 2, Ram,Singh. He also says that he had sent a letter. Ext. R. W. 5/1, to the Sub-Divisional Magistrate. Whether that letter was sent on the 1st of March, as is spoken to by him or on the 5th of March, the date which it bears, does not affect the substance of the question. This letter has been received by the Sub-Divisional Magistrate, Miss Deol on 12th March. The learned Judge himself finds that it was received on 12th March. We have carefully scrutinized it and are satisfied that it has been signed by the ,Sub-Divisional Magistrate on the 12th of March. That has been entered in the office diary on the 16th of March. Though it is true that the date 6th has been struck out and 16th has been put in, the 6th seems to have been put in due to a mistake. Looking into the entries in the diary on the previous pages as well as subsequent pages we have no doubt that the 16th is the correct date. The entries on this date contain a number of documents received from various Government offices which bear the date 6th March. We have no reason at all to doubt the genuineness of the entries in this diary. If Ext. R.W. 5/1 was signed by the Sub-Divisional Magistrate on the 12th and entered in the diary on the 16th they probabilities the receipt of that document at least some days before the 12th. At no stage, except during the arguments before this Court, were the entries in this diary sought to be impugned. Indeed before the High Court it seems to have been urged on behalf of the 1st respondent that it was a diary maintained in the usual course of business. Taking therefore even Ext. C.W. 1/1 as well as the evidence of C.W. 1, Nichhatar Singh, into consideration we are satisfied that this pamphlet should have come into existence on the 1st of March. We have also compared the signature of the 1st respondent in Ext. P.W. 1/4 with many of his admitted signatures and are satisfied that signature is his and that is confirmed by the expert evidence of Mr. Puri. There being no satisfactory explanation on the part of the 1st respondent regarding the presence of his signature on Ext. P.W. 1/4 it is to be concluded on the evidence of Nichhatar Singh and Jathedar Ram Singh taken together that the 1st respondent had, come to C.W. 1s press and given EXt. P.W, 1/4 for printing. Conclusion No. 3 of the learned Judge also supports this finding.We are not quite sure about the presence of Bedi Raghbir Singh a that point of time. But we can see no cogent reason for disbelieving the evidence of C.W. 1 whose deposition clearly shows that he was anxious to help the 1st respondent. But in order to deny that Ext. P.W, 1/4 was this manuscript which was used for printing the poster he also had to manufacture EXt. C.W. 1/1 , That evidence even taken at its face value establishes that the printing of the pamphlet was on the 1st of March. If so it could have been done only at the instance of the 1st respondent. It was not even put to C.W. 1 that it was done after the poll. Why Ram Singh should have printed it if not at the instance of respondent No. 1 was never sought to be explained. Nor could respondent No. 2 have printed it .4. We have bestowed our anxious consideration on how the 1st respondent came to sign Ext. P.W. 1/4, Though Jathedar Ram Singh tried to say that he did not know Nichhatar singhC.W. 1 and therefore Nichhatar Singh wanted the 1st respondent, to undertake the responsibility of paying for the printing of the poster, it is clear that Nichhatar Singh had known jathedar Ram Singh for some time and there was no particular reason why even if the 1st respondent undertook to pay for the printing he should sign it. It is said that it was because the 1st respondent asked Nichhatar Singh to produce that paper in his office and get the payment. This reason does not seem to be a good enough one for the 1st respondent signing Ext. P.W, 1/4. Be that as it may we have no doubt that Ext P.W. 1/4 bears 1st respondents signature and the whole evidence establishes beyond doubt that the 1st respondent got the pamphlet printed. He probably did not expect that the manuscript would reach the hands of the 2nd respondentWe can see no such indication. It is to be remembered that when this conversation was being tape-recorded Bhagwant Singh was not aware of it and therefore was talking freely what was in his mind whereas the 1st respondent was quite conscious of what was going on and that he was merely laying a trap in order to trap Bhagwant Singh into saying something in his (1st respondents) favour without being aware of it. The tape-recorded conversation is absolutely unhelpful to the 1st respondents case.6. Though there are certain suspicious features in this case which the learned advocate for the 1st respondent tried to magnify and blow out of all proportion so as to obscure the real picture, we are satisfied that the central point in the case as to the responsibility of the 1st respondent in getting the offending poster printed has been established beyond all reasonable doubt. Once that is done the question of distribution falls into its properAccording to the petitioners the posters were distributed in the villages Laluchhi, Bakshiwala, Jhill, Dhansuri, Kutabanpur. Bhima Kheri Saidipur, Rajla, Khuda Dadpur, Bathoi Kalan and Chhitera. The distribution in Lalauchhi is spoken to by P.W. 2 an advocate, Mr. Balwant Singh.His evidence is attacked on behalf of the 1st respondent by saying that he was the junior under the 2nd respondents husband but it is seen that that was some time ago and he had even appeared against the husband of the 2nd respondent in a personal case.So his evidence cannot be attacked on this basis. The 1st respondent examined two advocates to prove that on the particular day when he was said to have distributed the poster in Lalauchhi he was in Patiala. Their evidence has been rightly disbelieved by the learned Judge. The learned Judge has stated that both these advocates have merely lent themselves to prove a false plea of alibi. The only criticism which the learned Judge has made of the evidence of Mr. Balwant Singh is that he is an Akali and his testimony cannot be accepted at its face value as he would be the last person to support the Congress candidate. We are of opinion that this is the very reason why Mr. Balwant Singhs evidence should be accepted and not the contrary.We are therefore satisfied on evidence that the conclusion of the learned Judge on this point could not be accented and the distribution in village Lalauchhi must be held to have beenare of opinion that the distribution has been satisfactorily established. We do not therefore feel it necessary to deal with the question of distribution in the other villages.9. The 2nd respondent is a Hindu lady married to a Sikh gentleman. Such marriages between Hindus and Sikhs have been very common. Indeed it appears that till recent times the first son of most Hindu families in Punjab became a Sikh. Still politics has driven a wedge between brothers. It has led to unfortunate situations like the one in this case where because the 2nd respondent happens to be a Hindu lady it was sought to be taken advantage of by the 1st respondent for his election purposes, even though he and the 2nd respondents husband would seem to have been good friends.his evidence cannot be attacked on this basis. The 1st respondent examined two advocates to prove that on the particular day when he was said to have distributed the poster in Lalauchhi he was in Patiala. Their evidence has been rightly disbelieved by the learned Judge. The learned Judge has stated that both these advocates have merely lent themselves to prove a false plea of alibi. The only criticism which the learned Judge has made of the evidence of Mr. Balwant Singh is that he is an Akali and his testimony cannot be accepted at its face value as he would be the last person to support the Congress candidate. We are of opinion that this is the very reason why Mr. Balwant Singhs evidence should be accepted and not the contrary.We are therefore satisfied on evidence that the conclusion of the learned Judge on this point could not be accented and the distribution in village Lalauchhi must be held to have beenis very satisfactory evidence that the poster should have been printed on the 1st of March, 1972. Ext. C.W. 1/1, which, as the learned Judge himself holds, has been brought into existence for the purpose of this petition bears that date. Aftercarefully going through the evidence of C.W. 1, Nichhatar Singh we are satisfied that he is a witness who is anxious to help the 1st respondent and has brought Ext. C.W. 1/1 into existence for the purpose of helping him. Answers favourable to the petitioners had to be extracted out of his unwilling mouth , byEven he has put the date on Ext. C.W. 1/1 as 1st of March and his evidence is that it was printed on the 1st of March though he mentions only the name of C. W. 2, Ram,Singh. He also says that he had sent a letter. Ext. R. W. 5/1, to theMagistrate. Whether that letter was sent on the 1st of March, as is spoken to by him or on the 5th of March, the date which it bears, does not affect the substance of the question. This letter has been received by theMagistrate, Miss Deol on 12th March. The learned Judge himself finds that it was received on 12th March. We have carefully scrutinized it and are satisfied that it has been signed by theMagistrate on the 12th of March. That has been entered in the office diary on the 16th of March. Though it is true that the date 6th has been struck out and 16th has been put in, the 6th seems to have been put in due to a mistake. Looking into the entries in the diary on the previous pages as well as subsequent pages we have no doubt that the 16th is the correct date. The entries on this date contain a number of documents received from various Government offices which bear the date 6th March. We have no reason at all to doubt the genuineness of the entries in this diary. If Ext. R.W. 5/1 was signed by theMagistrate on the 12th and entered in the diary on the 16th they probabilities the receipt of that document at least some days before the 12th. At no stage, except during the arguments before this Court, were the entries in this diary sought to be impugned. Indeed before the High Court it seems to have been urged on behalf of the 1st respondent that it was a diary maintained in the usual course of business. Taking therefore even Ext. C.W. 1/1 as well as the evidence of C.W. 1, Nichhatar Singh, into consideration we are satisfied that this pamphlet should have come into existence on the 1st of March. We have also compared the signature of the 1st respondent in Ext. P.W. 1/4 with many of his admitted signatures and are satisfied that signature is his and that is confirmed by the expert evidence of Mr. Puri. There being no satisfactory explanation on the part of the 1st respondent regarding the presence of his signature on Ext. P.W. 1/4 it is to be concluded on the evidence of Nichhatar Singh and Jathedar Ram Singh taken together that the 1st respondent had, come to C.W. 1s press and given EXt. P.W, 1/4 for printing. Conclusion No. 3 of the learned Judge also supports this finding. | 1 | 2,857 | 2,345 | ### 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:
was because the 1st respondent asked Nichhatar Singh to produce that paper in his office and get the payment. This reason does not seem to be a good enough one for the 1st respondent signing Ext. P.W, 1/4. Be that as it may we have no doubt that Ext P.W. 1/4 bears 1st respondents signature and the whole evidence establishes beyond doubt that the 1st respondent got the pamphlet printed. He probably did not expect that the manuscript would reach the hands of the 2nd respondent5. It is in this connection that it is necessary to refer to the tape-recorded conversation. The 1st respondent had stated before the High Court that the transcript of the tape-recorded conversation can be taken as correct in so far as what he had spoken was concerned. The other person concerned in the tape-recorded conversation was Bhagwant Singh, the husband of the 2nd respondent who was also her advocate before the High Court. Though he admitted his part in the conversation it would not be admissible in evidence because he was not examined as a witness. What he has stated there cannot be taken as an admission on behalf of the 2nd respondent. Such admission can only relate to matters in issue before the Court, admissions prejudicial to the case of the 2nd respondent. Leaving such questions aside for the moment one thing that is obvious is that Ext. P.W. 1/4 had reached the hands of the 2nd respondent during the course of the trial and the evidence of Bedi Raghbir Singh that Nichhatar Singh gave it to him to be produced in the Court is not true. This conversation was relied upon by the learned advocate appearing on behalf of the 1st respondent as establishing that the 1st respondent was surprised and bewildered at the fact that Ext. P.W, 1/4 bore his signature. We can see no such indication. It is to be remembered that when this conversation was being tape-recorded Bhagwant Singh was not aware of it and therefore was talking freely what was in his mind whereas the 1st respondent was quite conscious of what was going on and that he was merely laying a trap in order to trap Bhagwant Singh into saying something in his (1st respondents) favour without being aware of it. The tape-recorded conversation is absolutely unhelpful to the 1st respondents case.6. Though there are certain suspicious features in this case which the learned advocate for the 1st respondent tried to magnify and blow out of all proportion so as to obscure the real picture, we are satisfied that the central point in the case as to the responsibility of the 1st respondent in getting the offending poster printed has been established beyond all reasonable doubt. Once that is done the question of distribution falls into its proper place7. According to the petitioners the posters were distributed in the villages Laluchhi, Bakshiwala, Jhill, Dhansuri, Kutabanpur. Bhima Kheri Saidipur, Rajla, Khuda Dadpur, Bathoi Kalan and Chhitera. The distribution in Lalauchhi is spoken to by P.W. 2 an advocate, Mr. Balwant Singh. His evidence is attacked on behalf of the 1st respondent by saying that he was the junior under the 2nd respondents husband but it is seen that that was some time ago and he had even appeared against the husband of the 2nd respondent in a personal case. So his evidence cannot be attacked on this basis. The 1st respondent examined two advocates to prove that on the particular day when he was said to have distributed the poster in Lalauchhi he was in Patiala. Their evidence has been rightly disbelieved by the learned Judge. The learned Judge has stated that both these advocates have merely lent themselves to prove a false plea of alibi. The only criticism which the learned Judge has made of the evidence of Mr. Balwant Singh is that he is an Akali and his testimony cannot be accepted at its face value as he would be the last person to support the Congress candidate. We are of opinion that this is the very reason why Mr. Balwant Singhs evidence should be accepted and not the contrary.We are therefore satisfied on evidence that the conclusion of the learned Judge on this point could not be accented and the distribution in village Lalauchhi must be held to have been proved.8. As regards the distribution in village Bakshiwala. it is spoken to by P. W. 3, an employee of the C. I. D.Puniab. His father owns land in that village. The 1st respondent produced R.W. 19 to show that Sucha Singh, P. W. 3 did not come to him and in support of this he produced his register Ext. R.W. 19/1. The learned Judges comment on this register is "The less said about this register the better". R.W. 19 also admitted that there was a scuffle in the,village and Sucha Singh was injured. The learned Judge has held that R.W, 19 s evidence is such that much reliance cannot be placed on him, R.W. 21 also admits about the injury to sucha Singh. In this state of evidence the learned Judge has not recorded any finding about the distribution of the poster in village Bakshiwala.We are of opinion that the distribution has been satisfactorily established. We do not therefore feel it necessary to deal with the question of distribution in the other villages.9. The 2nd respondent is a Hindu lady married to a Sikh gentleman. Such marriages between Hindus and Sikhs have been very common. Indeed it appears that till recent times the first son of most Hindu families in Punjab became a Sikh. Still politics has driven a wedge between brothers. It has led to unfortunate situations like the one in this case where because the 2nd respondent happens to be a Hindu lady it was sought to be taken advantage of by the 1st respondent for his election purposes, even though he and the 2nd respondents husband would seem to have been good friends.
### Response:
1
### Explanation:
respondent examined two advocates to prove that on the particular day when he was said to have distributed the poster in Lalauchhi he was in Patiala. Their evidence has been rightly disbelieved by the learned Judge. The learned Judge has stated that both these advocates have merely lent themselves to prove a false plea of alibi. The only criticism which the learned Judge has made of the evidence of Mr. Balwant Singh is that he is an Akali and his testimony cannot be accepted at its face value as he would be the last person to support the Congress candidate. We are of opinion that this is the very reason why Mr. Balwant Singhs evidence should be accepted and not the contrary.We are therefore satisfied on evidence that the conclusion of the learned Judge on this point could not be accented and the distribution in village Lalauchhi must be held to have beenare of opinion that the distribution has been satisfactorily established. We do not therefore feel it necessary to deal with the question of distribution in the other villages.9. The 2nd respondent is a Hindu lady married to a Sikh gentleman. Such marriages between Hindus and Sikhs have been very common. Indeed it appears that till recent times the first son of most Hindu families in Punjab became a Sikh. Still politics has driven a wedge between brothers. It has led to unfortunate situations like the one in this case where because the 2nd respondent happens to be a Hindu lady it was sought to be taken advantage of by the 1st respondent for his election purposes, even though he and the 2nd respondents husband would seem to have been good friends.his evidence cannot be attacked on this basis. The 1st respondent examined two advocates to prove that on the particular day when he was said to have distributed the poster in Lalauchhi he was in Patiala. Their evidence has been rightly disbelieved by the learned Judge. The learned Judge has stated that both these advocates have merely lent themselves to prove a false plea of alibi. The only criticism which the learned Judge has made of the evidence of Mr. Balwant Singh is that he is an Akali and his testimony cannot be accepted at its face value as he would be the last person to support the Congress candidate. We are of opinion that this is the very reason why Mr. Balwant Singhs evidence should be accepted and not the contrary.We are therefore satisfied on evidence that the conclusion of the learned Judge on this point could not be accented and the distribution in village Lalauchhi must be held to have beenis very satisfactory evidence that the poster should have been printed on the 1st of March, 1972. Ext. C.W. 1/1, which, as the learned Judge himself holds, has been brought into existence for the purpose of this petition bears that date. Aftercarefully going through the evidence of C.W. 1, Nichhatar Singh we are satisfied that he is a witness who is anxious to help the 1st respondent and has brought Ext. C.W. 1/1 into existence for the purpose of helping him. Answers favourable to the petitioners had to be extracted out of his unwilling mouth , byEven he has put the date on Ext. C.W. 1/1 as 1st of March and his evidence is that it was printed on the 1st of March though he mentions only the name of C. W. 2, Ram,Singh. He also says that he had sent a letter. Ext. R. W. 5/1, to theMagistrate. Whether that letter was sent on the 1st of March, as is spoken to by him or on the 5th of March, the date which it bears, does not affect the substance of the question. This letter has been received by theMagistrate, Miss Deol on 12th March. The learned Judge himself finds that it was received on 12th March. We have carefully scrutinized it and are satisfied that it has been signed by theMagistrate on the 12th of March. That has been entered in the office diary on the 16th of March. Though it is true that the date 6th has been struck out and 16th has been put in, the 6th seems to have been put in due to a mistake. Looking into the entries in the diary on the previous pages as well as subsequent pages we have no doubt that the 16th is the correct date. The entries on this date contain a number of documents received from various Government offices which bear the date 6th March. We have no reason at all to doubt the genuineness of the entries in this diary. If Ext. R.W. 5/1 was signed by theMagistrate on the 12th and entered in the diary on the 16th they probabilities the receipt of that document at least some days before the 12th. At no stage, except during the arguments before this Court, were the entries in this diary sought to be impugned. Indeed before the High Court it seems to have been urged on behalf of the 1st respondent that it was a diary maintained in the usual course of business. Taking therefore even Ext. C.W. 1/1 as well as the evidence of C.W. 1, Nichhatar Singh, into consideration we are satisfied that this pamphlet should have come into existence on the 1st of March. We have also compared the signature of the 1st respondent in Ext. P.W. 1/4 with many of his admitted signatures and are satisfied that signature is his and that is confirmed by the expert evidence of Mr. Puri. There being no satisfactory explanation on the part of the 1st respondent regarding the presence of his signature on Ext. P.W. 1/4 it is to be concluded on the evidence of Nichhatar Singh and Jathedar Ram Singh taken together that the 1st respondent had, come to C.W. 1s press and given EXt. P.W, 1/4 for printing. Conclusion No. 3 of the learned Judge also supports this finding.
|
State Of Punjab & Ors Vs. Balbir Singh Etc. Etc | BEG, C.J. 1. This appeal by special leave comes up before us from the judgment and order of the Division Bench of the High Court of Punjab and Haryana dismissing the appeal of the State of Punjab against the judgment and order of the learned single Judge given on 27 March 1967 in Civil Writ Case No. 2021 of 1966. The learned single Judge had allowed the petition of the respondent M/s. Balbir Singh & Sons. who were the highest bidders at an auction for country liquor vends relating to certain villages in the district of Ferozepore for the year 1965-66. Under the terms of the licence issued to the respondent on conditions specified before the auction, the auction fee and the security had to be deposited before lifting the minimum quota of liquor fixed under the licence. For reasons not mentioned in the judgment of the High Court, which considered it unnecessary to go into them, the respondent-firm did not lift the minimum quota of liquor fixed under the licence. It also did not pay the full amount of licence fee as undertaken by it. The Excise authorities of the appellant State, therefore, demanded payment of the still-head duty on the entire minimum quantity of liquor which the respondent-firm was required to lift under the licence. The High Court allowed the petition following an earlier decision of that court merely on the ground that the respondent-firm had not been given an opportunity of being heard. 2. After the judgment under appeal before us, this Court has clarified the whole position in several decisions, and in particular, in Har Shankar v. Deputy Excise and Taxation Commr., 1975 (3) SCR 254 : (AIR 1975 SC 1121 ) followed in Sham Lal v. State of Punjab, (AIR 1976 SC 2045 ). In Har Shankars case (supra). Chandrachud J. speaking for the Constitution Bench of this Court said as under : Those interested in running the country liquor vends offered their bids voluntarily in the auction held for granting licences for the sale of country liquor. The terms and conditions of auctions were announced before the auctions were held and the bidders participated in the auctions without a demur and with full knowledge of the commitments which the bids involved. The announcement of conditions governing the auctions were in the nature of an invitation to an offer to those who were interested in the sale of country liquor. The bids given in the auctions were offers made by prospective vendors to the Government. The Governments acceptance of those bids was the acceptance of willing offers made to it. On such acceptance, the contract between the bidders and the Government became concluded and a blinding agreement came into existence between them. The successful bidders were then granted licences evidencing the terms of contract between them and the Government , under which they became entitled to sell liquor.The licensees exploited the respective licences for a portion of the period of their currency, presumably in expectation of a profit. Commercial considerations may have revealed an error of judgment in the initial assessment of profitability of the adventure but that is a normal incident of the trading transactions.Those who contract with open eyes must accept the burdens of the contact along with its benefits.The powers of the Financial Commissioner to grant liquor licences by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who , had their venture succeeded, would have relied upon those very powers to found a legal claim. Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contact. By such a test no. contract could ever have a binding force. 3. In the aforementioned case of Har Shankar, all the relevant authorities on th subject were quite exhaustively considered by this Court.Subsequent decisions of this Court have followed the principle laid down in Har Shankars case. Learned counsel for the State also drew our attention to a recent judgment of this Court in State of Punjab v. Mulkh Raj & Co. in Civil Appeals Nos.1381-1382 and 1737 of 1974, delivered on 28 January 1977 = (reported in AIR 1977 SC 1550 )where this Court held, inter alia that considerations governing cancellation of licence under S. 36 of the Punjab Excise Act 1914 are not relevant in considering the question whether the demand was lawful under the terms which became binding on both sides as a result of mutual obligations carried out by following the conditions on which the liquor vends were auctioned. It is the enforcement of the liabilities arising out of mutually agreed conditions of auction, which were sought to be enforced by the demand notice. which was quashed by the High Court. | 1[ds]3. In the aforementioned case of Har Shankar, all the relevant authorities on th subject were quite exhaustively considered by this Court.Subsequent decisions of this Court have followed the principle laid down in Har Shankars case. Learned counsel for the State also drew our attention to a recent judgment of this Court in State of Punjab v. Mulkh Raj & Co. in Civil Appeals2 and 1737 of 1974, delivered on 28 January 1977 = (reported in AIR 1977 SC 1550 )where this Court held, inter alia that considerations governing cancellation of licence under S. 36 of the Punjab Excise Act 1914 are not relevant in considering the question whether the demand was lawful under the terms which became binding on both sides as a result of mutual obligations carried out by following the conditions on which the liquor vends were auctioned. It is the enforcement of the liabilities arising out of mutually agreed conditions of auction, which were sought to be enforced by the demand notice. which was quashed by the High Court. | 1 | 868 | 188 | ### 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:
BEG, C.J. 1. This appeal by special leave comes up before us from the judgment and order of the Division Bench of the High Court of Punjab and Haryana dismissing the appeal of the State of Punjab against the judgment and order of the learned single Judge given on 27 March 1967 in Civil Writ Case No. 2021 of 1966. The learned single Judge had allowed the petition of the respondent M/s. Balbir Singh & Sons. who were the highest bidders at an auction for country liquor vends relating to certain villages in the district of Ferozepore for the year 1965-66. Under the terms of the licence issued to the respondent on conditions specified before the auction, the auction fee and the security had to be deposited before lifting the minimum quota of liquor fixed under the licence. For reasons not mentioned in the judgment of the High Court, which considered it unnecessary to go into them, the respondent-firm did not lift the minimum quota of liquor fixed under the licence. It also did not pay the full amount of licence fee as undertaken by it. The Excise authorities of the appellant State, therefore, demanded payment of the still-head duty on the entire minimum quantity of liquor which the respondent-firm was required to lift under the licence. The High Court allowed the petition following an earlier decision of that court merely on the ground that the respondent-firm had not been given an opportunity of being heard. 2. After the judgment under appeal before us, this Court has clarified the whole position in several decisions, and in particular, in Har Shankar v. Deputy Excise and Taxation Commr., 1975 (3) SCR 254 : (AIR 1975 SC 1121 ) followed in Sham Lal v. State of Punjab, (AIR 1976 SC 2045 ). In Har Shankars case (supra). Chandrachud J. speaking for the Constitution Bench of this Court said as under : Those interested in running the country liquor vends offered their bids voluntarily in the auction held for granting licences for the sale of country liquor. The terms and conditions of auctions were announced before the auctions were held and the bidders participated in the auctions without a demur and with full knowledge of the commitments which the bids involved. The announcement of conditions governing the auctions were in the nature of an invitation to an offer to those who were interested in the sale of country liquor. The bids given in the auctions were offers made by prospective vendors to the Government. The Governments acceptance of those bids was the acceptance of willing offers made to it. On such acceptance, the contract between the bidders and the Government became concluded and a blinding agreement came into existence between them. The successful bidders were then granted licences evidencing the terms of contract between them and the Government , under which they became entitled to sell liquor.The licensees exploited the respective licences for a portion of the period of their currency, presumably in expectation of a profit. Commercial considerations may have revealed an error of judgment in the initial assessment of profitability of the adventure but that is a normal incident of the trading transactions.Those who contract with open eyes must accept the burdens of the contact along with its benefits.The powers of the Financial Commissioner to grant liquor licences by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who , had their venture succeeded, would have relied upon those very powers to found a legal claim. Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contact. By such a test no. contract could ever have a binding force. 3. In the aforementioned case of Har Shankar, all the relevant authorities on th subject were quite exhaustively considered by this Court.Subsequent decisions of this Court have followed the principle laid down in Har Shankars case. Learned counsel for the State also drew our attention to a recent judgment of this Court in State of Punjab v. Mulkh Raj & Co. in Civil Appeals Nos.1381-1382 and 1737 of 1974, delivered on 28 January 1977 = (reported in AIR 1977 SC 1550 )where this Court held, inter alia that considerations governing cancellation of licence under S. 36 of the Punjab Excise Act 1914 are not relevant in considering the question whether the demand was lawful under the terms which became binding on both sides as a result of mutual obligations carried out by following the conditions on which the liquor vends were auctioned. It is the enforcement of the liabilities arising out of mutually agreed conditions of auction, which were sought to be enforced by the demand notice. which was quashed by the High Court.
### Response:
1
### Explanation:
3. In the aforementioned case of Har Shankar, all the relevant authorities on th subject were quite exhaustively considered by this Court.Subsequent decisions of this Court have followed the principle laid down in Har Shankars case. Learned counsel for the State also drew our attention to a recent judgment of this Court in State of Punjab v. Mulkh Raj & Co. in Civil Appeals2 and 1737 of 1974, delivered on 28 January 1977 = (reported in AIR 1977 SC 1550 )where this Court held, inter alia that considerations governing cancellation of licence under S. 36 of the Punjab Excise Act 1914 are not relevant in considering the question whether the demand was lawful under the terms which became binding on both sides as a result of mutual obligations carried out by following the conditions on which the liquor vends were auctioned. It is the enforcement of the liabilities arising out of mutually agreed conditions of auction, which were sought to be enforced by the demand notice. which was quashed by the High Court.
|
KAPILABEN Vs. ASHOK KUMAR JAYANTILAL SHETH THROUGH POA GOPALBHAI MADHUSUDAN PATEL | happens, cannot be enforced by law unless and until that event has happened.??35. When contracts become void, which are contingent on happening of specified event within fixed time.—Contingent contracts to do or not to do anything, if a specified uncertain event happens within a fixed time, become void if, at the expiration of the time fixed, such event has not happened, or if, before the time fixed, such event becomes impossible.?The 1987 agreements are clearly contingent contracts inasmuch as they could only be enforced had the original vendees obtained the right to get the sale deed executed, and taken possession of the suit property as per the terms of the 1986 agreement. Once the 1986 agreement was cancelled by the Appellants, the original vendees? rights thereunder ceased to exist. 17. Respondent Nos. 1 contend that the Power-of-Attorney dated 11.11.2001 (supra) in favour of Mr. Dhananjay Patel shows that the 1986 agreement was not cancelled and that the original vendees continued to retain their right to get the sale deed executed in their favour. It was brought to our notice by the Appellants that the aforesaid Power-of-Attorney was subsequently cancelled by the original vendees on 6.6.2003, on the ground that Mr. Dhananjay Patel had obtained the Power-of-Attorney through misrepresentation. However, it is important to note that the original vendees have stated in the aforesaid cancellation notice that they have ‘joint ownership? of the suit property. Therefore we find some merit in the argument that the Appellants and the original vendees are acting in collusion. Nevertheless, regardless of what may be stated in the Power-of-Attorney, it has to be seen whether the original vendees have legally acquired any rights in the suit property. Respondent Nos. 1 have admitted in their plaints that the Town Planning Scheme was finalized prior to the 1986 agreement. Hence the deadline stipulated under the 1986 agreement for payment of remaining consideration by the original vendees, i.e., within three months of finalization of the Scheme, has long since lapsed. Since the original vendees never paid the remaining consideration within the time specified in the 1986 agreement, their rights thereunder never fructified. Even assuming that the original vendees acquired some interest in the suit property, the subsequent withdrawal of the suit SCS No. 194/1988 shows that the original vendees do not intend to enforce the 1986 agreement. The trial court has found that though the suit property de jure vested with the concerned government authority under the Town Planning Scheme, the de facto possession of the property remains with the Appellants and the original vendees have not taken possession thereof. Furthermore, both the trial court and the learned District Judge have on facts found that the original vendees have not shown any readiness or willingness to pay the remaining consideration to the Appellants. Hence since the original vendees have abandoned their rights under the 1986 agreement, enforcement of the 1987 agreements has become virtually impossible and Respondent Nos. 1 cannot seek specific performance of the latter. Consequently the 1987 agreements are void and unenforceable as provided under Sections 32 and 35 of the Contract Act. 18. It is relevant to note at this juncture that Respondent Nos. 1 have also pleaded that the Power-of-Attorney dated 11.11.2001 (supra) was executed in breach of the interim injunction order issued by the trial court directing maintenance of status quo in respect of the suit property. Hence they seek that action should be taken against the Appellants and the original vendees under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 for breach of the injunction order. However, we are in agreement with the trial court?s findings that the Plaintiffs? application under Order XXXIX was moved after a delay of three years and six months, and the said delay has not been satisfactorily explained. Hence the application is barred by laches. In any case, since the original vendees have revoked the Power-of-Attorney, status-quo has been restored, and the Plaintiffs? cause of action no longer exists. The Learned District Judge and the High Court in the impugned judgement have affirmed the trial court?s reasoning on this aspect, and we see no reason to overturn their concurrent findings on this matter. It was also re-iterated before us by Respondent Nos. 1 that the original vendees were misled into withdrawing their suit SCS No. 194/1988 and that the same should not be binding upon the plaintiffs. However given that the withdrawal of the suit has attained finality before this Court, and the Trial Court and the High Court have concurrently found in the separate application made by the plaintiffs in SCS No. 658/1988, by orders date 24.1.2008 and 25.3.2008 supra (respectively), that the original vendees cannot be compelled to continue their suit against their desire, we are not inclined to interfere with the same. V. Alternative Remedy to be given to the plaintiffs 19. Though we have found that on facts and law, Respondent Nos. 1 are not entitled to specific performance of the 1986 and 1987 agreements, prima facie it does appear that the Appellants and the original vendees have colluded to frustrate performance of the 1987 agreements. The trial court had directed the original vendees to reimburse earnest money of Rs. 5000 paid by Respondent Nos. 1 towards each of the 1987 agreements with an interest of 9% p.a. from 14.9.1987 till the date of realization. We are in agreement with the aforesaid direction. With regard to the appropriate remedy to be provided to Respondent Nos. 1, it may also be pertinent to refer to Section 53 of the Contract Act, which provides that:?53. Liability of party preventing event on which the contract is to take effect.—When a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented: and he is entitled to compensation from the other party for any loss which he may sustain in consequence of the non-performance of the contract.? | 1[ds]7. Upon considering the facts and circumstances of the present case, it is evident that there is no privity of contract between the Appellants and Respondent Nos. 1. Respondent Nos. 1 were not party to the 1986 agreement. Vice versa, the Appellants were not party to the 1987 agreements, though whether or not they had knowledge of the same is disputed. Hence Respondent Nos. 1 cannot seek specific performance of the 1986 agreement, or for that matter, the 1987 agreements, against the Appellants, except by suing as ‘representatives-in-interest? of the original vendees under Section 15(b) of the Specific Relief Act.Application of the above principles to the presentHence, in light of the above discussion, whether or not an assignee can seek specific performance would depend upon the construction of the contract in each case. The Court would have to determine the nature of interest sought to be transferred, whether such interest was meant to be enforceable only between the parties to the contract and whether the contract expressly or by necessary implication bars assignment of suchthe present case, the 1986 agreement provided that the Appellants shall execute sale deed in favour of the original vendees or ‘name proposed by the vendee? subject to the assurance that the latter would pay the remaining consideration and betterment tax within the stipulated time, and that the former would obtain the necessary permissions for construction on the suitare of the opinion that the term ‘name proposed by the vendee? in the 1986 agreement refers to a nominee to be proposed at the time of execution of the sale deed and not a subsequent assignee. At the same time, it is true the 1986 agreement does not contain any express bar against assignability. The question which arises then is whether the purported assignment in favour of Respondent Nos. 1 under the 1987 agreements is legallydecisions in Shyam Singh (supra) and Ram Baran Prasad (supra) relied upon by Respondent Nos. 1 will not help their case as this Court found on the particular facts of those cases that the terms of the contracts in those cases did not implicitly bar assignment. These decisions cannot be taken to lay down a blanket rule that in every case where there is no express bar against assignability stipulated in the contract, assignment of the interest therein should be upheld without looking at the context in which the parties contracted with eachis not disputed that the original vendees had not fulfilled their obligations under the 1986 agreement prior to the purported ‘assignment? under the 1987 agreements. Hence they had not ‘performed their part of the contract? as required under Section 15(b) of the Specific Relief Act. Applying the law as stated above, the assignment of such a contract cannot be enforced without proving that it was with the knowledge and consent of the original owners/Appellants.It is further relevant to note that under the 1987 agreements, payment of the remaining consideration amount is to be made to the original vendees, not the Appellants, and possession of the suit property is to be handed over by the original vendees. Even the consideration to be paid was twice the rate as specified in the 1986 agreement. The 1987 agreements nowhere provide for discharge of the original vendees? pending obligations towards the Appellants by Respondent Nos. 1. Hence we are inclined to accept the Appellants? argument that the 1987 agreements were not a case of assignment but appear to be independent agreements for sale which were contingent on the execution of the 1986 agreement. Therefore, the only way Respondent Nos. 1 can seek specific performance of the 1986 agreement against the Appellants is by proving the Appellants? knowledge of and consent to transfer of the original vendees? rights and liabilities to Respondent Nos. 1.It is true that Section 15(b) does not stipulate in what form the promisee?s ‘acceptance? of performance by a representative- in-interest of the promisor should be communicated. It may be either through express written consent, or implied from the actions of the promisee; though as a matter of caution, the former mode of acceptance would inevitably have higher evidentiary value. However in the present case, as the trial court and the Learned District Judge have rightly appreciated on facts, we do not find that the Appellants have either by words or by conduct, consented to the assignment of the 1986 agreement in favour of Respondent Nos.mere fact that the original owner Mr. Naranbhai Patel signed the development permissions for the suit property and may have been present at the Bhoomi Pujan does not indicate that he consented to assignment of the 1986 agreement. The 1986 agreement stipulated that the original owners would give their signatures for obtaining necessary permissions for the proposed development on the suit property. Hence, as the trial court has rightly noted, Mr. Naranbhai Patel was only carrying out his contractual obligation as he had promised to the original vendees. This does not indicate that he was under the impression that the said permissions were now to be obtained for the benefit of Respondent Nos.is pertinent to note that Respondent Nos. 1 conceded before the trial court that the Appellants had given their signatures on the layout plan for the housing scheme on the suit property to the original vendees, not to Respondent Nos. 1. Even the advertisement regarding the ‘Unnati Park? housing scheme nowhere indicates that the Appellants/original owners were developing the project on the suit property in partnership with Respondent Nos.we conclude that there was no valid assignment of rights flowing from the 1986 agreement to Respondent Nos. 1, and they cannot seek specific performance against thethere is no privity of contract between the Appellants and Respondent Nos. 1 there no longer remains any question of granting specific performance as against the1987 agreements are clearly contingent contracts inasmuch as they could only be enforced had the original vendees obtained the right to get the sale deed executed, and taken possession of the suit property as per the terms of the 1986 agreement. Once the 1986 agreement was cancelled by the Appellants, the original vendees? rights thereunder ceased towas brought to our notice by the Appellants that the aforesaid Power-of-Attorney was subsequently cancelled by the original vendees on 6.6.2003, on the ground that Mr. Dhananjay Patel had obtained the Power-of-Attorney through misrepresentation. However, it is important to note that the original vendees have stated in the aforesaid cancellation notice that they have ‘joint ownership? of the suit property. Therefore we find some merit in the argument that the Appellants and the original vendees are acting inregardless of what may be stated in the Power-of-Attorney, it has to be seen whether the original vendees have legally acquired any rights in the suit property. Respondent Nos. 1 have admitted in their plaints that the Town Planning Scheme was finalized prior to the 1986 agreement. Hence the deadline stipulated under the 1986 agreement for payment of remaining consideration by the original vendees, i.e., within three months of finalization of the Scheme, has long since lapsed. Since the original vendees never paid the remaining consideration within the time specified in the 1986 agreement, their rights thereunder neverassuming that the original vendees acquired some interest in the suit property, the subsequent withdrawal of the suit SCS No. 194/1988 shows that the original vendees do not intend to enforce the 1986 agreement. The trial court has found that though the suit property de jure vested with the concerned government authority under the Town Planning Scheme, the de facto possession of the property remains with the Appellants and the original vendees have not taken possession thereof. Furthermore, both the trial court and the learned District Judge have on facts found that the original vendees have not shown any readiness or willingness to pay the remaining consideration to the Appellants. Hence since the original vendees have abandoned their rights under the 1986 agreement, enforcement of the 1987 agreements has become virtually impossible and Respondent Nos. 1 cannot seek specific performance of the latter. Consequently the 1987 agreements are void and unenforceable as provided under Sections 32 and 35 of the Contract Act.It is relevant to note at this juncture that Respondent Nos. 1 have also pleaded that the Power-of-Attorney dated 11.11.2001 (supra) was executed in breach of the interim injunction order issued by the trial court directing maintenance of status quo in respect of the suit property. Hence they seek that action should be taken against the Appellants and the original vendees under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 for breach of the injunction order. However, we are in agreement with the trial court?s findings that the Plaintiffs? application under Order XXXIX was moved after a delay of three years and six months, and the said delay has not been satisfactorily explained. Hence the application is barred by laches. In any case, since the original vendees have revoked the Power-of-Attorney, status-quo has been restored, and the Plaintiffs? cause of action no longer exists. The Learned District Judge and the High Court in the impugned judgement have affirmed the trial court?s reasoning on this aspect, and we see no reason to overturn their concurrent findings on thiswas also re-iterated before us by Respondent Nos. 1 that the original vendees were misled into withdrawing their suit SCS No. 194/1988 and that the same should not be binding upon the plaintiffs. However given that the withdrawal of the suit has attained finality before this Court, and the Trial Court and the High Court have concurrently found in the separate application made by the plaintiffs in SCS No. 658/1988, by orders date 24.1.2008 and 25.3.2008 supra (respectively), that the original vendees cannot be compelled to continue their suit against their desire, we are not inclined to interfere with the same.Alternative Remedy to be given to theThough we have found that on facts and law, Respondent Nos. 1 are not entitled to specific performance of the 1986 and 1987 agreements, prima facie it does appear that the Appellants and the original vendees have colluded to frustrate performance of the 1987 agreements. The trial court had directed the original vendees to reimburse earnest money of Rs. 5000 paid by Respondent Nos. 1 towards each of the 1987 agreements with an interest of 9% p.a. from 14.9.1987 till the date of realization. We are in agreement with the aforesaid direction. | 1 | 7,861 | 1,907 | ### 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:
happens, cannot be enforced by law unless and until that event has happened.??35. When contracts become void, which are contingent on happening of specified event within fixed time.—Contingent contracts to do or not to do anything, if a specified uncertain event happens within a fixed time, become void if, at the expiration of the time fixed, such event has not happened, or if, before the time fixed, such event becomes impossible.?The 1987 agreements are clearly contingent contracts inasmuch as they could only be enforced had the original vendees obtained the right to get the sale deed executed, and taken possession of the suit property as per the terms of the 1986 agreement. Once the 1986 agreement was cancelled by the Appellants, the original vendees? rights thereunder ceased to exist. 17. Respondent Nos. 1 contend that the Power-of-Attorney dated 11.11.2001 (supra) in favour of Mr. Dhananjay Patel shows that the 1986 agreement was not cancelled and that the original vendees continued to retain their right to get the sale deed executed in their favour. It was brought to our notice by the Appellants that the aforesaid Power-of-Attorney was subsequently cancelled by the original vendees on 6.6.2003, on the ground that Mr. Dhananjay Patel had obtained the Power-of-Attorney through misrepresentation. However, it is important to note that the original vendees have stated in the aforesaid cancellation notice that they have ‘joint ownership? of the suit property. Therefore we find some merit in the argument that the Appellants and the original vendees are acting in collusion. Nevertheless, regardless of what may be stated in the Power-of-Attorney, it has to be seen whether the original vendees have legally acquired any rights in the suit property. Respondent Nos. 1 have admitted in their plaints that the Town Planning Scheme was finalized prior to the 1986 agreement. Hence the deadline stipulated under the 1986 agreement for payment of remaining consideration by the original vendees, i.e., within three months of finalization of the Scheme, has long since lapsed. Since the original vendees never paid the remaining consideration within the time specified in the 1986 agreement, their rights thereunder never fructified. Even assuming that the original vendees acquired some interest in the suit property, the subsequent withdrawal of the suit SCS No. 194/1988 shows that the original vendees do not intend to enforce the 1986 agreement. The trial court has found that though the suit property de jure vested with the concerned government authority under the Town Planning Scheme, the de facto possession of the property remains with the Appellants and the original vendees have not taken possession thereof. Furthermore, both the trial court and the learned District Judge have on facts found that the original vendees have not shown any readiness or willingness to pay the remaining consideration to the Appellants. Hence since the original vendees have abandoned their rights under the 1986 agreement, enforcement of the 1987 agreements has become virtually impossible and Respondent Nos. 1 cannot seek specific performance of the latter. Consequently the 1987 agreements are void and unenforceable as provided under Sections 32 and 35 of the Contract Act. 18. It is relevant to note at this juncture that Respondent Nos. 1 have also pleaded that the Power-of-Attorney dated 11.11.2001 (supra) was executed in breach of the interim injunction order issued by the trial court directing maintenance of status quo in respect of the suit property. Hence they seek that action should be taken against the Appellants and the original vendees under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 for breach of the injunction order. However, we are in agreement with the trial court?s findings that the Plaintiffs? application under Order XXXIX was moved after a delay of three years and six months, and the said delay has not been satisfactorily explained. Hence the application is barred by laches. In any case, since the original vendees have revoked the Power-of-Attorney, status-quo has been restored, and the Plaintiffs? cause of action no longer exists. The Learned District Judge and the High Court in the impugned judgement have affirmed the trial court?s reasoning on this aspect, and we see no reason to overturn their concurrent findings on this matter. It was also re-iterated before us by Respondent Nos. 1 that the original vendees were misled into withdrawing their suit SCS No. 194/1988 and that the same should not be binding upon the plaintiffs. However given that the withdrawal of the suit has attained finality before this Court, and the Trial Court and the High Court have concurrently found in the separate application made by the plaintiffs in SCS No. 658/1988, by orders date 24.1.2008 and 25.3.2008 supra (respectively), that the original vendees cannot be compelled to continue their suit against their desire, we are not inclined to interfere with the same. V. Alternative Remedy to be given to the plaintiffs 19. Though we have found that on facts and law, Respondent Nos. 1 are not entitled to specific performance of the 1986 and 1987 agreements, prima facie it does appear that the Appellants and the original vendees have colluded to frustrate performance of the 1987 agreements. The trial court had directed the original vendees to reimburse earnest money of Rs. 5000 paid by Respondent Nos. 1 towards each of the 1987 agreements with an interest of 9% p.a. from 14.9.1987 till the date of realization. We are in agreement with the aforesaid direction. With regard to the appropriate remedy to be provided to Respondent Nos. 1, it may also be pertinent to refer to Section 53 of the Contract Act, which provides that:?53. Liability of party preventing event on which the contract is to take effect.—When a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented: and he is entitled to compensation from the other party for any loss which he may sustain in consequence of the non-performance of the contract.?
### Response:
1
### Explanation:
Respondent Nos.mere fact that the original owner Mr. Naranbhai Patel signed the development permissions for the suit property and may have been present at the Bhoomi Pujan does not indicate that he consented to assignment of the 1986 agreement. The 1986 agreement stipulated that the original owners would give their signatures for obtaining necessary permissions for the proposed development on the suit property. Hence, as the trial court has rightly noted, Mr. Naranbhai Patel was only carrying out his contractual obligation as he had promised to the original vendees. This does not indicate that he was under the impression that the said permissions were now to be obtained for the benefit of Respondent Nos.is pertinent to note that Respondent Nos. 1 conceded before the trial court that the Appellants had given their signatures on the layout plan for the housing scheme on the suit property to the original vendees, not to Respondent Nos. 1. Even the advertisement regarding the ‘Unnati Park? housing scheme nowhere indicates that the Appellants/original owners were developing the project on the suit property in partnership with Respondent Nos.we conclude that there was no valid assignment of rights flowing from the 1986 agreement to Respondent Nos. 1, and they cannot seek specific performance against thethere is no privity of contract between the Appellants and Respondent Nos. 1 there no longer remains any question of granting specific performance as against the1987 agreements are clearly contingent contracts inasmuch as they could only be enforced had the original vendees obtained the right to get the sale deed executed, and taken possession of the suit property as per the terms of the 1986 agreement. Once the 1986 agreement was cancelled by the Appellants, the original vendees? rights thereunder ceased towas brought to our notice by the Appellants that the aforesaid Power-of-Attorney was subsequently cancelled by the original vendees on 6.6.2003, on the ground that Mr. Dhananjay Patel had obtained the Power-of-Attorney through misrepresentation. However, it is important to note that the original vendees have stated in the aforesaid cancellation notice that they have ‘joint ownership? of the suit property. Therefore we find some merit in the argument that the Appellants and the original vendees are acting inregardless of what may be stated in the Power-of-Attorney, it has to be seen whether the original vendees have legally acquired any rights in the suit property. Respondent Nos. 1 have admitted in their plaints that the Town Planning Scheme was finalized prior to the 1986 agreement. Hence the deadline stipulated under the 1986 agreement for payment of remaining consideration by the original vendees, i.e., within three months of finalization of the Scheme, has long since lapsed. Since the original vendees never paid the remaining consideration within the time specified in the 1986 agreement, their rights thereunder neverassuming that the original vendees acquired some interest in the suit property, the subsequent withdrawal of the suit SCS No. 194/1988 shows that the original vendees do not intend to enforce the 1986 agreement. The trial court has found that though the suit property de jure vested with the concerned government authority under the Town Planning Scheme, the de facto possession of the property remains with the Appellants and the original vendees have not taken possession thereof. Furthermore, both the trial court and the learned District Judge have on facts found that the original vendees have not shown any readiness or willingness to pay the remaining consideration to the Appellants. Hence since the original vendees have abandoned their rights under the 1986 agreement, enforcement of the 1987 agreements has become virtually impossible and Respondent Nos. 1 cannot seek specific performance of the latter. Consequently the 1987 agreements are void and unenforceable as provided under Sections 32 and 35 of the Contract Act.It is relevant to note at this juncture that Respondent Nos. 1 have also pleaded that the Power-of-Attorney dated 11.11.2001 (supra) was executed in breach of the interim injunction order issued by the trial court directing maintenance of status quo in respect of the suit property. Hence they seek that action should be taken against the Appellants and the original vendees under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 for breach of the injunction order. However, we are in agreement with the trial court?s findings that the Plaintiffs? application under Order XXXIX was moved after a delay of three years and six months, and the said delay has not been satisfactorily explained. Hence the application is barred by laches. In any case, since the original vendees have revoked the Power-of-Attorney, status-quo has been restored, and the Plaintiffs? cause of action no longer exists. The Learned District Judge and the High Court in the impugned judgement have affirmed the trial court?s reasoning on this aspect, and we see no reason to overturn their concurrent findings on thiswas also re-iterated before us by Respondent Nos. 1 that the original vendees were misled into withdrawing their suit SCS No. 194/1988 and that the same should not be binding upon the plaintiffs. However given that the withdrawal of the suit has attained finality before this Court, and the Trial Court and the High Court have concurrently found in the separate application made by the plaintiffs in SCS No. 658/1988, by orders date 24.1.2008 and 25.3.2008 supra (respectively), that the original vendees cannot be compelled to continue their suit against their desire, we are not inclined to interfere with the same.Alternative Remedy to be given to theThough we have found that on facts and law, Respondent Nos. 1 are not entitled to specific performance of the 1986 and 1987 agreements, prima facie it does appear that the Appellants and the original vendees have colluded to frustrate performance of the 1987 agreements. The trial court had directed the original vendees to reimburse earnest money of Rs. 5000 paid by Respondent Nos. 1 towards each of the 1987 agreements with an interest of 9% p.a. from 14.9.1987 till the date of realization. We are in agreement with the aforesaid direction.
|
Union of India and Others Vs. Mahindra and Mahindra Limited, Bombay | indivisible and composite one. The agreement should be read as a whole. The technology for the assembly for the Engine is necessary and is included in the agreement. The price of technology "to assemble" is really a part of the bargain and is included in the composite agreement. The foreign collaborator who retained the industrial property rights relating to the Engine exclusively permitted the respondents to use the same in India and the consideration thereof is also included; but for this, the respondents cannot use the property at all and the supply of CKD packs and service parts to the respondents was only one of the aspects covered by the bargain, and the apparently sizeable amount paid (consideration shown) as per the agreements could only be by reckoning the supply of CKD packs and the service parts in the future. In the circumstances, the consideration mentioned in the agreement should cover, at least in part, the price of the CKD packs and spares that may be supplied later, though it is not expressly stated so. It may even include an element of payment of royalty for the products. 8. On the other hand, counsel for the respondent Shri Setalvad laid emphasis on the following : The High Court has concurrently found that the respondents and the foreign collaborator had no interest in the business of each other and the said finding is not assailable in this appeal especially in view of the conditions under which special leave was granted by this Court. The CKD packs and spares were supplied by the foreign collaborator to the respondents at the same price at which they were sold to others and the agreements did not provide for any concession to the respondents-buyers. In other words, the price charged by the foreign collaborator for the supply of CKD packs and spares and other articles is uniform. The payments under the agreements were made by 1981, and the import of CKD packs and spares started later in 1982. It was only two years thereafter, for the first time on 12-6-1984, the customs authorities intimated the respondent that they will load the invoice value. Finally, more than 3 years after the import of the goods, the goods were loaded at 1.5%, arbitrarily and without any basis. The technical know-how of every machine (in the instant case, the Engine) will include assembly and there is nothing unusual in the collaboration agreement which provides for manufacture of the engine, for the supply of the necessary know-how for the assembly thereof. Indeed, Clause A (4) of the main agreement provides "for manufacture of an engine with 100% indigenous contents in India". What is more, under clauses F 1-3, the option vested with the respondents, to import the whole or any part of the materials, including CKD packs and spares etc. There is no material to indicate any nexus or connection between the lump sum payment of 15 million French Francs and the supply of CKD packs to the respondents by Peugeot for the production of the engine. No material has been adduced by the Revenue to demonstrate that the price fixed in the invoices is not the true or the real price, or in other words, the apparent is not the real. In no sense, it can be stated that the price of the goods obtained later was reckoned or reflected in the lump sum payments made, long before. The parties never had in mind the nature and extent of the spare parts that may be required later, when the collaboration agreement was entered into. The inference so suggested to be drawn is arbitrary, and ad hoc and has no foundation. 9. On an evaluation of the relevant clauses in the collaboration agreements and the attendant circumstances, we are of the view that the concurrent judgments of the High Court at Bombay do not merit interference in this appeal. The crucial aspects appearing in the case are that the parties were dealing at arms length, that the seller and the buyer have no interest in the business of each other, that, ordinarily, the technical know-how of the machine can take in "the assembly" thereof, that the CKD packs and spares were supplied to the respondents by the collaborator not at a concessional price but at the price at which they were sold to others, that, as agreed to by the respondents, the option was entirely with the respondents to order the parts as per their requirements, that there was no obligation on the respondents to purchase CKD packs at all, that long before the supply of the CKD packs and spares, the royalty due to the collaborators was paid, that there is no material to show that the supply of the CKD packs or spares weighed with the parties in fixing the payments under the collaboration agreement but, on the other hand, the collaboration agreement for the technical know-how and the supply of CKD packs and spares are independent commercial transactions; in other words, there existed no nexus between the lump sum payment under the agreement for the technical know-how and the determination of the price for supply of CKD packs or spares. It is by highlighting the above aspects that the learned Single Judge and the Division Bench concluded that "the contention that the price quoted in the invoices tendered by Mahindra & Mahindra (respondents) does not reflect the correct price because a part of the value of imported packs and components was already received by foreign collaborator while determining the consideration of 15 million French Francs cannot be accepted", and "the collaboration agreement does not support the claim nor was there any material available to the Assistant Collector to warrant such a conclusion", and, therefore, resort to Section 14(1)(b) of the Act and Rule 8 of the Customs Valuation Rules is clearly incorrect and unsustainable and the "Assistant Collector was bound to accept the price mentioned in the invoices for the purpose of assessing the customs duty." | 0[ds]It is on this basis Section 14(1)(a) was excluded and resort to Section 14(1)(b) of the Customs Act was sought to be justified by the Revenue. In appreciating the above plea we have to bear in mind certain basis principles. The bargain between the respondents and the foreign collaborator is evidenced by written agreements (dated). There is no material nor was is suggested that the dealings between the parties are not at arms length. No evidence is available to show that the payment of royalty to the collaborator induced any extra commercial obligation for the price of CKD packs, parts and components. Ordinarily the Court should proceed on the basis that the apparent tenor of the agreements reflect the real state of affairs. It is, no doubt, open to the Revenue to allege and prove that the apparent is not the real and that the price for the sale of the CKD packs is not the true price, and the price was determined by reckoning or taking into consideration the lump sum payment made under the collaboration agreement in the sum 15 million French Francs. The short question is whether the Revenue has succeeded in showing that the apparent is not the real and that the price shown in the invoices does not reflect the true sale price and so Section 14(1)(b) of the Act was properlyCertain aspects highlighted by the learned Solicitor General to prove that the price of CKD packs mentioned in the invoices is not the true price are as follows : The collaboration agreement datedis an indivisible and composite one. The agreement should be read as a whole. The technology for the assembly for the Engine is necessary and is included in the agreement. The price of technology "to assemble" is really a part of the bargain and is included in the composite agreement. The foreign collaborator who retained the industrial property rights relating to the Engine exclusively permitted the respondents to use the same in India and the consideration thereof is also included; but for this, the respondents cannot use the property at all and the supply of CKD packs and service parts to the respondents was only one of the aspects covered by the bargain, and the apparently sizeable amount paid (consideration shown) as per the agreements could only be by reckoning the supply of CKD packs and the service parts in the future. In the circumstances, the consideration mentioned in the agreement should cover, at least in part, the price of the CKD packs and spares that may be supplied later, though it is not expressly stated so. It may even include an element of payment of royalty for theOn an evaluation of the relevant clauses in the collaboration agreements and the attendant circumstances, we are of the view that the concurrent judgments of the High Court at Bombay do not merit interference in this appeal. The crucial aspects appearing in the case are that the parties were dealing at arms length, that the seller and the buyer have no interest in the business of each other, that, ordinarily, the technicalof the machine can take in "the assembly" thereof, that the CKD packs and spares were supplied to the respondents by the collaborator not at a concessional price but at the price at which they were sold to others, that, as agreed to by the respondents, the option was entirely with the respondents to order the parts as per their requirements, that there was no obligation on the respondents to purchase CKD packs at all, that long before the supply of the CKD packs and spares, the royalty due to the collaborators was paid, that there is no material to show that the supply of the CKD packs or spares weighed with the parties in fixing the payments under the collaboration agreement but, on the other hand, the collaboration agreement for the technicaland the supply of CKD packs and spares are independent commercial transactions; in other words, there existed no nexus between the lump sum payment under the agreement for the technicaland the determination of the price for supply of CKD packs or spares. It is by highlighting the above aspects that the learned Single Judge and the Division Bench concluded that "the contention that the price quoted in the invoices tendered by Mahindra & Mahindra (respondents) does not reflect the correct price because a part of the value of imported packs and components was already received by foreign collaborator while determining the consideration of 15 million French Francs cannot be accepted", and "the collaboration agreement does not support the claim nor was there any material available to the Assistant Collector to warrant such a conclusion", and, therefore, resort to Section 14(1)(b) of the Act and Rule 8 of the Customs Valuation Rules is clearly incorrect and unsustainable and the "Assistant Collector was bound to accept the price mentioned in the invoices for the purpose of assessing the customs duty." | 0 | 4,432 | 921 | ### 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:
indivisible and composite one. The agreement should be read as a whole. The technology for the assembly for the Engine is necessary and is included in the agreement. The price of technology "to assemble" is really a part of the bargain and is included in the composite agreement. The foreign collaborator who retained the industrial property rights relating to the Engine exclusively permitted the respondents to use the same in India and the consideration thereof is also included; but for this, the respondents cannot use the property at all and the supply of CKD packs and service parts to the respondents was only one of the aspects covered by the bargain, and the apparently sizeable amount paid (consideration shown) as per the agreements could only be by reckoning the supply of CKD packs and the service parts in the future. In the circumstances, the consideration mentioned in the agreement should cover, at least in part, the price of the CKD packs and spares that may be supplied later, though it is not expressly stated so. It may even include an element of payment of royalty for the products. 8. On the other hand, counsel for the respondent Shri Setalvad laid emphasis on the following : The High Court has concurrently found that the respondents and the foreign collaborator had no interest in the business of each other and the said finding is not assailable in this appeal especially in view of the conditions under which special leave was granted by this Court. The CKD packs and spares were supplied by the foreign collaborator to the respondents at the same price at which they were sold to others and the agreements did not provide for any concession to the respondents-buyers. In other words, the price charged by the foreign collaborator for the supply of CKD packs and spares and other articles is uniform. The payments under the agreements were made by 1981, and the import of CKD packs and spares started later in 1982. It was only two years thereafter, for the first time on 12-6-1984, the customs authorities intimated the respondent that they will load the invoice value. Finally, more than 3 years after the import of the goods, the goods were loaded at 1.5%, arbitrarily and without any basis. The technical know-how of every machine (in the instant case, the Engine) will include assembly and there is nothing unusual in the collaboration agreement which provides for manufacture of the engine, for the supply of the necessary know-how for the assembly thereof. Indeed, Clause A (4) of the main agreement provides "for manufacture of an engine with 100% indigenous contents in India". What is more, under clauses F 1-3, the option vested with the respondents, to import the whole or any part of the materials, including CKD packs and spares etc. There is no material to indicate any nexus or connection between the lump sum payment of 15 million French Francs and the supply of CKD packs to the respondents by Peugeot for the production of the engine. No material has been adduced by the Revenue to demonstrate that the price fixed in the invoices is not the true or the real price, or in other words, the apparent is not the real. In no sense, it can be stated that the price of the goods obtained later was reckoned or reflected in the lump sum payments made, long before. The parties never had in mind the nature and extent of the spare parts that may be required later, when the collaboration agreement was entered into. The inference so suggested to be drawn is arbitrary, and ad hoc and has no foundation. 9. On an evaluation of the relevant clauses in the collaboration agreements and the attendant circumstances, we are of the view that the concurrent judgments of the High Court at Bombay do not merit interference in this appeal. The crucial aspects appearing in the case are that the parties were dealing at arms length, that the seller and the buyer have no interest in the business of each other, that, ordinarily, the technical know-how of the machine can take in "the assembly" thereof, that the CKD packs and spares were supplied to the respondents by the collaborator not at a concessional price but at the price at which they were sold to others, that, as agreed to by the respondents, the option was entirely with the respondents to order the parts as per their requirements, that there was no obligation on the respondents to purchase CKD packs at all, that long before the supply of the CKD packs and spares, the royalty due to the collaborators was paid, that there is no material to show that the supply of the CKD packs or spares weighed with the parties in fixing the payments under the collaboration agreement but, on the other hand, the collaboration agreement for the technical know-how and the supply of CKD packs and spares are independent commercial transactions; in other words, there existed no nexus between the lump sum payment under the agreement for the technical know-how and the determination of the price for supply of CKD packs or spares. It is by highlighting the above aspects that the learned Single Judge and the Division Bench concluded that "the contention that the price quoted in the invoices tendered by Mahindra & Mahindra (respondents) does not reflect the correct price because a part of the value of imported packs and components was already received by foreign collaborator while determining the consideration of 15 million French Francs cannot be accepted", and "the collaboration agreement does not support the claim nor was there any material available to the Assistant Collector to warrant such a conclusion", and, therefore, resort to Section 14(1)(b) of the Act and Rule 8 of the Customs Valuation Rules is clearly incorrect and unsustainable and the "Assistant Collector was bound to accept the price mentioned in the invoices for the purpose of assessing the customs duty."
### Response:
0
### Explanation:
It is on this basis Section 14(1)(a) was excluded and resort to Section 14(1)(b) of the Customs Act was sought to be justified by the Revenue. In appreciating the above plea we have to bear in mind certain basis principles. The bargain between the respondents and the foreign collaborator is evidenced by written agreements (dated). There is no material nor was is suggested that the dealings between the parties are not at arms length. No evidence is available to show that the payment of royalty to the collaborator induced any extra commercial obligation for the price of CKD packs, parts and components. Ordinarily the Court should proceed on the basis that the apparent tenor of the agreements reflect the real state of affairs. It is, no doubt, open to the Revenue to allege and prove that the apparent is not the real and that the price for the sale of the CKD packs is not the true price, and the price was determined by reckoning or taking into consideration the lump sum payment made under the collaboration agreement in the sum 15 million French Francs. The short question is whether the Revenue has succeeded in showing that the apparent is not the real and that the price shown in the invoices does not reflect the true sale price and so Section 14(1)(b) of the Act was properlyCertain aspects highlighted by the learned Solicitor General to prove that the price of CKD packs mentioned in the invoices is not the true price are as follows : The collaboration agreement datedis an indivisible and composite one. The agreement should be read as a whole. The technology for the assembly for the Engine is necessary and is included in the agreement. The price of technology "to assemble" is really a part of the bargain and is included in the composite agreement. The foreign collaborator who retained the industrial property rights relating to the Engine exclusively permitted the respondents to use the same in India and the consideration thereof is also included; but for this, the respondents cannot use the property at all and the supply of CKD packs and service parts to the respondents was only one of the aspects covered by the bargain, and the apparently sizeable amount paid (consideration shown) as per the agreements could only be by reckoning the supply of CKD packs and the service parts in the future. In the circumstances, the consideration mentioned in the agreement should cover, at least in part, the price of the CKD packs and spares that may be supplied later, though it is not expressly stated so. It may even include an element of payment of royalty for theOn an evaluation of the relevant clauses in the collaboration agreements and the attendant circumstances, we are of the view that the concurrent judgments of the High Court at Bombay do not merit interference in this appeal. The crucial aspects appearing in the case are that the parties were dealing at arms length, that the seller and the buyer have no interest in the business of each other, that, ordinarily, the technicalof the machine can take in "the assembly" thereof, that the CKD packs and spares were supplied to the respondents by the collaborator not at a concessional price but at the price at which they were sold to others, that, as agreed to by the respondents, the option was entirely with the respondents to order the parts as per their requirements, that there was no obligation on the respondents to purchase CKD packs at all, that long before the supply of the CKD packs and spares, the royalty due to the collaborators was paid, that there is no material to show that the supply of the CKD packs or spares weighed with the parties in fixing the payments under the collaboration agreement but, on the other hand, the collaboration agreement for the technicaland the supply of CKD packs and spares are independent commercial transactions; in other words, there existed no nexus between the lump sum payment under the agreement for the technicaland the determination of the price for supply of CKD packs or spares. It is by highlighting the above aspects that the learned Single Judge and the Division Bench concluded that "the contention that the price quoted in the invoices tendered by Mahindra & Mahindra (respondents) does not reflect the correct price because a part of the value of imported packs and components was already received by foreign collaborator while determining the consideration of 15 million French Francs cannot be accepted", and "the collaboration agreement does not support the claim nor was there any material available to the Assistant Collector to warrant such a conclusion", and, therefore, resort to Section 14(1)(b) of the Act and Rule 8 of the Customs Valuation Rules is clearly incorrect and unsustainable and the "Assistant Collector was bound to accept the price mentioned in the invoices for the purpose of assessing the customs duty."
|
Mahammadunni'S Son Kappatta Kathokandath Bava Vs. Kunhoosa'S Son Ampalath Veettil Kunnathodath Mahammadunni & | RAY, C.J.2. This is an appeal by certificate from the judgment dated 17 July 1969 of the High Court of Kerala.2. The question in this appeal is whether defendants No. 1 and 4 are each entitled to share in the property allotted to defendant No. 3 in a partition decree. Defendant No. 4 is the appellant.3. This appeal arises out of a suit instituted on 19 November, 1957 for partition of properties. Properties mentioned in Schedule A and B to t he plaint belonged to the mother of defendant No. 3. Properties mentioned in Schedule C to the plaint were joint properties of the father and the mother of defendant No. 3.4. The plaintiff and defendant No. 2 are the sons of one of the brothers of the mother of defendant No. 3. Defendant No. 1 is the son of another brother of the mother of defendant No. 3. Defendant No. 4 is the son of defendant No. 3s fathers brother.5. Defendant No. 3 died during the pendency of the suit. Thereafter defendant No. 1 filed his additional written statement and claimed half share in the property of defendant No. 3 on the ground that defendant No. 1 had married defendant No. 3 on 30 August, 1959.6. The Trial Court allotted to defendant No. 33/6th share in properties mentioned in Schedules A and to the plaint. The plaintiff and Defendant No. 1 and defendant No. 2 were each given 1/6th share in properties in Schedules A and B to the plaint. With regard to Schedule properties the plaintiff and defendant No. 1 and defendant No. 2 were each given 9/96th share and defendant No. 3 was given 51/96th share and defendant No. 4 was given 18/96th share.7. The Trial Court found that defendant No. 4 was alone entitled to the share of defendant No. 3 on the ground that marriage of defendant No. 3 with defendant No. 1 was not proved. The Trial Court also found that defendant No. 3 was mentally unsound to enter into any marriage.Defendant No. 1 preferred an appeal. The High Court set aside the judgment of the Trial Court and held that defendant No. 1 was married to defendant No. 3 and defendant No. 3 was in a lucid interval at the time of marriage.8. Counsel for the appellant defendant No. 4 impeached the finding of the High Court both with regard to the fact of marriage and the finding that defendant No. 3 was married in a lucid interval.9. Defendant No. 4 relied on three documents in support of the submission that defendant No. 3 was not a sane person to enter into marriage with defendant No. 1. The first document is Exhibit B-34 which is an order dated 8 November, 1958 declaring defendant No. 3 to be a person of unsound mind. In that order defendant No. 4 was appointed guardian of the property of defendant No. 3 and defendant No. 1 was appointed guardian of the person of defendant No. 3. The second document is Exhibit B-8 dated 7 September 1959. The appellant submitted that on 7 September 1959 defendant No. 3 wanted to get herself declared as a person of sound mind. By an order dated 5 February 1960 being Exhibit B-31 the District Judge dismissed the application of defendant No. 3. The third document on which the appellant relied is the suit in this appeal where defendant No. 3 on 19 November, 1957 was impleaded as a person of unsound mind.10. The appellant contended that though Exhibit B-34, namely, order dated 8 November 1958 declaring defendant No. 3 as a person of unsound mind was not a judgment in rem but it was a judgment interparties and it would, therefore, be admissible under sections 11 and 13 of the Evidence Act. The appellant also contended relying on the decision in Amanchi Seshamma v. Amanchi Padmanabha Rao(1) that once a person is adjudged insane it is presumed that state of unsoundness will continue until proved to the contrary.Counsel for the appellant therefore contended that the conclusion of the High Court that defendant No. 3 was in a lucid interval at the time of marriage was against the overwhelming documentary evidence.11. The documents relied on by the appellant do not rule out lucid interval at the time of marriage on 30 August 1959. The High Court relied on the evidence of D.W. 4 who attended the marriage. D.W. 4 was a teacher. His evidence was that defendant No. 3 at the time of marriage talked with Musaliar. His further evidence was that Musaliar called defendant No. 3 and she went near him and told him that he was being authorised by her to give her in marriage to defendant No. 1. The High Court rightly found that defendant No. 3 gave her consent to the marriage and was in her lucid interval. | 1[ds]9. Defendant No. 4 relied on three documents in support of the submission that defendant No. 3 was not a sane person to enter into marriage with defendant No. 1. The first document is Exhibitwhich is an order dated 8 November, 1958 declaring defendant No. 3 to be a person of unsound mind. In that order defendant No. 4 was appointed guardian of the property of defendant No. 3 and defendant No. 1 was appointed guardian of the person of defendant No. 3. The second document is Exhibitdated 7 September 1959. The appellant submitted that on 7 September 1959 defendant No. 3 wanted to get herself declared as a person of sound mind. By an order dated 5 February 1960 being Exhibitthe District Judge dismissed the application of defendant No. 3. The third document on which the appellant relied is the suit in this appeal where defendant No. 3 on 19 November, 1957 was impleaded as a person of unsound mind.10. The appellant contended that though Exhibitnamely, order dated 8 November 1958 declaring defendant No. 3 as a person of unsound mind was not a judgment in rem but it was a judgment interparties and it would, therefore, be admissible under sections 11 and 13 of the Evidence Act. The appellant also contended relying on the decision in Amanchi Seshamma v. Amanchi Padmanabha Rao(1) that once a person is adjudged insane it is presumed that state of unsoundness will continue until proved to the contrary.Counsel for the appellant therefore contended that the conclusion of the High Court that defendant No. 3 was in a lucid interval at the time of marriage was against the overwhelming documentary evidence.11. The documents relied on by the appellant do not rule out lucid interval at the time of marriage on 30 August 1959. The High Court relied on the evidence of D.W. 4 who attended the marriage. D.W. 4 was a teacher. His evidence was that defendant No. 3 at the time of marriage talked with Musaliar. His further evidence was that Musaliar called defendant No. 3 and she went near him and told him that he was being authorised by her to give her in marriage to defendant No. 1. The High Court rightly found that defendant No. 3 gave her consent to the marriage and was in her lucid interval. | 1 | 907 | 433 | ### 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:
RAY, C.J.2. This is an appeal by certificate from the judgment dated 17 July 1969 of the High Court of Kerala.2. The question in this appeal is whether defendants No. 1 and 4 are each entitled to share in the property allotted to defendant No. 3 in a partition decree. Defendant No. 4 is the appellant.3. This appeal arises out of a suit instituted on 19 November, 1957 for partition of properties. Properties mentioned in Schedule A and B to t he plaint belonged to the mother of defendant No. 3. Properties mentioned in Schedule C to the plaint were joint properties of the father and the mother of defendant No. 3.4. The plaintiff and defendant No. 2 are the sons of one of the brothers of the mother of defendant No. 3. Defendant No. 1 is the son of another brother of the mother of defendant No. 3. Defendant No. 4 is the son of defendant No. 3s fathers brother.5. Defendant No. 3 died during the pendency of the suit. Thereafter defendant No. 1 filed his additional written statement and claimed half share in the property of defendant No. 3 on the ground that defendant No. 1 had married defendant No. 3 on 30 August, 1959.6. The Trial Court allotted to defendant No. 33/6th share in properties mentioned in Schedules A and to the plaint. The plaintiff and Defendant No. 1 and defendant No. 2 were each given 1/6th share in properties in Schedules A and B to the plaint. With regard to Schedule properties the plaintiff and defendant No. 1 and defendant No. 2 were each given 9/96th share and defendant No. 3 was given 51/96th share and defendant No. 4 was given 18/96th share.7. The Trial Court found that defendant No. 4 was alone entitled to the share of defendant No. 3 on the ground that marriage of defendant No. 3 with defendant No. 1 was not proved. The Trial Court also found that defendant No. 3 was mentally unsound to enter into any marriage.Defendant No. 1 preferred an appeal. The High Court set aside the judgment of the Trial Court and held that defendant No. 1 was married to defendant No. 3 and defendant No. 3 was in a lucid interval at the time of marriage.8. Counsel for the appellant defendant No. 4 impeached the finding of the High Court both with regard to the fact of marriage and the finding that defendant No. 3 was married in a lucid interval.9. Defendant No. 4 relied on three documents in support of the submission that defendant No. 3 was not a sane person to enter into marriage with defendant No. 1. The first document is Exhibit B-34 which is an order dated 8 November, 1958 declaring defendant No. 3 to be a person of unsound mind. In that order defendant No. 4 was appointed guardian of the property of defendant No. 3 and defendant No. 1 was appointed guardian of the person of defendant No. 3. The second document is Exhibit B-8 dated 7 September 1959. The appellant submitted that on 7 September 1959 defendant No. 3 wanted to get herself declared as a person of sound mind. By an order dated 5 February 1960 being Exhibit B-31 the District Judge dismissed the application of defendant No. 3. The third document on which the appellant relied is the suit in this appeal where defendant No. 3 on 19 November, 1957 was impleaded as a person of unsound mind.10. The appellant contended that though Exhibit B-34, namely, order dated 8 November 1958 declaring defendant No. 3 as a person of unsound mind was not a judgment in rem but it was a judgment interparties and it would, therefore, be admissible under sections 11 and 13 of the Evidence Act. The appellant also contended relying on the decision in Amanchi Seshamma v. Amanchi Padmanabha Rao(1) that once a person is adjudged insane it is presumed that state of unsoundness will continue until proved to the contrary.Counsel for the appellant therefore contended that the conclusion of the High Court that defendant No. 3 was in a lucid interval at the time of marriage was against the overwhelming documentary evidence.11. The documents relied on by the appellant do not rule out lucid interval at the time of marriage on 30 August 1959. The High Court relied on the evidence of D.W. 4 who attended the marriage. D.W. 4 was a teacher. His evidence was that defendant No. 3 at the time of marriage talked with Musaliar. His further evidence was that Musaliar called defendant No. 3 and she went near him and told him that he was being authorised by her to give her in marriage to defendant No. 1. The High Court rightly found that defendant No. 3 gave her consent to the marriage and was in her lucid interval.
### Response:
1
### Explanation:
9. Defendant No. 4 relied on three documents in support of the submission that defendant No. 3 was not a sane person to enter into marriage with defendant No. 1. The first document is Exhibitwhich is an order dated 8 November, 1958 declaring defendant No. 3 to be a person of unsound mind. In that order defendant No. 4 was appointed guardian of the property of defendant No. 3 and defendant No. 1 was appointed guardian of the person of defendant No. 3. The second document is Exhibitdated 7 September 1959. The appellant submitted that on 7 September 1959 defendant No. 3 wanted to get herself declared as a person of sound mind. By an order dated 5 February 1960 being Exhibitthe District Judge dismissed the application of defendant No. 3. The third document on which the appellant relied is the suit in this appeal where defendant No. 3 on 19 November, 1957 was impleaded as a person of unsound mind.10. The appellant contended that though Exhibitnamely, order dated 8 November 1958 declaring defendant No. 3 as a person of unsound mind was not a judgment in rem but it was a judgment interparties and it would, therefore, be admissible under sections 11 and 13 of the Evidence Act. The appellant also contended relying on the decision in Amanchi Seshamma v. Amanchi Padmanabha Rao(1) that once a person is adjudged insane it is presumed that state of unsoundness will continue until proved to the contrary.Counsel for the appellant therefore contended that the conclusion of the High Court that defendant No. 3 was in a lucid interval at the time of marriage was against the overwhelming documentary evidence.11. The documents relied on by the appellant do not rule out lucid interval at the time of marriage on 30 August 1959. The High Court relied on the evidence of D.W. 4 who attended the marriage. D.W. 4 was a teacher. His evidence was that defendant No. 3 at the time of marriage talked with Musaliar. His further evidence was that Musaliar called defendant No. 3 and she went near him and told him that he was being authorised by her to give her in marriage to defendant No. 1. The High Court rightly found that defendant No. 3 gave her consent to the marriage and was in her lucid interval.
|
STATE OF UTTARAKHAND Vs. PREM RAM | Dr Dhananjaya Y Chandrachud, J1. Leave granted.2. In 1987, the respondent joined service as a Constable and was posted in the District of Pithoragarh, Uttarakhand. While he was posted at Berinag, Uttarakhand it was alleged that he was found in an inebriated state on 1 November 2006 and was misbehaving with the public. He was brought to the police station and was confined to the barracks. A medical examination was done, which showed that he was under the influence of alcohol. A charge sheet was issued to the respondent on 24 February 2007. After a disciplinary enquiry, the enquiry officer found that the charge of misconduct was substantiated. Following this, a notice to show cause was issued on 3 May 2007. The respondent submitted his reply on 8 May 2017. On 16 May 2007, the Superintendent of Police, Pithoragarh passed an order of dismissal, holding that the charge of drunkenness and misbehavior had been proved. In the writ proceedings instituted by the respondent, on 21 April 2010, the High court disposed of the matter by relegating him to the remedy of a statutory appeal. The appeal was dismissed by the Inspector General of Police, Kumaon Range on 28 August 2010 and a revision was dismissed by the Additional Director General of Police on 19 May 2011.3. The writ petition instituted by the respondent against the order dated 19 May 2011 was dismissed by a single Judge of the High Court on 15 September 2014.4. In the Special Appeal Special Appeal No 551 of 2014 instituted by the respondent, a Division Bench of the High Court by its judgment and order dated 30 October 2014 allowed the appeal and directed that the dismissal from service be converted to compulsory retirement. The Division Bench held that the past conduct of the respondent should not have been taken into consideration and that since he had completed 25 years of satisfactory service in the police department, the punishment of dismissal seems to be excessive.5. The State of Uttrakhand has challenged the order of the High Court in the present proceedings.6. Notice was issued by this Court on 7 July 2015. The office report indicates that service is complete. The respondent has not appeared in these proceedings.7. The charge against the respondent was of a serious act of misconduct involving drunkenness and misbehavior with the public. The fact of intoxication was duly proved in the medical report. Having regard to the seriousness of the charge of misconduct and the fact that the respondent was a member of the police service, we find no justification for the High Court to interfere with the order of dismissal. The learned single Judge in the judgment dated 15 September 2014 was justified in dismissing the writ petition. The Division Bench has erred in allowing the Special Appeal. The order of the learned Single Judge did not suffer from any error of fact or | 1[ds]6. Notice was issued by this Court on 7 July 2015. The office report indicates that service is complete. The respondent has not appeared in these proceedings.7. The charge against the respondent was of a serious act of misconduct involving drunkenness and misbehavior with the public. The fact of intoxication was duly proved in the medical report. Having regard to the seriousness of the charge of misconduct and the fact that the respondent was a member of the police service, we find no justification for the High Court to interfere with the order of dismissal. The learned single Judge in the judgment dated 15 September 2014 was justified in dismissing the writ petition. | 1 | 525 | 126 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
Dr Dhananjaya Y Chandrachud, J1. Leave granted.2. In 1987, the respondent joined service as a Constable and was posted in the District of Pithoragarh, Uttarakhand. While he was posted at Berinag, Uttarakhand it was alleged that he was found in an inebriated state on 1 November 2006 and was misbehaving with the public. He was brought to the police station and was confined to the barracks. A medical examination was done, which showed that he was under the influence of alcohol. A charge sheet was issued to the respondent on 24 February 2007. After a disciplinary enquiry, the enquiry officer found that the charge of misconduct was substantiated. Following this, a notice to show cause was issued on 3 May 2007. The respondent submitted his reply on 8 May 2017. On 16 May 2007, the Superintendent of Police, Pithoragarh passed an order of dismissal, holding that the charge of drunkenness and misbehavior had been proved. In the writ proceedings instituted by the respondent, on 21 April 2010, the High court disposed of the matter by relegating him to the remedy of a statutory appeal. The appeal was dismissed by the Inspector General of Police, Kumaon Range on 28 August 2010 and a revision was dismissed by the Additional Director General of Police on 19 May 2011.3. The writ petition instituted by the respondent against the order dated 19 May 2011 was dismissed by a single Judge of the High Court on 15 September 2014.4. In the Special Appeal Special Appeal No 551 of 2014 instituted by the respondent, a Division Bench of the High Court by its judgment and order dated 30 October 2014 allowed the appeal and directed that the dismissal from service be converted to compulsory retirement. The Division Bench held that the past conduct of the respondent should not have been taken into consideration and that since he had completed 25 years of satisfactory service in the police department, the punishment of dismissal seems to be excessive.5. The State of Uttrakhand has challenged the order of the High Court in the present proceedings.6. Notice was issued by this Court on 7 July 2015. The office report indicates that service is complete. The respondent has not appeared in these proceedings.7. The charge against the respondent was of a serious act of misconduct involving drunkenness and misbehavior with the public. The fact of intoxication was duly proved in the medical report. Having regard to the seriousness of the charge of misconduct and the fact that the respondent was a member of the police service, we find no justification for the High Court to interfere with the order of dismissal. The learned single Judge in the judgment dated 15 September 2014 was justified in dismissing the writ petition. The Division Bench has erred in allowing the Special Appeal. The order of the learned Single Judge did not suffer from any error of fact or
### Response:
1
### Explanation:
6. Notice was issued by this Court on 7 July 2015. The office report indicates that service is complete. The respondent has not appeared in these proceedings.7. The charge against the respondent was of a serious act of misconduct involving drunkenness and misbehavior with the public. The fact of intoxication was duly proved in the medical report. Having regard to the seriousness of the charge of misconduct and the fact that the respondent was a member of the police service, we find no justification for the High Court to interfere with the order of dismissal. The learned single Judge in the judgment dated 15 September 2014 was justified in dismissing the writ petition.
|
Mohammadbhai Khudabux Chhipa & Another Vs. State of Gujarat & Others | petitions with warrhousemen. So it seems that r. 65 (1) And r. 67(1) were paretically the same when they were first framed in 1941 as they existed when they were struck down. The Act as Originally passed in 1939 did not contain a section like S. 5A. The scheme of the Act then was that under S. 4 (2) the Government alone could grant licences for setting up any place for the purchase and sale of agricultural produce notified under the Act and thereafter under S. 5 it was the duty of the market committee established under the Act for every market area to enforce the provisions of the Act and the conditions of the licence granted by the Government setting up a place as above and to establish a market therein, if so, required by the Government section 26 gave power to the Government to frame rules fur the purposes of carrying out the provisions of the Act. Subsection (2)(e) and (f) were as below :"(2) In particular and without prejudice to the generality of the foregoing provisions, such rules may provide for or regulate:............ ............ ......... ......... ......(e) the maximum fees which may be levied by the market committee in respect of licences granted to traders and on the agricultural produce bought and sold in the market area and the recovery of such fees;(f) The issue of licences to brokers, weighmen, measurers and surveyors, the form in which, and the conditions subject to which such licences shall be issued or renewed and the conditions subject to which the licensees shall carry on their business and the fees to be charged therefor."27. It will be seen that these provisions by which miles could be framed for grant of licences did not confer power for issuing licences only for the market established under S. 5 as it originally stood. These powers were general in terms and the Government could frame rules empowering the market committee to issue licenses for carrying on business throughout the market area Rules 65(1) and 67 (1) therefore would be within the power granted to the state Government under S. 26 when they were originally framed in 1941 and would thus be valid then28. Then we come to the amendment of the Act in 1948. By this amendment clauses (e) and (f) of S. 26(2) were combined in one and were numbered as sub-S. (2)(f), which runs as follows:(2) In particular and without prejudice to the generality of the foregoing provisions, such rules may provide for or regulate:-............ ............ ......... ......... ......(f) the issue of licences to traders, commission agents, warehousemen and other persons operating in the market, brokers, weigh men, measurers and surveyors, the form in which, and the conditions subject to which such licences shall be issued or renewed and the fees to be charged therefor,29. It will be seen that though the words "market area" do not appear in this provision, it is still of a general nature and does not restrict the operation of the licence only to the market. So Rr, 65 and 67 would not be inconsistent with it,30. Then we come to the amendment of 1953 which introduced S. 5A(as it was before the amendment by the Ordinance) in the Act and that provided that "where a market is established under S. 5, the market committee may issue licences in accordance with the rules to traders, commission agents, brokers, weigh men, measurers, surveyors, warehousemen and other persons to operate in the market". This section was considered in the earlier judgment and it was held there on the basis of this section that Rr. 65 and 67 when they gave power to the committee to issue licences for operation in the market area as distinguished from the market were bad after the enactment of S. 5A.31. It is however clear from the above narration of facts that r 65(1) and r. 67 (1) were valid when they were originally framed and remained valid till S. 5A was enacted in 1953 and became bad on the insertion of S. 5A in the Act. Now that S. 5A has been amended by the Ordinance, rr. and 67 are obviously in conformity with it, r. 66 being merely consequential. Therefore they will revive by the application of the doctrine of eclipse as they are no longer overshadowed by S. 5A as it was before he Ordinance. The contention under this head must therefore fail.Re. (7).32. The argument order this head is that sub-sec. (3) of S. 29-B which validates the collection of licence-fees by market committees is bad inasmuch as it makes it impossible for refund to be made of licensed fees collected at the time when the market committee had no power to collect it. We have not been able to understand this contention, for it is not disputed that the legislature has power to legislate retrospectively even with respect to taxation(see M.P. V Sunderamier and Co. v. State of Andhra Pradesh, 1958 SCR 1422 : (AIR 1958 SC 468 where Sales Tax Laws Validation Act, 1956 war held constitutionally valid. Fees are also included within the taxing power of the legislature in the broadest sense. Article 31 (I) therefore has no application in the pre sent case and we have to look to Art.26 which says that "no tax shall be levied or collected except by authority of law". Sub section (3) of S. 29-B is the law which retrospectively authorises the levy of licence. fees collected in this case. Retrospective power of the legislature to make a law being there even in the case of taxation, we fail to see how the provisions of sub-sec, (3) of S. 28-B which validate the levy and collection of licence-fees can be held to be invalid under Art. 31(l). We may add that the same will apply to fees collected under S. II and validated by sub-sec. (2) of S. 29-B. There is therefore no force in this contention. It is hereby rejected,33. | 0[ds]Some other points have also been raised by the Nadiad petitioners; but as they are not pressed, we shall not refer todo we think it necessary to set out the previous history as to the establishment of the market in Ahmedabad as that will be found in the earlier judgment; nor is it necessary to set out the previous history as to the establishment of the market in Nadiad, for it is not it dispute that that history is similar to the history in the case of the Ahmedabad market, we shall therefore proceed to indicate the points which alone have been pressed on behalf of the petitioners and then consider them one by one. Some of the points are not common; but as they have been raised in one petition or the other and these petitions have been with together and the decision on any point will affect even other petitions in which it has not been raised, we shall proceed on the basis that all the points have been raised in all the petitions, particularly as the learned counsel appearing in the various petitions adopted the arguments of one another during the hearing.We may however point out that the notification by itself does not impose any fee on any commodity what it does is to carry out the terms of S. 11 which require the maxima to be prescribed subject to which the market committee can levy fees on agricultural produce. The imposition of the fees still remains to be made by the market committee under the power conferred on it by S. 11 subject to the maxima prescribed in the notification and therefore the notification by itself cannot be said to be discriminatory.7. Let us, however, examine the two contentious raised on behalf of the petitioners on the basis that though the notification may not actually impose fees on any commodity, it still allows discrimination to be practised by the market committee, when it proceeds under S. 11 to levy fees within the maxima prescribed by the notification. Taking the first contention it may be that by using one method in the case of one agricultural produce and another method in the case of another agricultural produce, there may be, some difference in the incidence of the fees charged, if one were to judge that incidence on the basis of only one of the modes prescribed in the notification. But that in our opinion cannot be said to result in discrimination for each produce must for this purpose be treated to be a class by itself. Therefore, so long as the market committee uses one method of levying fee with respect to one kind of agricultural produce, it cannot be said that it is discriminating if it uses another method for levying fee on another kind of agricultural produce. It is well known even in systems of taxation that taxes are levied with different incidence depending upon the nature of the article taxed, and a fee levied under S. 11 is only the exercise of the power of taxation using that word in its widest sense. Therefore, the fact that under this rule, the market committee may levy fees by one method on one agricultural produce and by another method on another agricultural produce will not be a ground of discrimination, for each commodity must be treated as a class by itself.8. Turning now to the second contention, it is true that there is nothing in the rule expressly to prevent the market committee from using two of the modes prescribed therein for the purpose of levying fees on the same agricultural produce. It must be remembered however that the rule is a general provision for levying fees within the maxima prescribed on agricultural produce by market committees in market areas all over the State. Various methods of levying fees have been included in the rule, for we assume that the rule making authority knew that there were various ways in which things are brought into various market areas. The rule is meant to apply to all situations that may arise in the State and there may be different ways in which things may be brought to the market areas in different parts of the State. That is why the rule has a wide sweep and allows the market committee to levy fees either by cart load, or by value, or by weight or by containers. It may be that if for the same Agricultural produce fees are levied subject to the maxima in two different modes, the rates fixed may result in discrimination. It would however not be improper to assume that in framing thein which the rated for any particular agricultural produce will be fixed the market committee shall pay due regard to the prohibition against discrimination contained in Art. 14 of the Constitution. The practical consequence of this is likely to be that for one agricultural produce the market committee will fix one rate only in one of the four modes. If that is done no discrimination can be said to arise. It will not also in our opinion be unreasonable to think that in issuing the notification the Government proceeded on the assumption that for any particular agricultural produce one mode of fixing feeswhether according to cart load or according to value or according to weight or according to the number of containerswill be adopted. Nor would it be difficult if the rate is fixed in one of the modes, say according to cart load, to calculate the fees to be levied where the produce is brought in any other manner, say in baskets, for then the proportional fee can be charged on each basket on the basis of so manybeing equal to one cart load. Similarly where thefixes the fees according to containers and a dealer brings the produce in cart load, it will be possible to calculate the fee due on the basis of containers, by calculating how many containers would be equal to one cart load. Where the fee is fixed by weight or value there would be no difficult in any case. Therefore one may reasonably conclude that the market committee when acting under S, 11 read with the notification will levy the fees on a single commodity in one only of the permitted modes. If that happens in actual practice there will be no question of any discrimination.discrimination.10. Turning now to the facts of the present case we find that theframed by the market committees have fixed only one mode of levying fees in these cases for one kind of produce. It is not the petitioners case that the market committees with which we are concerned in the present cases have used more than one made for levying fees on the same agricultural produce. There is therefore no case for discrimination made out on the basis of the actualwhich have been framed by the market committees, under the power conferred on them under S. 11 read with the notification. In these circumstances, the attack on the notification on the ground of discrimination mustsee no force in this argument for the provisions as they stand certainly validate the defects pointed out in the earlier judgment of this Court. It is true that the relevant sections and the Rules have not been retrospectively amended by the ordinance, but this in our opinion was unnecessary. Retrospective amendment may be necessary when it is desired to change the law; but it seems that so far as S. 11 is concerned, the legislature did not intend that the control of the State Government over levy of fees should be done away with for the future also. Therefore, all that was necessary in that respect was to validate the past actions and this is specifically provided for by(3) of S.As for the establishment of market committees, an amendment has been made in S.of the Act deleting the provision by which a market could be established only if so required by the State Government. This amendment is prospective. It could have been made retrospective also and in that case(1) of S.may not have been necessary. The legislature, however, adopted the method of amending S.prospectively and making a separate provision for validating the establishment of markets in(1) of S.We see no reason why it should be held that the validation made by(1) is not sufficient because the legislature has adopted one method father than the other for carrying out its purpose. We are therefore of opinion that S.is sufficient to cure the defects pointed out in the earlier judgment of the court and to validate actions taken and things done before the promulgation of the Ordinance which would otherwise have been invalid in view of the earlier judgment of this Court. The contention on this head must also be rejected.aws as they now stand two classes of traders are mentioned, namely A class traders and B class traders. A class traders are those who hold licences to buy and/or sell agricultural produce in quantities not below 10 lbs. in the market yard, and thewhich they have to pay per year is Rs. 75. B class traders are those who have licences to buy agricultural produce in quantities not below 10 lbs, in the market yard and to sell in retail to consumers anywhere in the market area. They have been divided into three classes, namely, (a)(b) lari holders, and (c) Toplawala (hawkers), with a licence fee of Rs. 12, Rs. 6, and Rs. 3 respectively. It is urged that this amounts to discrimination between A class and B class traders inasmuch as A class traders are charged much higher fees than the B class traders It is however clear that there is a basis for classification between the two classes of traders. A class traders are those who can both buy and sell agricultural produce in the market yard while B class traders can only buy in the market yard but cannot sell there. It is submitted on behalf of the State Government that B class traders are those persons who generally sell in retail to consumers after buying wholesale in the market yard from A class traders or producers. The reason why B class traders have been permitted to buy in the market yard is to allow for competition, as otherwise there would have been a monopoly of the few A class traders who operate in a particular market yard. This classification in our opinion is reasonable. A class traders are wholesale traders who are permitted both to buy and sell in the market yard and are thus charged a higherB class traders are ordinary retailers who in order to carry on their retail trade are permitted to buy in the market yard but they are not permitted to sell there. They are small traders and are therefore charged lower licence fees. It appears to us that in order to avoid the monopoly of A class traders, who are a few in number, with the result that prices might be depressed by such traders, B class traders are permitted only to buy in the market yard on payment of a small licence fee in order that the producer who brings his produce in the market yard may have a fair price. We see no reason therefore to hold that there is any discrimination in creating the two classes of traders for there is a fair basis of classification of traders into A class and B class. Nor can this restriction be deemed to be an unreasonable restriction on the right to carry on trade and business, for such regulation is obviously envisaged by the Act in order to carry out its purposes and this Court has already held in the earlier judgment that the Act is a valid piece of legislation. It is unnecessary to repeat the reasons given in the earlier judgment, where it was held that the restrictions placed by the Act Rules andframed thereunder are reasonable restrictions in the interest of generalthe fact that thehas added the words "to sell in retail to consumers anywhere in the market area" in the case of B class traders is of no consequence, for B class traders, as they are retailers, would be entitled in any case, without being controlled under the Act, to sell to consumers anywhere they like. It is not the addition of these words which gives that right to B class traders, for that right of theirs is not controlled by the Act and they would be entitled to exercise it without the addition of these words, which we consider as surplusage in the circumstances. As for A class traders they are admittedly wholesalers and there is no question of their selling in retail. We are therefore of opinion that the addition of the words mentioned above with respect to B class traders is a mere surplusage and makes no difference to the basis of classification. There is no force therefore in the contention under this head and it must be rejected.As for R. 64, it merely provides for incidental powers in connection with the regulation of market yards and it has already been held valid in the earlier judgment. We see no reason to bold that that rule is invalid on the ground that the market committee is using that rule to control retail trade. We have already pointed out that type market committee cannot be said to control retail trade by providing for A and B class licences and there is no question therefore of R. 64 being used in a manner not intended thereunder.17. Lastly, it seems that there is some dispute by some petitioners in Petitions Nos. 228 and 229 as to whether they hold certain shops in the market yard from the municipal committee or must be deemed to hold them from the market committee and what rights the market committee has over those petitioners in that connection. It appears that there have been suits in courts with respect to that dispute. That is a matter which in our opinion has to be decided by the courts where the suits are said to be pending and cannot be the subject of adjudication in a petition under Art. 32.In any case R. 64 cannot be declared bad because of any dispute between the market committee, the municipal committee andas to their respective rights river the stalls in the market yard. There is therefore no force in this contention either and it must becontention requires a consideration of the provisions of the Act as they stand after the amendment by the Ordinance and it will have to be seen whether there has been any radical departure from the scheme of the Act as it was before the amendment, if there has been no radical departure after the amendment and the control envisaged by the Act as amended is still type same, as it was before the amendment, the basis on which the earlier judgment of this Court upheld the main provisions of the Act would still apply and the Act as amended would be constitutional. Let us therefore see if there has been any radical departure from the main provisions of the Act as they stood before the amendment. The Act still deals with the regulation of purchase and sale of agricultural produce and establishment of markets for such produce. Section 3 stands unamended and provides for the constitution of market areas and market committees and gives power to the Commissioner by notification to declare his intention of regulating the purchase and sale of such agricultural produce and in such area as may be specified in the notification. Section 4 (1) is also unamended and gives power to the Commissioner, after holding such inquiry as may be necessary and considering the objections and suggestions if any made after the notification under S. 3, to declare a particular area as a market area for the purposes of the Act. There has been some amendment in S. 4(2) but it is not of a radical character and does not make any difference to the main provisions of the Act, "Sectionhas also been amended by providing for declaration of a market proper and consequential changes necessary due to such provision. This amendment only brings into the Act what was formerly in R. 51. This amendment also therefore makes no radical change in the Act. Sectionhas also been amended and the provision which made it necessary for the State Government to require a market committee to establish a market has been deleted. Sectionas it now stands makes it the duty of the market committee to enforce the provisions of the Act etc. and when a market is established thereunder to provide for such facilities in the market as the State Government may from time to time direct in connection which the purchase and sale of agricultural produce with which it is concerned. The change in S.therefore is also of an incidental character and does not in any way affect the scheme of the Act as it was before the amendment. Section 5A has also been amended and it now reads asa market is established under Section 4A, the market committee may issue licences in accordance with the rules to traders, commission agents, brokers, weighmen, measurers, surveyors, warehousemen and other persons to operate in the market area or any partmain argument of the petitioners is based on this amendment. It is urged that under the unamended Act after a market was established the market committee had to issue licences for operation in the market so that the business of sale land purchase of agricultural produce was concentrated in the market which consisted of a principal market yard and one or moreyards with the consequent advantage to the agricultural producers that they had a place or places where they could find a large number of buyers for their produce and could thus secure fair prices under regulated conditions. Now, however, it is urged that under S. 5A it is open to the market committee, after the market is established under S. 4A to give licences to traders and others to operate in the market area or any part thereof with the result that it would not be necessary to have a principal market yard oryard. There would be some force in this argument if we were to ignore the rules framed under the Act. But the Rules which were framed by the State Government are still the same. Rule 51 provides for the declaration of market yards and market proper by the State Government. Rule 60 provides that agricultural produce brought into the market shall pass through the principal market yard orsubmarket yards andshall not, subject to the provisions of(2), be sold at any place outside such yards. The only exception to this iswhich provides at processed agricultural produce may be sold either in the principal market yard, oryard, or in the market proper, or in the market area in accordance with the provisions of theThe reason for this distinction is clear, for where produce is to be processed, as for example, ginned cotton, it has to be taken to a ginning factory in which case it would be most inconvenient to bring the produce to the market yard for sale and that may also add to the price by further transport charges. Reading S. 5A therefore a along with the Rules, it is clear that the present provisions are materially the same as the agricultural produce (except that which is processed) shall have to pass through the principal market yard orsubmarket yards andbe sold there.The only difference that the amendment has made is that whereas formerly under S. 5A traders could only operate in the market by virtue of the provisions of the Act, now they will operate in the market by virtue of the provisions of the Act read with the Rules. The rules, however are still the same and therefore in effect the provisions of the Act and the Rules read together still provide for the same kind of regulation which was intended under the unamended Act. It is urged that it will be open in the future for the market committee to do away with the necessity of having market yards andsubmarket yards andconcentrating wholesale trade only in market yards andyards in view of the provisions in the amended S. 5A, for the market committee would be entitled to issue licences in accordance with the Rules in case they are changed to traders etc. to trade in the market area or any part thereof. It will be seen however that the power to change the Rules is not in the market committee and until the Rules are changed the position us it was under the unamended Act would remain the same. We have no reason to suppose that the State Government intends to change the Rules as they are now and to permit the market committee to grant licences under S. 5A for trade anywhere in the market indiscriminately. It is true that such a possibility can arise if the State Government changes the Rules as they exist at present. But there is no reason to suppose that such a change is intended. So long therefore as the Rules stand as they are, there is no radical departure from the scheme of the Act as it was before its amendment, and the reasons which impelled this Court to uphold the Act and the Rules framed thereunder would still hold good. If and when the Rules are so changed as to make a radical departure from the present position, a question may well arise whether the scheme of control envisaged under the Act has failed in its purpose. It may then be necessary to decide whether the Act and the Rules framed thereunder are unconstitutional; but so long as the Rules stand as they are, we have to read S. 5A along with the Rules, for licences are issued under that section in accordance with the Rules, and reading S. 5A and the present Rules together it must be held that there has been no radical departure from the scheme of the Act as it was before the amendment and therefore the reasons which impelled this Court to uphold the Act, Rules andframed under it in the earlier judgment still stand.Besides this main argument certain subsidiary contentions are also urged on behalf of the petitioners to challenge the constitutionality of the Act, and the Rules framed thereunder on the ground that it was an unreasonable restriction on the fundamental right to carry on trade or business. It is urged that a trader who has business all over the State may have to take 80 or more licences to trade in different market areas and that will mean a heavy burden on him resulting in increase in price of agricultural produce. This in our opinion is a theoretical consideration and in any case if a trader is so big as to carry on trade in all the 80 or more market areas established in the State we see no mason why he should not take licence in each market area. He will be in a position to bear the burden and it need not necessarily affect the price of agricultural produce seriously. Then it is urged that the Act affects transactions between traders outside the market area. We have not been able to understand what exactly is meant by this. It is only when the sale takes face within the market area that the produce has to pass through the principal market yard oryard, but if a trader gets something from outside the market area and the sale takes place outside the market area and the thing is brought into the market area by the trader after the purchase, such transaction will not be subject to any fees, for fees have only to be charged on agricultural produce bought and sold in the market area under r. 53 read with S. 11. But where the sale takes place outside the market area and the commodity is merely brought into the market area by the wholesale trader, there will be no question of any fee being charged on that transaction; of course, if there is a further sale in the market area or in the market yards by the wholesale trader to some one locally that may be liable to fee. We do not see how in the circumstances it can be said that this is a case of unreasonable restriction on the right to carry on trade andis undoubtedly so. But if control has to be effective in the interest of the agricultural producer such incidental control of produce grown outside the market area and brought into the market yard for sale is necessary as otherwise the provisions of the Act would be evaded by alleging that the particular produce sold in the market yard was not grown in the market area. For the same reasons transactions between traders and traders have to be controlled, if the control in the interest of agricultural producers and the, general public has to be effective. We are therefore of opinion that the Act and the Rules andthereunder cannot be struck down on this ground. The contention under this head therefore mustthese rules do not exist. Consequence of this, it is alleged, is that it is not open to the market committee to issue licences which were provided by these rules. Rule 65 provides that no person shall do business as a trader or a general commission agent in agricultural produce in any market area except under a licence granted by the market committee under this rule. Rule 67 provides that no person shall do business as a trader, commission agent, broker, weighman, measurer, surveyor,or operate in any other manner in any market area except under licence granted by the market committee. It is urged that licences are granted under these rules read with S. 5A, which now provides that where a market is established the market committee may issue licences in accordance with rules to traders, commission agents, brokers etc. to operate in the market area or any part thereof. Section 5A, it is urged is a mere enabling provision and becomes effective when the rules are framed and that licences under the enabling provisions of S. 5A are to issue in accordance with the rules; and it there are no rules as to issue of licences the enabling provisions of S. 5A cannot be availed of by the market committee to require the taking out of licences. It is rr. 65 and 67 which prohibit business in the market area without taking licences mad provide for the manner in which applications for licence shall be made, the period for which the licence shall remain valid and other incidental matters.It is urged that as these rules were struck down by this Court and have neither beenreframed nor validatedunder the Ordinance there is no power in the market committee to require traders to take out licences merely because S. 5A enables it to issue licences. The argument on behalf of the State is that even though these rr. 65 and 67 were struck down because they were inconsistent with S. 5A as it stood before the amendment, now that S. 5A has been amended, these rules must be held to have revived and reliance in this connection is placed on certain decisions of this Court where it was held that an Act which was valid when it was passed before the Constitution came into force and some provisions of which became invalid for certain purposes in view of the provisions in the Constitution relating to fundamental rights and Art. 13 thereof, became wholly effective again when the Constitution was amended and the inconsistency with the fundamental rights removed.This matter was further considered in Deep Chand v. State of Uttar Pradesh, 1959 Supp (2) SCR 8 : (AIR 1959 SC 648 ), and it was held by majority that "there was a clear distinction between the two clauses of Art. 13. Under cl. (1),law subsisted except to the extent of its inconsistency with the provisions of Part III whereas under cl. (2) any post Constitution law contravening those provisions was a nullity from its inception the extent of such contravention", and therefore a law which was badab initio under Art.13 (2) either wholly or to the extent of the contravention could not be revived by the application of the doctrine of eclipse and the doctrine could only apply in the case of a law that was valid when made but was rendered invalid for certain purposes by a supervening constitutional inconsistency.It has not been disputed in this case that the doctrine of eclipse applies to cases of rules. The only dispute was whether rr. 65 and 67 in the present form were in existence before 1953 when S. 5A was inserted in the Act and if so whether they were valid in that form before 1953. Time was taken by the parties to trace the history of the Act and these two rules and the form in which the Act and these rules stood before 1953. Investigation in this matter shows that rules were framed for the first time in 1941 after the Act came on the statute book. Rule 65 (1) was in the same form as it existed when it was struck down by the earlier judgment. Rule 67 (1) was also substantially in the same form except that it did not originally include a trader or a commission agent or warehouseman as it did at the time when it was struck down. The addition of the words "the traders, and commission agents" in r. 67 (1) is however not material, for these classes were already, covered by r. 65 (I). As for the warehousemen which were added sometime later to r. 67 (1) that addition need not detain us because we are not concerned in these petitions with warrhousemen. So it seems that r. 65 (1) And r. 67(1) were paretically the same when they were first framed in 1941 as they existed when they were struck down. The Act as Originally passed in 1939 did not contain a section like S. 5A. The scheme of the Act then was that under S. 4 (2) the Government alone could grant licences for setting up any place for the purchase and sale of agricultural produce notified under the Act and thereafter under S. 5 it was the duty of the market committee established under the Act for every market area to enforce the provisions of the Act and the conditions of the licence granted by the Government setting up a place as above and to establish a market therein, if so, required by the Government section 26 gave power to the Government to frame rules fur the purposes of carrying out the provisions of the Act.It will be seen that these provisions by which miles could be framed for grant of licences did not confer power for issuing licences only for the market established under S. 5 as it originally stood. These powers were general in terms and the Government could frame rules empowering the market committee to issue licenses for carrying on business throughout the market area Rules 65(1) and 67 (1) therefore would be within the power granted to the state Government under S. 26 when they were originally framed in 1941 and would thus be validIt will be seen that though the words "market area" do not appear in this provision, it is still of a general nature and does not restrict the operation of the licence only to the market. So Rr, 65 and 67 would not be inconsistent withThen we come to the amendment of 1953 which introduced S. 5A(as it was before the amendment by the Ordinance) in the Act and that provided that "where a market is established under S. 5, the market committee may issue licences in accordance with the rules to traders, commission agents, brokers, weigh men, measurers, surveyors, warehousemen and other persons to operate in the market". This section was considered in the earlier judgment and it was held there on the basis of this section that Rr. 65 and 67 when they gave power to the committee to issue licences for operation in the market area as distinguished from the market were bad after the enactment of S. 5A.It is however clear from the above narration of facts that r 65(1) and r. 67 (1) were valid when they were originally framed and remained valid till S. 5A was enacted in 1953 and became bad on the insertion of S. 5A in the Act. Now that S. 5A has been amended by the Ordinance, rr. and 67 are obviously in conformity with it, r. 66 being merely consequential. Therefore they will revive by the application of the doctrine of eclipse as they are no longer overshadowed by S. 5A as it was before he Ordinance. The contention under this head must thereforehave not been able to understand this contention, for it is not disputed that the legislature has power to legislate retrospectively even with respect to taxation(see M.P. V Sunderamier and Co. v. State of Andhra Pradesh, 1958 SCR 1422 : (AIR 1958 SC 468 where Sales Tax Laws Validation Act, 1956 war held constitutionally valid. Fees are also included within the taxing power of the legislature in the broadest sense. Article 31 (I) therefore has no application in the pre sent case and we have to look to Art.26 which says that "no tax shall be levied or collected except by authority of law". Sub section(3) of S.is the law which retrospectively authorises the levy of licence. fees collected in this case. Retrospective power of the legislature to make a law being there even in the case of taxation, we fail to see how the provisions of) of S.which validate the levy and collection ofcan be held to be invalid under Art. 31(l). We may add that the same will apply to fees collected under S. II and validated byThere is therefore no force in this contention. It is hereby rejected, | 0 | 10,068 | 6,145 | ### 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:
petitions with warrhousemen. So it seems that r. 65 (1) And r. 67(1) were paretically the same when they were first framed in 1941 as they existed when they were struck down. The Act as Originally passed in 1939 did not contain a section like S. 5A. The scheme of the Act then was that under S. 4 (2) the Government alone could grant licences for setting up any place for the purchase and sale of agricultural produce notified under the Act and thereafter under S. 5 it was the duty of the market committee established under the Act for every market area to enforce the provisions of the Act and the conditions of the licence granted by the Government setting up a place as above and to establish a market therein, if so, required by the Government section 26 gave power to the Government to frame rules fur the purposes of carrying out the provisions of the Act. Subsection (2)(e) and (f) were as below :"(2) In particular and without prejudice to the generality of the foregoing provisions, such rules may provide for or regulate:............ ............ ......... ......... ......(e) the maximum fees which may be levied by the market committee in respect of licences granted to traders and on the agricultural produce bought and sold in the market area and the recovery of such fees;(f) The issue of licences to brokers, weighmen, measurers and surveyors, the form in which, and the conditions subject to which such licences shall be issued or renewed and the conditions subject to which the licensees shall carry on their business and the fees to be charged therefor."27. It will be seen that these provisions by which miles could be framed for grant of licences did not confer power for issuing licences only for the market established under S. 5 as it originally stood. These powers were general in terms and the Government could frame rules empowering the market committee to issue licenses for carrying on business throughout the market area Rules 65(1) and 67 (1) therefore would be within the power granted to the state Government under S. 26 when they were originally framed in 1941 and would thus be valid then28. Then we come to the amendment of the Act in 1948. By this amendment clauses (e) and (f) of S. 26(2) were combined in one and were numbered as sub-S. (2)(f), which runs as follows:(2) In particular and without prejudice to the generality of the foregoing provisions, such rules may provide for or regulate:-............ ............ ......... ......... ......(f) the issue of licences to traders, commission agents, warehousemen and other persons operating in the market, brokers, weigh men, measurers and surveyors, the form in which, and the conditions subject to which such licences shall be issued or renewed and the fees to be charged therefor,29. It will be seen that though the words "market area" do not appear in this provision, it is still of a general nature and does not restrict the operation of the licence only to the market. So Rr, 65 and 67 would not be inconsistent with it,30. Then we come to the amendment of 1953 which introduced S. 5A(as it was before the amendment by the Ordinance) in the Act and that provided that "where a market is established under S. 5, the market committee may issue licences in accordance with the rules to traders, commission agents, brokers, weigh men, measurers, surveyors, warehousemen and other persons to operate in the market". This section was considered in the earlier judgment and it was held there on the basis of this section that Rr. 65 and 67 when they gave power to the committee to issue licences for operation in the market area as distinguished from the market were bad after the enactment of S. 5A.31. It is however clear from the above narration of facts that r 65(1) and r. 67 (1) were valid when they were originally framed and remained valid till S. 5A was enacted in 1953 and became bad on the insertion of S. 5A in the Act. Now that S. 5A has been amended by the Ordinance, rr. and 67 are obviously in conformity with it, r. 66 being merely consequential. Therefore they will revive by the application of the doctrine of eclipse as they are no longer overshadowed by S. 5A as it was before he Ordinance. The contention under this head must therefore fail.Re. (7).32. The argument order this head is that sub-sec. (3) of S. 29-B which validates the collection of licence-fees by market committees is bad inasmuch as it makes it impossible for refund to be made of licensed fees collected at the time when the market committee had no power to collect it. We have not been able to understand this contention, for it is not disputed that the legislature has power to legislate retrospectively even with respect to taxation(see M.P. V Sunderamier and Co. v. State of Andhra Pradesh, 1958 SCR 1422 : (AIR 1958 SC 468 where Sales Tax Laws Validation Act, 1956 war held constitutionally valid. Fees are also included within the taxing power of the legislature in the broadest sense. Article 31 (I) therefore has no application in the pre sent case and we have to look to Art.26 which says that "no tax shall be levied or collected except by authority of law". Sub section (3) of S. 29-B is the law which retrospectively authorises the levy of licence. fees collected in this case. Retrospective power of the legislature to make a law being there even in the case of taxation, we fail to see how the provisions of sub-sec, (3) of S. 28-B which validate the levy and collection of licence-fees can be held to be invalid under Art. 31(l). We may add that the same will apply to fees collected under S. II and validated by sub-sec. (2) of S. 29-B. There is therefore no force in this contention. It is hereby rejected,33.
### Response:
0
### Explanation:
those provisions was a nullity from its inception the extent of such contravention", and therefore a law which was badab initio under Art.13 (2) either wholly or to the extent of the contravention could not be revived by the application of the doctrine of eclipse and the doctrine could only apply in the case of a law that was valid when made but was rendered invalid for certain purposes by a supervening constitutional inconsistency.It has not been disputed in this case that the doctrine of eclipse applies to cases of rules. The only dispute was whether rr. 65 and 67 in the present form were in existence before 1953 when S. 5A was inserted in the Act and if so whether they were valid in that form before 1953. Time was taken by the parties to trace the history of the Act and these two rules and the form in which the Act and these rules stood before 1953. Investigation in this matter shows that rules were framed for the first time in 1941 after the Act came on the statute book. Rule 65 (1) was in the same form as it existed when it was struck down by the earlier judgment. Rule 67 (1) was also substantially in the same form except that it did not originally include a trader or a commission agent or warehouseman as it did at the time when it was struck down. The addition of the words "the traders, and commission agents" in r. 67 (1) is however not material, for these classes were already, covered by r. 65 (I). As for the warehousemen which were added sometime later to r. 67 (1) that addition need not detain us because we are not concerned in these petitions with warrhousemen. So it seems that r. 65 (1) And r. 67(1) were paretically the same when they were first framed in 1941 as they existed when they were struck down. The Act as Originally passed in 1939 did not contain a section like S. 5A. The scheme of the Act then was that under S. 4 (2) the Government alone could grant licences for setting up any place for the purchase and sale of agricultural produce notified under the Act and thereafter under S. 5 it was the duty of the market committee established under the Act for every market area to enforce the provisions of the Act and the conditions of the licence granted by the Government setting up a place as above and to establish a market therein, if so, required by the Government section 26 gave power to the Government to frame rules fur the purposes of carrying out the provisions of the Act.It will be seen that these provisions by which miles could be framed for grant of licences did not confer power for issuing licences only for the market established under S. 5 as it originally stood. These powers were general in terms and the Government could frame rules empowering the market committee to issue licenses for carrying on business throughout the market area Rules 65(1) and 67 (1) therefore would be within the power granted to the state Government under S. 26 when they were originally framed in 1941 and would thus be validIt will be seen that though the words "market area" do not appear in this provision, it is still of a general nature and does not restrict the operation of the licence only to the market. So Rr, 65 and 67 would not be inconsistent withThen we come to the amendment of 1953 which introduced S. 5A(as it was before the amendment by the Ordinance) in the Act and that provided that "where a market is established under S. 5, the market committee may issue licences in accordance with the rules to traders, commission agents, brokers, weigh men, measurers, surveyors, warehousemen and other persons to operate in the market". This section was considered in the earlier judgment and it was held there on the basis of this section that Rr. 65 and 67 when they gave power to the committee to issue licences for operation in the market area as distinguished from the market were bad after the enactment of S. 5A.It is however clear from the above narration of facts that r 65(1) and r. 67 (1) were valid when they were originally framed and remained valid till S. 5A was enacted in 1953 and became bad on the insertion of S. 5A in the Act. Now that S. 5A has been amended by the Ordinance, rr. and 67 are obviously in conformity with it, r. 66 being merely consequential. Therefore they will revive by the application of the doctrine of eclipse as they are no longer overshadowed by S. 5A as it was before he Ordinance. The contention under this head must thereforehave not been able to understand this contention, for it is not disputed that the legislature has power to legislate retrospectively even with respect to taxation(see M.P. V Sunderamier and Co. v. State of Andhra Pradesh, 1958 SCR 1422 : (AIR 1958 SC 468 where Sales Tax Laws Validation Act, 1956 war held constitutionally valid. Fees are also included within the taxing power of the legislature in the broadest sense. Article 31 (I) therefore has no application in the pre sent case and we have to look to Art.26 which says that "no tax shall be levied or collected except by authority of law". Sub section(3) of S.is the law which retrospectively authorises the levy of licence. fees collected in this case. Retrospective power of the legislature to make a law being there even in the case of taxation, we fail to see how the provisions of) of S.which validate the levy and collection ofcan be held to be invalid under Art. 31(l). We may add that the same will apply to fees collected under S. II and validated byThere is therefore no force in this contention. It is hereby rejected,
|
Pawan Alloys and Casting Pvt. Ltd., Meerut and Ors Vs. U.P. State Electricity Board and Ors | rebate and it is equally the power of the Board to withdraw the same in its own discretion. 34. Consequently it must be held that the twin aspects highlighted by this Court in Shrijee Sales Corporation 1997(89)ELT452(SC) (supra), on the basis of which the authority promising a particular course of conduct on its part to the prospective promise can resile from the promise even prematurely are not found established on the facts of these cases. Consequently the ratio of the said decision cannot be of any avail to the respondent-Board. 35. Shri Dave, learned Senior Counsel for the Board next ginned his faith on another decision of this Court in the case of Ester Industries Ltd. v. U.P. State Electricity Board (1996)11SCC199 . In that case this Court was concerned with a converse situation wherein the Government of U.P. had decided to grant 10% development rebate to new industries which could be attracted to the State. However the respondent-Board had not acted upon the said suggestion of the Government of U.P. and had not changed its tariff rates by adopting the same scheme of incentive benefits for its consumers. Question was whether the Court could compel the Board to grant such an incentive rebate to its consumers in exercise of statutory powers of the Board under Section 49 of the Act when the Board itself had not thought it fit to do so. The High Court had rejected such a request of the writ petitioners for enforcing the aforesaid scheme on the Board. Said decision was upheld by a Bench of this Court consisting of K. Ramaswamy and G. B. Pattanaik, JJ., by the aforesaid judgment. The Court observed that the State Electricity Board had a statutory function to discharge in determination of the rates of tariff and this being a legislative policy while exercising the power under Section 78A of the Act policy directions issued by the Government may also be taken into consideration by the Board which had a statutory duty to perform and that it was for the State Government to consider whether the Board had laid down the policy or whether the direction issued by the State Government had not been properly implemented. The Court could not give a direction to the Board to implement the directions issued by the State Government. Thus it was held that no mandamus could be issued to the Board to grant such incentive rebate to the new industries. The Court also noted that in the agreements entered into by the consumers with the Board full tariff rates without any rebate were agreed to be paid. Consequently it was observed that promissory estoppel would apply only in a case where there was no contract executed between the parties and in that case there existed a contract duly executed under law between the petitioner and the Board which bound them and unless the same was revised question of promissory estoppel did not arise. 36. We fail to appreciate how the aforesaid decision can advance the case of respondent-Board in the peculiar facts of this group of matters. As we have noted earlier here is a converse position where the Board presumably appears to have accepted the guidelines and the directions given by the State of U.P. under Section 78A of the Act and it adopted the scheme of incentive rebates for new industries by promulgating its own tariffs in exercise of its powers under Section 49 read with Section 78A of the Act and it was the Board itself which had given such a promise and held out such representations to the newcomer industries by the first three notifications as seen above. Once that was so the question of compelling the Board to promulgate such policy would not survive for consideration in the present cases. It is obvious that if the Board had not promulgated such policy the Court could not have compelled the Board to give such concessions. Here the question is having itself promulgated such a policy whether the Board can go back upon it prematurely. The aforesaid decision of this Court had no occasion to consider this aspect of the matter. 37. However Shri Dave was very sanguine about the observation in this judgment that promissory estoppel would not apply where there existed a contract executed between the consumer and the Board. As we have noted earlier the aforesaid observations in the said Report were made in the light of the fact situation before the Court. There the consumer had entered into an agreement to be bound by the tariff rates notifications by the Board from time to time. Those tariff rates were devoid of any scheme of incentive development rebate. In-other words they were full-fledged tariff rates without any development rebate component. Under these circumstances the Court justifiably observed that the consumer was bound by the contract and when the Board itself had not promulgated any policy of development rebate for dew industries Board could not be compelled on the doctrine of promissory estoppel to do something which it had never promised to do. Consequently the decision in Ester Industries Ltd. (1996)11SCC199 (supra) also is of no avail to the respondent-Board. 38. Before parting With this discussion it must be stated that in the light of the observations made in Ester Industries Ltd. (supra) by this Court to the effect that the fixation of tariff including incentive rebate is a legislative function, the observations of the High Court that it is not a legislative or delegated legislative function, cannot be sustained. It must be held that such a function is quasi-legislative in character reflecting an exercise of delegated legislative power. 39. As a result of the aforesaid discussion it must be held that the finding reached on the question of promissory estoppel by the High Court 6n Issue No. 1 is well sustained. The respondent-Board must be treated to be estopped from prematurely withdrawing the incentive development rebate made available to these appellant-industries by issuing the impugned notification. | 1[ds]We shall deal with these points seriatim. Point No. 19. It is now well settled by a series of decisions of this Court that the State authorities as well as its limbs like the Board covered by the sweep of Article 12 of the Constitution of India being treated as State within the meaning of the said Article, can be made subject to the equitable doctrine of promissory estoppel in cases where because of their representation the party claiming estoppel has changed its position and if such an estoppel does not fly in the face of any statutory prohibition, absence of power and authority of the promisor, is otherwise not opposed to public interest, and also when equity in favour of the promise does not outweigh equity in favour of the promisor entitling the latter to legally get out of the promise.10. In this connection we may usefully refer to a decision of this Court rendered in the case of State of H.P. v. Ganesh Wood Products . B.P. Jeevan Reddy, J. speaking for a Bench of two learned Judges of this Court made the following pertinent observations in this connection in paragraphs 54 and 55 of the Report:The doctrine of promissory estoppel is by now well recognised in this country. Even so it should be noticed that it is an evolving doctrine, the contours of which are not yet fully and finally demarcated. It would be instructive to bear in mind what Viscount Hailsham said in Woodhouse Ltd. v. Nigerian Produce Ltd.I desire to add that the time may soon come when the whole sequence of cases based upon promissory estoppel since the war, beginning with Central London Property Trust Ltd. v. High Trees House Ltd. (1947) I KB 130 : 62 TLR 557 : 1947 LJR 77 may need to be reviewed and reduced to a coherent body of doctrine by the courts. I do not mean to say that they are to be regarded with suspicion. But as is common with an expanding doctrine, they do raise problems of coherent exposition which have never been systematically explored.Though the above view was expressed as far back as 1972, it is no less valid today. The dissonance in the views expressed by this Court in some of its decisions on the subject emphasises such a need. The views expounded in Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [1979]118ITR326(SC) was departed from in certain respects in Jit Ram Shiv Kumar v. State of Haryana [1980]3SCR689 which was in turn criticised in Union of India v. Godfrey Philips India Ltd. [1986]158ITR574(SC) . The divergence in approach adopted in Shri Bakul Oil Industries v. State of Gujarat [1987]165ITR6(SC) and Pournami Oil Mills v. State of Kerala [1987]165ITR57(SC) is another instance. The fact that the recent decision in Kasinka Trading v. Union of India 1994ECR637(SC) is being reconsidered by larger Bench is yet another affirmation of the need stressed by Lord Hailsham for enunciating a coherent body of doctrine by the courts. An aspect needing a clear exposition - and which is of immediate relevance herein - is what is the precise meaning of the words the promise ... alters his position, in the statement of the doctrine. The doctrine has been formulated in the following words in Motilal Padampat Sugar Mills Co. Ltd.. at p. 643):The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promise and, in fact, the promise, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promise, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution.e may say at this stage that at the time the aforesaid decision was rendered, judgment of this Court in the case of Kasinka Trading v. Union of India1994ECR637(SC) was pending scrutiny before a larger Bench. Subsequently the said decision came to be confirmed by the decision of a Bench of three learned Judges of this Court speaking through A. M. Ahmadi, C.J. in the case of Shrijee Sales Corporation v. Union of India 1997(89)ELT452(SC). We will refer to these decisions in the latter part of this judgment. Suffice it to say at this stage that if a statutory authority or an executive authority of the State functioning on behalf of the State in exercise of its legally permissible powers, has held out any promise to a party who relying on the same has changed its position not necessarily to its detriment and if this promise does not offend any provision of law or does not fetter any legislative or quasi-legislative power inhering in the promisor then on the principle of promissory estoppel the promisor can be pinned down to the promise offered by it by way of representation containing such promise for the benefit of the promise.13. Prima facie we find some force in the aforesaid objection put forward by Shri Dave, learned Senior Counsel for the Board. However on a closer scrutiny this objection falls through. It is of course true that whatever might have been the wide canvass tried to be spread by the appellants before the High Court in their pleadings at the stage of argument as noted by the High Court in the impugned judgment they confined their challenge to the impugned notification only on the solitary ground that the Board had held out promise by way of representation to the new industrialists on the basis of the clear recitals in the three notifications of 29th October, 1982, 13th July, 1984 and 28th January, 1986. They did not think it fit to support their cases of promissory estoppel against the Board on any other material. However it cannot be forgotten that the Board is a supplier of electricity to consumers on charging appropriate sale price. It is thus a commercial entity. It is not concerned with development of industries in the State. That task is entrusted to the State concerned. If the latter with a view to giving a fillip to new industries puts forward a scheme of incentives to new industries, as a part of this package it can issue appropriate directions to the Board, its limb, under Section 78A of the Act to make this incentive available to new industries to be established in the region covered by Boards supply network of electric power. It is precisely what is done by the Board at the behest of State Government. No estoppel is required to be pleaded against the State as the latter has not issued any notification holding out such a promise. Nor has the State gone back upon it.These notifications are identically worded. We will, therefore, refer to the relevant clauses thereof which have a direct bearing on this controversy. The said notifications are issued by the Board in exercise of powers under Section 49 of the Act notifying revised rate schedule appended to the notifications and they are to apply to all persons in respect of supply of electricity throughout the State of U. P. directly served by the Board. It is mentioned in the said notifications that the revised rate schedule will come into force from the respective dates mentioned in the said notifications. The rate schedules which are incorporated in these notifications, amongst others, contain an item pertaining to incentives to new industries. This item is mentioned as item No. 9 in the earlier notifications, but in the last notification dated 28th January, 1986 which was issued in partial modification of earlier notifications it is mentioned as item No. 8 as part and parcel of rate schedule.A mere look at this item shows that all the aforesaid three notifications which held the field from 29th October, 1982 to 28th January, 1986 clearly contained a representation by the Board to the consumers, who were to establish new industrial units in the territories of the State in which the Board was to supply electricity, that on the total bill of electricity consumed by them during the period of first three years of their taking supply they will be getting a rebate of 10% on the total amount of such bills for electricity consumption. It was also assured that this rebate would be available not only to new industrial units which may get established and which may take electric supply from the Board on and from the date on which the said last notification of 28th January, 1986 came into force, but rebate would be permissible even to those new industries who had earlier established their industries and taken electricity supply from the Board and three years period earlier granted to them for earning development rebate had remained unexpired on 1st February, 1986 and for that entire unexpired period also the said development rebate was guaranteed by the Board. This obviously can be said to have been an incentive offered by the Board in exercise of its statutory powers under Section 49 of the Act read with Section 78A of the Act under which the State was entitled to issue suitable directions for effectuating such an incentive package for new industries to enable these new and infant industries to get attracted to the area where the Board was to supply electric energy so that these prospective consumers of electricity to be supplied by the respondent-Board could not only establish their industries in these areas but could withstand the competition with old industrial units as the concession in the payment of electricity charges would obviously reduce their cost structure and consequently the price of their manufactured articles, so that these new industries during their infancy could effectively stand in the competition with old industries which may be well settled in the market. This was certainly an infancy benefit made available as an incentive by the Board to these new industries. This package of infancy benefit made available by the Board was obviously in compliance with States directive under Section 78A of the Act as it was a part and parcel of the package of incentives made available to new industries as seen from the Annexure A (Copy of extracts specifying various incentives and concessions dated 12th November, 1981) to the Special Leave Petition (C) No. 13827 of 1991 out of which Civil Appeal No. 3203 of 1991 has arisen, filed by the applicant. It is not the case of the Board that such an incentive scheme was not quoted by the State. It must, therefore, be held that the earlier three notifications issued by the Board under Section 49 read with Section 78A of the Act were a part and parcel of this incentive scheme. This scheme of rebate of for new industries to be established in plains of the State had remained operative since 29th October, 1982 for almost four years and even by the latest notification dated 28th January, 1986 the Board had continued the said package of incentives and made it available also to the new industries which could come up even after 28th January, 1986 in the area of the State where the Board was supplying electricity and selling it to its consumers.15. It is also obvious that when new industries are attracted in the region, the Board would be able to find more and more customers for the electricity sought to be sold by it to these consumers of electricity who would be taking high voltage electric power and, therefore, would be paying higher tariff by way of HV1 and HV2. Thus such an incentive scheme would benefit not only the entire State but also the Board itself.16. It is, therefore, not possible to agree with the contention of learned Senior Counsel for the Board that these three notifications did not hold out any promise or any representation to the general public enabling the new industries to get established acting on the said representation. It is obvious that after the expiry of this three years period the Board would be able to charge full rate for electricity supplied to these new customers who would then become sufficiently old and mature and would not need any more rebate. It cannot, therefore, be said that the Board had no interest in these new industries, their prospective customers, and was not interested in attracting them to the territory catered to by it by the supply of electricity. It may be that the Board exercised its statutory powers under Section 49 of the Act for that purpose but all the same it in its wisdom and acting on the direction under Section 78A of the Act pursuant to the package of incentives offered by the State of U. P. to these new industries, had issued the said notifications holding out these promises. But even assuming that the State had no role to play in this connection as submitted by Shri Dave for the respondents, these three notifications on their own wordings leave no room for doubt that they did contain offers of incentives to new industries who would be the prospective new consumers of electricity and, therefore, the Boards future customers.17. In this connection we may usefully refer to two decisions of this Court. In the case of State of Madhya Pradesh v. Orient Paper Mills Ltd. [1989]2SCR436 , a Bench of two learned Judges of this Court consisting of S. Ranganathan and M. M. Punchhi, JJ., upheld the electricity duty package made available to industrialists who were themselves generating power through their own generating sets on the doctrine of promissory estoppel. It is of course true that in that case State of Madhya Pradesh had offered this package but it was obviously through its own limb, M. P. State Electricity Board. Any exemption from electricity duty could be granted only by the Board exercising powers under Section 49 of the Act and that could be at the behest of the State.18. In the present case even leaving aside the promissory estoppel against the State of U.P. it can clearly be visualised that by the mere wordings of the aforesaid three notifications the Board acting as a limb of the State of U.P. had offered these concessions by way of rebate in electricity duty to the new industries so as to attract them to the State to enable the Board to take them in its fold as prospective consumers of electricity to be sold by it to them.21. Consequently it cannot be held on the clear recitals found in the aforesaid three notifications issued by the Board that: no representation whatsoever guaranteeing 10% rebate on electricity consumption bills could be culled out from these notifications. We, therefore, agree with the finding of the High Court on Issue No. 1 that by these notifications the Board had clearly held out a promise to these new industries and as these new industries had admittedly got established in the region where the Board was operating, acting on such promise, the same in equity would bind the Board. Such a promise was not contrary to any statutory provision but on the contrary was in compliance with the directions issued under Section 78A of the Act. These new industries which got attracted to this region relying upon the promise had altered their position irretrievably. They had spent large amounts of money for establishing the infrastructure, had entered into agreements with the Board for supply of electricity and, therefore, had necessarily altered their position relying on these representations thinking that they would be assured of at least three years period guaranteeing rebate of 10% on the total bill of electricity to be consumed by them as infancy benefit so that they could effectively compete with the old industries operating in the field and their products could effectively compete with their products. On these well-established facts the Board can certainly be pinned down to its promise on the doctrine of promissory estoppel.23. We fail to appreciate how those observations made in connection with entirely a different challenge based on different statutory scheme can be straightway pressed in service for contending that even grant of rebate of electricity charges as a part of permissible incentive scheme would also be a legislative function, it has to be kept in view that the Board exercises its statutory powers under Section 49(1) of the Act by fixing uniform rates of tariff for electricity charges. When it fixes general tariffs, it may be said to be exercising delegated legislative power. But while doing so it also in exercise of its statutory power can grant rebate to a given class of consumers under Section 49, Sub-sections (2) and 3) read with Section 78A of the Act. Once the uniform tariffs are fixed the statutory function of quasi-legislative, nature gets fructified. Dehors such rates if some concession by way of rebates is to be given the same would still remain in the field of statutory exercise of power. On this aspect we may usefully refer to a decision of this Court in the case of Bihar State Electricity Board v. Usha Martin Industries AIR1997SC2489 , rendered by a Bench of two learned Judges wherein one of us (K. T. Thomas, J.) was a member. Dealing with the very same Section 49(1) the following pertinent observations were made by Sen, J. speaking for the Bench:Moreover, the tariff is fixed by exercise of statutory powers. It is not fixed as a result of any bargaining by and between the Board and the consumers. It is a uniform tariff which every consumer will have to pay for the electricity consumed by him. In fact, the consumer has no option but to pay the tariff fixed by the Board in exercise of power conferred by Section 49.r the purpose of the present discussion we may proceed on the basis that while fixing general tariffs and making them subject to schemes of rebate, the Board exercises delegated legislative function flowing from the Statute. However once incentive rebate is granted in the general rate of tariffs on directions by State under Section 78A, the said incentive rebate offered by the Board would remain in the realm of exercise of statutory power-cum-duty. In the exercise of the same power the Board in its discretion can grant rebate in appropriate cases within the fore corners of Sections 49 and 78A of the Act. Of course this exercise will be subject to legally permissible limits and subject to the said concessional rates being found reasonable on the touchstone of Article 14 of the Constitution of India. It is, therefore, not possible to countenance the submission of Shri Dave that there cannot be any promissory estoppel against the Board when it exercises its powers under Section 49(1) of the Act whatever may be the settings for exercise of this power and even if it is exercised as a part of a scheme of incentive package: required to be offered to new industries as enjoined on the Board as per statutorily binding directions issued by the State to the Board under Section 78A of the Act.25. In the case of Kasinka Trading 1994ECR637(SC) (supra), a Bench of two learned Judges of this Court consisting of M. N. Venkatachaliah, C.J. and Dr. A. S. Anand, J., had to consider the question whether a notification issued under Section 25 of the Customs Act, 1962 granting complete exemption from payment of customs duty to PVC resin imported into India by manufacturers of certain products requiring the said resin as one of the raw materials, which was issued in public interest and which had staled that it would remain in force up to and inclusive of 31st March, 1981 could be withdrawn before the expiry of the said period by fresh notification issued by the Government in exercise of the very same power under Section 25 of the Customs Act. This Court speaking through Dr. Anand, J. look the view that as the said notification was issued in public interest it could be withdrawn even before the time fixed therein for its operation also in public interest and while issuing such a notification no promise can be said to have been held out or any representation made to the importers in general on the basis of which they could insist on the doctrine of promissory estoppel that the customs duty exemption granted earlier by the first notification could not be reduced by the second one. The following pertinent observations are found in paragraphs 11 and 12 (of SCC): (Paras 12 and 13 of AIR) of the Report:The doctrine of promissory estoppel or equitable estoppel is well established in the administrative law of the country. To put it simply, the doctrine represents a principle evolved by equity to avoid injustice. The basis of the doctrine is that where any party has by his word or conduct made to the other party an unequivocal promise or representation by word or conduct, which is intended to create legal relations or effect a legal relationship to arise in the, future, knowing as well as, intending that the representation, assurance or the promise would be acted upon by the other party to whom it has been made and has in fact been so acted upon by the other party, the promise, assurance or representation should be binding on the party making it and that party should not be permitted to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings, which have taken place or are intended to take place between the parties.It has been settled by this Court that the doctrine of promissory estoppel is applicable against the Government also particularly where it is necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel; the Government or the public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. In our opinion, the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the Courts have to do equity and the fundamental principles of equity must for ever be present to the mind of the Court, while considering the applicability of the doctrine. The doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation.It may, however, be mentioned that in paragraph 21 of the Report the Court has observed that the notification which was impugned before it was not designed or issued to induce the appellants to import PVC resin. Admittedly, the said notification was not even intended as an incentive for import. The notification on the plain language of it was conceived and issued by the Central Government being satisfied that it was necessary in the public interest so to do. Strictly speaking, therefore, the notification could not be said to have extended any representation much less a promise to a party getting the benefit of it to enable it to invoke the doctrine of promissory estoppel against the State. It must, therefore, be held that the aforesaid decision had clearly proceeded on the basis that by issuing the earlier notification under Section 25 of the Customs Act no promise was held out to any of the importers that the notifications life will not be curtailed earlier. Nor was the issuance of the notification based on any claim of incentives to be offered to anyone. It was issued in exercise of statutory powers vested in the Government which could be exercised from time to time in public interest. Earlier the public interest might have required issuance of such a notification granting cent per cent exemption from customs duty on import of PVC resin. Under changed circumstances public interest itself required redaction of such an exemption and as no promise was held out that this could not be done at any time the Court on the facts of that case justifiably rejected the plea of promissory estoppel. It is also to be observed that the said notification was issued in exercise of sovereign taxing power and had created no legal relationship between the authority issuing the notification on the one hand and the prospective importers of PVC resin on the other. The said decision is not an authority for the proposition that even if a claim of exemption from import duty was resorted to in public interest by way of an incentive for a class of importers and even though such public interest continued to subsist during the currency of such an exemption notification and that promises for whose benefit such exemption was granted had changed their position relying on the said exemption notification, it could still be withdrawn before the time mentioned therein even though public interest did not require the said exercise to be under taken and even though there were subsisting equities in favour of the promise-importers. As such a situation had not arisen in that case it was not adjudicated upon.26. The said decision, therefore, cannot be of any real assistance to learned Senior Counsel Shri Dave for the respondent-Board on the facts of the present group of matters. In the present case, as we have seen earlier a clear-cut scheme of incentives for new industries was put forward by the Board presumably at the behest of the U.P. Government so that more and more industries could be attracted to State of U.P. The Board also in its wisdom adopted the said scheme of incentives while fixing schedule of tariff rates as that was also in the interest of the Board for the obvious reason that thereby more and more new industries as consumers of high power electricity would be attracted to the region and would be paying higher electricity rates/charges to the Board.In the present case, the first notification exempting the customs duty on PVC itself recites ... Central Government being satisfied that it is necessary in public interest to do so .... In the notification issued later which gave rise to the present cause of action, the same recitation is present.It is, therefore, obvious that even though it may be found that the Government or any other competent authority had held out any promise on the basis of which the promise might have acted, if public interest required recall of such a promise and such a public interest outweighed the interest of the promise then the doctrine of promissory estoppel against the Government would lose its rigour and cannot be of any avail to such promise. In the aforesaid decision the further contention canvassed on behalf of the appellant-promise was also examined. That centered round the question whether the notification having fixed a time limit for its operation could be rescinded prior to the expiry of the said period. Rejecting the said contention and upholding the right of the authorities to recall such a notification even earlier it was observed in paragraph 7 of the Report that once public interest is accepted as the superior equity which can override individual equity, the principle should be applicable even in cases where a period has been indicated. It was further observed that the Government is competent to resile from a promise even if there is no manifest public interest involved, provided, of course, no one is put in any adverse situation which cannot be rectified. To adopt the line of reasoning in Emmanuel Ayodeji Ajayi v. Briscoe quoted in M.P. Sugar Mills even where there is no such overriding public interest, it may still be within the competence of the Government to resile from the promise on giving reasonable notice which need not he a format notice, giving the promised a reasonable opportunity of resuming his position, provided, of course, it is possible for the promise to restore the status quo ante. If, however, the promise cannot resume his position, the promise would become final and irrevocable.28. In the light of this settled legal position we, therefore, hold that even though the appellants have succeeded in convincing us that the earlier three notifications dated 29th October, 1982, 13th July, 1984 and 28th January, 1985 did contain a clear promise and representation by the Board to the prospective new industrialists that once they established their industries in the region within the territorial limits of the operation of the Board, they would be assured 10% rebate on the total bills regarding consumption of electricity by their industries for a period of three years from the initial supply of electric power to their concerns. the appellants will not be able to enforce the equity by way of promissory estoppel against the Board if it is shown by the Board that public interest required it to withdraw this incentive rebate even prior to the expiry of three years as available to the appellants concerned. It has also to be held that even if such withdrawal of development rebate prior to three years is not based on any overriding public interest, if it is shown that by such premature withdrawal the appellants-promises would be restored to status quo ante and would be placed in the same position in which they were prior to the grant of such rebate by earlier notifications the appellants would not be entitled to succeed. We, therefore, now proceed to examine these twin aspects of the controversy.29. So far as the question of public interest is concerned it must at once be staled that it is not the case of the respondent-Board that it sought to withdraw the incentive development rebate made available earlier by it to the new industries on the ground of any public interest. In this connection by way of illustration we may refer to one of the identical counters filed by the respondent-Board in this group of matters. In Civil Appeal No. 1710 of 1991 the counter-affidavit of the Board is found at page 154. Though the counter is sought to be filed in Civil Appeal No. 5318 of 1997 (arising out of S.L.P. (C) No. 5355 of 1991) it is sought to be treated as a counter-affidavit in this Civil Appeal. One B. S. Sharma, Executive Engineer (Commercial) of the respondent-Board has staked the claim of the Board for supporting the impugned notification for withdrawal of development rebate only on the twin grounds. Firstly it was contended that the grant of rebate could be withdrawn by the Board at any time it thought fit and for that purpose Section 49 of the Act was pressed in service. And the second ground is that the appellants themselves have executed agreements with the Board which empowered the Board to withdraw the development rebate earlier granted to them. Nowhere it is even whispered that the Board had to withdraw this development rebate incentive midstream on account of some overriding public interest.In short the genesis of this impugned notification is the advice given to the Board by the Tariff Realisation Committee which was a high power Committee. It. therefore, becomes clear that not on the ground of general public interest but solely on the ground of commercial interest of the Board which had earlier held out the promise that the aforesaid withdrawal was effected. Consequently it must be held on the facts of these cases that the impugned withdrawal notification was not backed up by any demands of public interest which would outweigh the individual interests of the appellant-promises who had acted upon the same. It is also pertinent to note in this connection that it is no longer in dispute between the parties that relying upon the earlier notifications holding out promise by the Board to give development rebate by way of incentive to new industries for three years from the date of initial supply of electricity to them, all the appellants as new industrialists had walked in the territory catered to by the Board and had established their industries in State of Uttar Pradesh by spending huge amounts of moneys for constructing the factories wherein their industrial activities could commence. On this aspect we may usefully refer by way of a specimen the averments contained in S.L.P.(C) No. 4561 of 1991 out of which Civil Appeal No. 10187 of 1991 arises. At page 51 of the Paper Book is found relevant factual data mentioned in the said Special Leave Petition. In para 3(i) and 3(ii.) the following averments were made:(i) That on 29-10-1982/13-7-1984 the U.P. State Electricity Board (an instrumentality of the State subject to the mandate of fairness and reasonableness under Article 14 of the Constitution) made representations add promises to the effect that an incentive in the form of 10% development rebate on the amount of electricity bills shall be given to all new industrial units in the State for a period of three years from the date of commencement of supply of electricity to them.(ii) That the petitioner established a new industrial unit (relying on the aforesaid representations and promises of the Board).The counter-affidavit filed on behalf of the Board in reply to the said averments makes an interesting reading. At page 70 is the counter-affidavit filed by the same deponent Shri Sharma, Executive Engineer (Commercial) whose counter in other case is referred to earlier. In the said counter he had stated that he relies upon the counter affidavit in Civil Appeal No. 1713 of 1991 for the purpose of the aforesaid Civil Appeal also. The said counter is annexed by way of Annexure I at page 72 of the Paper Book. So far as the recitals in the S.L.P. at paragraphs 3(i) and 3(ii) are concerned the reply thereto in the said counter is found at page 80 by way of parawise reply. In paragraphs 3(i) to 3(iii) it is mentioned that the contents in these paragraphs need no comments. Identical is the stand taken by the respondent-Board in this group of matters trying to deal with the identical averments made by all these appellants that relying upon the representation of the Board as found in the earlier notifications they had spent large amounts and established their factories.31. Consequently it must be held that relying upon the representations held out by the Board in these earlier notifications assuring grant of incentive rebate of 10% on the total bill of electricity consumption charges these new industries being assured that for three years this concession will be available had burnt their boats and spent large amounts and had established their industries in the area falling in the operative jurisdiction of the Board in State of U.P.32. Under these circumstances when no public interest was sought to be pressed in service by the Board for withdrawal of this incentive rebate, as seen earlier, the equity which had arisen in favour of the appellants remained untouched and undisturbed by any overwhelming and superior equity in favour of the Board entitling it to withdraw this development rebate in a premature manner leaving these promises high and dry before the requisite period of three years earlier guaranteed to them by way of development rebate had got exhausted. This takes us to the consideration of the second aspect of the matter.33. As observed by this Court in Shrijee Sales Corporation 1997(89)ELT452(SC) (supra), even where there is no such overriding public interest it might still be open to the promise-State or its delegate to resile from the promise on giving reasonable notice which heed not be a formal notice giving the promise a reasonable opportunity of resuming his position, provided it is possible for the promise to restore the status quo ante. Even on this aspect the respondent-Board has no case. It has not given any reasonable opportunity to the appellants to resume their earlier position. Nor is it shown by the Board that it is possible for the appellant-promises to restore the status quo ante. The reason is obvious. Once the new industries were lured into establishing their factories in the region entered to by the Board on being assured three years guaranteed incentive of development rebate of 10% on their total bills of electricity charges and acting on the same once they had established their industries and spent large amounts for constructing the infrastructure and for employing necessary labour and for purchasing raw materials etc., it would be almost impossible for them to restore the status quo ante and to walk out midstream if the development rebate incentive was withdrawn for the unexpired period out of the three years guaranteed period of currency of development rebate incentive. In fairness even it was not suggested by learned Senior Counsel for the respondents that on such withdrawal of development rebate the appellants would be able to restore the status quo ante and walk out. He simply relied upon the ratio of the decision of this Court in the case of Shrijee Sales Corporation (supra) for contending that it is the power of the Board to grant the rebate and it is equally the power of the Board to withdraw the same in its own discretion.34. Consequently it must be held that the twin aspects highlighted by this Court in Shrijee Sales Corporation 1997(89)ELT452(SC) (supra), on the basis of which the authority promising a particular course of conduct on its part to the prospective promise can resile from the promise even prematurely are not found established on the facts of these cases. Consequently the ratio of the said decision cannot be of any avail to the respondent-Board.36. We fail to appreciate how the aforesaid decision can advance the case of respondent-Board in the peculiar facts of this group of matters. As we have noted earlier here is a converse position where the Board presumably appears to have accepted the guidelines and the directions given by the State of U.P. under Section 78A of the Act and it adopted the scheme of incentive rebates for new industries by promulgating its own tariffs in exercise of its powers under Section 49 read with Section 78A of the Act and it was the Board itself which had given such a promise and held out such representations to the newcomer industries by the first three notifications as seen above. Once that was so the question of compelling the Board to promulgate such policy would not survive for consideration in the present cases. It is obvious that if the Board had not promulgated such policy the Court could not have compelled the Board to give such concessions. Here the question is having itself promulgated such a policy whether the Board can go back upon it prematurely. The aforesaid decision of this Court had no occasion to consider this aspect of the matter.37. However Shri Dave was very sanguine about the observation in this judgment that promissory estoppel would not apply where there existed a contract executed between the consumer and the Board. As we have noted earlier the aforesaid observations in the said Report were made in the light of the fact situation before the Court. There the consumer had entered into an agreement to be bound by the tariff rates notifications by the Board from time to time. Those tariff rates were devoid of any scheme of incentive development rebate. In-other words they were full-fledged tariff rates without any development rebate component. Under these circumstances the Court justifiably observed that the consumer was bound by the contract and when the Board itself had not promulgated any policy of development rebate for dew industries Board could not be compelled on the doctrine of promissory estoppel to do something which it had never promised to do. Consequently the decision in Ester Industries Ltd. (1996)11SCC199 (supra) also is of no avail to the respondent-Board.38. Before parting With this discussion it must be stated that in the light of the observations made in Ester Industries Ltd. (supra) by this Court to the effect that the fixation of tariff including incentive rebate is a legislative function, the observations of the High Court that it is not a legislative or delegated legislative function, cannot be sustained. It must be held that such a function is quasi-legislative in character reflecting an exercise of delegated legislative power.39. As a result of the aforesaid discussion it must be held that the finding reached on the question of promissory estoppel by the High Court 6n Issue No. 1 is well sustained. The respondent-Board must be treated to be estopped from prematurely withdrawing the incentive development rebate made available to these appellant-industries by issuing the impugned notification. Point No. 1 is accordingly answered in the affirmative in favour of the appellants and against the Board.Point No. 240. In the view of the High Court despite the equity by way of promissory estoppel being available to the appellants against the Board, as the appellants themselves had agreed by entering into written agreements and contracts with the Board when they took electric connections for their industries, that the Board had power to change the rate schedules from time to time and to revise them, the appellants were barred from challenging the impugned notification. Now it must be kept in view that as per the incentives offered to the new industries the Board had promised these new industrialists that for three years from the date on which they took electric supply for the first time for their industries they would be given 10% rebate on the total bill of electricity consumption charges for their industries. It is not in dispute that before electric supply could be made available to these new industries who would be new consumers to be enrolled by the Board these consumers had to enter into standard agreements. Such agreements had to be signed and entered into by all the prospective consumers whether they were covered by any incentive scheme or not. It is also an admitted position that all the appellants while taking electric connections for the first time for their new industries established by them in the region relying upon the incentives offered by the Board, entered into such written agreements in standard forms. The relevant clauses of these agreements on which strong reliance was placed by the High Court for non-suiting the appellants, deserve to be extracted in extenso at this stage:7. (a). The consumer shall pay for the supply of electric energy at the rates enforced by the supplier from time to time as may be applicable to the consumer.(b) The Rate Schedule applicable to the consumer at the time of execution of this agreement is annexed hereto as Annexure-2.(c) The Rate Schedule above mentioned, may, at the discretion of the supplier, be revised by the supplier from time to time and in the case of revision, the Rate Schedule so revised! shall be applicable to the consumer.According to the High Court once the consumers agreed to the authority of the Board to revise earlier rate schedule which was existing at the time of the agreement and as item 8 was a part and parcel of the said rate schedule implicit in Clause 7(c) was the agreement by the appellant-consumers that the Board will be able to tinker with or even wholly withdraw the development rebate earlier made available as per the said item 8 of the rate schedule.43. Therefore, it cannot be said that when Clause 7(b) referred to rate schedule applicable to the consumer it contemplated even the scheme of development rebate. The rate schedule fixing the general rates of charges of electricity would, as mentioned in Items 4 and 7, result in preparation of the bill. At that stage fixed schedule rates for charge of electricity would complete their task and would get exhausted as the bill would be prepared in that light after following the procedure laid down by these items. Ad hoc lump sum 10% development rebate on the total bill which was treated as an incentive to new industries in Item 8, therefore, would obviously go beyond the scope of computation of electricity consumption bills as per the rate schedule.44. It must, therefore, be held that Clause 7(b) of the agreement was not even remotely connected with the question of development rebate which stood on its own and had no part to play in the computation and preparation of the bill for electricity consumption charges. Item 8 operated at a stage posterior to the computation of electricity charges bill in the light of the rate schedule. Therefore when the term rate schedule is employed in Clause 7(8) of the agreement it only deals with the general rates for the charge of electricity as fixed by the Board from time to time under Section 49(1). On the same line of reasoning the words rate schedule as employed by Clause 7(c) have to be understood. Consequently what the consumer as a contracting party agreed under Clause 7(b) was to the effect that the general rate schedule as mentioned in Annexure 2 at the time of the execution of the agreement could be revised and that the general rates of electricity changes could be either increased or decreased by the supplier from time to time and to that exercise undertaken by the Board, that is the supplier of the electricity, the consumer would have no objection as a contracting party. The term revision of rate schedule as employed by Clause 7(c) itself indicates that the rates of charges of electricity being general tariff could be either increased or decreased. That has nothing to do with the scheme of incentive development rebate which is entirely a different concept and withdrawal of development rebate cannot be said to be an upward revision of the general rate schedule for charging the consumer while being supplied the electricity. These types of standard contracts have to be examined in the light of the express language found therein and by implication nothing can be read which obviously would be miles away from the real intention of the persons signing such contracts in standard forms.45. It is difficult to appreciate how the High Court could persuade itself to hold in the light of Clause 7(c) that the appellants while signing such agreements for taking electricity supply for the first time for their new industries as if by side wind agreed to give up their right to claim development rebate by handing over on a platter an absolute right to the Board to totally withdraw such development rebate at any time it liked before the three years period, for which incentive was meant to be guaranteed, would have expired. On the express language of Clause 7(a), (b) and (c) such a conclusion is impossible to be arrived at.46. It is also necessary to visualize that under the incentive to new industries scheme as offered by the Board as per Item 8 found in the rate schedule annexed as Annexure 2 to the agreement, the Board had agreed that the new industrial units will be given for a period of three years from the date of commencement of supply, 10% development rebate on the amount of the bill pertaining to the energy charges incurred by the concerned consumers. It is also obvious that before any new industrial unit can get commencement of supply of electricity it has to enter into such standard form agreement which included Clause 7(a), (b) and (c). For the very purpose of the incentive to new industries the starting point would be entering into such a written agreement on the basis of which the electric energy supply would commence at these new industrial units.47. It would be totally absurd and incongruous to suggest on behalf of the Board that on the one hand it guaranteed to the new industrial units for a period of three years from the date of commencement of supply 10% development rebate on the total amount of the bill and on the other hand moment such supply started pursuant to the written agreement the very incentive could be withdrawn by it from its inception as new industrial unit had to sign a written agreement containing Clause 7(a), (b) and (c). If that submission on behalf of the Board which appealed to the High Court is accepted a most incongruous, unreasonable and absurd result would follow. It can then be said that the Board on the one hand had given incentive to new industries by guaranteeing development rebate of 10% on the total bill of consumption of electricity for a period of Shree years from the date of commencement of supply but from the very inception of that period the Board on the other hand as per the very agreement with the promise was enabled to immediately withdraw the very same development rebate in exercise of its contractual powers as per Clause 7(c) of that very agreement. If that happens the Board would be giving on the one hand incentive to new industries by way of development rebate of 10% and by another hand would immediately and almost simultaneously be withdrawing the said incentive by pinning down the consumer to the terms of the agreement as found at Clause 7(a), (b) and (c). This would result in a total exercise in futility. The incentive development rebate scheme would in such an eventuality be stillborn. It is also easy to visualize that a new industrial unit which spends large amounts for establishing its infrastructure and gets lured in the light of the representation held out by the Board and establishes its plant and machinery in the new unit, would not simultaneously and voluntarily agree by signing such any agreement with the Board to give up the very same benefit of incentive by permitting the latter to withdraw it at any time it likes. That would be doing violence to common sense and business approach of an ordinarily prudent businessman. No businessman in His senses would ever agree voluntarily to such an absurd, incongruous and inconsistent predicament.48. It is, therefore, too much to imply any written consent on the part of a prudent consumer who established new industrial units to at once give up the incentive of development rebate guaranteed in his favour by the Board. Consequently it is not possible for us to endorse the reasoning which appealed to the High Court which decided Issue No. 2 against the appellants.49. We, therefore, hold that the new industrial units while signing the written agreements and agreeing to Clause 7(a), (b) and (c) found to the standard contract forms had only undergone a formality of signing such agreements before the electric supply could commence at their new units and such clauses only re-affirm the statutory power of the Board under Section 49(1) of the Act and had nothing to do with the scheme of incentive development rebate. They had not voluntarily or by even remotest chance agreed to give up the benefit given to them by clear representation held out by the Board as per Item 8 of the rate schedule in the light of the earlier three notifications promulgated by the Board in exercise of its powers under Section 49 read with Section 78A of the Act.50. It must also be held that they have neither expressly nor impliedly agreed that the Board will have absolute power and discretion to withdraw this incentive of development rebate at any time prior to the expiry of three years for which it was guaranteed to them by the earlier representation held out by the Board and which representation resulted into promissory estoppel against the Board and in favour of the appellants.51. In this connection we may note one aspect of the matter. As per Clause 7(c) the Board could revise upwards the general rates of electricity charges at any time it liked. This had nothing to do with the scheme of incentive rebate. Learned advocates for the appellants conceded this authority of the Board. This authority was clearly available to the Board as per Clause 7(c) of the agreement read with Section 49 of the Act. But this increase of general tariff rate would not adversely affect incentive available to new and infant industries.52. Let us take an example, to clarify, this aspect. If a general rate of electricity tariff for a given class of industries is Rs. 100/- per KW and if 10% rebate by way of development incentive is given to new industries, the latter will pay Rs. 90/- per KW while other well established industries will pay Rs. 100/- per KW. Thus the goods manufactured by new industries would be cheaper costwise as compared to goods manufactured by well established industries in the region. That will enable the newly established industries to compete more effectively with their senior counterparts. Now if the general rate is increased by the Board even within the three years of the currency of the incentive scheme, to Rs. 200/- per KW all the well established industries will have to pay Rs. 200/- per KW for the electricity consumed while the new industries which were earlier getting infancy benefit will pay Rs. 180/- per KW as 10% rebate will still be available to them by way of development rebate. Thus benefit of infancy protection will remain available to the new industries for competing with the old ones even if general tariff rate gets revised upwards for a given class of consumers comprising of new as well as old industries in the field. New industries will, therefore, despite such increase in general tariff rate will be able to sell their products in the same manner as compared to the old established industries as they were doing earlier. Thus the cloak of protection available to them against old competitors in the field will still be available despite any upward revision of the general tariff by the Board in exercise of its powers under Clause 7(c) of the agreement read with Section 49 of the Act. Consequently the provision of revision of general rates under Clause 7(c) of the agreement cannot be treated to be conferring any further power on the Board to tinker with the development rebate provision within the guaranteed period of three years as wrongly assumed by the High Court. Point No. 1 is decided accordingly in the negative in favour of the appellants and against the Board.53. So far as Point No. 3 is concerned the appellants are on a weaker footing. It is true that by earlier notifications dated 29th October 1982, 13th July 1984 and 28th January 1986 the scheme of incentives by way of development rebate of 10% was continued to be offered to new industries to be established in the plains of State of U.P. Identically worded item 9 in the earlier notifications and item 8 in the last notification dated 28th January 1986 had continued the said incentive scheme. By virtue of the last notification of 28th January 1986 it was clearly laid down by the Board that all new industries which might be established on and after 28th January 1986 will earn this development rebate for the three; years period from the date of commencement of supply of electricity. It was also proved that all the existing new industries which misfit have earlier been established before 28th January 1986 and which had still some part of unexpired period of three years of development rebate available with them also were given the continued benefit of the development rebate for the unexpired period (sic) 1st February 1986. What the impugned notification of 31st July 1986 sought to do was to delete this first paragraph of item 8 of the notification of 28th January 1986. The result was that from 1st August 1986 whatever unexpired period for getting development rebate of 10% was available with the new industries covered by the sweep of the said notification, got withdrawn. It could not be said and it is also not the case of the respondent-Board that in the light of the notification of 31st July 1986 whatever development rebate was granted to these new industries earlier as per the then existing scheme would stand withdrawn or any recovery would be effected against them for the said amount. The case of the Board is that despite any unexpired period for earning the incentive rebate of 10% was available to the existing new industries on 31st July 1986, they would lose that benefit of development rebate for the rest of the unexpired period with effect from 1st August 1986 onwards. Hence it is not possible to agree with the contention of learned Counsel for the appellants that the said notification had any retrospective effect. It was purely prospective and had resulted into two consequences - (i) any new industry which entered into an agreement with the Board for supply of electricity for the first time on and after 1st August 1986 could not get the benefit of incentive of 10% development rebate; and (ii) all existing new industries which were armed with the guarantee of 10% development rebate under the earlier notifications and had unexpired period out of the three years from the date of earlier commencement of supply of electricity to their concerns lost the benefit for that unexpired period which otherwise would have been available to them from 1st August 1986 onwards till the entire three years period which had already commenced would have been over. Both these effects of the notification of 31st July 1986 were purely prospective in character and had no retrospective effect. Consequently it cannot be said that the said notification was liable to be struck down on the Score of being retrospective in nature. The third point for consideration, therefore, is answered in the negative.Point No. 4.54. In view of our answers to the aforesaid three points. Point No. 4 does not survive for consideration.55. As a result of the aforesaid discussion on these points the conclusion becomes inevitable that the appellants are entitled to succeed. It must be held that the impugned notification of 31st July 1986 will have no adverse effect on the right of the appellant-new industries to get the development rebate of 10% for the unexpired period of three years from the respective dates of commencement of electricity supply at their units from the Board with effect from 1st August 1986 onwards till the entire three years period for each of them got exhausted. This result logically follows for the appellants who have admittedly entered into supply agreements with the Board as new industries prior to 1st August 1986. However those appellants who entered into such agreements after 1st August 1986 cannot get benefit of development rebate any longer after 1st August 1986. This conclusion of ours pertains to the question which is no longer res integra. It is already so held by this Court in S.L.P. (C) No. 11906 of 1994 and others decided by a Bench of this Court consisting of A.M. Ahmadi, CJ (as His Lordship then was) and S.P. Bharucha, J., in the case of Hotz Hotel Pvt. Ltd. etc. etc./Vaidya Ply Board v. UPSEB etc., etc. on 03rd October 1994. We find that the appellant in Civil Appeal No. 1713 of 1991 executed agreement with the Board for the first time on 5th May 1987. Similarly appellant in Civil Appeal No. 3534 of 1991 executed agreement with the Board for the first time after 1-8-1986. These appellants, therefore, will not be entitled to get out of the sweep of the impugned notification. These appeals will, therefore, have to be dismissed.56. It is obvious that after the expiry of the aforesaid three years period available to them under the earlier notifications the appellants would be liable to pay full electricity charges billed to them by the Board without any development rebate as after the expiry of the said period they would not be protected under any promise by the Board. On the contrary from 31st July 1986 the Board made it very clear to all concerned that no new industry thenceforth would be entitled to any development rebate on getting new supply connections. Thus the appellants also will stand at par with all other industries and will not get benefit of any further development rebate incentive after the aforesaid three years period in case of each of them had worked itself out. In fairness to the appellants it must be stated that even they did not claim any such extra benefit. It is also true that the present proceedings are confined only to the claim of 10% development rebate on the bills of consumption of electricity which according to the appellants is available to them for the unexpired period of three years from 1st August 1986 onwards and which development rebate according to the Board was not available to them.57. However before parting with the present appeals we have to clarify two ancillary aspects pertaining to the controversy in these proceedings. At the time of issuing notice in the SLPs as noted earlier the recovery of development rebate charges was not stayed in most of the matters, though as we are informed in some of the matters even that stay came to be indirectly granted. Those appellants who were protected by the grant of stay of recovery of the impugned development rebate charges naturally will not be entitled to claim any refund from the Board even though they succeed in these appeals and the respondent-Board will be permanently restrained from recovering the disputed development rebate charges from them.58. However so far as the appellants who were not granted stay by this Court and who have already paid up the disputed development rebate charges to the Board in the light of the High Courts common decision are concerned, it must be stated that they represent two types of industries - (i) those appellants whose industries are still running and who continue to be enrolled as consumers of electricity by the Board; and (ii) those of the appellants who had established their industries but by now who might have ceased to be consumers of electricity from the respondents in any of the areas within the jurisdiction of the Board on account of closure of their industries in the State of U. P. So far as the first category of such appellants is concerned, instead of directing refund of the amount of disputed development rebate charges which they might have paid to the Board it will be in the fitness of things to direct the Board to credit this amount to the respective running accounts of (such) appellants concerned and the future bills of electricity which the appellants may be required to pay to the Board may be adjusted from this credited account so that the appellants as consumers may not have to pay all future bills of electricity consumed by their industries will the entire credit outstanding in their respective accounts in this connection gets exhausted. The Board shall give written intimation to the appellants concerned regarding posting of such credit entries in their respective accounts.59. So far as the second category of appellants are concerned as they are no longer consumers of electricity from the Board in any part of the State of U.P. appropriate order will be to direct the Board to return the disputed development rebate charges collected from them from 1st August 1986 onwards for the unexpired period of three years within three months of the receipt of a copy of this order at its end.61. So far as the refund question is concerned, on the basic principle of restitution and in the absence of any clear evidence or even averment on this aspect it is not possible for us to come to any definite finding that all the disputed amounts of development rebate charges would have entered the cost structure of the appellants after the earlier three years period had run out. As we have seen earlier, the dispute centered round only the unexpired period of three years from the commencement of electric supply for these new industries as was available to them after 1st August 1986.62. Even assuming about two and a half years period would have been available to some of them at the highest, that period would have been over by the beginning of year 1989 and the stay was refused by this Court on 6th February 1991. Till that time all the appellants were protected by the interim relief earlier granted by the High Court.63. Consequently it would not be possible to clearly visualize with any degree of certainty that for the goods which the appellants might have manufactured after February 1991 they would have spread over in a phased manner burden of the past disputed development rebate charges for a period which already got exhausted at least two years before 1991.64. However this aspect may have some relevance from the practical view point when we have to deal with the claim for interest on disputed amounts raised by worldly businessmen like the appellant-industrialists carrying on commercial transactions. Their claim for interest, in our view, deserves to be rejected in exercise of our powers under Article 142 of the Constitution of India on the peculiar facts and circumstances of these cases as indicated earlier when at least the possibility cannot be ruled out that while pricing the manufactured goods in future the appellants, as shrewd businessmen and men of commercial world, would have seen to it that ultimately the burden borne by them by way of recovery of development rebate charges gets passed on to their consumers in long run and their profits would remain intact. | 1 | 13,062 | 11,935 | ### 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:
rebate and it is equally the power of the Board to withdraw the same in its own discretion. 34. Consequently it must be held that the twin aspects highlighted by this Court in Shrijee Sales Corporation 1997(89)ELT452(SC) (supra), on the basis of which the authority promising a particular course of conduct on its part to the prospective promise can resile from the promise even prematurely are not found established on the facts of these cases. Consequently the ratio of the said decision cannot be of any avail to the respondent-Board. 35. Shri Dave, learned Senior Counsel for the Board next ginned his faith on another decision of this Court in the case of Ester Industries Ltd. v. U.P. State Electricity Board (1996)11SCC199 . In that case this Court was concerned with a converse situation wherein the Government of U.P. had decided to grant 10% development rebate to new industries which could be attracted to the State. However the respondent-Board had not acted upon the said suggestion of the Government of U.P. and had not changed its tariff rates by adopting the same scheme of incentive benefits for its consumers. Question was whether the Court could compel the Board to grant such an incentive rebate to its consumers in exercise of statutory powers of the Board under Section 49 of the Act when the Board itself had not thought it fit to do so. The High Court had rejected such a request of the writ petitioners for enforcing the aforesaid scheme on the Board. Said decision was upheld by a Bench of this Court consisting of K. Ramaswamy and G. B. Pattanaik, JJ., by the aforesaid judgment. The Court observed that the State Electricity Board had a statutory function to discharge in determination of the rates of tariff and this being a legislative policy while exercising the power under Section 78A of the Act policy directions issued by the Government may also be taken into consideration by the Board which had a statutory duty to perform and that it was for the State Government to consider whether the Board had laid down the policy or whether the direction issued by the State Government had not been properly implemented. The Court could not give a direction to the Board to implement the directions issued by the State Government. Thus it was held that no mandamus could be issued to the Board to grant such incentive rebate to the new industries. The Court also noted that in the agreements entered into by the consumers with the Board full tariff rates without any rebate were agreed to be paid. Consequently it was observed that promissory estoppel would apply only in a case where there was no contract executed between the parties and in that case there existed a contract duly executed under law between the petitioner and the Board which bound them and unless the same was revised question of promissory estoppel did not arise. 36. We fail to appreciate how the aforesaid decision can advance the case of respondent-Board in the peculiar facts of this group of matters. As we have noted earlier here is a converse position where the Board presumably appears to have accepted the guidelines and the directions given by the State of U.P. under Section 78A of the Act and it adopted the scheme of incentive rebates for new industries by promulgating its own tariffs in exercise of its powers under Section 49 read with Section 78A of the Act and it was the Board itself which had given such a promise and held out such representations to the newcomer industries by the first three notifications as seen above. Once that was so the question of compelling the Board to promulgate such policy would not survive for consideration in the present cases. It is obvious that if the Board had not promulgated such policy the Court could not have compelled the Board to give such concessions. Here the question is having itself promulgated such a policy whether the Board can go back upon it prematurely. The aforesaid decision of this Court had no occasion to consider this aspect of the matter. 37. However Shri Dave was very sanguine about the observation in this judgment that promissory estoppel would not apply where there existed a contract executed between the consumer and the Board. As we have noted earlier the aforesaid observations in the said Report were made in the light of the fact situation before the Court. There the consumer had entered into an agreement to be bound by the tariff rates notifications by the Board from time to time. Those tariff rates were devoid of any scheme of incentive development rebate. In-other words they were full-fledged tariff rates without any development rebate component. Under these circumstances the Court justifiably observed that the consumer was bound by the contract and when the Board itself had not promulgated any policy of development rebate for dew industries Board could not be compelled on the doctrine of promissory estoppel to do something which it had never promised to do. Consequently the decision in Ester Industries Ltd. (1996)11SCC199 (supra) also is of no avail to the respondent-Board. 38. Before parting With this discussion it must be stated that in the light of the observations made in Ester Industries Ltd. (supra) by this Court to the effect that the fixation of tariff including incentive rebate is a legislative function, the observations of the High Court that it is not a legislative or delegated legislative function, cannot be sustained. It must be held that such a function is quasi-legislative in character reflecting an exercise of delegated legislative power. 39. As a result of the aforesaid discussion it must be held that the finding reached on the question of promissory estoppel by the High Court 6n Issue No. 1 is well sustained. The respondent-Board must be treated to be estopped from prematurely withdrawing the incentive development rebate made available to these appellant-industries by issuing the impugned notification.
### Response:
1
### Explanation:
period available to them under the earlier notifications the appellants would be liable to pay full electricity charges billed to them by the Board without any development rebate as after the expiry of the said period they would not be protected under any promise by the Board. On the contrary from 31st July 1986 the Board made it very clear to all concerned that no new industry thenceforth would be entitled to any development rebate on getting new supply connections. Thus the appellants also will stand at par with all other industries and will not get benefit of any further development rebate incentive after the aforesaid three years period in case of each of them had worked itself out. In fairness to the appellants it must be stated that even they did not claim any such extra benefit. It is also true that the present proceedings are confined only to the claim of 10% development rebate on the bills of consumption of electricity which according to the appellants is available to them for the unexpired period of three years from 1st August 1986 onwards and which development rebate according to the Board was not available to them.57. However before parting with the present appeals we have to clarify two ancillary aspects pertaining to the controversy in these proceedings. At the time of issuing notice in the SLPs as noted earlier the recovery of development rebate charges was not stayed in most of the matters, though as we are informed in some of the matters even that stay came to be indirectly granted. Those appellants who were protected by the grant of stay of recovery of the impugned development rebate charges naturally will not be entitled to claim any refund from the Board even though they succeed in these appeals and the respondent-Board will be permanently restrained from recovering the disputed development rebate charges from them.58. However so far as the appellants who were not granted stay by this Court and who have already paid up the disputed development rebate charges to the Board in the light of the High Courts common decision are concerned, it must be stated that they represent two types of industries - (i) those appellants whose industries are still running and who continue to be enrolled as consumers of electricity by the Board; and (ii) those of the appellants who had established their industries but by now who might have ceased to be consumers of electricity from the respondents in any of the areas within the jurisdiction of the Board on account of closure of their industries in the State of U. P. So far as the first category of such appellants is concerned, instead of directing refund of the amount of disputed development rebate charges which they might have paid to the Board it will be in the fitness of things to direct the Board to credit this amount to the respective running accounts of (such) appellants concerned and the future bills of electricity which the appellants may be required to pay to the Board may be adjusted from this credited account so that the appellants as consumers may not have to pay all future bills of electricity consumed by their industries will the entire credit outstanding in their respective accounts in this connection gets exhausted. The Board shall give written intimation to the appellants concerned regarding posting of such credit entries in their respective accounts.59. So far as the second category of appellants are concerned as they are no longer consumers of electricity from the Board in any part of the State of U.P. appropriate order will be to direct the Board to return the disputed development rebate charges collected from them from 1st August 1986 onwards for the unexpired period of three years within three months of the receipt of a copy of this order at its end.61. So far as the refund question is concerned, on the basic principle of restitution and in the absence of any clear evidence or even averment on this aspect it is not possible for us to come to any definite finding that all the disputed amounts of development rebate charges would have entered the cost structure of the appellants after the earlier three years period had run out. As we have seen earlier, the dispute centered round only the unexpired period of three years from the commencement of electric supply for these new industries as was available to them after 1st August 1986.62. Even assuming about two and a half years period would have been available to some of them at the highest, that period would have been over by the beginning of year 1989 and the stay was refused by this Court on 6th February 1991. Till that time all the appellants were protected by the interim relief earlier granted by the High Court.63. Consequently it would not be possible to clearly visualize with any degree of certainty that for the goods which the appellants might have manufactured after February 1991 they would have spread over in a phased manner burden of the past disputed development rebate charges for a period which already got exhausted at least two years before 1991.64. However this aspect may have some relevance from the practical view point when we have to deal with the claim for interest on disputed amounts raised by worldly businessmen like the appellant-industrialists carrying on commercial transactions. Their claim for interest, in our view, deserves to be rejected in exercise of our powers under Article 142 of the Constitution of India on the peculiar facts and circumstances of these cases as indicated earlier when at least the possibility cannot be ruled out that while pricing the manufactured goods in future the appellants, as shrewd businessmen and men of commercial world, would have seen to it that ultimately the burden borne by them by way of recovery of development rebate charges gets passed on to their consumers in long run and their profits would remain intact.
|
AJAY GUPTA Vs. PRAMOD KUMAR SHARMA | amendments:- (a) To uncaps the CIRP costs on conditions stated therein; (b) To reduce term of the plan from 180 days to 90 days. At this point of time, we are conscious of the fact that the CIRP period will come to end on 06.01.2022 and a decision on the resolution plans will have to be taken first by the CoC and, thereafter by this Adjudicating Authority. Therefore, the ends of justice will be met if we direct the applicant herein to place the affidavits at Page Nos. 290 to 298 alongwith the covering letter addressed to the sole member of the CoC for consideration. Since we do not wish to disturb level playing field, the other resolution applicants whose plans are also being considered will also be permitted to place any modification in their submitted resolution plan before the CoC for its consideration. Such modifications shall be communicated to the CoC, no later than 48 hours from now. Accordingly, IA No. 367/2021 is disposed of. 6. Thereafter, the resolution plans were considered by the CoC on 21/22.12.2021 and the plan of the other resolution applicant was approved. 7. The appellant, on the other hand, attempted to question the said order dated 13.12.2021 before the Appellate Tribunal. The Appellate Tribunal took note of the grievance of the appellant that its resolution plan came to be known to everyone and hence, no opportunity should have been given to the others to modify. 8. The Appellate Tribunal found no substance in those submissions while taking the view that the Adjudicating Authority had passed the impugned order so as to maintain the level playing field. The Appellate Tribunal also took note of the fact that the resolution plans had already been considered by CoC on 21.12.2021. 9. We may also indicate that earlier, the said order dated 13.01.2022 as passed by the Appellate Tribunal was sought to be questioned before us by the erstwhile director of the corporate debtor but, we declined to accede locus to the said appellant and hence, the said appeal [@ Dy. No. 2729 of 2022] was dismissed, while rejecting the application seeking permission to file appeal, by our order dated 07.02.2022. 10. Now, the said order dated 13.01.2022 of the Appellate Tribunal is sought to be questioned by the unsuccessful resolution applicant. 11. The learned senior counsel has painstakingly taken us through the relevant contents of the Request for Resolution Plan (RFRP, for short) as issued by the Resolution Professional as also the minutes of the meeting of CoC and the affidavit filed by the appellant. Learned counsel would strenuously contend that so far as the appellant is concerned, it had not been a case of modification of the resolution plan because modification as such was not even permissible under the conditions of RFRP; and the submissions of the appellant by way of the affidavit dated 17.11.2021 had only been to meet with the requirements of the COC, as reflected in the minutes of the meeting dated 02.11.2021 and for such a proposition, there was no justification in granting any liberty to the other resolution applicant to modify its resolution plan. Learned senior counsel has also contended that appellant had been rather prejudiced in the matter for the reason that the terms of its resolution plan became known to the other resolution applicant when the matter was examined by the Adjudicating Authority while passing order dated 13.12.2021. 12. We do not find the submissions aforesaid making out a case for interference. This is for the simple reason that on a perusal of the order dated 13.12.2021, this much is clear that certain key features/stipulations of the resolution plan were sought to be amended by the appellant. Whether it was done in response to the requirement of the CoC or otherwise, the fact of the matter remains that there was going to be modification of the relevant terms of the resolution plan of the appellant. When that was being permitted at the request of the appellant himself, we cannot find fault in the Adjudicating Authority having passed an order so as to balance the position of the respective parties and to provide level playing field by granting corresponding permission to the other resolution applicant to place its modification for consideration of CoC. 13. So far as affidavit dated 17.11.2021 is concerned, though the appellant stated in paragraph 3 thereof that the payment of upfront amount under the resolution plan was in no way going to modify the plan but, that had only been an expression of the understanding of the appellant about the legal effect of the propositions put forward by him, which included the modification of the term of plan from 180 days to 90 days. Such a proposition could not have been treated as formal or innocuous or of no material bearing. 14. So far as the factor relating to divulging of the contents of the plan is concerned, the same had been of the making of the appellant himself. If the appellant had chosen to divulge/disclose the terms of its resolution plan before the Adjudicating Authority, there had not been any fault on the part of the resolution professional or the CoC or the other resolution applicant. 15. Thus, the view taken by the Adjudicating Authority as also by the Appellate Tribunal appears to be reasonable and sound, calling for no interference. 16. Before concluding on the matter, we need to indicate two other relevant factors concerning this matter. One is that the other resolution applicant, whose resolution plan has been accepted by the Committee of Creditors, is not before us and has not been impleaded as a party respondent in this appeal. Hence, no order prejudicial to the interest of the successful resolution applicant could be passed in this appeal. Secondly, the matter would nevertheless require further processing before the Adjudicating Authority; and for that matter, we are informed that the approval of the Committee of Creditors has already been placed before the Adjudicating Authority. | 0[ds]1. Having heard learned senior counsel for the appellant at sufficient length and having perused the material placed on record, we do not feel persuaded to entertain this appeal under Section 62 of Insolvency and Bankruptcy Code, 2016 (Hereinafter also referred to as the Code) by one of the resolution applicants [A consortium led by the appellant (comprising of a private limited company and the appellant himself) has been the resolution applicant] in the corporate insolvency resolution process (CIRP, for short) concerning the corporate debtor-B.B. Foods Pvt. Ltd.12. We do not find the submissions aforesaid making out a case for interference. This is for the simple reason that on a perusal of the order dated 13.12.2021, this much is clear that certain key features/stipulations of the resolution plan were sought to be amended by the appellant. Whether it was done in response to the requirement of the CoC or otherwise, the fact of the matter remains that there was going to be modification of the relevant terms of the resolution plan of the appellant. When that was being permitted at the request of the appellant himself, we cannot find fault in the Adjudicating Authority having passed an order so as to balance the position of the respective parties and to provide level playing field by granting corresponding permission to the other resolution applicant to place its modification for consideration of CoC.13. So far as affidavit dated 17.11.2021 is concerned, though the appellant stated in paragraph 3 thereof that the payment of upfront amount under the resolution plan was in no way going to modify the plan but, that had only been an expression of the understanding of the appellant about the legal effect of the propositions put forward by him, which included the modification of the term of plan from 180 days to 90 days. Such a proposition could not have been treated as formal or innocuous or of no material bearing.14. So far as the factor relating to divulging of the contents of the plan is concerned, the same had been of the making of the appellant himself. If the appellant had chosen to divulge/disclose the terms of its resolution plan before the Adjudicating Authority, there had not been any fault on the part of the resolution professional or the CoC or the other resolution applicant.15. Thus, the view taken by the Adjudicating Authority as also by the Appellate Tribunal appears to be reasonable and sound, calling for no interference.16. Before concluding on the matter, we need to indicate two other relevant factors concerning this matter. One is that the other resolution applicant, whose resolution plan has been accepted by the Committee of Creditors, is not before us and has not been impleaded as a party respondent in this appeal. Hence, no order prejudicial to the interest of the successful resolution applicant could be passed in this appeal. Secondly, the matter would nevertheless require further processing before the Adjudicating Authority; and for that matter, we are informed that the approval of the Committee of Creditors has already been placed before the Adjudicating Authority. | 0 | 2,210 | 564 | ### 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:
amendments:- (a) To uncaps the CIRP costs on conditions stated therein; (b) To reduce term of the plan from 180 days to 90 days. At this point of time, we are conscious of the fact that the CIRP period will come to end on 06.01.2022 and a decision on the resolution plans will have to be taken first by the CoC and, thereafter by this Adjudicating Authority. Therefore, the ends of justice will be met if we direct the applicant herein to place the affidavits at Page Nos. 290 to 298 alongwith the covering letter addressed to the sole member of the CoC for consideration. Since we do not wish to disturb level playing field, the other resolution applicants whose plans are also being considered will also be permitted to place any modification in their submitted resolution plan before the CoC for its consideration. Such modifications shall be communicated to the CoC, no later than 48 hours from now. Accordingly, IA No. 367/2021 is disposed of. 6. Thereafter, the resolution plans were considered by the CoC on 21/22.12.2021 and the plan of the other resolution applicant was approved. 7. The appellant, on the other hand, attempted to question the said order dated 13.12.2021 before the Appellate Tribunal. The Appellate Tribunal took note of the grievance of the appellant that its resolution plan came to be known to everyone and hence, no opportunity should have been given to the others to modify. 8. The Appellate Tribunal found no substance in those submissions while taking the view that the Adjudicating Authority had passed the impugned order so as to maintain the level playing field. The Appellate Tribunal also took note of the fact that the resolution plans had already been considered by CoC on 21.12.2021. 9. We may also indicate that earlier, the said order dated 13.01.2022 as passed by the Appellate Tribunal was sought to be questioned before us by the erstwhile director of the corporate debtor but, we declined to accede locus to the said appellant and hence, the said appeal [@ Dy. No. 2729 of 2022] was dismissed, while rejecting the application seeking permission to file appeal, by our order dated 07.02.2022. 10. Now, the said order dated 13.01.2022 of the Appellate Tribunal is sought to be questioned by the unsuccessful resolution applicant. 11. The learned senior counsel has painstakingly taken us through the relevant contents of the Request for Resolution Plan (RFRP, for short) as issued by the Resolution Professional as also the minutes of the meeting of CoC and the affidavit filed by the appellant. Learned counsel would strenuously contend that so far as the appellant is concerned, it had not been a case of modification of the resolution plan because modification as such was not even permissible under the conditions of RFRP; and the submissions of the appellant by way of the affidavit dated 17.11.2021 had only been to meet with the requirements of the COC, as reflected in the minutes of the meeting dated 02.11.2021 and for such a proposition, there was no justification in granting any liberty to the other resolution applicant to modify its resolution plan. Learned senior counsel has also contended that appellant had been rather prejudiced in the matter for the reason that the terms of its resolution plan became known to the other resolution applicant when the matter was examined by the Adjudicating Authority while passing order dated 13.12.2021. 12. We do not find the submissions aforesaid making out a case for interference. This is for the simple reason that on a perusal of the order dated 13.12.2021, this much is clear that certain key features/stipulations of the resolution plan were sought to be amended by the appellant. Whether it was done in response to the requirement of the CoC or otherwise, the fact of the matter remains that there was going to be modification of the relevant terms of the resolution plan of the appellant. When that was being permitted at the request of the appellant himself, we cannot find fault in the Adjudicating Authority having passed an order so as to balance the position of the respective parties and to provide level playing field by granting corresponding permission to the other resolution applicant to place its modification for consideration of CoC. 13. So far as affidavit dated 17.11.2021 is concerned, though the appellant stated in paragraph 3 thereof that the payment of upfront amount under the resolution plan was in no way going to modify the plan but, that had only been an expression of the understanding of the appellant about the legal effect of the propositions put forward by him, which included the modification of the term of plan from 180 days to 90 days. Such a proposition could not have been treated as formal or innocuous or of no material bearing. 14. So far as the factor relating to divulging of the contents of the plan is concerned, the same had been of the making of the appellant himself. If the appellant had chosen to divulge/disclose the terms of its resolution plan before the Adjudicating Authority, there had not been any fault on the part of the resolution professional or the CoC or the other resolution applicant. 15. Thus, the view taken by the Adjudicating Authority as also by the Appellate Tribunal appears to be reasonable and sound, calling for no interference. 16. Before concluding on the matter, we need to indicate two other relevant factors concerning this matter. One is that the other resolution applicant, whose resolution plan has been accepted by the Committee of Creditors, is not before us and has not been impleaded as a party respondent in this appeal. Hence, no order prejudicial to the interest of the successful resolution applicant could be passed in this appeal. Secondly, the matter would nevertheless require further processing before the Adjudicating Authority; and for that matter, we are informed that the approval of the Committee of Creditors has already been placed before the Adjudicating Authority.
### Response:
0
### Explanation:
1. Having heard learned senior counsel for the appellant at sufficient length and having perused the material placed on record, we do not feel persuaded to entertain this appeal under Section 62 of Insolvency and Bankruptcy Code, 2016 (Hereinafter also referred to as the Code) by one of the resolution applicants [A consortium led by the appellant (comprising of a private limited company and the appellant himself) has been the resolution applicant] in the corporate insolvency resolution process (CIRP, for short) concerning the corporate debtor-B.B. Foods Pvt. Ltd.12. We do not find the submissions aforesaid making out a case for interference. This is for the simple reason that on a perusal of the order dated 13.12.2021, this much is clear that certain key features/stipulations of the resolution plan were sought to be amended by the appellant. Whether it was done in response to the requirement of the CoC or otherwise, the fact of the matter remains that there was going to be modification of the relevant terms of the resolution plan of the appellant. When that was being permitted at the request of the appellant himself, we cannot find fault in the Adjudicating Authority having passed an order so as to balance the position of the respective parties and to provide level playing field by granting corresponding permission to the other resolution applicant to place its modification for consideration of CoC.13. So far as affidavit dated 17.11.2021 is concerned, though the appellant stated in paragraph 3 thereof that the payment of upfront amount under the resolution plan was in no way going to modify the plan but, that had only been an expression of the understanding of the appellant about the legal effect of the propositions put forward by him, which included the modification of the term of plan from 180 days to 90 days. Such a proposition could not have been treated as formal or innocuous or of no material bearing.14. So far as the factor relating to divulging of the contents of the plan is concerned, the same had been of the making of the appellant himself. If the appellant had chosen to divulge/disclose the terms of its resolution plan before the Adjudicating Authority, there had not been any fault on the part of the resolution professional or the CoC or the other resolution applicant.15. Thus, the view taken by the Adjudicating Authority as also by the Appellate Tribunal appears to be reasonable and sound, calling for no interference.16. Before concluding on the matter, we need to indicate two other relevant factors concerning this matter. One is that the other resolution applicant, whose resolution plan has been accepted by the Committee of Creditors, is not before us and has not been impleaded as a party respondent in this appeal. Hence, no order prejudicial to the interest of the successful resolution applicant could be passed in this appeal. Secondly, the matter would nevertheless require further processing before the Adjudicating Authority; and for that matter, we are informed that the approval of the Committee of Creditors has already been placed before the Adjudicating Authority.
|
Essar Steel Ltd Vs. Union Of India | them, or apply the law to them, in particular situations. A scheme for centralising the electricity supply undertakings may be called administrative, but it might be just as well legislative. Same is the case with ministerial orders establishing new towns or airports etc. He asks: "And what of directions of a general character given by a minister to a nationalised industry? Are these various orders legislative or administrative?" Wade says that the correct answer would be that they are both. He says:" ...there is an infinite series of gradations, with a large area of overlap, between what is plainly legislation and what is plainly administration". Courts, nevertheless, for practical reasons, have distinguished legislative orders from the rest of the orders by reference to the principle that the former is of general application. They are made formally by publication and for general guidance with reference to which individual decisions are taken in particular situations.33. According to Griffith and Street, an instruction may be treated as legislative even when they are not issued formally, but by a circular or a letter or the like. What matters is the substance and not the form, or the name. The learned authors say: "...where a Minister (or other authority) is given power in a statute or an instrument to exercise executive, as opposed to legislative, powers-as, for example, to requisition property or to issue a licence-and delegates those powers generally, then any instructions which he gives to his delegates may be legislative". Where an authority to whom power is delegated is entitled to sub-delegate his power, be it legislative, executive or judicial, then such authority may also give instructions to his delegates and these instructions may be regarded as legislative." On the power of delegated legislation, it was held as under: "47. Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterised as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be "reasonably related to the purposes of the enabling legislation"......" Accepting the interpretation of `legislative function advanced by the learned senior counsel on behalf of the appellants, would be giving it too narrow and restrictive a meaning. It becomes clear from a perusal of the case law discussed above that even though price fixing is a legislative function; the same can be delegated and can be fixed by way of executive orders as well. In the instant case, the policy decision dated 06.03.2007 has been taken after detailed communication between the then Minister of Petroleum and Natural Gas, as well as the then heads of IOCL, BPCL, ONGC, GAIL and Petronet. The impugned policy decision dated 06.03.2007 has also been duly authenticated by the Under Secretary to the Government of India, which is well within the powers conferred on the Under Secretary under the Business Transaction Rules, 1961. 38. The contention advanced on behalf of the appellants that the said policy takes away their vested right cannot be accepted in light of Clause 11.4 of the Supply Agreement, which clearly provides for a situation of change in price of RLNG under the contract as a result of change in the policy of the Government. The case of Delhi Development Authority (supra), relied upon by the appellants on the point also does not come to their rescue. It was held in that case as under: "Terms and conditions of the contract can indisputably be altered or modified. They cannot, however, be done unilaterally unless there exists any provision either in contract itself or in law." In the instant case, clause 11.4 in the Supply Agreement is the provision of the contract which provides for a change in the terms and conditions of the contract. 39. Further, except a strong contention urged by the learned senior counsel for the appellants that the policy is for the benefit of one entity (RGPPL), the appellants have not present any evidence to show that they have been discriminated against, as the policy has been applied for all players across the board, as far as long term contracts are concerned. Nothing has been brought on record to show that the said decision is arbitrary, mala fide, unreasonable or taken after non application of mind. On the contrary, the documents produced on record by the respondents, which is the back and forth of communication and minutes of meetings between Ministers in Qatar and India, as well Secretaries of the Government and the representatives of IOCL, BPCL, GAIL, ONGC and Petronet, would clearly show that the impugned decision dated 06.03.2007 was taken after due deliberation and exploring all other possible alternatives to reduce the price of RLNG, so as to make it viable for the new entrants in the market to buy it and run their projects in a feasible manner in the larger public interest. The consumers of RLNG though long term contracts are a class by themselves, for the purpose of Article 14 of the Constitution of India. The impugned policy decision dated 06.03.2007 was to apply to all the players within this class uniformly and across the board. Thus, the contention that the appellants have been discriminated against, or that the impugned policy decision was taken in an arbitrary manner cannot be accepted as the said contention is wholly untenable in law.Since the legality of the executive decision dated 06.03.2007 has been upheld, the question of refund of the amount of losses suffered by the appellants as a result of increase in the price of RLNG in their contract as urged on their behalf, does not arise for consideration at all by us.40. There being no evidence to suggest that the impugned policy direction is illegal, arbitrary, unreasonable or otherwise violative of Article 14 of the Constitution of India, we find no reason to interfere with the same. | 0[ds]though price fixing is a legislative function; the same can be delegated and can be fixed by way of executive orders as well. In the instant case, the policy decision dated 06.03.2007 has been taken after detailed communication between the then Minister of Petroleum and Natural Gas, as well as the then heads of IOCL, BPCL, ONGC, GAIL and Petronet. The impugned policy decision dated 06.03.2007 has also been duly authenticated by the Under Secretary to the Government of India, which is well within the powers conferred on the Under Secretary under the Business Transaction Rules,a strong contention urged by the learned senior counsel for the appellants that the policy is for the benefit of one entity (RGPPL), the appellants have not present any evidence to show that they have been discriminated against, as the policy has been applied for all players across the board, as far as long term contracts are concerned. Nothing has been brought on record to show that the said decision is arbitrary, mala fide, unreasonable or taken after non application of mind. On the contrary, the documents produced on record by the respondents, which is the back and forth of communication and minutes of meetings between Ministers in Qatar and India, as well Secretaries of the Government and the representatives of IOCL, BPCL, GAIL, ONGC and Petronet, would clearly show that the impugned decision dated 06.03.2007 was taken after due deliberation and exploring all other possible alternatives to reduce the price of RLNG, so as to make it viable for the new entrants in the market to buy it and run their projects in a feasible manner in the larger public interest. The consumers of RLNG though long term contracts are a class by themselves, for the purpose of Article 14 of the Constitution of India. The impugned policy decision dated 06.03.2007 was to apply to all the players within this class uniformly and across the board. Thus, the contention that the appellants have been discriminated against, or that the impugned policy decision was taken in an arbitrary manner cannot be accepted as the said contention is wholly untenable in law.Since the legality of the executive decision dated 06.03.2007 has been upheld, the question of refund of the amount of losses suffered by the appellants as a result of increase in the price of RLNG in their contract as urged on their behalf, does not arise for consideration at all by us.40. There being no evidence to suggest that the impugned policy direction is illegal, arbitrary, unreasonable or otherwise violative of Article 14 of the Constitution of India, we find no reason to interfere with the | 0 | 12,583 | 486 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
them, or apply the law to them, in particular situations. A scheme for centralising the electricity supply undertakings may be called administrative, but it might be just as well legislative. Same is the case with ministerial orders establishing new towns or airports etc. He asks: "And what of directions of a general character given by a minister to a nationalised industry? Are these various orders legislative or administrative?" Wade says that the correct answer would be that they are both. He says:" ...there is an infinite series of gradations, with a large area of overlap, between what is plainly legislation and what is plainly administration". Courts, nevertheless, for practical reasons, have distinguished legislative orders from the rest of the orders by reference to the principle that the former is of general application. They are made formally by publication and for general guidance with reference to which individual decisions are taken in particular situations.33. According to Griffith and Street, an instruction may be treated as legislative even when they are not issued formally, but by a circular or a letter or the like. What matters is the substance and not the form, or the name. The learned authors say: "...where a Minister (or other authority) is given power in a statute or an instrument to exercise executive, as opposed to legislative, powers-as, for example, to requisition property or to issue a licence-and delegates those powers generally, then any instructions which he gives to his delegates may be legislative". Where an authority to whom power is delegated is entitled to sub-delegate his power, be it legislative, executive or judicial, then such authority may also give instructions to his delegates and these instructions may be regarded as legislative." On the power of delegated legislation, it was held as under: "47. Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterised as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be "reasonably related to the purposes of the enabling legislation"......" Accepting the interpretation of `legislative function advanced by the learned senior counsel on behalf of the appellants, would be giving it too narrow and restrictive a meaning. It becomes clear from a perusal of the case law discussed above that even though price fixing is a legislative function; the same can be delegated and can be fixed by way of executive orders as well. In the instant case, the policy decision dated 06.03.2007 has been taken after detailed communication between the then Minister of Petroleum and Natural Gas, as well as the then heads of IOCL, BPCL, ONGC, GAIL and Petronet. The impugned policy decision dated 06.03.2007 has also been duly authenticated by the Under Secretary to the Government of India, which is well within the powers conferred on the Under Secretary under the Business Transaction Rules, 1961. 38. The contention advanced on behalf of the appellants that the said policy takes away their vested right cannot be accepted in light of Clause 11.4 of the Supply Agreement, which clearly provides for a situation of change in price of RLNG under the contract as a result of change in the policy of the Government. The case of Delhi Development Authority (supra), relied upon by the appellants on the point also does not come to their rescue. It was held in that case as under: "Terms and conditions of the contract can indisputably be altered or modified. They cannot, however, be done unilaterally unless there exists any provision either in contract itself or in law." In the instant case, clause 11.4 in the Supply Agreement is the provision of the contract which provides for a change in the terms and conditions of the contract. 39. Further, except a strong contention urged by the learned senior counsel for the appellants that the policy is for the benefit of one entity (RGPPL), the appellants have not present any evidence to show that they have been discriminated against, as the policy has been applied for all players across the board, as far as long term contracts are concerned. Nothing has been brought on record to show that the said decision is arbitrary, mala fide, unreasonable or taken after non application of mind. On the contrary, the documents produced on record by the respondents, which is the back and forth of communication and minutes of meetings between Ministers in Qatar and India, as well Secretaries of the Government and the representatives of IOCL, BPCL, GAIL, ONGC and Petronet, would clearly show that the impugned decision dated 06.03.2007 was taken after due deliberation and exploring all other possible alternatives to reduce the price of RLNG, so as to make it viable for the new entrants in the market to buy it and run their projects in a feasible manner in the larger public interest. The consumers of RLNG though long term contracts are a class by themselves, for the purpose of Article 14 of the Constitution of India. The impugned policy decision dated 06.03.2007 was to apply to all the players within this class uniformly and across the board. Thus, the contention that the appellants have been discriminated against, or that the impugned policy decision was taken in an arbitrary manner cannot be accepted as the said contention is wholly untenable in law.Since the legality of the executive decision dated 06.03.2007 has been upheld, the question of refund of the amount of losses suffered by the appellants as a result of increase in the price of RLNG in their contract as urged on their behalf, does not arise for consideration at all by us.40. There being no evidence to suggest that the impugned policy direction is illegal, arbitrary, unreasonable or otherwise violative of Article 14 of the Constitution of India, we find no reason to interfere with the same.
### Response:
0
### Explanation:
though price fixing is a legislative function; the same can be delegated and can be fixed by way of executive orders as well. In the instant case, the policy decision dated 06.03.2007 has been taken after detailed communication between the then Minister of Petroleum and Natural Gas, as well as the then heads of IOCL, BPCL, ONGC, GAIL and Petronet. The impugned policy decision dated 06.03.2007 has also been duly authenticated by the Under Secretary to the Government of India, which is well within the powers conferred on the Under Secretary under the Business Transaction Rules,a strong contention urged by the learned senior counsel for the appellants that the policy is for the benefit of one entity (RGPPL), the appellants have not present any evidence to show that they have been discriminated against, as the policy has been applied for all players across the board, as far as long term contracts are concerned. Nothing has been brought on record to show that the said decision is arbitrary, mala fide, unreasonable or taken after non application of mind. On the contrary, the documents produced on record by the respondents, which is the back and forth of communication and minutes of meetings between Ministers in Qatar and India, as well Secretaries of the Government and the representatives of IOCL, BPCL, GAIL, ONGC and Petronet, would clearly show that the impugned decision dated 06.03.2007 was taken after due deliberation and exploring all other possible alternatives to reduce the price of RLNG, so as to make it viable for the new entrants in the market to buy it and run their projects in a feasible manner in the larger public interest. The consumers of RLNG though long term contracts are a class by themselves, for the purpose of Article 14 of the Constitution of India. The impugned policy decision dated 06.03.2007 was to apply to all the players within this class uniformly and across the board. Thus, the contention that the appellants have been discriminated against, or that the impugned policy decision was taken in an arbitrary manner cannot be accepted as the said contention is wholly untenable in law.Since the legality of the executive decision dated 06.03.2007 has been upheld, the question of refund of the amount of losses suffered by the appellants as a result of increase in the price of RLNG in their contract as urged on their behalf, does not arise for consideration at all by us.40. There being no evidence to suggest that the impugned policy direction is illegal, arbitrary, unreasonable or otherwise violative of Article 14 of the Constitution of India, we find no reason to interfere with the
|
Kotaian And Anr Vs. Property Association Of Baptist Churches(Pvt.) Ltd | such notice. If there is any dispute about the reasonable price payable by the protected tenant for the land, the provisions of sub-sections (3) to (8) of Section 38 shall apply mutatis mutandis(2) If the protected tenant does not exercise the right of purchase in response to the notice given to him by the landholder under sub-section (1) such protected tenant shall forfeit his right of purchase of the same and the landholder shall be entitled to sell such land to any other person. On such a purchase by any other person, the protected tenant shall forfeit all his rights in the land save those provided for in Section 41." 20. Section 38-E provides: "38-E. Ownership of lands held by protected tenants to stand transferred to them from a notified date. - (1) Notwithstanding anything in this chapter or any law for the time being in force or any custom, usage, judgment, decree, contract or grant to the contrary, the government may, by notification in the Andhra Pradesh Gazette, declare in respect of any area and from such date as may be specified therein, that ownership of all lands held by protected tenants which they are entitled to purchase from their landholder in such area under any provision of this chapter shall, subject to the condition laid down in sub-section (7) of Section 38, stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such landsProvided that where in respect of any such land any proceeding under Section 19 or Section 32 or Section 44 is pending on the date so notified, the transfer of ownership of such land shall take effect on the date, on which such proceeding is finally decided, and when the tenant retains possession of the land in accordance with the decision in such proceeding.Explanation. - If a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tehsildar as provided in Section 32, is not in possession of the land on the date of he notification issued hereunder, then for the purpose of the sub-section, such protected tenant shall, notwithstanding any judgment, decree or order of any court, or the order of the Board of Revenue or Tribunal or other authority, be deemed to have been holding the land on the date of the notification; and accordingly, the Tehsildar shall notwithstanding anything contained in the said Section 32, either suo motu or on the application of the protected tenant hold a summary enquiry, and direct that such land in possession of the landholder or any person claiming through or under him in that area, shall be taken from the possession of the landholder or such person, as the case may be, and shall be restored to the protected tenant and the provisions of this section shall apply thereto in every respect as if the protected tenant has held the land on the date of such notification." 21. This then is the main structure of the Act. 22. In sum. (i) The protected tenant has a right to become full owner of the lands in his possession. He becomes the owner when the government issues a notification under Section 38-E. We are told that the government had issued such a notification on October 1, 1973, relating to the district where the lands in question are situated. It was about three years earlier to termination of the appellants tenancy by the Association. If the appellants had right to become owners of the tenanted lands, the question of terminating their tenancy would not arise(ii) The protected tenant cannot be dispossessed illegally by the landlord or anybody else. If so dispossessed, the Tehsildar either suo motu or on application must hold a summary inquiry, and direct that the land be restored to the protected tenant. That is the mandate of Section 38-E and the Explanation thereof.(iii) The landholder by himself cannot dispossess the protected tenant even if the tenancy is terminated in accordance with the law. The landlord will have to take recourse to Section 32. He must approach the Tehsildar to hold an enquiry and pass such order as he deems fit.(iv) Section 38-D prohibits the landholder from alienating the tenanted land to third parties. If the landholder intends to sell the land, he must give notice in writing of his intention to the protected tenant. The first offer must be given to the protected tenant. It is only when the protected tenant does not exercise the right to purchase, the landholder could sell the land to third parties. The alienation made in contravention of these provisions has no legal effect." 23. So return to the case. The contention of the Association that it is in de facto possession and entitled to symbolic possession is unavailable and indeed, unacceptable. Firstly, there cannot be any dispute in this case about the protected tenancy rights of the appellants. The revenue documents like Pahanipatrika and final record of agricultural tenancy clearly establish that the appellants were recognised as protected tenants. Secondly, it was not the case of the Association that Rev. Rutar Ford Padri and Vundru Padri first offered the land to the appellants before they transferred the same to the Association. Therefore, in the light of the statutory provisions to which we have called attention, the Associations title cannot be said to be legitimate. 24. Counsel for the Association also appeared to have anticipated this inevitable result. He made an impassioned appeal for leave to withdraw the original petition filed before the Tehsildar. He perhaps wanted to give quietus to these proceedings, leaving the appellants free to agitate their rights elsewhere. 25. But we cannot agree with him. We cannot also accede to his request. The Association cannot be permitted to take advantage of its highhandedness. It is an exploitation of the exploited. It is an oppression of the oppressed. The court cannot countenance it. | 1[ds]i) The protected tenant has a right to become full owner of the lands in his possession. He becomes the owner when the government issues a notification under Section 38-E. We are told that the government had issued such a notification on October 1, 1973, relating to the district where the lands in question are situated. It was about three years earlier to termination of the appellants tenancy by the Association. If the appellants had right to become owners of the tenanted lands, the question of terminating their tenancy would not arise(ii) The protected tenant cannot be dispossessed illegally by the landlord or anybody else. If so dispossessed, the Tehsildar either suo motu or on application must hold a summary inquiry, and direct that the land be restored to the protected tenant. That is the mandate of Section 38-E and the ExplanationThe landholder by himself cannot dispossess the protected tenant even if the tenancy is terminated in accordance with the law. The landlord will have to take recourse to Section 32. He must approach the Tehsildar to hold an enquiry and pass such order as he deemsSection 38-D prohibits the landholder from alienating the tenanted land to third parties. If the landholder intends to sell the land, he must give notice in writing of his intention to the protected tenant. The first offer must be given to the protected tenant. It is only when the protected tenant does not exercise the right to purchase, the landholder could sell the land to third parties. The alienation made in contravention of these provisions has no legalSo return to the case. The contention of the Association that it is in de facto possession and entitled to symbolic possession is unavailable and indeed, unacceptable. Firstly, there cannot be any dispute in this case about the protected tenancy rights of the appellants. The revenue documents like Pahanipatrika and final record of agricultural tenancy clearly establish that the appellants were recognised as protected tenants. Secondly, it was not the case of the Association that Rev. Rutar Ford Padri and Vundru Padri first offered the land to the appellants before they transferred the same to the Association. Therefore, in the light of the statutory provisions to which we have called attention, the Associations title cannot be said to beBut we cannot agree with him. We cannot also accede to his request. The Association cannot be permitted to take advantage of its highhandedness. It is an exploitation of the exploited. It is an oppression of the oppressed. The court cannot countenance | 1 | 3,533 | 473 | ### 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:
such notice. If there is any dispute about the reasonable price payable by the protected tenant for the land, the provisions of sub-sections (3) to (8) of Section 38 shall apply mutatis mutandis(2) If the protected tenant does not exercise the right of purchase in response to the notice given to him by the landholder under sub-section (1) such protected tenant shall forfeit his right of purchase of the same and the landholder shall be entitled to sell such land to any other person. On such a purchase by any other person, the protected tenant shall forfeit all his rights in the land save those provided for in Section 41." 20. Section 38-E provides: "38-E. Ownership of lands held by protected tenants to stand transferred to them from a notified date. - (1) Notwithstanding anything in this chapter or any law for the time being in force or any custom, usage, judgment, decree, contract or grant to the contrary, the government may, by notification in the Andhra Pradesh Gazette, declare in respect of any area and from such date as may be specified therein, that ownership of all lands held by protected tenants which they are entitled to purchase from their landholder in such area under any provision of this chapter shall, subject to the condition laid down in sub-section (7) of Section 38, stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such landsProvided that where in respect of any such land any proceeding under Section 19 or Section 32 or Section 44 is pending on the date so notified, the transfer of ownership of such land shall take effect on the date, on which such proceeding is finally decided, and when the tenant retains possession of the land in accordance with the decision in such proceeding.Explanation. - If a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tehsildar as provided in Section 32, is not in possession of the land on the date of he notification issued hereunder, then for the purpose of the sub-section, such protected tenant shall, notwithstanding any judgment, decree or order of any court, or the order of the Board of Revenue or Tribunal or other authority, be deemed to have been holding the land on the date of the notification; and accordingly, the Tehsildar shall notwithstanding anything contained in the said Section 32, either suo motu or on the application of the protected tenant hold a summary enquiry, and direct that such land in possession of the landholder or any person claiming through or under him in that area, shall be taken from the possession of the landholder or such person, as the case may be, and shall be restored to the protected tenant and the provisions of this section shall apply thereto in every respect as if the protected tenant has held the land on the date of such notification." 21. This then is the main structure of the Act. 22. In sum. (i) The protected tenant has a right to become full owner of the lands in his possession. He becomes the owner when the government issues a notification under Section 38-E. We are told that the government had issued such a notification on October 1, 1973, relating to the district where the lands in question are situated. It was about three years earlier to termination of the appellants tenancy by the Association. If the appellants had right to become owners of the tenanted lands, the question of terminating their tenancy would not arise(ii) The protected tenant cannot be dispossessed illegally by the landlord or anybody else. If so dispossessed, the Tehsildar either suo motu or on application must hold a summary inquiry, and direct that the land be restored to the protected tenant. That is the mandate of Section 38-E and the Explanation thereof.(iii) The landholder by himself cannot dispossess the protected tenant even if the tenancy is terminated in accordance with the law. The landlord will have to take recourse to Section 32. He must approach the Tehsildar to hold an enquiry and pass such order as he deems fit.(iv) Section 38-D prohibits the landholder from alienating the tenanted land to third parties. If the landholder intends to sell the land, he must give notice in writing of his intention to the protected tenant. The first offer must be given to the protected tenant. It is only when the protected tenant does not exercise the right to purchase, the landholder could sell the land to third parties. The alienation made in contravention of these provisions has no legal effect." 23. So return to the case. The contention of the Association that it is in de facto possession and entitled to symbolic possession is unavailable and indeed, unacceptable. Firstly, there cannot be any dispute in this case about the protected tenancy rights of the appellants. The revenue documents like Pahanipatrika and final record of agricultural tenancy clearly establish that the appellants were recognised as protected tenants. Secondly, it was not the case of the Association that Rev. Rutar Ford Padri and Vundru Padri first offered the land to the appellants before they transferred the same to the Association. Therefore, in the light of the statutory provisions to which we have called attention, the Associations title cannot be said to be legitimate. 24. Counsel for the Association also appeared to have anticipated this inevitable result. He made an impassioned appeal for leave to withdraw the original petition filed before the Tehsildar. He perhaps wanted to give quietus to these proceedings, leaving the appellants free to agitate their rights elsewhere. 25. But we cannot agree with him. We cannot also accede to his request. The Association cannot be permitted to take advantage of its highhandedness. It is an exploitation of the exploited. It is an oppression of the oppressed. The court cannot countenance it.
### Response:
1
### Explanation:
i) The protected tenant has a right to become full owner of the lands in his possession. He becomes the owner when the government issues a notification under Section 38-E. We are told that the government had issued such a notification on October 1, 1973, relating to the district where the lands in question are situated. It was about three years earlier to termination of the appellants tenancy by the Association. If the appellants had right to become owners of the tenanted lands, the question of terminating their tenancy would not arise(ii) The protected tenant cannot be dispossessed illegally by the landlord or anybody else. If so dispossessed, the Tehsildar either suo motu or on application must hold a summary inquiry, and direct that the land be restored to the protected tenant. That is the mandate of Section 38-E and the ExplanationThe landholder by himself cannot dispossess the protected tenant even if the tenancy is terminated in accordance with the law. The landlord will have to take recourse to Section 32. He must approach the Tehsildar to hold an enquiry and pass such order as he deemsSection 38-D prohibits the landholder from alienating the tenanted land to third parties. If the landholder intends to sell the land, he must give notice in writing of his intention to the protected tenant. The first offer must be given to the protected tenant. It is only when the protected tenant does not exercise the right to purchase, the landholder could sell the land to third parties. The alienation made in contravention of these provisions has no legalSo return to the case. The contention of the Association that it is in de facto possession and entitled to symbolic possession is unavailable and indeed, unacceptable. Firstly, there cannot be any dispute in this case about the protected tenancy rights of the appellants. The revenue documents like Pahanipatrika and final record of agricultural tenancy clearly establish that the appellants were recognised as protected tenants. Secondly, it was not the case of the Association that Rev. Rutar Ford Padri and Vundru Padri first offered the land to the appellants before they transferred the same to the Association. Therefore, in the light of the statutory provisions to which we have called attention, the Associations title cannot be said to beBut we cannot agree with him. We cannot also accede to his request. The Association cannot be permitted to take advantage of its highhandedness. It is an exploitation of the exploited. It is an oppression of the oppressed. The court cannot countenance
|
RAJASTHAN STATE ROAD TRANSPORT COROPORATION Vs. DANISH KHAN | while travelling in a vehicle belonging to the Appellant-Corporation cannot give rise to compensation under the Act as well as a claim for compassionate appointment in the Appellant- Corporation. The question that arises for our consideration is whether the High Court was right in holding that Regulation 4(3) is discriminatory and violative of Article 14 of the Constitution. The reason given by the High Court to hold it unconstitutional is that whereas the dependents of the employee who died in an accident while on a vehicle owned by the Appellant-Corporation are not entitled for compassionate appointment after claiming compensation under Act, the dependents of an employee who died in an accident while travelling in a vehicle not owned by the Appellant-Corporation are entitled to get compensation under the Act against the owner of the vehicle or the insurance company as the case may be, as well as a right to claim compassionate appointment. The High Court was of the opinion that the dependents of employees of the Corporation who died due to an accident while travelling in a vehicle of the Corporation cannot be treated differently from dependents of employees who died in an accident while travelling in a vehicle not belonging to the Corporation. 7. The Corporation has carved out two classes of dependents of the deceased employees in respect of claims for compassionate appointment. The reason for the disqualification of the dependents of an employee who died in an accident involving the vehicle of the Corporation is to avoid extra burden on the Appellant- Corporation. In such cases, the Appellant- Corporation has to pay the compensation under the Act and also to provide compassionate appointment to the dependents of the deceased employee. In a case where the vehicle of the Appellant- Corporation is not involved in the accident, the compensation under the Act is not the liability of the Appellant- Corporation. It cannot be said that the dependents of an employee who claim both compensation under the Act and compassionate appointment from the Appellant- Corporation are on the same footing as the dependents of the deceased employee whose claim under the Act against a private owner or an insurance company, and compassionate appointment from Appellant- Corporation. 8. The dependents of a deceased employee who claim compensation from the Corporation under the Act and compassionate appointment from the Appellant- Corporation from a separate class. It is well-settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. State of Mysore & Anr vs P. Narasing Rao, 1968 SCR (1) 407 9. Having held that the classification of the two categories of dependents of deceased employees is reasonable, what remains to be examined is whether there is a rationale nexus of the classification with the objective sought to be achieved by the Regulations 4(3). The intention with which Regulation 4(3) is made is to obviate the liability of the Corporation in payment of compensation under the Act and to provide compassionate appointment to the same person. We find there is a rational nexus between the basis of classification and the object sought to be achieved by the Regulation. 10. It is useful to refer to a judgment of this Court in National Insurance Company Limited v. Rekhaben and Others. (2017) 13 SCC 547 The question that arose for consideration of this Court related to the deduction of salary that was earned by the claimant therein after being appointed on compassionate grounds while calculating the compensation payable to her under the Act for the death of her husband. It was held that the salary earned by compassionate appointment cannot be deducted from the compensation which the claimant is entitled under the Act. However, it was made clear that the salary which flowed from the compassionate appointment that was provided by the tortfeasor was liable to be deducted if the employer was the owner of the offending vehicle and thus liable to pay compensation under the Act. In other words, the employer who has provided compassionate appointment can claim deduction of the salary of the dependent while calculating if he is liable to pay compensation under the Act, being the owner of the offending vehicle. 11. The two categories of dependents i.e. dependents of employees who have died in an accident while travelling in a vehicle belonging to the Corporation and dependents of the employees who died while travelling in a vehicle not belonging to the Corporation are not similarly situated in respect of their claims against the Corporation. They cannot be treated as equals. Therefore, Regulation 4(3) cannot be said to be discriminatory. In the aforementioned view, we are not in agreement with the judgment passed by the High Court that Regulation 4(3) is violative of Article 14 of the Constitution. 12. As the Respondent has received the compensation under the Act, he is not entitled for compassionate appointment under the Regulations. 13. In view of the above, the judgment of the High Court is set aside the Appeal is allowed. Civil Appeal No. 7803 of 2019(Arising out of SLP (C) No.13139 of 2017) The application preferred by the Respondent for compassionate appointment was rejected by the Corporation as being not maintainable under Regulation 4(3) of the Regulations, due to the fact that the Respondent has filed a claim petition under the Act. The High Court allowed the Writ Petition as being covered by a judgment in Civil Writ Petition No.13862 of 2014. | 1[ds]7. The Corporation has carved out two classes of dependents of the deceased employees in respect of claims for compassionate appointment. The reason for the disqualification of the dependents of an employee who died in an accident involving the vehicle of the Corporation is to avoid extra burden on the Appellant- Corporation. In such cases, the Appellant- Corporation has to pay the compensation under the Act and also to provide compassionate appointment to the dependents of the deceased employee. In a case where the vehicle of the Appellant- Corporation is not involved in the accident, the compensation under the Act is not the liability of the Appellant- Corporation. It cannot be said that the dependents of an employee who claim both compensation under the Act and compassionate appointment from the Appellant- Corporation are on the same footing as the dependents of the deceased employee whose claim under the Act against a private owner or an insurance company, and compassionate appointment from Appellant- Corporation.Having held that the classification of the two categories of dependents of deceased employees isintention with which Regulation 4(3) is made is to obviate the liability of the Corporation in payment of compensation under the Act and to provide compassionate appointment to the same person. We find there is a rational nexus between the basis of classification and the object sought to be achieved by the Regulation.The two categories of dependents i.e. dependents of employees who have died in an accident while travelling in a vehicle belonging to the Corporation and dependents of the employees who died while travelling in a vehicle not belonging to the Corporation are not similarly situated in respect of their claims against the Corporation. They cannot be treated as equals. Therefore, Regulation 4(3) cannot be said to be discriminatory. In the aforementioned view, we are not in agreement with the judgment passed by the High Court that Regulation 4(3) is violative of Article 14 of the Constitution.As the Respondent has received the compensation under the Act, he is not entitled for compassionate appointment under the Regulations.In view of the above, the judgment of the High Court is set aside the Appeal isAppeal No. 7803 ofout of SLP (C) No.13139 of 2017) | 1 | 1,796 | 405 | ### 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:
while travelling in a vehicle belonging to the Appellant-Corporation cannot give rise to compensation under the Act as well as a claim for compassionate appointment in the Appellant- Corporation. The question that arises for our consideration is whether the High Court was right in holding that Regulation 4(3) is discriminatory and violative of Article 14 of the Constitution. The reason given by the High Court to hold it unconstitutional is that whereas the dependents of the employee who died in an accident while on a vehicle owned by the Appellant-Corporation are not entitled for compassionate appointment after claiming compensation under Act, the dependents of an employee who died in an accident while travelling in a vehicle not owned by the Appellant-Corporation are entitled to get compensation under the Act against the owner of the vehicle or the insurance company as the case may be, as well as a right to claim compassionate appointment. The High Court was of the opinion that the dependents of employees of the Corporation who died due to an accident while travelling in a vehicle of the Corporation cannot be treated differently from dependents of employees who died in an accident while travelling in a vehicle not belonging to the Corporation. 7. The Corporation has carved out two classes of dependents of the deceased employees in respect of claims for compassionate appointment. The reason for the disqualification of the dependents of an employee who died in an accident involving the vehicle of the Corporation is to avoid extra burden on the Appellant- Corporation. In such cases, the Appellant- Corporation has to pay the compensation under the Act and also to provide compassionate appointment to the dependents of the deceased employee. In a case where the vehicle of the Appellant- Corporation is not involved in the accident, the compensation under the Act is not the liability of the Appellant- Corporation. It cannot be said that the dependents of an employee who claim both compensation under the Act and compassionate appointment from the Appellant- Corporation are on the same footing as the dependents of the deceased employee whose claim under the Act against a private owner or an insurance company, and compassionate appointment from Appellant- Corporation. 8. The dependents of a deceased employee who claim compensation from the Corporation under the Act and compassionate appointment from the Appellant- Corporation from a separate class. It is well-settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. State of Mysore & Anr vs P. Narasing Rao, 1968 SCR (1) 407 9. Having held that the classification of the two categories of dependents of deceased employees is reasonable, what remains to be examined is whether there is a rationale nexus of the classification with the objective sought to be achieved by the Regulations 4(3). The intention with which Regulation 4(3) is made is to obviate the liability of the Corporation in payment of compensation under the Act and to provide compassionate appointment to the same person. We find there is a rational nexus between the basis of classification and the object sought to be achieved by the Regulation. 10. It is useful to refer to a judgment of this Court in National Insurance Company Limited v. Rekhaben and Others. (2017) 13 SCC 547 The question that arose for consideration of this Court related to the deduction of salary that was earned by the claimant therein after being appointed on compassionate grounds while calculating the compensation payable to her under the Act for the death of her husband. It was held that the salary earned by compassionate appointment cannot be deducted from the compensation which the claimant is entitled under the Act. However, it was made clear that the salary which flowed from the compassionate appointment that was provided by the tortfeasor was liable to be deducted if the employer was the owner of the offending vehicle and thus liable to pay compensation under the Act. In other words, the employer who has provided compassionate appointment can claim deduction of the salary of the dependent while calculating if he is liable to pay compensation under the Act, being the owner of the offending vehicle. 11. The two categories of dependents i.e. dependents of employees who have died in an accident while travelling in a vehicle belonging to the Corporation and dependents of the employees who died while travelling in a vehicle not belonging to the Corporation are not similarly situated in respect of their claims against the Corporation. They cannot be treated as equals. Therefore, Regulation 4(3) cannot be said to be discriminatory. In the aforementioned view, we are not in agreement with the judgment passed by the High Court that Regulation 4(3) is violative of Article 14 of the Constitution. 12. As the Respondent has received the compensation under the Act, he is not entitled for compassionate appointment under the Regulations. 13. In view of the above, the judgment of the High Court is set aside the Appeal is allowed. Civil Appeal No. 7803 of 2019(Arising out of SLP (C) No.13139 of 2017) The application preferred by the Respondent for compassionate appointment was rejected by the Corporation as being not maintainable under Regulation 4(3) of the Regulations, due to the fact that the Respondent has filed a claim petition under the Act. The High Court allowed the Writ Petition as being covered by a judgment in Civil Writ Petition No.13862 of 2014.
### Response:
1
### Explanation:
7. The Corporation has carved out two classes of dependents of the deceased employees in respect of claims for compassionate appointment. The reason for the disqualification of the dependents of an employee who died in an accident involving the vehicle of the Corporation is to avoid extra burden on the Appellant- Corporation. In such cases, the Appellant- Corporation has to pay the compensation under the Act and also to provide compassionate appointment to the dependents of the deceased employee. In a case where the vehicle of the Appellant- Corporation is not involved in the accident, the compensation under the Act is not the liability of the Appellant- Corporation. It cannot be said that the dependents of an employee who claim both compensation under the Act and compassionate appointment from the Appellant- Corporation are on the same footing as the dependents of the deceased employee whose claim under the Act against a private owner or an insurance company, and compassionate appointment from Appellant- Corporation.Having held that the classification of the two categories of dependents of deceased employees isintention with which Regulation 4(3) is made is to obviate the liability of the Corporation in payment of compensation under the Act and to provide compassionate appointment to the same person. We find there is a rational nexus between the basis of classification and the object sought to be achieved by the Regulation.The two categories of dependents i.e. dependents of employees who have died in an accident while travelling in a vehicle belonging to the Corporation and dependents of the employees who died while travelling in a vehicle not belonging to the Corporation are not similarly situated in respect of their claims against the Corporation. They cannot be treated as equals. Therefore, Regulation 4(3) cannot be said to be discriminatory. In the aforementioned view, we are not in agreement with the judgment passed by the High Court that Regulation 4(3) is violative of Article 14 of the Constitution.As the Respondent has received the compensation under the Act, he is not entitled for compassionate appointment under the Regulations.In view of the above, the judgment of the High Court is set aside the Appeal isAppeal No. 7803 ofout of SLP (C) No.13139 of 2017)
|
DHRUVA ENTERPRISES Vs. C. SRINIVASULU AND OTHERS | (V), Peddakothapally (M), Mahabubnagar District. It was reported that the nearest human habitation viz., Yenambetla (V) exists at a distance of about 1.6 Km from the mine lease area. It was also reported that Singotham Lake which is existing at a distance of 0.25 Km from the mine lease area. It was noted that the capital investment of the project is Rs. 2.1 Crores and maximum capacity of the project is as follows: Mining of Quartz – 4,05,842 TPA II. It is a semi-mechanized opencast quarry. The Blocks are cut by using jack hammer drilling, wedge-cutting and excavation. The separated blocks are dressed manually. It is reported that the life of the Mine is estimated as 18 years. The total mine lease area is 24.00 Ha. III. The proposal has been examined and processed in accordance with EIA Notification, 2006 and its amendments thereof. The State Level Expert Appraisal Committee (SEAC) examined the application, in its meeting held on 30.12.2016 & 22.02.2017. The project is considered under B2 category and exempted from the process of public hearing as the mining lease area is less than 25 Ha., as per provisions laid under EIA Notification, 2006 & its subsequent amendments. Based on the information furnished, presentation made by the proponent and the consultant M/s. Global Enviro Labs, Hyderabad; In-principle grant of quarry lease by the DMG, Hyderabad Notice Dt. 07.09.2016 for a period of 20 years; Approved Mining Plan; Lr. dt. 12.01.2017 of ADMG: Nagarkurnol informing that there are no mines surrounding 500 mtrs as Cluster, the Committee considered the project and recommended for issue of EC. The State Level Environment Impact Assessment Authority (SEIAA), in its meeting held on 14.03.2017 & 18.03.2017 examined the proposal and recommendations of SEAC, Telangana for issue of Environmental Clearance. Accordingly, after discussions in the matter and considering the recommendations of the SEAC, Telangana, the SEIAA, Telangana hereby accords prior Environmental Clearance to the project as mentioned at Para no. I under the provisions of EIA Notification 2006 and its subsequent amendments issued under Environment (Protection) Act, 1986 subject to implementation of the following specific and general conditions. 18. Thereafter, vide order dated 22nd April 2017, the Government of Telangana granted Quarry Lease for Quartz over an extent of 24.00 hectares in Sy. No. 330/1 of Kalwakole Village, Peddakothapally Mandal, Nagarkurnool (erstwhile Mahabubnagar) District in favour of the appellant. 19. A perusal of the aforesaid documents would reveal that the appellant, in fact, had applied for grant of Mining Lease for 29 hectares. It is, however, the authorities including the Tahsildar, the RDO, Assistant Director of Mining and Geology, Mahabubnagar, who had recommended grant of Quarry Lease over 24 hectares. Insofar as the water body is concerned, the appellant, in his application as well as Mining Plan, has clearly mentioned that Singotham Lake is situated at a distance of 0.25 km. While processing the proposal of the appellant, the Tahsildar and the Assistant Revenue Inspector of the concerned area have physically carried out the inspection. Not only that, the Assistant Director of Mines and Geology had personally inspected the area on 11th August 2016, and the Surveyor had surveyed the applied area with the help of a GPS instrument. It is also revealed from the record that the area of 24 hectares in Sy. No. 330/1, which consists a larger area, was earmarked after leaving the safety distance of 0.25 km from Singotham Lake. In its report, the Surveyor had also reported that the demarcated area was not overlapping with the existing leases and there were no pending applications in that area. 20. It could thus be seen that prior to grant of in-principle approval by the Director of Mines and Geology, Hyderabad, Government of Telangana, the proposed area was physically inspected by the Tahsildar along with the Assistant Revenue Inspector. The Assistant Director of Mines and Geology, Mahabubnagar had independently inspected the area. The area was surveyed by the Official Surveyor with the GPS instrument and while earmarking the area, the distance of 0.25 km was also maintained. 21. After in-principle approval was granted, the appellant submitted its Mining Plan on 20th October 2016. The proposal of the appellant was thereafter considered by the SEAC on 30th December 2016, wherein it was resolved to recommend the proposal of the appellant for grant of EC. Thereafter, the SEIAA, in its meeting dated 11h April 2017, has granted its EC after considering all the aspects. Thereafter, Quarry Lease has been granted in favour of the appellant on 22nd April 2017. 22. It could thus be seen that the proposal of the appellant has undergone scrutiny at various stages. Only after it was found that it was in conformity with the provisions of law, the in-principle approval and EC for Quarry Lease had been granted. Thereafter, the appellant has submitted his Mining Plan which was again duly examined by various authorities. The proposal of the appellant was initially considered by SEAC and recommended for grant of EC. Thereafter, SEIAA, after considering all the aspects has granted EC to the project of the appellant. Only thereafter, the Quarry Lease had been granted in favour of the appellant. 23. Insofar as the finding of the learned Tribunal that the area was reduced to 24 hectares from 29 hectares only in order to avoid the rigours of public hearing, is totally erroneous. The appellant had no role to play in the same. It is the authorities who recommended approval in respect of only 24 hectares. Insofar as the mandatory distance from the water body is concerned, the authorities upon survey had found that the mandatory distance of 0.25 km is maintained. 24. In this view of matter, we find that the learned Tribunal has grossly erred in arriving at a finding that the appellant had reduced the area to 24 hectares only in order to avoid the rigours of public hearing and further that there was no distance of 0.25 km between the proposed mining area and the Singotham Lake. | 1[ds]19. A perusal of the aforesaid documents would reveal that the appellant, in fact, had applied for grant of Mining Lease for 29 hectares. It is, however, the authorities including the Tahsildar, the RDO, Assistant Director of Mining and Geology, Mahabubnagar, who had recommended grant of Quarry Lease over 24 hectares. Insofar as the water body is concerned, the appellant, in his application as well as Mining Plan, has clearly mentioned that Singotham Lake is situated at a distance of 0.25 km. While processing the proposal of the appellant, the Tahsildar and the Assistant Revenue Inspector of the concerned area have physically carried out the inspection. Not only that, the Assistant Director of Mines and Geology had personally inspected the area on 11th August 2016, and the Surveyor had surveyed the applied area with the help of a GPS instrument. It is also revealed from the record that the area of 24 hectares in Sy. No. 330/1, which consists a larger area, was earmarked after leaving the safety distance of 0.25 km from Singotham Lake. In its report, the Surveyor had also reported that the demarcated area was not overlapping with the existing leases and there were no pending applications in that area.20. It could thus be seen that prior to grant of in-principle approval by the Director of Mines and Geology, Hyderabad, Government of Telangana, the proposed area was physically inspected by the Tahsildar along with the Assistant Revenue Inspector. The Assistant Director of Mines and Geology, Mahabubnagar had independently inspected the area. The area was surveyed by the Official Surveyor with the GPS instrument and while earmarking the area, the distance of 0.25 km was also maintained.21. After in-principle approval was granted, the appellant submitted its Mining Plan on 20th October 2016. The proposal of the appellant was thereafter considered by the SEAC on 30th December 2016, wherein it was resolved to recommend the proposal of the appellant for grant of EC. Thereafter, the SEIAA, in its meeting dated 11h April 2017, has granted its EC after considering all the aspects. Thereafter, Quarry Lease has been granted in favour of the appellant on 22nd April 2017.22. It could thus be seen that the proposal of the appellant has undergone scrutiny at various stages. Only after it was found that it was in conformity with the provisions of law, the in-principle approval and EC for Quarry Lease had been granted. Thereafter, the appellant has submitted his Mining Plan which was again duly examined by various authorities. The proposal of the appellant was initially considered by SEAC and recommended for grant of EC. Thereafter, SEIAA, after considering all the aspects has granted EC to the project of the appellant. Only thereafter, the Quarry Lease had been granted in favour of the appellant.23. Insofar as the finding of the learned Tribunal that the area was reduced to 24 hectares from 29 hectares only in order to avoid the rigours of public hearing, is totally erroneous. The appellant had no role to play in the same. It is the authorities who recommended approval in respect of only 24 hectares. Insofar as the mandatory distance from the water body is concerned, the authorities upon survey had found that the mandatory distance of 0.25 km is maintained.24. In this view of matter, we find that the learned Tribunal has grossly erred in arriving at a finding that the appellant had reduced the area to 24 hectares only in order to avoid the rigours of public hearing and further that there was no distance of 0.25 km between the proposed mining area and the Singotham Lake. | 1 | 4,375 | 669 | ### 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:
(V), Peddakothapally (M), Mahabubnagar District. It was reported that the nearest human habitation viz., Yenambetla (V) exists at a distance of about 1.6 Km from the mine lease area. It was also reported that Singotham Lake which is existing at a distance of 0.25 Km from the mine lease area. It was noted that the capital investment of the project is Rs. 2.1 Crores and maximum capacity of the project is as follows: Mining of Quartz – 4,05,842 TPA II. It is a semi-mechanized opencast quarry. The Blocks are cut by using jack hammer drilling, wedge-cutting and excavation. The separated blocks are dressed manually. It is reported that the life of the Mine is estimated as 18 years. The total mine lease area is 24.00 Ha. III. The proposal has been examined and processed in accordance with EIA Notification, 2006 and its amendments thereof. The State Level Expert Appraisal Committee (SEAC) examined the application, in its meeting held on 30.12.2016 & 22.02.2017. The project is considered under B2 category and exempted from the process of public hearing as the mining lease area is less than 25 Ha., as per provisions laid under EIA Notification, 2006 & its subsequent amendments. Based on the information furnished, presentation made by the proponent and the consultant M/s. Global Enviro Labs, Hyderabad; In-principle grant of quarry lease by the DMG, Hyderabad Notice Dt. 07.09.2016 for a period of 20 years; Approved Mining Plan; Lr. dt. 12.01.2017 of ADMG: Nagarkurnol informing that there are no mines surrounding 500 mtrs as Cluster, the Committee considered the project and recommended for issue of EC. The State Level Environment Impact Assessment Authority (SEIAA), in its meeting held on 14.03.2017 & 18.03.2017 examined the proposal and recommendations of SEAC, Telangana for issue of Environmental Clearance. Accordingly, after discussions in the matter and considering the recommendations of the SEAC, Telangana, the SEIAA, Telangana hereby accords prior Environmental Clearance to the project as mentioned at Para no. I under the provisions of EIA Notification 2006 and its subsequent amendments issued under Environment (Protection) Act, 1986 subject to implementation of the following specific and general conditions. 18. Thereafter, vide order dated 22nd April 2017, the Government of Telangana granted Quarry Lease for Quartz over an extent of 24.00 hectares in Sy. No. 330/1 of Kalwakole Village, Peddakothapally Mandal, Nagarkurnool (erstwhile Mahabubnagar) District in favour of the appellant. 19. A perusal of the aforesaid documents would reveal that the appellant, in fact, had applied for grant of Mining Lease for 29 hectares. It is, however, the authorities including the Tahsildar, the RDO, Assistant Director of Mining and Geology, Mahabubnagar, who had recommended grant of Quarry Lease over 24 hectares. Insofar as the water body is concerned, the appellant, in his application as well as Mining Plan, has clearly mentioned that Singotham Lake is situated at a distance of 0.25 km. While processing the proposal of the appellant, the Tahsildar and the Assistant Revenue Inspector of the concerned area have physically carried out the inspection. Not only that, the Assistant Director of Mines and Geology had personally inspected the area on 11th August 2016, and the Surveyor had surveyed the applied area with the help of a GPS instrument. It is also revealed from the record that the area of 24 hectares in Sy. No. 330/1, which consists a larger area, was earmarked after leaving the safety distance of 0.25 km from Singotham Lake. In its report, the Surveyor had also reported that the demarcated area was not overlapping with the existing leases and there were no pending applications in that area. 20. It could thus be seen that prior to grant of in-principle approval by the Director of Mines and Geology, Hyderabad, Government of Telangana, the proposed area was physically inspected by the Tahsildar along with the Assistant Revenue Inspector. The Assistant Director of Mines and Geology, Mahabubnagar had independently inspected the area. The area was surveyed by the Official Surveyor with the GPS instrument and while earmarking the area, the distance of 0.25 km was also maintained. 21. After in-principle approval was granted, the appellant submitted its Mining Plan on 20th October 2016. The proposal of the appellant was thereafter considered by the SEAC on 30th December 2016, wherein it was resolved to recommend the proposal of the appellant for grant of EC. Thereafter, the SEIAA, in its meeting dated 11h April 2017, has granted its EC after considering all the aspects. Thereafter, Quarry Lease has been granted in favour of the appellant on 22nd April 2017. 22. It could thus be seen that the proposal of the appellant has undergone scrutiny at various stages. Only after it was found that it was in conformity with the provisions of law, the in-principle approval and EC for Quarry Lease had been granted. Thereafter, the appellant has submitted his Mining Plan which was again duly examined by various authorities. The proposal of the appellant was initially considered by SEAC and recommended for grant of EC. Thereafter, SEIAA, after considering all the aspects has granted EC to the project of the appellant. Only thereafter, the Quarry Lease had been granted in favour of the appellant. 23. Insofar as the finding of the learned Tribunal that the area was reduced to 24 hectares from 29 hectares only in order to avoid the rigours of public hearing, is totally erroneous. The appellant had no role to play in the same. It is the authorities who recommended approval in respect of only 24 hectares. Insofar as the mandatory distance from the water body is concerned, the authorities upon survey had found that the mandatory distance of 0.25 km is maintained. 24. In this view of matter, we find that the learned Tribunal has grossly erred in arriving at a finding that the appellant had reduced the area to 24 hectares only in order to avoid the rigours of public hearing and further that there was no distance of 0.25 km between the proposed mining area and the Singotham Lake.
### Response:
1
### Explanation:
19. A perusal of the aforesaid documents would reveal that the appellant, in fact, had applied for grant of Mining Lease for 29 hectares. It is, however, the authorities including the Tahsildar, the RDO, Assistant Director of Mining and Geology, Mahabubnagar, who had recommended grant of Quarry Lease over 24 hectares. Insofar as the water body is concerned, the appellant, in his application as well as Mining Plan, has clearly mentioned that Singotham Lake is situated at a distance of 0.25 km. While processing the proposal of the appellant, the Tahsildar and the Assistant Revenue Inspector of the concerned area have physically carried out the inspection. Not only that, the Assistant Director of Mines and Geology had personally inspected the area on 11th August 2016, and the Surveyor had surveyed the applied area with the help of a GPS instrument. It is also revealed from the record that the area of 24 hectares in Sy. No. 330/1, which consists a larger area, was earmarked after leaving the safety distance of 0.25 km from Singotham Lake. In its report, the Surveyor had also reported that the demarcated area was not overlapping with the existing leases and there were no pending applications in that area.20. It could thus be seen that prior to grant of in-principle approval by the Director of Mines and Geology, Hyderabad, Government of Telangana, the proposed area was physically inspected by the Tahsildar along with the Assistant Revenue Inspector. The Assistant Director of Mines and Geology, Mahabubnagar had independently inspected the area. The area was surveyed by the Official Surveyor with the GPS instrument and while earmarking the area, the distance of 0.25 km was also maintained.21. After in-principle approval was granted, the appellant submitted its Mining Plan on 20th October 2016. The proposal of the appellant was thereafter considered by the SEAC on 30th December 2016, wherein it was resolved to recommend the proposal of the appellant for grant of EC. Thereafter, the SEIAA, in its meeting dated 11h April 2017, has granted its EC after considering all the aspects. Thereafter, Quarry Lease has been granted in favour of the appellant on 22nd April 2017.22. It could thus be seen that the proposal of the appellant has undergone scrutiny at various stages. Only after it was found that it was in conformity with the provisions of law, the in-principle approval and EC for Quarry Lease had been granted. Thereafter, the appellant has submitted his Mining Plan which was again duly examined by various authorities. The proposal of the appellant was initially considered by SEAC and recommended for grant of EC. Thereafter, SEIAA, after considering all the aspects has granted EC to the project of the appellant. Only thereafter, the Quarry Lease had been granted in favour of the appellant.23. Insofar as the finding of the learned Tribunal that the area was reduced to 24 hectares from 29 hectares only in order to avoid the rigours of public hearing, is totally erroneous. The appellant had no role to play in the same. It is the authorities who recommended approval in respect of only 24 hectares. Insofar as the mandatory distance from the water body is concerned, the authorities upon survey had found that the mandatory distance of 0.25 km is maintained.24. In this view of matter, we find that the learned Tribunal has grossly erred in arriving at a finding that the appellant had reduced the area to 24 hectares only in order to avoid the rigours of public hearing and further that there was no distance of 0.25 km between the proposed mining area and the Singotham Lake.
|
M/S. V.L. T. Cargo Movers Private Limited Vs. Shri Ajitkumar S. Puri & Another | to terminating the services of the workman by the Company by oral direction. The workman challenged the said termination. He claim that his service record was unblemished; he had completed 240 days in each year of his service and his termination from the service was violative of the provisions of Section 25-F of the Industrial Disputes Act, 1947, (hereinafter referred to as the Act). 3. The appropriate government made a reference, which was contested by a Company by filing written statement to the claim of the workman. In the written statement, the company disputed various facts and also raised an objection that the Respondent in the appeal was not a workman within the meaning of Section 2(s) of the Act as he was doing managerial and supervisory work and that he stopped reporting his duty at his own. Thus, there was no violation of statutory provisions. 4. As already noticed, the Labour Court decided the issues in favour of the workman and also found that the Respondent No.1 was a `workman within the meaning of definition of the term workman under Section 2(s) of the Act and while disbelieving the case put forth by the Company granted relief to the workman. The learned Single Judge elaborately discussed all the contested issues. The core issue raised even in the writ petition was whether the workman satisfies the ingredients specified under Section 2(s) of the Act or not. After appreciating the evidence produced on record, the learned Single Judge noticed as under:- 16. The 1st respondent filed his affidavit in lieu of examination-in-chief. He stated that he was employed by the petitioner as a Senior Clerk since May, 1979. He deposed that at the instance of Mr. Vijaykumar Banga who had called him to his cabin he tendered a resignation from the employment in the month of December, 2002 as he was informed that unless resignation was tendered, he would be falsely implicated in a police case. 17. In the cross-examination of the 1st respondent his attention was invited to certain documents which were signed by him. He admitted that he has signed the said documents as a Director as per the directions of the petitioner. He also admitted that he had signed a complaint addressed to police station in his capacity as a Director. He stated that he never protested while signing the said documents as a Manager or Director though he signed the same at the instance of the petitioner. ..... ..... .....20. The learned Judge has recorded a finding of fact that Articles of Association of the company were not produced. The learned Judge noted that the 1st respondent was required to put his signature on the muster roll as is reflected from the admitted position. Though the petitioner claims that the 1st respondent was a Director, admittedly he was never invited to attend Board Meetings. The learned Judge has referred to the case law on the point. After considering the oral evidence adduced by the petitioner as well as by the 1st respondent, there is a finding of fact recorded that the 1st respondent was a workman as the petitioner could not adduce any evidence to prove the assertions made by the petitioner. Therefore, it is very difficult to accept the contention of the petitioner that the 1st respondent was not a workman within the meaning of section 2 (s) of the said Act of 1947. 5. From the bare reading of the above findings recorded in the judgment, it is clear that the learned Single Judge has accepted the finding of fact recorded by the Labour Court based upon appreciation of evidence. We are unable to accept the contention raised before us that the findings recorded are perverse and/or contrary to the evidence on record. This Court while entertaining the Letters Patent Appeal will not disturb a finding merely on the ground that another view was possible. Besides this, we may also notice that the witness Shri Vijay Kumar Banga, Director of the Company, while being cross examined before the Labour Court, admitted that no appointment letter was issued to the Respondent No.1/workman appointing him as the Director or even Manager-cum-Director. He also admitted that the Respondent No.1 used to take directions from the witness. He categorically admitted that The second party workman was never asked to attend the meeting of Board of directors. The Labour Court in its award also noticed conflicting description of the status of the workman reflected in the documents from time to time. In Exhibit-7, the workman was described as the Manager. In Complaint (ULP) No.341 of 2001 filed at Exhibit C-8 before the Court the workman had signed as the Director of the Company while in Exhibit C-10 (FIR) he was again described as the Manager and in Exhibit C-14 he was described as the Supervisor/Regional Manager. 6. A specific objection has been taken by the Company in its reply that the Respondent was not a workman within the meaning of Section 2(s) of the Act. The onus thus was upon the Company as the workman had already discharged his onus. The Company has miserably failed to satisfactorily discharge its onus in regard to its plea/objection. Nature of duty of the Respondent No.1 was one of the basic aspects, which the Company alone could have proved before the Court. The Appellant is the Private Limited Company and thus is bound by all the provisions and the law applicable to the Private Limited Company under the Companies Act as well as other allied Laws. The best evidence was withheld by the Company, as it did not produce the minutes book of the Company or Register of the Board of Directors showing that the Respondent was and/or had acted as the Director of the Company. The Company also could not explain what functions/duties were assigned to the Respondent. Even regarding this aspect, the Company failed to discharge it onus inasmuch as the document produced by it reflected a conflicting stand, as noticed above. | 0[ds]5. From the bare reading of the above findings recorded in the judgment, it is clear that the learned Single Judge has accepted the finding of fact recorded by the Labour Court based upon appreciation of evidence. We are unable to accept the contention raised before us that the findings recorded are perverse and/or contrary to the evidence on record. This Court while entertaining the Letters Patent Appeal will not disturb a finding merely on the ground that another view was possible. Besides this, we may also notice that the witness Shri Vijay Kumar Banga, Director of the Company, while being cross examined before the Labour Court, admitted that no appointment letter was issued to the Respondent No.1/workman appointing him as the Director or evenHe also admitted that the Respondent No.1 used to take directions from the witness. He categorically admitted that The second party workman was never asked to attend the meeting of Board of directors. The Labour Court in its award also noticed conflicting description of the status of the workman reflected in the documents from time to time. Inthe workman was described as the Manager. In Complaint (ULP) No.341 of 2001 filed at Exhibitbefore the Court the workman had signed as the Director of the Company while in Exhibit(FIR) he was again described as the Manager and in Exhibithe was described as the Supervisor/Regional Manager. 6. A specific objection has been taken by the Company in its reply that the Respondent was not a workman within the meaning of Section 2(s) of the Act. The onus thus was upon the Company as the workman had already discharged his onus. The Company has miserably failed to satisfactorily discharge its onus in regard to its plea/objection. Nature of duty of the Respondent No.1 was one of the basic aspects, which the Company alone could have proved before the Court. The Appellant is the Private Limited Company and thus is bound by all the provisions and the law applicable to the Private Limited Company under the Companies Act as well as other allied Laws. The best evidence was withheld by the Company, as it did not produce the minutes book of the Company or Register of the Board of Directors showing that the Respondent was and/or had acted as the Director of the Company. The Company also could not explain what functions/duties were assigned to the Respondent. Even regarding this aspect, the Company failed to discharge it onus inasmuch as the document produced by it reflected a conflicting stand, as noticed above. | 0 | 1,398 | 461 | ### 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:
to terminating the services of the workman by the Company by oral direction. The workman challenged the said termination. He claim that his service record was unblemished; he had completed 240 days in each year of his service and his termination from the service was violative of the provisions of Section 25-F of the Industrial Disputes Act, 1947, (hereinafter referred to as the Act). 3. The appropriate government made a reference, which was contested by a Company by filing written statement to the claim of the workman. In the written statement, the company disputed various facts and also raised an objection that the Respondent in the appeal was not a workman within the meaning of Section 2(s) of the Act as he was doing managerial and supervisory work and that he stopped reporting his duty at his own. Thus, there was no violation of statutory provisions. 4. As already noticed, the Labour Court decided the issues in favour of the workman and also found that the Respondent No.1 was a `workman within the meaning of definition of the term workman under Section 2(s) of the Act and while disbelieving the case put forth by the Company granted relief to the workman. The learned Single Judge elaborately discussed all the contested issues. The core issue raised even in the writ petition was whether the workman satisfies the ingredients specified under Section 2(s) of the Act or not. After appreciating the evidence produced on record, the learned Single Judge noticed as under:- 16. The 1st respondent filed his affidavit in lieu of examination-in-chief. He stated that he was employed by the petitioner as a Senior Clerk since May, 1979. He deposed that at the instance of Mr. Vijaykumar Banga who had called him to his cabin he tendered a resignation from the employment in the month of December, 2002 as he was informed that unless resignation was tendered, he would be falsely implicated in a police case. 17. In the cross-examination of the 1st respondent his attention was invited to certain documents which were signed by him. He admitted that he has signed the said documents as a Director as per the directions of the petitioner. He also admitted that he had signed a complaint addressed to police station in his capacity as a Director. He stated that he never protested while signing the said documents as a Manager or Director though he signed the same at the instance of the petitioner. ..... ..... .....20. The learned Judge has recorded a finding of fact that Articles of Association of the company were not produced. The learned Judge noted that the 1st respondent was required to put his signature on the muster roll as is reflected from the admitted position. Though the petitioner claims that the 1st respondent was a Director, admittedly he was never invited to attend Board Meetings. The learned Judge has referred to the case law on the point. After considering the oral evidence adduced by the petitioner as well as by the 1st respondent, there is a finding of fact recorded that the 1st respondent was a workman as the petitioner could not adduce any evidence to prove the assertions made by the petitioner. Therefore, it is very difficult to accept the contention of the petitioner that the 1st respondent was not a workman within the meaning of section 2 (s) of the said Act of 1947. 5. From the bare reading of the above findings recorded in the judgment, it is clear that the learned Single Judge has accepted the finding of fact recorded by the Labour Court based upon appreciation of evidence. We are unable to accept the contention raised before us that the findings recorded are perverse and/or contrary to the evidence on record. This Court while entertaining the Letters Patent Appeal will not disturb a finding merely on the ground that another view was possible. Besides this, we may also notice that the witness Shri Vijay Kumar Banga, Director of the Company, while being cross examined before the Labour Court, admitted that no appointment letter was issued to the Respondent No.1/workman appointing him as the Director or even Manager-cum-Director. He also admitted that the Respondent No.1 used to take directions from the witness. He categorically admitted that The second party workman was never asked to attend the meeting of Board of directors. The Labour Court in its award also noticed conflicting description of the status of the workman reflected in the documents from time to time. In Exhibit-7, the workman was described as the Manager. In Complaint (ULP) No.341 of 2001 filed at Exhibit C-8 before the Court the workman had signed as the Director of the Company while in Exhibit C-10 (FIR) he was again described as the Manager and in Exhibit C-14 he was described as the Supervisor/Regional Manager. 6. A specific objection has been taken by the Company in its reply that the Respondent was not a workman within the meaning of Section 2(s) of the Act. The onus thus was upon the Company as the workman had already discharged his onus. The Company has miserably failed to satisfactorily discharge its onus in regard to its plea/objection. Nature of duty of the Respondent No.1 was one of the basic aspects, which the Company alone could have proved before the Court. The Appellant is the Private Limited Company and thus is bound by all the provisions and the law applicable to the Private Limited Company under the Companies Act as well as other allied Laws. The best evidence was withheld by the Company, as it did not produce the minutes book of the Company or Register of the Board of Directors showing that the Respondent was and/or had acted as the Director of the Company. The Company also could not explain what functions/duties were assigned to the Respondent. Even regarding this aspect, the Company failed to discharge it onus inasmuch as the document produced by it reflected a conflicting stand, as noticed above.
### Response:
0
### Explanation:
5. From the bare reading of the above findings recorded in the judgment, it is clear that the learned Single Judge has accepted the finding of fact recorded by the Labour Court based upon appreciation of evidence. We are unable to accept the contention raised before us that the findings recorded are perverse and/or contrary to the evidence on record. This Court while entertaining the Letters Patent Appeal will not disturb a finding merely on the ground that another view was possible. Besides this, we may also notice that the witness Shri Vijay Kumar Banga, Director of the Company, while being cross examined before the Labour Court, admitted that no appointment letter was issued to the Respondent No.1/workman appointing him as the Director or evenHe also admitted that the Respondent No.1 used to take directions from the witness. He categorically admitted that The second party workman was never asked to attend the meeting of Board of directors. The Labour Court in its award also noticed conflicting description of the status of the workman reflected in the documents from time to time. Inthe workman was described as the Manager. In Complaint (ULP) No.341 of 2001 filed at Exhibitbefore the Court the workman had signed as the Director of the Company while in Exhibit(FIR) he was again described as the Manager and in Exhibithe was described as the Supervisor/Regional Manager. 6. A specific objection has been taken by the Company in its reply that the Respondent was not a workman within the meaning of Section 2(s) of the Act. The onus thus was upon the Company as the workman had already discharged his onus. The Company has miserably failed to satisfactorily discharge its onus in regard to its plea/objection. Nature of duty of the Respondent No.1 was one of the basic aspects, which the Company alone could have proved before the Court. The Appellant is the Private Limited Company and thus is bound by all the provisions and the law applicable to the Private Limited Company under the Companies Act as well as other allied Laws. The best evidence was withheld by the Company, as it did not produce the minutes book of the Company or Register of the Board of Directors showing that the Respondent was and/or had acted as the Director of the Company. The Company also could not explain what functions/duties were assigned to the Respondent. Even regarding this aspect, the Company failed to discharge it onus inasmuch as the document produced by it reflected a conflicting stand, as noticed above.
|
SHYAM SEL AND POWER LIMITED AND ANOTHER Vs. SHYAM STEEL INDUSTRIES LIMITED | thereafter, passes various directions including the injunction. Though, in fact, it allows the appeal in entirety by allowing an application under Order XXXIX Rules 1 and 2 CPC pendente lite the suit, it graciously observes in the ultimate para that it was only modifying the order dated 2nd April 2019 passed by the learned Single Judge. 34. The learned Judges of the Division Bench of the High Court have taken pains to make a mention of the judgment of this Court in the case of Wander Ltd. (supra). This judgment has been guiding the appellate courts in the country for decades while exercising their appellate jurisdiction considering the correctness of the discretion and jurisdiction exercised by the trial courts for grant or refusal of interlocutory injunctions. In the said case, the learned Single Judge had refused an order of temporary injunction in favour of the plaintiff who was claiming to be a registered proprietor of the registered trade mark. The Division Bench of the High Court had reversed the order passed by the learned Single Judge and granted interim injunction. Reversing the order of the Division Bench of the High Court and maintaining the order of the learned Single Judge, this Court observed thus: 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 : AIR 1960 SC 1156 ] : (SCR 721) ... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] ...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. 35. Though the learned Judges of the Division Bench of the High Court have on more than one occasion referred to the judgment of this Court in Wander Ltd. (supra), they have not even, for namesake, observed as to how the discretion exercised by the learned Single Judge was exercised arbitrarily, capriciously or perversely. In our view, having waited for 8-9 months after the learned Single Judge had passed the order, all that ought to have been done by the learned Judges of the Division Bench of the High Court was to request the learned Single Judge to decide the application for ad-interim injunction, which in fact, the learned Single Judge had scheduled to do after three weeks from 2nd April 2019. In our view, it was not even necessary for the Division Bench of the High Court to have waited till 24th December 2019 and taken the pains of deciding the application at first instance. It could have very well, in the month of April, 2019 itself, done the exercise of requesting the learned Single Judge to decide the application as scheduled. 36. In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application. It is a settled principle of law that while considering the question of grant of interim injunction, the courts are required to consider the three tests of prima facie case, balance of convenience and irreparable injury. Besides a stray observation that the respondent-plaintiff has made out a prima facie case, there is no discussion as to how a prima facie case was made out by the respondent-plaintiff. In any case, insofar as the tests of balance of convenience and irreparable injury are concerned, there is not even a mention with regard to these in the impugned judgment and order of the Division Bench of the High Court. In our view, the approach of the Division Bench of the High Court was totally unwarranted and uncalled for. We refrain ourselves from using any stronger words. 37. We find that it is high time that this Court should take note of frivolous appeals being filed against unappealable orders wasting precious judicial time. As it is, the courts in India are already over-burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations, must be discouraged. We therefore find that the present appeal deserves to be allowed with token costs. The respondent-plaintiff shall pay a token cost of Rs.5 lakhs to the Supreme Court Middle Income Group Legal Aid Society (MIG). | 1[ds]14. Though both the parties have addressed this Court at length on merits of the matter and have also taken us through voluminous documents, we do not find it necessary to go into those issues. The present appeal arises out of an order passed by the Division Bench of the High Court in an intra-court appeal challenging the order passed by the learned Single Judge vide which the learned Single Judge had granted time to the appellants-defendants to file affidavit-in-opposition and postponed the hearing of the application seeking injunction.15. We are of the considered view that any observation on merits by this Court would prejudice the rights of either of the parties and therefore, we are restricting ourselves to consider the question with regard to tenability of the appeal against the order of the learned Single Judge and the correctness of the approach of the Division Bench of the High Court.16. An intra-court appeal lies to the Division Bench of the High Court under Clause 15 of the Letters Patent. Clause 15 of the Letters Patent enables a party to appeal to the Division Bench of the High Court against an order of the Single Judge. A three-Judge Bench of this Court in the case of Shah Babulal Khimji (supra) had an occasion to consider the question as to what would be meant by the term judgment used in Clause 15 of the Letters Patent. In the said case, the plaintiff had filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed for an interim relief by appointing a receiver of the suit-property and injuncting the defendant from disposing of the suit-property during the pendency of the suit. The Single Judge of the High Court after hearing the notice of motion had dismissed the said application. The plaintiff therefore filed an appeal before the Division Bench of the High Court. The Division Bench of the High Court held that the order of the Single Judge refusing to appoint a receiver and to grant an injunction could not be construed to be a judgment as contemplated by Clause 15 of the Letters Patent. Being aggrieved thereby, the plaintiff had approached this Court. Justice S. Murtaza Fazal Ali, speaking for himself and Justice Varadarajan, observed thus:109. Clause 15 makes no attempt to define what a judgment is. As letters patent is a special law which carves out its own sphere, it would not be possible for us to project the definition of the word judgment appearing in Section 2(9) of the Code of 1908, which defines judgment into the letters patent:Judgment means the statement given by the Judge of the grounds of a decree or order.110. In Mt. Shahzadi Begam, v. Alak Nath [AIR 1935 All 620 : 1935 ALJ 681 : 157 IC 347] , Sulaiman, C.J., very rightly pointed out that as the letters patent were drafted long before even the Code of 1882 was passed, the word judgment used in the letters patent cannot be relatable to or confined to the definition of judgment as contained in the Code of Civil Procedure which came into existence long after the letters patent were given. In this connection, the Chief Justice observed [29 Cal LJ 225] as follows:It has been held in numerous cases that as the letters patent were drafted long before even the earlier Code of 1882 was passed, the word judgment used therein does not mean the judgment as defined in the existing Code of Civil Procedure. At the same time the word judgment does not include every possible order, final, preliminary or interlocutory passed by a Judge of the High Court.111. We find ourselves in complete agreement with the observations made by the Allahabad High Court on this aspect of the matter.112. The definition of the word judgment in sub- section (9) of Section 2 of the Code of 1908 is linked with the definition of decree which is defined in sub-section (2) of Section 2 thus:Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include—(a) any adjudication from which an appeal lies as an appeal from an order, or(b) any order of dismissal for default. Explanation.—A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.113. Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word judgment as used in clause 15 of the letters patent because the letters patent has advisedly not used the terms order or decree anywhere. The intention, therefore, of the givers of the letters patent was that the word judgment should receive a much wider and more liberal interpretation than the word judgment used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the letters patent. It seems to us that the word judgment has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment can be of three kinds:(1) A final judgment.— A judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the letters patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench.(2) A preliminary judgment.—This kind of a judgment may take two forms—(a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the Trial Judge is concerned and therefore appealable to the larger Bench. (b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections are decided by the trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench.(3) Intermediary or interlocutory judgment. — Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 and have already been held by us to be judgments within the meaning of the letters patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. For instance, where the trial Judge in a suit under Order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiffs case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the letters patent so as to be appealable to a larger Bench. Take the converse case in a similar suit where the trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is false and succeed in the suit. Thus, such an order passed by the trial Judge would not amount to a judgment within the meaning of clause 15 of the letters patent but will be purely an interlocutory order. Similarly, suppose the trial Judge passes an order setting aside an ex parte decree against the defendant, which is not appealable under any of the clauses of Order 43 Rule 1 though an order rejecting an application to set aside the decree passed ex parte falls within Order 43 Rule 1 clause (d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of letters patent. The fact, however, remains that the order setting aside the ex parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench.114. In the course of the trial, the trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the trial Judge.115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the letters patent. Suppose the trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the trial Judge is purely discretionary and interlocutory, it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore, though interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the letters patent. This is what was held by this Court in Shanti Kumar case [(1974) 2 SCC 387 : AIR 1974 SC 1719 : (1975) 1 SCR 550 ] , as discussed above.117. Let us take another instance of a similar order which may not amount to a judgment. Suppose, the trial Judge allows the plaintiff to amend the plaint by adding a particular relief or taking an additional ground which may be inconsistent with the pleas taken by him but is not barred by limitation and does not work serious injustice to the defendant who would have ample opportunity to disprove the amended plea taken by plaintiff at the trial. In such cases, the order of the trial Judge would only be a simple interlocutory order without containing any quality of finality and would therefore not be a judgment within the meaning of clause 15 of the letters patent.118. The various instances given by us would constitute sufficient guidelines to determine whether or not an order passed by the trial Judge is a judgment within the meaning of the letters patent. We must however hasten to add that instances given by us are illustrative and not exhaustive. We have already referred to the various tests laid down by the Calcutta, Rangoon and Madras High Courts. So far as the Rangoon High Court is concerned we have already pointed out that the strict test that an order passed by the trial Judge would be a judgment only if it amounts to a decree under the Code of Civil Procedure, is legally erroneous and opposed to the very tenor and spirit of the language of the letters patent. We, therefore, do not approve of the test laid down by the Rangoon High Court and that decision therefore has to be confined only to the facts of that particular case because that being a case of transfer, it is manifest that no question of any finality was involved in the order of transfer. We would like to adopt and approve of generally the tests laid down by Sir White, C.J., in Tuljaram Row case [ILR 35 Mad 1 ] (which seems to have been followed by most of the High Courts) minus the broader and the wider attributes adumbrated by Sir White, C.J., or more explicitly by Krishnaswamy Ayyar, J. as has been referred to above.119. Apart from the tests laid down by Sir White, C.J., the following considerations must prevail with the court:(1) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice to one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.(3) The tests laid down by Sir White, C.J. as also by Sir Couch, C.J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind.120. Thus, these are some of the principles which might guide a Division Bench in deciding whether an order passed by the trial Judge amounts to a judgment within the meaning of the letters patent. We might, however, at the risk of repetition give illustrations of interlocutory orders which may be treated as judgments:(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant.(2) An order rejecting the plaint.(3) An order refusing leave to defend the suit in an action under Order 37, of the Code of Civil Procedure.(4) An order rescinding leave of the trial Judge granted by him under clause 12 of the letters patent.(5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under Section 80, bar against competency of the suit against the defendant even though the suit is kept alive.(6) An order rejecting an application for a judgment on admission under Order 12 Rule 6.(7) An order refusing to add necessary parties in a suit under Section 92 of the Code of Civil Procedure.(8) An order varying or amending a decree.(9) An order refusing leave to sue in forma pauperis.(10) An order granting review.(11) An order allowing withdrawal of the suit with liberty to file a fresh one.(12) An order holding that the defendants are not agriculturists within the meaning of the special law.(13) An order staying or refusing to stay a suit under Section 10 of the Code of Civil Procedure.(14) An order granting or refusing to stay execution of the decree.(15) An order deciding payment of court fees against the plaintiff.121. Here, it may be noted that whereas an order deciding the nature of the court fees to be paid by the plaintiff would be a judgment but this order affects only the plaintiff or the Government and not the defendant. Thus, only the plaintiff or the Government as the case may be will have the right to file an appeal in the Division Bench and not the defendant because the question of payment of court fees is a matter between the Government and the plaintiff and the defendant has no locus in this regard.122. We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a strait-jacket. We, however, hope and trust that by and large the controversy raging for about a century on the connotation of the term judgment would have now been settled and a few cases which may have been left out, would undoubtedly be decided by the court concerned in the light of the tests, observations and principles enunciated by us.123. In the instant case, as the order of the trial Judge was one refusing appointment of a receiver and grant of an ad-interim injunction, it is undoubtedly a judgment within the meaning of the letters patent both because in view of our judgment. Order 43 Rule 1 applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of clause 15 of the letters patent. The consistent view taken by the Bombay High Court in the various cases noted above or other cases which may not have been noticed by us regarding the strict interpretation of clause 15 of the letters patent are hereby overruled and the Bombay High Court is directed to decide the question in future in the light of our decision.124. We, therefore, hold that the order passed by the trial Judge in the instant case being a judgment within the meaning of clause 15 of the letters patent, the appeal before the Division Bench was maintainable and the Division Bench of the High Court was in error in dismissing the appeal without deciding it on merits. We have already directed the High Court to decide the appeal on merits by our formal order dated April 22, 1981.17. It could thus be seen that though this Court has held that the term judgment used in Letters Patent could not be given a narrower meaning as is given to the term judgment used in CPC and that it should receive a much wider and more liberal interpretation, however, at the same time, each and every order passed by the trial judge could not be construed to be a judgment inasmuch as there will be no end to the number of orders which would be appealable under the Letters Patent. It has been held that the word judgment has undoubtedly a concept of finality in a broader and not in a narrower sense. It has been held that where an order vitally affects a valuable right of the defendants, it will undoubtedly be treated as a judgment within the meaning of Letters Patent so as to be appealable to a larger Bench.18. It has been held that most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order XLIII Rule 1 CPC and would be judgments within the meaning of the letters patent and, therefore, appealable. However, there may be interlocutory orders which are not covered by Order XLIII Rule 1 CPC but which also possess the characteristics and trappings of finality inasmuch as such orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. It has further been held that however, for such an order to be a judgment, an adverse effect on the party concerned must be direct and immediate rather than indirect or remote. Various illustrations of interlocutory orders have been given by this Court in para (120), which could be held to be appealable. This Court held that though any discretion exercised or routine orders passed by the trial Judge in the course of the suit may cause some inconvenience or, to some extent, prejudice to one party or the other, they cannot be treated as a judgment unless they contain the traits and trappings of finality. This Court has expressed in para (122) that though it had, by way of sample, laid down various illustrative examples of an order which may amount to a judgment, it would not be possible to give such an exhaustive list as may cover all possible areas. This Court, in the facts of the said case, held that an order of the Single Judge refusing appointment of a receiver and grant of an ad-interim injunction was undoubtedly a judgment within the meaning of Letters Patent, both because Order XLIII Rule 1 CPC applies to internal appeals in the High Court and that such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of Clause 15 of the Letters Patent.19. Justice A.N. Sen, while holding that the order in question was appealable under Section 104(1) read with Order XLIII CPC, did not find it necessary to go into the question as to whether such an order would be appealable under Clause 15 of the Letters Patent. It will be apposite to refer to the following observations of the learned Judge:151. ……In my opinion, an exhaustive or a comprehensive definition of judgment as contemplated in Clause 15 of the Letters Patent cannot be properly given and it will be wise to remember that in the Letters Patent itself, there is no definition of the word judgment. The expression has necessarily to be construed and interpreted in each particular case. It is, however, safe to say that if any order has the effect of finally determining any controversy forming the subject-matter of the suit itself or any part thereof or the same affects the question of courts jurisdiction or the question of limitation, such an order will normally constitute judgment within the meaning of Clause 15 of the Letters Patent…….20. Justice Sen reiterated that it was safe to say that if any order has the effect of finally determining any controversy forming the subject-matter of the suit itself or any part thereof or the same affects the question of courts jurisdiction or the question of limitation, such an order will normally constitute judgment within the meaning of Clause 15 of Letters Patent. He however observed that the expression has necessarily to be construed and interpreted in each particular case.21. It could thus be seen that both the judgments of Justice S. Murtaza Fazal Ali as well as Justice A.N. Sen have a common thread that, as to whether an order impugned would be a judgment within the scope of Clause 15 of Letters Patent, would depend on facts and circumstances of each case. However, for such an order to be construed as a judgment, it must have the traits and trappings of finality. To come within the ambit of judgment, such an order must affect vital and valuable rights of the parties, which works serious injustice to the party concerned. Each and every order passed by the Court during the course of the trial, though may cause some inconvenience to one of the parties or, to some extent, some prejudice to one of the parties, cannot be treated as a judgment. If such is permitted, the floodgate of appeals would be open against the order of Single Judge.25. It is thus clear that there was no adjudication with regard to the rights of the respondent-plaintiff to get an ad-interim injunction during the pendency of the suit. Though by postponement of the issue with regard to grant of ad-interim injunction, the order might have caused some inconvenience and may be, to some extent, prejudice to the respondent- plaintiff; the same could not be treated as a judgment inasmuch as there was no conclusive finding as to whether the respondent-plaintiff was entitled for grant of ad-interim injunction or not. As such, the order passed by the learned Single Judge did not contain the traits and trappings of finality. If it is held otherwise, this will open a floodgate of appeals for parties who may even challenge the order of adjournment or grant of time to the other side to file affidavit-in-reply. We are therefore of the considered view that the order dated 2nd April 2019 cannot be construed to be a judgment within the meaning of Clause 15 of Letters Patent and as such, the appeal to the Division Bench of the High Court was not tenable.26. We clarify that as held in Shah Babulal Khimji (supra), we are holding so, taking into consideration the facts and circumstances as they appear in the present matter.27. With this, we could have very well allowed the present appeal by setting aside the impugned judgment and order of the Division Bench of the High Court.29. It is difficult to appreciate the anxiety on the part of the Division Bench of the High Court to itself dispose of the interlocutory application instead of relegating it to the court below for its disposal. When the Division Bench of the High Court itself took 8-9 months to decide the appeal, it is difficult to understand as to what the learned Judges of the Division Bench of the High Court meant by unnecessary prolongation of the litigation and utter wastage of time. If the learned Judges of the Division Bench were so much concerned with the prolongation of litigation, they could have very well requested the learned Single Judge to decide the injunction application within a stipulated period. Instead of waiting for a period of 8-9 months, this could have been done by them at the very first instance when the appeal was listed. The hierarchy of the trial court and the appellate court exists so that the trial court exercises its discretion upon the settled principles of law. An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. If the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts. As observed by this Court in Monsanto Technology LLC (supra), the appellate court cannot usurp the jurisdiction of the Single Judge to decide as to whether the tests of prima facie case, balance of convenience and irreparable injury are made out in the case or not.30. Though there are various observations made by the Division Bench of the High Court, which in our view, are totally unwarranted, we refrain ourselves to refer to them as any comment thereon would unnecessarily prejudice the rights of either of the parties. We will only limit ourselves to the minimum possible observations of the Division Bench of the High Court.31. Though the Division Bench of the High Court, referring to the judgment of this Court in the case of Wander Ltd. (supra), observes that the appellate court will not substitute its opinion with that of the trial court in an interim application unless there is a perversity in the order, it fails to discuss as to how the view taken by the trial judge was either perverse or impossible. At one place, the Division Bench of the High Court observes that:Now, the question is whether the learned single judge exercised his discretion correctly and whether this court should interfere with that exercise of discretion.and in the same breath observes that:Therefore, we have considered the case on the basis of the petition as well as the additional evidence before us. In our opinion, this court is not called upon only to evaluate whether the exercise of discretion by the learned trial court was right or wrong.Then immediately thereafter, the Division Bench of the High Court observes that:This court is duty bound to pass a suitable interim order, pending trial of the suit.32. We ask a question to ourselves that, in an appeal against the order of a Single Judge, if the Division Bench of the High Court is not required to evaluate the question as to whether the discretion exercised by the trial court was right or wrong, what else is it required to do. We are unable to trace the source of the duty of the appellate court which makes it bound to pass a suitable interim order pending the trial of the suit.33. The Division Bench of the High Court further observes that for doing so, it has to put itself in a position as if it was moved to pass an interim order in the suit. At the cost of repetition, we reiterate that if the approach of the Division Bench of the High Court is to be upheld, then there would be no necessity to have the trial courts at all. Thereafter, the Division Bench of the High Court observes that the case was different from Wander Ltd. (supra). The Division Bench of the High Court stops at that. It does not even take the trouble to observe as to how the scope of the appeal before it was different from the scope as defined by this Court in Wander Ltd. (supra). In a line thereafter, the Division Bench of the High Court observes that prima facie case on facts theoretically is in favour of the appellant therein (plaintiff) and thereafter, passes various directions including the injunction. Though, in fact, it allows the appeal in entirety by allowing an application under Order XXXIX Rules 1 and 2 CPC pendente lite the suit, it graciously observes in the ultimate para that it was only modifying the order dated 2nd April 2019 passed by the learned Single Judge.34. The learned Judges of the Division Bench of the High Court have taken pains to make a mention of the judgment of this Court in the case of Wander Ltd. (supra). This judgment has been guiding the appellate courts in the country for decades while exercising their appellate jurisdiction considering the correctness of the discretion and jurisdiction exercised by the trial courts for grant or refusal of interlocutory injunctions. In the said case, the learned Single Judge had refused an order of temporary injunction in favour of the plaintiff who was claiming to be a registered proprietor of the registered trade mark. The Division Bench of the High Court had reversed the order passed by the learned Single Judge and granted interim injunction. Reversing the order of the Division Bench of the High Court and maintaining the order of the learned Single Judge, this Court observed thus: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 : AIR 1960 SC 1156 ] : (SCR 721)... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] ...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.35. Though the learned Judges of the Division Bench of the High Court have on more than one occasion referred to the judgment of this Court in Wander Ltd. (supra), they have not even, for namesake, observed as to how the discretion exercised by the learned Single Judge was exercised arbitrarily, capriciously or perversely. In our view, having waited for 8-9 months after the learned Single Judge had passed the order, all that ought to have been done by the learned Judges of the Division Bench of the High Court was to request the learned Single Judge to decide the application for ad-interim injunction, which in fact, the learned Single Judge had scheduled to do after three weeks from 2nd April 2019. In our view, it was not even necessary for the Division Bench of the High Court to have waited till 24th December 2019 and taken the pains of deciding the application at first instance. It could have very well, in the month of April, 2019 itself, done the exercise of requesting the learned Single Judge to decide the application as scheduled.36. In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application. It is a settled principle of law that while considering the question of grant of interim injunction, the courts are required to consider the three tests of prima facie case, balance of convenience and irreparable injury. Besides a stray observation that the respondent-plaintiff has made out a prima facie case, there is no discussion as to how a prima facie case was made out by the respondent-plaintiff. In any case, insofar as the tests of balance of convenience and irreparable injury are concerned, there is not even a mention with regard to these in the impugned judgment and order of the Division Bench of the High Court. In our view, the approach of the Division Bench of the High Court was totally unwarranted and uncalled for. We refrain ourselves from using any stronger words.37. We find that it is high time that this Court should take note of frivolous appeals being filed against unappealable orders wasting precious judicial time. As it is, the courts in India are already over-burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations, must be discouraged. We therefore find that the present appeal deserves to be allowed with token costs. The respondent-plaintiff shall pay a token cost of Rs.5 lakhs to the Supreme Court Middle Income Group Legal Aid Society (MIG). | 1 | 9,598 | 7,122 | ### 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:
thereafter, passes various directions including the injunction. Though, in fact, it allows the appeal in entirety by allowing an application under Order XXXIX Rules 1 and 2 CPC pendente lite the suit, it graciously observes in the ultimate para that it was only modifying the order dated 2nd April 2019 passed by the learned Single Judge. 34. The learned Judges of the Division Bench of the High Court have taken pains to make a mention of the judgment of this Court in the case of Wander Ltd. (supra). This judgment has been guiding the appellate courts in the country for decades while exercising their appellate jurisdiction considering the correctness of the discretion and jurisdiction exercised by the trial courts for grant or refusal of interlocutory injunctions. In the said case, the learned Single Judge had refused an order of temporary injunction in favour of the plaintiff who was claiming to be a registered proprietor of the registered trade mark. The Division Bench of the High Court had reversed the order passed by the learned Single Judge and granted interim injunction. Reversing the order of the Division Bench of the High Court and maintaining the order of the learned Single Judge, this Court observed thus: 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 : AIR 1960 SC 1156 ] : (SCR 721) ... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] ...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. 35. Though the learned Judges of the Division Bench of the High Court have on more than one occasion referred to the judgment of this Court in Wander Ltd. (supra), they have not even, for namesake, observed as to how the discretion exercised by the learned Single Judge was exercised arbitrarily, capriciously or perversely. In our view, having waited for 8-9 months after the learned Single Judge had passed the order, all that ought to have been done by the learned Judges of the Division Bench of the High Court was to request the learned Single Judge to decide the application for ad-interim injunction, which in fact, the learned Single Judge had scheduled to do after three weeks from 2nd April 2019. In our view, it was not even necessary for the Division Bench of the High Court to have waited till 24th December 2019 and taken the pains of deciding the application at first instance. It could have very well, in the month of April, 2019 itself, done the exercise of requesting the learned Single Judge to decide the application as scheduled. 36. In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application. It is a settled principle of law that while considering the question of grant of interim injunction, the courts are required to consider the three tests of prima facie case, balance of convenience and irreparable injury. Besides a stray observation that the respondent-plaintiff has made out a prima facie case, there is no discussion as to how a prima facie case was made out by the respondent-plaintiff. In any case, insofar as the tests of balance of convenience and irreparable injury are concerned, there is not even a mention with regard to these in the impugned judgment and order of the Division Bench of the High Court. In our view, the approach of the Division Bench of the High Court was totally unwarranted and uncalled for. We refrain ourselves from using any stronger words. 37. We find that it is high time that this Court should take note of frivolous appeals being filed against unappealable orders wasting precious judicial time. As it is, the courts in India are already over-burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations, must be discouraged. We therefore find that the present appeal deserves to be allowed with token costs. The respondent-plaintiff shall pay a token cost of Rs.5 lakhs to the Supreme Court Middle Income Group Legal Aid Society (MIG).
### Response:
1
### Explanation:
of the appellant therein (plaintiff) and thereafter, passes various directions including the injunction. Though, in fact, it allows the appeal in entirety by allowing an application under Order XXXIX Rules 1 and 2 CPC pendente lite the suit, it graciously observes in the ultimate para that it was only modifying the order dated 2nd April 2019 passed by the learned Single Judge.34. The learned Judges of the Division Bench of the High Court have taken pains to make a mention of the judgment of this Court in the case of Wander Ltd. (supra). This judgment has been guiding the appellate courts in the country for decades while exercising their appellate jurisdiction considering the correctness of the discretion and jurisdiction exercised by the trial courts for grant or refusal of interlocutory injunctions. In the said case, the learned Single Judge had refused an order of temporary injunction in favour of the plaintiff who was claiming to be a registered proprietor of the registered trade mark. The Division Bench of the High Court had reversed the order passed by the learned Single Judge and granted interim injunction. Reversing the order of the Division Bench of the High Court and maintaining the order of the learned Single Judge, this Court observed thus: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 : AIR 1960 SC 1156 ] : (SCR 721)... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] ...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.35. Though the learned Judges of the Division Bench of the High Court have on more than one occasion referred to the judgment of this Court in Wander Ltd. (supra), they have not even, for namesake, observed as to how the discretion exercised by the learned Single Judge was exercised arbitrarily, capriciously or perversely. In our view, having waited for 8-9 months after the learned Single Judge had passed the order, all that ought to have been done by the learned Judges of the Division Bench of the High Court was to request the learned Single Judge to decide the application for ad-interim injunction, which in fact, the learned Single Judge had scheduled to do after three weeks from 2nd April 2019. In our view, it was not even necessary for the Division Bench of the High Court to have waited till 24th December 2019 and taken the pains of deciding the application at first instance. It could have very well, in the month of April, 2019 itself, done the exercise of requesting the learned Single Judge to decide the application as scheduled.36. In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application. It is a settled principle of law that while considering the question of grant of interim injunction, the courts are required to consider the three tests of prima facie case, balance of convenience and irreparable injury. Besides a stray observation that the respondent-plaintiff has made out a prima facie case, there is no discussion as to how a prima facie case was made out by the respondent-plaintiff. In any case, insofar as the tests of balance of convenience and irreparable injury are concerned, there is not even a mention with regard to these in the impugned judgment and order of the Division Bench of the High Court. In our view, the approach of the Division Bench of the High Court was totally unwarranted and uncalled for. We refrain ourselves from using any stronger words.37. We find that it is high time that this Court should take note of frivolous appeals being filed against unappealable orders wasting precious judicial time. As it is, the courts in India are already over-burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations, must be discouraged. We therefore find that the present appeal deserves to be allowed with token costs. The respondent-plaintiff shall pay a token cost of Rs.5 lakhs to the Supreme Court Middle Income Group Legal Aid Society (MIG).
|
PAWAN KUMAR Vs. BABULAL SINCE DECEASED THROUGH LRS | purpose of investment, collector of city taxes who retains money officially collected, one who receives a note or other security for collection. In the following cases debt has been held to be not a fiduciary one: a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made.”37. We may at this stage refer to a recent decision of this Court in CBSE v. Aditya Bandopadhyay (2011) 8 SCC 497 , wherein Raveendran, J. speaking for the Court in that case explained the terms “fiduciary” and “fiduciary relationship” in the following words: (SCC pp. 524-25, para 39)“39. The term ‘fiduciary’ refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term ‘fiduciary relationship’ is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party.”It is manifest that while the expression “fiduciary capacity” may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.38. In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence or otherwise of a fiduciary relationship can be deduced in a given case. Having said that, let us turn to the facts of the present case once more to determine whether the appellant stood in a fiduciary capacity vis-à- vis the respondent-plaintiffs.”11. The factual aspects of the matter were, thereafter, considered and in paras 42 and 43 it was observed:-“42. … …That conclusion gets strengthened by the fact that the parties had made contributions towards the sale consideration paid for the acquisition of the suit property which they would not have done if the intention was to concede the property in favour of the appellant.43. … … Reposing confidence and faith in the appellant was in the facts and circumstances of the case not unusual or unnatural especially when possession over the suit property continued to be enjoyed by the plaintiffs who would in law and on a parity of reasoning be deemed to be holding the same for the benefit of the appellant as much as the appellant was holding the title to the property for the benefit of the plaintiffs.”12. It was, thus, concluded that the transaction was completely saved from the mischief of Section 4 of the Act by reason of the same falling under Sub-Section (3)(b) and that the Suit was not barred under the Act. This judgment was rightly relied upon by Mr. Abhishek Gupta, learned Advocate. On the other hand, the reliance placed by Mr. R.K. Singh on the decision in Om Prakash (1992) 1 SCC 710 , in our view, is completely misplaced. The issue there was whether prohibition under Section 4 would apply in relation to actions initiated before the coming into force of the Ordinance or not? In any event of the matter, the issue whether the provisions of the Act are retrospective has already been settled R. Rajgopal Reddy through LRs. Vs. Padmini Chandrasekharaiah through LRs. (1995) 2 SCC 630 . 13. In the present case, the controversy has arisen in an application under Order VII Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the Plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject matter of assessment at the stage when application under Order VII Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. We may quote the following observations of this Court in Popat and Kotecha Property vs. State Bank of India Staff Association (2005) 7 SCC 510 :“10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.” | 1[ds]12. It was, thus, concluded that the transaction was completely saved from the mischief of Section 4 of the Act by reason of the same falling under Sub-Section (3)(b) and that the Suit was not barred under the Act. This judgment was rightly relied upon by Mr. Abhishek Gupta, learned Advocate. On the other hand, the reliance placed by Mr. R.K. Singh on the decision in Om Prakash(1992) 1 SCC710 , in our view, is completely misplaced. The issue there was whether prohibition under Section 4 would apply in relation to actions initiated before the coming into force of the Ordinance or not? In any event of the matter, the issue whether the provisions of the Act are retrospective has already been settled R. Rajgopal Reddy through LRs. Vs. Padmini Chandrasekharaiah through LRs. (1995) 2 SCC 630 . 13. In the present case, the controversy has arisen in an application under Order VII Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the Plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject matter of assessment at the stage when application under Order VII Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. | 1 | 3,828 | 341 | ### 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:
purpose of investment, collector of city taxes who retains money officially collected, one who receives a note or other security for collection. In the following cases debt has been held to be not a fiduciary one: a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made.”37. We may at this stage refer to a recent decision of this Court in CBSE v. Aditya Bandopadhyay (2011) 8 SCC 497 , wherein Raveendran, J. speaking for the Court in that case explained the terms “fiduciary” and “fiduciary relationship” in the following words: (SCC pp. 524-25, para 39)“39. The term ‘fiduciary’ refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term ‘fiduciary relationship’ is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party.”It is manifest that while the expression “fiduciary capacity” may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.38. In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence or otherwise of a fiduciary relationship can be deduced in a given case. Having said that, let us turn to the facts of the present case once more to determine whether the appellant stood in a fiduciary capacity vis-à- vis the respondent-plaintiffs.”11. The factual aspects of the matter were, thereafter, considered and in paras 42 and 43 it was observed:-“42. … …That conclusion gets strengthened by the fact that the parties had made contributions towards the sale consideration paid for the acquisition of the suit property which they would not have done if the intention was to concede the property in favour of the appellant.43. … … Reposing confidence and faith in the appellant was in the facts and circumstances of the case not unusual or unnatural especially when possession over the suit property continued to be enjoyed by the plaintiffs who would in law and on a parity of reasoning be deemed to be holding the same for the benefit of the appellant as much as the appellant was holding the title to the property for the benefit of the plaintiffs.”12. It was, thus, concluded that the transaction was completely saved from the mischief of Section 4 of the Act by reason of the same falling under Sub-Section (3)(b) and that the Suit was not barred under the Act. This judgment was rightly relied upon by Mr. Abhishek Gupta, learned Advocate. On the other hand, the reliance placed by Mr. R.K. Singh on the decision in Om Prakash (1992) 1 SCC 710 , in our view, is completely misplaced. The issue there was whether prohibition under Section 4 would apply in relation to actions initiated before the coming into force of the Ordinance or not? In any event of the matter, the issue whether the provisions of the Act are retrospective has already been settled R. Rajgopal Reddy through LRs. Vs. Padmini Chandrasekharaiah through LRs. (1995) 2 SCC 630 . 13. In the present case, the controversy has arisen in an application under Order VII Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the Plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject matter of assessment at the stage when application under Order VII Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. We may quote the following observations of this Court in Popat and Kotecha Property vs. State Bank of India Staff Association (2005) 7 SCC 510 :“10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.”
### Response:
1
### Explanation:
12. It was, thus, concluded that the transaction was completely saved from the mischief of Section 4 of the Act by reason of the same falling under Sub-Section (3)(b) and that the Suit was not barred under the Act. This judgment was rightly relied upon by Mr. Abhishek Gupta, learned Advocate. On the other hand, the reliance placed by Mr. R.K. Singh on the decision in Om Prakash(1992) 1 SCC710 , in our view, is completely misplaced. The issue there was whether prohibition under Section 4 would apply in relation to actions initiated before the coming into force of the Ordinance or not? In any event of the matter, the issue whether the provisions of the Act are retrospective has already been settled R. Rajgopal Reddy through LRs. Vs. Padmini Chandrasekharaiah through LRs. (1995) 2 SCC 630 . 13. In the present case, the controversy has arisen in an application under Order VII Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the Plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject matter of assessment at the stage when application under Order VII Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not.
|
V. PRAKASH @ G.N.V. PRAKASH Vs. M/s. P.S. GOVINDASWAMY NAIDU & SONS’ CHARITIES REPRESENTED BY ITS MANAGING TRUSTEE & ORS | word like resides could carry multiple different connotations with reference to the time or period of its interpretation; and connotations may be different than those understood about 100 years back. When a particular word or expression in any document is to be operated and applied, all the relevant characteristics available in praesenti have to be kept in view for a meaningful and purposeful construction. Of course, that meaning should not do violence to the real intent and purpose (In the case of Directorate of Enforcement v. Deepak Mahajan: (1994) 3 SCC 440 this .... used as a mathematical symbol.). 29. In order to buttress its reasoning, the High Court has even gone to the extent of suggesting a proposition in paragraph 25 of the impugned judgment which, to say the least, does not stand to logic. The High Court has observed that if the construction of sentence or words was to be made with reference to the present-day scenario, sometime later some Judge might think that restricting the trusteeship to male member was against gender justice and it should be read to include female too. With respect, we are unable to endorse this approach. The hypothesis as suggested by the High Court is of the process of altering the term of a document. The question at hand is of assigning a logical, contextual and contemporary meaning to a particular expression. It is one thing to alter the term of a document and cannot be equated with the process of assigning a purposeful meaning to a particular expression. In the true rules of construction, the words are always assigned the meaning which stand in tandem with their context, while assuring that the assigned meaning serves the purpose. 29.1. The requirements of physical residence, with the rapid advancement of the means of communication and transport cannot be ignored particularly when the purpose of the term residence in document in question is to ensure participation in the affairs of the trust effectively, as and when required. The intent of the Trial Court in its observations had been only this much that in view of the present-day advancement, literal meaning of residence, by requiring actual physical presence every day and every moment is not correct. We have no hesitation in endorsing the views and findings of the Trial Court. The questions of res judicata and estoppel 30. After the discussion and analysis foregoing, we have arrived at a clear conclusion that the contesting respondents had been unjustified in questioning of the eligibility of plaintiff-appellant to hold the office of founder trustee with reference to his Green Card and want of permanent residence in the area in question. This had been the finding of the Trial Court which we have no hesitation in restoring, while setting aside the contra conclusion of the High Court on the merits of the principal issue involved in the matter. That being the position, the other arguments of the parties in regard to res judicata and estoppel need not even be gone into because, in our view, the result which the appellant seeks to derive from the operation of these principles has nevertheless been reached in the present case with reference to the evidence led herein. Thus, we do not propose to elaborate on the issues of estoppel and res judicata as raised by the plaintiffappellant. 31. We may, however, indicate that in our prima facie opinion, the principle of estoppel may not operate against the contesting respondents. The plaintiff-appellant seeks to invoke the principle of estoppel essentially with reference to the fact that after the judgment dated 16.04.2013 in O.S. No. 631 of 2012, he was unanimously chosen as the founder trustee on 18.04.2013. The said decision of the continuing founder trustees to induct the appellant to represent his branch was essentially pursuant to the order of the Trial Court but, ultimately the decision of the Trial Court did not sustain itself and was reversed by the High Court in its judgment dated 30.06.2014 in A.S. No. 178 of 2013. In that position, the said decision of the founder trustees to induct the appellant on 18.04.2013 could not have operated as estoppel against them. 32. However, in our prima facie opinion, what is applicable to the question of estoppel would not directly apply to the question of res judicata. The entitlement of the rival claimants to the office of founder trustee representing Shri P.S.G. Narayanaswami Naidu branch was a matter innate and interwoven with the question as raised before the High Court in A.S. No. 178 of 2013. The High Court distinctly recorded in its judgment dated 30.06.2014 that there was no dispute about qualification of the rival claimants which included the present appellant in his capacity as 10th defendant in the said matter. The present contesting respondents were indeed parties to the said proceedings and particularly the Trust was a party thereto and was duly represented by the Managing Trustee. When the question of qualification or disqualification could have been raised and was not raised by the present contesting respondents, it is difficult to say that the principles of res judicata and at any rate, those of constructive res judicata in terms of Explanation IV to Section 11 of the Code of Civil Procedure, 1908 would not apply (The said Section 11 and its Explanation IV .... directly and substantially in issue in such suit.). However, we are not elaborating on these aspects for the reason that in the present suit, the plaintiff-appellant has, in our view, categorically established the fact that he was indeed eligible and was not suffering from the alleged disqualification. Conclusion 33. Viewed from any angle, we are satisfied that the judgment of the High Court remains unsustainable. In our view, the Trial Court had rightly analysed the evidence on record and arrived at a just conclusion in upholding the claim of the appellant to the office of founder trustee in the respondent-Trust as the representative of the branch of Shri P.S.G. Narayanaswami Naidu. | 1[ds]22. Having given thoughtful consideration to the rival submissions and having examined the material placed on record, we are clearly of the view that this appeal deserves to succeed and the decree of the Trial Court deserves to be restored.23. A comprehensive look at the logic and reasoning of the High Court in the impugned judgment impels us to observe that the High Court seems to have approached the case from an altogether wrong angle and has proceeded on irrelevant considerations while ignoring the relevant factors and material considerations. The High Court seems to have picked up the residential requirement in the qualification for trusteeship in the Scheme of Administration as being of strict physical presence, de hors the context and de hors the purpose.24. The overwhelming evidence produced by the plaintiff-appellant in the form of Aadhaar Card issued by the Government of India as also his Income Tax assessments in India based on the certification of Chartered Accountant of his fulfilling the requirement of resident in terms of Section 6 of the Income Tax Act, 1961 has been taken to be of little value by the High Court after counting the number of days of the appellants stay in India and then questioning that the certificates were not showing as to for how many days he was in Madras Presidency. Even in that regard, the High Court, though referred to the decision in Mst Jagir Kaur (supra) but failed to take note of the ratio therein. The appellants ownership and possession of property in India, including residential property; having bank accounts in India; being assessed as resident for the purpose of Income Tax Act, 1961 have all been brushed aside by the High Court by mere count of number of days of stay in India. With respect, we are unable to endorse this approach.25. In paragraph 21 of the impugned judgment, the High Court has observed that the spirit of the provisions prescribing qualification ought to be respected. With respect, it appears that the High Court in the first place seems to have missed out the fundamentals on the spirit of formation of trust and its Scheme of Administration. As noticed, the trust was established in the year 1926 by the sons of Shri P.S. Govindaswamy Naidu and the trust was actually named as M/s. P.S. Govindaswamy and Sons Charity. The Scheme of Administration, while envisaging nine trustees, specifically provided for the four sons of Shri P.S. Govindaswamy as the founder trustees. Office of founder trustee has been made a heritable one with the concept of having the hereditary trustee in the line of each of the founder trustee. Until 01.01.1994, the appellants father Shri G.N. Venkatapathy remained a founder trustee after the demise of his father Shri P.S.G. Narayanaswami Naidu, one of the original founder trustees, who died in the year 1938. The hereditary trusteeship, in the spirit of Scheme of Administration, has continued in relation to the lines of other original founder trustees too as the respondent Nos. 2, 3 and 4 are respectively representing the branches of Shri P.S. Venkatapathy, Shri P. Rangaswami Naidu and Shri P.S. Ganga Naidu. Reverting to the branch of Shri P.S.G. Narayanaswami Naidu who died in the year 1938 and was substituted by his son Shri G.N. Venkatapathy, it is noticed that after the death of Shri G.N. Venkatapathy, his brother Shri V. Rajan was taken as the founder trustee to represent this branch. As noticed above, there had been internal disputes, which cropped up after resignation of Shri V. Rajan and which led to litigations and appointment of Shri Naren Rajan and later appointment of Shri V. Rajan again as founder trustee. As already noticed, with the demise of Shri Naren Rajan on 21.05.2015 and of Shri V. Rajan on 21.06.2017, it is the appellant alone who remains to be the male descendant to represent the branch of Shri P.S.G. Narayanaswami Naidu.25.1. When looking at the spirit of the Scheme of Administration of Trust, in our view, it would be a travesty of the Scheme itself if in the presence of the appellant, the representation of this branch of the founder trustee is annulled or the position is shifted to someone else. Of course, this could happen if it is established beyond doubt that the appellant has incurred one or more of the disqualifications. In this suit, no other disqualification has been alleged by the respondents against the appellant except his want of residence in Madras Presidency. This suggestion has been effectively repelled by the appellant by production of cogent evidence and with specific assertion that he was residing in India since 2010. In our view, when examining the matter from the point of view of spirit of Scheme of Administration, the concept of representation of the branch of founder trustee needs to be respected and, in that regard, claim of the descendant like the appellant cannot be lightly brushed aside by a mere count of number of days of stay in India while ignoring all other features and factors showing his choice of staying in India.25.2. As observed by this Court in Mst Jagir Kaur (supra), ultimately, the question of residence in every case depends on the facts, but the word reside usually means something more than a flying visit or a casual stay. The appellant who has continuously been in India, apart from holding property and bank accounts in India and also holding an Aadhaar Card, could least be said to be a person visiting India casually or as a transit tourist.26. The High Court has posed a question that certificates do not disclose that out of 979 days in seven years, how many days the appellant was in Madras Presidency? Again, the approach of the High Court does not commend to us. It has not been shown if the appellant had not been available in the area in question so as to effectively participate in the administration and management of the Trust. Mere holding of Green Card of the United States of America cannot be treated as decisive of the matter in the present case.27. The High Court has made adverse comments on the justified observations of the Trial Court that in view of the scientific advancements, the word reside should not be given that meaning as was understood a century back. With respect, such observations of the High Court are again, not in conformity with the principles of construction of a document.27.1. If at all the rule of literal construction is applied literally, the term in question about residing within Madras Presidency would itself be treated as redundant for the simple reason that geographically or demographically, there does not exist any location as of today which could be termed as Madras Presidency. Obviously, such an approach would be incorrect and the area that was known as Madras Presidency at the time of drafting of the document in the year 1926 and framing of the Scheme of Administration in the year 1936 would be taken note of and whatever area is now referable to the said erstwhile Madras Presidency area would be relevant; and the residence has to be with reference to the said area. The point relevant for the present purpose is that the expression Madras Presidency is not being construed in its literal sense and is construed with reference to its present meaning.27.2. Taking cue from the aforesaid, when we take up the verb reside to understand its meaning and purport with reference to the object of the document, its present day meaning and connotation cannot be lost sight of. Of course, if a person has given up his residence and has permanently settled at some other place, the question may arise about his fulfilment of the condition but, at the same time, the expression resides cannot be given a literal meaning as if a person like the plaintiff-appellant having multiple places of residence would incur disqualification for the purpose of the deed in question if not permanently located at a particular place.28. While not approving the approach of the High Court in this matter, particularly in relation to the construction of the terms of SOA, we may observe a little further. The words and expressions in the deeds or statutes are preferably provided their contextual and contemporary meaning. In this process of construction, the words and expressions are not viewed as fossil remains; rather they retain the organic character and do take their meaning from all the surroundings. For that matter, a particular word like resides could carry multiple different connotations with reference to the time or period of its interpretation; and connotations may be different than those understood about 100 years back. When a particular word or expression in any document is to be operated and applied, all the relevant characteristics available in praesenti have to be kept in view for a meaningful and purposeful construction. Of course, that meaning should not do violence to the real intent and purpose (In the case of Directorate of Enforcement v. Deepak Mahajan: (1994) 3 SCC 440 this .... used as a mathematical symbol.).29. In order to buttress its reasoning, the High Court has even gone to the extent of suggesting a proposition in paragraph 25 of the impugned judgment which, to say the least, does not stand to logic. The High Court has observed that if the construction of sentence or words was to be made with reference to the present-day scenario, sometime later some Judge might think that restricting the trusteeship to male member was against gender justice and it should be read to include female too. With respect, we are unable to endorse this approach. The hypothesis as suggested by the High Court is of the process of altering the term of a document. The question at hand is of assigning a logical, contextual and contemporary meaning to a particular expression. It is one thing to alter the term of a document and cannot be equated with the process of assigning a purposeful meaning to a particular expression. In the true rules of construction, the words are always assigned the meaning which stand in tandem with their context, while assuring that the assigned meaning serves the purpose.29.1. The requirements of physical residence, with the rapid advancement of the means of communication and transport cannot be ignored particularly when the purpose of the term residence in document in question is to ensure participation in the affairs of the trust effectively, as and when required. The intent of the Trial Court in its observations had been only this much that in view of the present-day advancement, literal meaning of residence, by requiring actual physical presence every day and every moment is not correct. We have no hesitation in endorsing the views and findings of the Trial Court.30. After the discussion and analysis foregoing, we have arrived at a clear conclusion that the contesting respondents had been unjustified in questioning of the eligibility of plaintiff-appellant to hold the office of founder trustee with reference to his Green Card and want of permanent residence in the area in question. This had been the finding of the Trial Court which we have no hesitation in restoring, while setting aside the contra conclusion of the High Court on the merits of the principal issue involved in the matter. That being the position, the other arguments of the parties in regard to res judicata and estoppel need not even be gone into because, in our view, the result which the appellant seeks to derive from the operation of these principles has nevertheless been reached in the present case with reference to the evidence led herein. Thus, we do not propose to elaborate on the issues of estoppel and res judicata as raised by the plaintiffappellant.31. We may, however, indicate that in our prima facie opinion, the principle of estoppel may not operate against the contesting respondents. The plaintiff-appellant seeks to invoke the principle of estoppel essentially with reference to the fact that after the judgment dated 16.04.2013 in O.S. No. 631 of 2012, he was unanimously chosen as the founder trustee on 18.04.2013. The said decision of the continuing founder trustees to induct the appellant to represent his branch was essentially pursuant to the order of the Trial Court but, ultimately the decision of the Trial Court did not sustain itself and was reversed by the High Court in its judgment dated 30.06.2014 in A.S. No. 178 of 2013. In that position, the said decision of the founder trustees to induct the appellant on 18.04.2013 could not have operated as estoppel against them.32. However, in our prima facie opinion, what is applicable to the question of estoppel would not directly apply to the question of res judicata. The entitlement of the rival claimants to the office of founder trustee representing Shri P.S.G. Narayanaswami Naidu branch was a matter innate and interwoven with the question as raised before the High Court in A.S. No. 178 of 2013. The High Court distinctly recorded in its judgment dated 30.06.2014 that there was no dispute about qualification of the rival claimants which included the present appellant in his capacity as 10th defendant in the said matter. The present contesting respondents were indeed parties to the said proceedings and particularly the Trust was a party thereto and was duly represented by the Managing Trustee. When the question of qualification or disqualification could have been raised and was not raised by the present contesting respondents, it is difficult to say that the principles of res judicata and at any rate, those of constructive res judicata in terms of Explanation IV to Section 11 of the Code of Civil Procedure, 1908 would not apply (The said Section 11 and its Explanation IV .... directly and substantially in issue in such suit.). However, we are not elaborating on these aspects for the reason that in the present suit, the plaintiff-appellant has, in our view, categorically established the fact that he was indeed eligible and was not suffering from the alleged disqualification.33. Viewed from any angle, we are satisfied that the judgment of the High Court remains unsustainable. In our view, the Trial Court had rightly analysed the evidence on record and arrived at a just conclusion in upholding the claim of the appellant to the office of founder trustee in the respondent-Trust as the representative of the branch of Shri P.S.G. Narayanaswami Naidu. | 1 | 13,222 | 2,614 | ### 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:
word like resides could carry multiple different connotations with reference to the time or period of its interpretation; and connotations may be different than those understood about 100 years back. When a particular word or expression in any document is to be operated and applied, all the relevant characteristics available in praesenti have to be kept in view for a meaningful and purposeful construction. Of course, that meaning should not do violence to the real intent and purpose (In the case of Directorate of Enforcement v. Deepak Mahajan: (1994) 3 SCC 440 this .... used as a mathematical symbol.). 29. In order to buttress its reasoning, the High Court has even gone to the extent of suggesting a proposition in paragraph 25 of the impugned judgment which, to say the least, does not stand to logic. The High Court has observed that if the construction of sentence or words was to be made with reference to the present-day scenario, sometime later some Judge might think that restricting the trusteeship to male member was against gender justice and it should be read to include female too. With respect, we are unable to endorse this approach. The hypothesis as suggested by the High Court is of the process of altering the term of a document. The question at hand is of assigning a logical, contextual and contemporary meaning to a particular expression. It is one thing to alter the term of a document and cannot be equated with the process of assigning a purposeful meaning to a particular expression. In the true rules of construction, the words are always assigned the meaning which stand in tandem with their context, while assuring that the assigned meaning serves the purpose. 29.1. The requirements of physical residence, with the rapid advancement of the means of communication and transport cannot be ignored particularly when the purpose of the term residence in document in question is to ensure participation in the affairs of the trust effectively, as and when required. The intent of the Trial Court in its observations had been only this much that in view of the present-day advancement, literal meaning of residence, by requiring actual physical presence every day and every moment is not correct. We have no hesitation in endorsing the views and findings of the Trial Court. The questions of res judicata and estoppel 30. After the discussion and analysis foregoing, we have arrived at a clear conclusion that the contesting respondents had been unjustified in questioning of the eligibility of plaintiff-appellant to hold the office of founder trustee with reference to his Green Card and want of permanent residence in the area in question. This had been the finding of the Trial Court which we have no hesitation in restoring, while setting aside the contra conclusion of the High Court on the merits of the principal issue involved in the matter. That being the position, the other arguments of the parties in regard to res judicata and estoppel need not even be gone into because, in our view, the result which the appellant seeks to derive from the operation of these principles has nevertheless been reached in the present case with reference to the evidence led herein. Thus, we do not propose to elaborate on the issues of estoppel and res judicata as raised by the plaintiffappellant. 31. We may, however, indicate that in our prima facie opinion, the principle of estoppel may not operate against the contesting respondents. The plaintiff-appellant seeks to invoke the principle of estoppel essentially with reference to the fact that after the judgment dated 16.04.2013 in O.S. No. 631 of 2012, he was unanimously chosen as the founder trustee on 18.04.2013. The said decision of the continuing founder trustees to induct the appellant to represent his branch was essentially pursuant to the order of the Trial Court but, ultimately the decision of the Trial Court did not sustain itself and was reversed by the High Court in its judgment dated 30.06.2014 in A.S. No. 178 of 2013. In that position, the said decision of the founder trustees to induct the appellant on 18.04.2013 could not have operated as estoppel against them. 32. However, in our prima facie opinion, what is applicable to the question of estoppel would not directly apply to the question of res judicata. The entitlement of the rival claimants to the office of founder trustee representing Shri P.S.G. Narayanaswami Naidu branch was a matter innate and interwoven with the question as raised before the High Court in A.S. No. 178 of 2013. The High Court distinctly recorded in its judgment dated 30.06.2014 that there was no dispute about qualification of the rival claimants which included the present appellant in his capacity as 10th defendant in the said matter. The present contesting respondents were indeed parties to the said proceedings and particularly the Trust was a party thereto and was duly represented by the Managing Trustee. When the question of qualification or disqualification could have been raised and was not raised by the present contesting respondents, it is difficult to say that the principles of res judicata and at any rate, those of constructive res judicata in terms of Explanation IV to Section 11 of the Code of Civil Procedure, 1908 would not apply (The said Section 11 and its Explanation IV .... directly and substantially in issue in such suit.). However, we are not elaborating on these aspects for the reason that in the present suit, the plaintiff-appellant has, in our view, categorically established the fact that he was indeed eligible and was not suffering from the alleged disqualification. Conclusion 33. Viewed from any angle, we are satisfied that the judgment of the High Court remains unsustainable. In our view, the Trial Court had rightly analysed the evidence on record and arrived at a just conclusion in upholding the claim of the appellant to the office of founder trustee in the respondent-Trust as the representative of the branch of Shri P.S.G. Narayanaswami Naidu.
### Response:
1
### Explanation:
do take their meaning from all the surroundings. For that matter, a particular word like resides could carry multiple different connotations with reference to the time or period of its interpretation; and connotations may be different than those understood about 100 years back. When a particular word or expression in any document is to be operated and applied, all the relevant characteristics available in praesenti have to be kept in view for a meaningful and purposeful construction. Of course, that meaning should not do violence to the real intent and purpose (In the case of Directorate of Enforcement v. Deepak Mahajan: (1994) 3 SCC 440 this .... used as a mathematical symbol.).29. In order to buttress its reasoning, the High Court has even gone to the extent of suggesting a proposition in paragraph 25 of the impugned judgment which, to say the least, does not stand to logic. The High Court has observed that if the construction of sentence or words was to be made with reference to the present-day scenario, sometime later some Judge might think that restricting the trusteeship to male member was against gender justice and it should be read to include female too. With respect, we are unable to endorse this approach. The hypothesis as suggested by the High Court is of the process of altering the term of a document. The question at hand is of assigning a logical, contextual and contemporary meaning to a particular expression. It is one thing to alter the term of a document and cannot be equated with the process of assigning a purposeful meaning to a particular expression. In the true rules of construction, the words are always assigned the meaning which stand in tandem with their context, while assuring that the assigned meaning serves the purpose.29.1. The requirements of physical residence, with the rapid advancement of the means of communication and transport cannot be ignored particularly when the purpose of the term residence in document in question is to ensure participation in the affairs of the trust effectively, as and when required. The intent of the Trial Court in its observations had been only this much that in view of the present-day advancement, literal meaning of residence, by requiring actual physical presence every day and every moment is not correct. We have no hesitation in endorsing the views and findings of the Trial Court.30. After the discussion and analysis foregoing, we have arrived at a clear conclusion that the contesting respondents had been unjustified in questioning of the eligibility of plaintiff-appellant to hold the office of founder trustee with reference to his Green Card and want of permanent residence in the area in question. This had been the finding of the Trial Court which we have no hesitation in restoring, while setting aside the contra conclusion of the High Court on the merits of the principal issue involved in the matter. That being the position, the other arguments of the parties in regard to res judicata and estoppel need not even be gone into because, in our view, the result which the appellant seeks to derive from the operation of these principles has nevertheless been reached in the present case with reference to the evidence led herein. Thus, we do not propose to elaborate on the issues of estoppel and res judicata as raised by the plaintiffappellant.31. We may, however, indicate that in our prima facie opinion, the principle of estoppel may not operate against the contesting respondents. The plaintiff-appellant seeks to invoke the principle of estoppel essentially with reference to the fact that after the judgment dated 16.04.2013 in O.S. No. 631 of 2012, he was unanimously chosen as the founder trustee on 18.04.2013. The said decision of the continuing founder trustees to induct the appellant to represent his branch was essentially pursuant to the order of the Trial Court but, ultimately the decision of the Trial Court did not sustain itself and was reversed by the High Court in its judgment dated 30.06.2014 in A.S. No. 178 of 2013. In that position, the said decision of the founder trustees to induct the appellant on 18.04.2013 could not have operated as estoppel against them.32. However, in our prima facie opinion, what is applicable to the question of estoppel would not directly apply to the question of res judicata. The entitlement of the rival claimants to the office of founder trustee representing Shri P.S.G. Narayanaswami Naidu branch was a matter innate and interwoven with the question as raised before the High Court in A.S. No. 178 of 2013. The High Court distinctly recorded in its judgment dated 30.06.2014 that there was no dispute about qualification of the rival claimants which included the present appellant in his capacity as 10th defendant in the said matter. The present contesting respondents were indeed parties to the said proceedings and particularly the Trust was a party thereto and was duly represented by the Managing Trustee. When the question of qualification or disqualification could have been raised and was not raised by the present contesting respondents, it is difficult to say that the principles of res judicata and at any rate, those of constructive res judicata in terms of Explanation IV to Section 11 of the Code of Civil Procedure, 1908 would not apply (The said Section 11 and its Explanation IV .... directly and substantially in issue in such suit.). However, we are not elaborating on these aspects for the reason that in the present suit, the plaintiff-appellant has, in our view, categorically established the fact that he was indeed eligible and was not suffering from the alleged disqualification.33. Viewed from any angle, we are satisfied that the judgment of the High Court remains unsustainable. In our view, the Trial Court had rightly analysed the evidence on record and arrived at a just conclusion in upholding the claim of the appellant to the office of founder trustee in the respondent-Trust as the representative of the branch of Shri P.S.G. Narayanaswami Naidu.
|
Workmen Of Shri Bajrang Jute Mills Ltd Vs. Employers Of Shri Bajrang Jute Mills Ltd | due weight to its recommendations as such recommendations would have been in conformity with the principle of industry-cum-region, a principle binding the tribunals. It would be difficult in that event for any unit in the industry in that region to propound a grievance that its capacity to pay was not taken into account as the scales so framed would have been determined after taking into consideration scales prevailing in comparable units, whether in that industry or other industries in that region depending on whether in a particular area the accent was on the industry part or the region part of the principle of industry-cum-region. The Board, therefore, ought to have selected comparable units each of the regions where the jute mills are situate and after their examination arrive at common wage-scales for each of those regions instead of grouping together 20 mills from West Bengal and 9 mills from the other region and treating them as constituting a cross-section representing the industry.The position in which a Tribunal called upon to fix wage-scales would be placed would not be an enviable one for it would find itself in an embarrassing situation where it had either to accept the wage-scales fixed by the Board though they were fixed in contravention of the principle of industry-cum-region, or discard them and proceed to fix them on its own on the principle of industry-cum-region, a principle which, as the industrial law stands today, it is bound to follow.43. We have already pointed out that the Wage Board has taken the view that the wage level in the entire jute industry should be uniform throughout the country. It has also stated that the wage structure for the jute industry in West Bengal has to be devised having regard to the pattern of wage-structure existing in the cotton textile industry in that area. It is on this basis, and after comparison of the wage structure prevailing in the cotton textile industry in that area, that the Wage Board has come to the conclusion that the minimum monthly emoluments of a workers in West Bengal must be fixed at Rs. 81/- taking in the basic wages the Wage Board increment and the variable dearness allowance. The standardised basic wages enumerated in Appendix XI has been made applicable to all the jute mills outside West Bengal also, including the respondent mill. We have already referred to the recommendation of the Wage Board in para 7.65 (c) that the respondent jute mill should adopt the standardised basic wages fixed in Appendix XI, in a phased manner. Over and above that basic wage, the Wage Board has given an increase of Rs. 8.33 per month, as Wage Board increment and a variable dearness allowance of Rs. 32.50 per month. Though it had been pressed by the jute mills outside West Bengal, that they had to pay higher freight charges on coal, batching oil etc., and that mill stores and electricity charges were higher from them, the Wage Board insisted that the wage level in the jute industry should be uniform throughout the country. The result of the Wage Boards recommendations, if they are to be given effect to by the respondent mill, will be that as against the minimum monthly wage of Rs. 52.17 that was being paid by the respondent there is a very sharp rise in its wage bill. The claim of the respondent that the recurring expenditure for implementation of the recommendation of the Wage Board is over Rs. 3,75,000/- and that it has not the financial capacity to bear this burden, has been accepted by the Industrial Tribunal and that finding has not been challenged before us by the appellant. The respondent mill, which has only 120 looms, has been compared with the two big mills in Andhra Pradesh, viz., Nellimarla and Chitavalsa, having 326 and 500 looms respectively, as also with very large mills in West Bengal, some of whose loom capacity is more than 2000. That clearly shows that all mills, small as well as large, economic a well as uneconomic, have been clubbed together and treated alike by the Wage Board. In considering the capacity, the Wage Board has taken 20 jute mills in West Bengal as representing a fair cross-section of the industry in that region and it has taken 9 reporting mills outside West Bengal for this purpose. Three mills selected in Andhra Pradesh were the Nellimarla, Chitavalsa and the respondent mills. We have already shown the large disparity that exists between the mills in West Bengal as also between the Nellimarla and Chitavalsa and the respondent mill. We have also referred to the decisions of this Court that to compare wage scale comparable establishments in the region should be taken into account and that a small struggling concern should not be compared with a large, flourishing one. But this is exactly what has happened, when the Wage Board treated alike the respondent mill not only with Nellimarla and Chitavalsa jute mills but also with some of the very big and prosperous mills in West Bengal.44. The various aspects, dealt with above, establish that the essential pre-requisite of deciding the wage structure, viz.,to consider the capacity of the industry to pay on the principles laid down by this Court, is absent in the recommendations of the Wage Board and that mendations of the Wage Board and that introduces a fatal infirmity in its decision.45. The question of bonus does not arise for our consideration as the respondent has stated that the management has entered into a settlement with its workmen and that they will be entitled for bonus only if the net profits exceed Rs. 75,000/-. It has further been stated that there is no available surplus to warrant the payment of bonus. These statements have not been controverted on behalf of the appellant.46. To conclude, the award of the Industrial Tribunal that the demand of the workmen for implementation of the recommendations of the Wage Board is not justified, is correct. | 0[ds]The reasons for the heavy concentration in West Bengal of jutemills are stated to be factors like abundant supply of raw material, proximity of coal fields in Ranigunge, navigability of the Hooghly and the availability of the required type of labour in the neighbourhood. So far as jute mills at other places in India are concerned, in para 3.6 of the Report it is stated that small jutem ills have come up in other States, including Andhra Pradesh, but the total loomage of all such mills outside West Bengal is only 3,242 looms, and the mills are distributed in various places.Having decided that the wage level in the Jute Industry should be uniform throughout the country, the Wage Board, in para 7.52 decides that the total minimum wage in West Bengal should be fixed at Rs. 81/- per month, consisting of (i) basic wage; (ii) Wage Board increment; and (iii) variable dearness allowance. The Wage Board further, in para 7.56, states that in addition to basis wages, all categories of workers should be paid an increase of Rs. 8.33 per month inclusive of interim relief of Rs. 3.42 already granted by it and accepted by the Central Government. This increment of Rs. 8.33 per month is desired to be shown as a separate item under the heading Wage Board increment in the case of all categories of workers and that increment should be treated as part of the basic wages for all purposes like bonus, provident fund etc.On the basis of these calculations, in para 7.58 the Wage Board fixes the total monthly minimum wage payable at Rs. 81/- comprised of (a) Rs. 40.17 basic wage; (b) Rs. 8.33 Wage Board increment; and (c) Rs. 32.50 being variable dearness allowance. In para 7.59, the Wage Board states that the standardised basic wages of various categories of workers of a jute mill for a month of 26 days or 208 hours are enumerated in Appendix XI to the Report.31. When considering the wage structure for the mills outside West Bengal, in para 7.65 (a) the Wage Board states that the basic wages of all categories of workers in the jute mills mentioned by it, outside West Bengal, which includes the respondent mill, should be the same as those in jute mills in West Bengal mentioned in Appendix XI. Therefore, it is clear that the minimum basic wage fixed for the mills in West Bengal has been applied to all the mills outside West Bengal, including the respondent. But so far as the respondent mill is concerned, the Wage Board, in the same paragraph, gives a direction that the standardised basic wages mentioned in Appendix XI of the Report is to be adopted in a phased manner as follows :During the first 24 months from the date on which the recommendations of the Board will be effective Basic wages of all categories of workers should be 20 per cent less than the standardised wages shown in Appendix XI. During the next 12 months Basic wages of all categories of workers should be 10 per cent less than the standardised wages shown in Appendix XI. During the next 12 months Basic wages of all categories of workers should be 5 per cent less than standardised wages shown in Appendix XI ThereafterBasic wages of all categories of workers should be the same as standardised wages shown in Appendix XI. 32. In paragraph 7.66 the Wage Board directs that all categories of workers in jute mils situated outside West Bengal should also be paid the Wage Board increment of Rs. 8.33 per month, inclusive of interim relief of Rs. 3.42 already granted.We have fairly exhaustively dealt with the various matters considered by the Wage Board in its Report. It is no doubt true that the Wage Board has gone elaborately in the matter of fixing of the wage structure in the jute industry. We have earlier referred to the various principles laid down by this Court which should govern the fixing of wages and dearness allowance. The Board itself states that it was fixing a fair wage for thethe various matters dealt with by the Wage Board and the manner of approach made by it as referred to above, we are satisfied that no attempt has been made by the Wage Board to divide the industry into classes.It is also clear that no cross-section of such classes has been taken for investigation to decide what burden the units in each class can bear.38. The approach of the Wage Board to determine uniform wage scales for the entire industry must suffer from an inherent weakness. Conditions, such as easy access to raw materials, transport, nearness of markets for disposal of the manufactured product, availability of labour, the type of market whether within or outside the country for which the manufactured articles are intended and diverse other factors must vary from region to region. Likewise, economic conditions affecting the consumer prices must and do differ as is well known, from region to region, depending largely upon whether a particular region is self-sufficient or not in the elemental needs of its citizens and these in turn are bound to affect living standards. It would therefore be too artificial and unrealistic an approach to be oblivious of these differences and to attempt to group together all establishments and factories and device common wage-scales applicable to all of them disregarding the peculiar features of the industry in a particular region. Favourable conditions prevailing in one region would place industrial concerns there in a position better than those in other regions where such conditions do not occur. Similarly, in regions where consumer prices are lower, labour would be better off than in the rest of the regions where the living index is higher; yet, the wage scales would be the same in all the regions. Uniformity of wage-scales, irrespective of differences in conditions would place both the employees and the employers in regions where such favourable conditions prevail in an unfairly advantageous position over the employees and employers in the other regions. Instead of attaining harmony there would as a result arise inevitably a feeling of discrimination. Though, as stated by this Court in Express Newspapers Case, 1959 SCR 12 = (AIR 1958 SC 578 ), it may not be possible or even necessary for a Wage Board to scrutinise all the establishments separately and it would be enough to take a representative cross-section of the industry for assessment, the cross-section to be a truly representative one and capable of giving a true picture of the conditions of both the industry and labour must be one from each region where establishments of the industry in question are situate.Another difficulty in accepting the Wage Boards recommendations arises from the fact that the Board equated the cotton textile industry in West Bengal with the jute industry there and finding the wage-scales in the jute industry lower than those in the cotton textile industry the Board raised the scales in the jute industry so as to bring them to the level of the cotton textile industry. Having so done, the next step which the Wage Board took was to raise also the wage-scales in mills outside West Bengal to bring them in line with the scales proposed by it for the mills in West Bengal. This process gave rise to two infirmities : (i) that the Board treated cotton textile concerns in West Bengal as comparable to those in jute industry; and (ii) it treated the jute mills in West Bengal as comparable to those outside, although conditions in the different regions where they were situate were obviously different. This meant that the Board gave a go-by to the well established principle of industry-cum-region consistently applied by Industrial Tribunals whenever wage-scales had to be determined.41. Such a disharmony in the approach to the problem of determination of wages scales by a Wage Board on the one hand and an Industrial Tribunal on the other must inevitably occur because whereas the attempt of a Board would be to uniformise wage scales for the entire industry, though it is spread over different parts of the country where conditions can rarely be expected to be similar or the same, the concern of a Tribunal would principally be to determine equitably the wage scales of a single unit with which it is for the time being concerned. The difficulty would be all the more felt by such a Tribunal where it is faced with the dilemma whether or not it should follow the Boards recommendations arrived at on principles different from (as in the present case) those consistently followed in industrial adjudication. One should have thought that this difficulty would have been realised before the recommendations of the Wage Board were accepted by Government.42. The difficulty referred to above arising from the difference in the functions of the two bodies could well have been obviated if the Wage Board instead of laying down uniform scales for the entire industry, irrespective of where its several units were situate and of the different conditions prevailing in various areas, had considered the units in each area separately and determined the wage-scales for each such area by taking from that area a representative cross-section of the industry where possible or where that was not possible by taking comparable units from other industries within that area, thus following the principle of industry-cum-region. It is true that in doing so uniformity of wage-scales for the entire industry would not have been attained. But in a vast country like ours, where conditions differ often radically from region to region and even the index of living differs within a fairly wide range, such a target cannot always be just or equitable. If the wage-scales had been determined by the Board in the manner aforesaid, even though the Board is not a statutory body and consequently its decisions are of a recommendatory character, it would be possible for industrial tribunals to give due weight to its recommendations as such recommendations would have been in conformity with the principle of industry-cum-region, a principle binding the tribunals. It would be difficult in that event for any unit in the industry in that region to propound a grievance that its capacity to pay was not taken into account as the scales so framed would have been determined after taking into consideration scales prevailing in comparable units, whether in that industry or other industries in that region depending on whether in a particular area the accent was on the industry part or the region part of the principle of industry-cum-region. The Board, therefore, ought to have selected comparable units each of the regions where the jute mills are situate and after their examination arrive at common wage-scales for each of those regions instead of grouping together 20 mills from West Bengal and 9 mills from the other region and treating them as constituting a cross-section representing the industry.The position in which a Tribunal called upon to fix wage-scales would be placed would not be an enviable one for it would find itself in an embarrassing situation where it had either to accept the wage-scales fixed by the Board though they were fixed in contravention of the principle of industry-cum-region, or discard them and proceed to fix them on its own on the principle of industry-cum-region, a principle which, as the industrial law stands today, it is bound to follow.43. We have already pointed out that the Wage Board has taken the view that the wage level in the entire jute industry should be uniform throughout the country. It has also stated that the wage structure for the jute industry in West Bengal has to be devised having regard to the pattern of wage-structure existing in the cotton textile industry in that area. It is on this basis, and after comparison of the wage structure prevailing in the cotton textile industry in that area, that the Wage Board has come to the conclusion that the minimum monthly emoluments of a workers in West Bengal must be fixed at Rs. 81/- taking in the basic wages the Wage Board increment and the variable dearness allowance. The standardised basic wages enumerated in Appendix XI has been made applicable to all the jute mills outside West Bengal also, including the respondent mill. We have already referred to the recommendation of the Wage Board in para 7.65 (c) that the respondent jute mill should adopt the standardised basic wages fixed in Appendix XI, in a phased manner. Over and above that basic wage, the Wage Board has given an increase of Rs. 8.33 per month, as Wage Board increment and a variable dearness allowance of Rs. 32.50 per month. Though it had been pressed by the jute mills outside West Bengal, that they had to pay higher freight charges on coal, batching oil etc., and that mill stores and electricity charges were higher from them, the Wage Board insisted that the wage level in the jute industry should be uniform throughout the country. The result of the Wage Boards recommendations, if they are to be given effect to by the respondent mill, will be that as against the minimum monthly wage of Rs. 52.17 that was being paid by the respondent there is a very sharp rise in its wage bill. The claim of the respondent that the recurring expenditure for implementation of the recommendation of the Wage Board is over Rs. 3,75,000/- and that it has not the financial capacity to bear this burden, has been accepted by the Industrial Tribunal and that finding has not been challenged before us by the appellant. The respondent mill, which has only 120 looms, has been compared with the two big mills in Andhra Pradesh, viz., Nellimarla and Chitavalsa, having 326 and 500 looms respectively, as also with very large mills in West Bengal, some of whose loom capacity is more than 2000. That clearly shows that all mills, small as well as large, economic a well as uneconomic, have been clubbed together and treated alike by the Wage Board. In considering the capacity, the Wage Board has taken 20 jute mills in West Bengal as representing a fair cross-section of the industry in that region and it has taken 9 reporting mills outside West Bengal for this purpose. Three mills selected in Andhra Pradesh were the Nellimarla, Chitavalsa and the respondent mills. We have already shown the large disparity that exists between the mills in West Bengal as also between the Nellimarla and Chitavalsa and the respondent mill. We have also referred to the decisions of this Court that to compare wage scale comparable establishments in the region should be taken into account and that a small struggling concern should not be compared with a large, flourishing one. But this is exactly what has happened, when the Wage Board treated alike the respondent mill not only with Nellimarla and Chitavalsa jute mills but also with some of the very big and prosperous mills in West Bengal.44. The various aspects, dealt with above, establish that the essential pre-requisite of deciding the wage structure, viz.,to consider the capacity of the industry to pay on the principles laid down by this Court, is absent in the recommendations of the Wage Board and that mendations of the Wage Board and that introduces a fatal infirmity in its decision.45. The question of bonus does not arise for our consideration as the respondent has stated that the management has entered into a settlement with its workmen and that they will be entitled for bonus only if the net profits exceed Rs. 75,000/-. It has further been stated that there is no available surplus to warrant the payment of bonus. These statements have not been controverted on behalf of the appellant.46. To conclude, the award of the Industrial Tribunal that the demand of the workmen for implementation of the recommendations of the Wage Board is not justified, is correct. | 0 | 9,287 | 2,869 | ### 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:
due weight to its recommendations as such recommendations would have been in conformity with the principle of industry-cum-region, a principle binding the tribunals. It would be difficult in that event for any unit in the industry in that region to propound a grievance that its capacity to pay was not taken into account as the scales so framed would have been determined after taking into consideration scales prevailing in comparable units, whether in that industry or other industries in that region depending on whether in a particular area the accent was on the industry part or the region part of the principle of industry-cum-region. The Board, therefore, ought to have selected comparable units each of the regions where the jute mills are situate and after their examination arrive at common wage-scales for each of those regions instead of grouping together 20 mills from West Bengal and 9 mills from the other region and treating them as constituting a cross-section representing the industry.The position in which a Tribunal called upon to fix wage-scales would be placed would not be an enviable one for it would find itself in an embarrassing situation where it had either to accept the wage-scales fixed by the Board though they were fixed in contravention of the principle of industry-cum-region, or discard them and proceed to fix them on its own on the principle of industry-cum-region, a principle which, as the industrial law stands today, it is bound to follow.43. We have already pointed out that the Wage Board has taken the view that the wage level in the entire jute industry should be uniform throughout the country. It has also stated that the wage structure for the jute industry in West Bengal has to be devised having regard to the pattern of wage-structure existing in the cotton textile industry in that area. It is on this basis, and after comparison of the wage structure prevailing in the cotton textile industry in that area, that the Wage Board has come to the conclusion that the minimum monthly emoluments of a workers in West Bengal must be fixed at Rs. 81/- taking in the basic wages the Wage Board increment and the variable dearness allowance. The standardised basic wages enumerated in Appendix XI has been made applicable to all the jute mills outside West Bengal also, including the respondent mill. We have already referred to the recommendation of the Wage Board in para 7.65 (c) that the respondent jute mill should adopt the standardised basic wages fixed in Appendix XI, in a phased manner. Over and above that basic wage, the Wage Board has given an increase of Rs. 8.33 per month, as Wage Board increment and a variable dearness allowance of Rs. 32.50 per month. Though it had been pressed by the jute mills outside West Bengal, that they had to pay higher freight charges on coal, batching oil etc., and that mill stores and electricity charges were higher from them, the Wage Board insisted that the wage level in the jute industry should be uniform throughout the country. The result of the Wage Boards recommendations, if they are to be given effect to by the respondent mill, will be that as against the minimum monthly wage of Rs. 52.17 that was being paid by the respondent there is a very sharp rise in its wage bill. The claim of the respondent that the recurring expenditure for implementation of the recommendation of the Wage Board is over Rs. 3,75,000/- and that it has not the financial capacity to bear this burden, has been accepted by the Industrial Tribunal and that finding has not been challenged before us by the appellant. The respondent mill, which has only 120 looms, has been compared with the two big mills in Andhra Pradesh, viz., Nellimarla and Chitavalsa, having 326 and 500 looms respectively, as also with very large mills in West Bengal, some of whose loom capacity is more than 2000. That clearly shows that all mills, small as well as large, economic a well as uneconomic, have been clubbed together and treated alike by the Wage Board. In considering the capacity, the Wage Board has taken 20 jute mills in West Bengal as representing a fair cross-section of the industry in that region and it has taken 9 reporting mills outside West Bengal for this purpose. Three mills selected in Andhra Pradesh were the Nellimarla, Chitavalsa and the respondent mills. We have already shown the large disparity that exists between the mills in West Bengal as also between the Nellimarla and Chitavalsa and the respondent mill. We have also referred to the decisions of this Court that to compare wage scale comparable establishments in the region should be taken into account and that a small struggling concern should not be compared with a large, flourishing one. But this is exactly what has happened, when the Wage Board treated alike the respondent mill not only with Nellimarla and Chitavalsa jute mills but also with some of the very big and prosperous mills in West Bengal.44. The various aspects, dealt with above, establish that the essential pre-requisite of deciding the wage structure, viz.,to consider the capacity of the industry to pay on the principles laid down by this Court, is absent in the recommendations of the Wage Board and that mendations of the Wage Board and that introduces a fatal infirmity in its decision.45. The question of bonus does not arise for our consideration as the respondent has stated that the management has entered into a settlement with its workmen and that they will be entitled for bonus only if the net profits exceed Rs. 75,000/-. It has further been stated that there is no available surplus to warrant the payment of bonus. These statements have not been controverted on behalf of the appellant.46. To conclude, the award of the Industrial Tribunal that the demand of the workmen for implementation of the recommendations of the Wage Board is not justified, is correct.
### Response:
0
### Explanation:
due weight to its recommendations as such recommendations would have been in conformity with the principle of industry-cum-region, a principle binding the tribunals. It would be difficult in that event for any unit in the industry in that region to propound a grievance that its capacity to pay was not taken into account as the scales so framed would have been determined after taking into consideration scales prevailing in comparable units, whether in that industry or other industries in that region depending on whether in a particular area the accent was on the industry part or the region part of the principle of industry-cum-region. The Board, therefore, ought to have selected comparable units each of the regions where the jute mills are situate and after their examination arrive at common wage-scales for each of those regions instead of grouping together 20 mills from West Bengal and 9 mills from the other region and treating them as constituting a cross-section representing the industry.The position in which a Tribunal called upon to fix wage-scales would be placed would not be an enviable one for it would find itself in an embarrassing situation where it had either to accept the wage-scales fixed by the Board though they were fixed in contravention of the principle of industry-cum-region, or discard them and proceed to fix them on its own on the principle of industry-cum-region, a principle which, as the industrial law stands today, it is bound to follow.43. We have already pointed out that the Wage Board has taken the view that the wage level in the entire jute industry should be uniform throughout the country. It has also stated that the wage structure for the jute industry in West Bengal has to be devised having regard to the pattern of wage-structure existing in the cotton textile industry in that area. It is on this basis, and after comparison of the wage structure prevailing in the cotton textile industry in that area, that the Wage Board has come to the conclusion that the minimum monthly emoluments of a workers in West Bengal must be fixed at Rs. 81/- taking in the basic wages the Wage Board increment and the variable dearness allowance. The standardised basic wages enumerated in Appendix XI has been made applicable to all the jute mills outside West Bengal also, including the respondent mill. We have already referred to the recommendation of the Wage Board in para 7.65 (c) that the respondent jute mill should adopt the standardised basic wages fixed in Appendix XI, in a phased manner. Over and above that basic wage, the Wage Board has given an increase of Rs. 8.33 per month, as Wage Board increment and a variable dearness allowance of Rs. 32.50 per month. Though it had been pressed by the jute mills outside West Bengal, that they had to pay higher freight charges on coal, batching oil etc., and that mill stores and electricity charges were higher from them, the Wage Board insisted that the wage level in the jute industry should be uniform throughout the country. The result of the Wage Boards recommendations, if they are to be given effect to by the respondent mill, will be that as against the minimum monthly wage of Rs. 52.17 that was being paid by the respondent there is a very sharp rise in its wage bill. The claim of the respondent that the recurring expenditure for implementation of the recommendation of the Wage Board is over Rs. 3,75,000/- and that it has not the financial capacity to bear this burden, has been accepted by the Industrial Tribunal and that finding has not been challenged before us by the appellant. The respondent mill, which has only 120 looms, has been compared with the two big mills in Andhra Pradesh, viz., Nellimarla and Chitavalsa, having 326 and 500 looms respectively, as also with very large mills in West Bengal, some of whose loom capacity is more than 2000. That clearly shows that all mills, small as well as large, economic a well as uneconomic, have been clubbed together and treated alike by the Wage Board. In considering the capacity, the Wage Board has taken 20 jute mills in West Bengal as representing a fair cross-section of the industry in that region and it has taken 9 reporting mills outside West Bengal for this purpose. Three mills selected in Andhra Pradesh were the Nellimarla, Chitavalsa and the respondent mills. We have already shown the large disparity that exists between the mills in West Bengal as also between the Nellimarla and Chitavalsa and the respondent mill. We have also referred to the decisions of this Court that to compare wage scale comparable establishments in the region should be taken into account and that a small struggling concern should not be compared with a large, flourishing one. But this is exactly what has happened, when the Wage Board treated alike the respondent mill not only with Nellimarla and Chitavalsa jute mills but also with some of the very big and prosperous mills in West Bengal.44. The various aspects, dealt with above, establish that the essential pre-requisite of deciding the wage structure, viz.,to consider the capacity of the industry to pay on the principles laid down by this Court, is absent in the recommendations of the Wage Board and that mendations of the Wage Board and that introduces a fatal infirmity in its decision.45. The question of bonus does not arise for our consideration as the respondent has stated that the management has entered into a settlement with its workmen and that they will be entitled for bonus only if the net profits exceed Rs. 75,000/-. It has further been stated that there is no available surplus to warrant the payment of bonus. These statements have not been controverted on behalf of the appellant.46. To conclude, the award of the Industrial Tribunal that the demand of the workmen for implementation of the recommendations of the Wage Board is not justified, is correct.
|
Principal, Guntur Medical College, Guntur Vs. Y.Mohan Rao | even this requirement that a candidate in order to be eligible for a reserved seat should be a member of a Scheduled Caste by birth went beyond the provision in cl. (3) of the Constitution (Scheduled Castes order. 1950 and was rightly condemned as void and no reliance was placed upon it on behalf of the State.The principal argument advanced on be half of the State was that when the respondent was converted to Hinduism, he did not automatically become a member of the Madiga caste, out it was open to the members of the Madiga caste to accept him within their fold and it was only if he was so accepted, that he could claim to have become a member of the Madiga caste. There was no evidence in the present case, contended the State, showing that the respondent, on his conversion to Hinduism, was accepted as a member of the Madiga caste by the other members of that caste and, therefore, he was not at the time of his application for admission a member of a Scheduled caste 5. Now, before we proceed to consider this contention, it is necessary to point out that there is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity, he loses his membership of the caste. This question has been considered by this Court in C. M. Arumugam v. S. Rajgopal and it has been pointed out there that ordinarily it is true that on conversion to Christianity, a person would cease to be a member of the caste to which he belongs, but that is not an invariable rule. It would depend on the structure of the caste and its rules and regulations. There are some castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and Christians. Whether Madiga is a caste which falls within this category is a debatable question. The contention of the respondent in his writ petition was that mere are both Hindus and Christians in Madiga caste and even after conversion to Christianity, his parents continued to belong to Madiga caste and he was, therefore, a member of Madiga caste right from the time of his birth. It is not necessary for the purpose of the present appeal to decide this question. We may assume that, on conversion to Christianity, the parents of the respondent lost their membership of Madiga caste and that the respondent was, therefore, not a Madiga by birth. The question is: could the respondent become a member of Madiga caste on conversion to Hindusim ? That is a question on which considerable light is thrown by the decision of this Court in C. M. Arumugam v. S. Rajgopal (supra).The main question which arose for decision in C. M. Arumugamr v. S. Rajgopal (supra) was whether S. Raigopal, who belonged to Adi Dravida caste before his conversion to Christianity, could, on reconversion to Hinduism once again become a member of the Adi Dravida caste. This Court, after examining the question on principle and referring to the decided cases, pointed out that the consistent view taken in this country since 1886 was that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. This Court observe d that there was no reason, either on principle or on authority, which should compel it to disregard this view which has prevailed for almost a century and lay down a different rule on the subject and concluded that on reconversion to Hinduism , S. Rajgopal could once again revert to his Adi Dravida caste, for he was accepted by the other members of the caste. 6. The reasoning on which this decision proceeded is equally applicable in a case where the parents of a person are converted from Hinduism to Christianity and he is born after their conversion and on his subsequently embracing Hinduism, the members of the caste to which the parents belonged prior to their conversion accept him as a member within the fold. It is for the members of the caste to decide whether or not to admit a person within the caste. Since the caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member. The only requirement for admission of a person as a member of the caste is the acceptance of the person by the other members of the caste, for, as pointed out by Krishnaswami Ayyangar, J., in Durgaprasada Rao v. Sudarsanaswami, "in matters affecting the well being or composition of a caste, the caste itself is the supreme judge". (emphasis supplied). It will, therefore, be seen that on conversion to Hinduism, a person born of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such member, if the other members of the caste accept him as a member and admit him within the fold.This view would have ordinarily required us to find whether, on the material on record, it could be said to have been established by the respondent that, on conversion to Hinduism, he was accepted as a member of Madiga caste by the other members of that caste, for it is only if he was so accepted that he could claim to be a member of a Scheduled Caste. But it is not necessary for us to undertake this inquiry because, as already pointed out, it has been agreed by the State that, whatever be the result of this appeal, the admission of the respondent will not be disturbed. 7. | 0[ds]But by reason of c]. (3), a person belonging to Madiga caste would not be deemed to be a member of a Scheduled Caste unless he professes Hindu or Sikh religion at the relevant time. It is not necessary that he should have been born a Hindu or a Sikh. The only thing required is that he should at the material time be professing Hindu or Sikh religionThis interpretation was plainly erroneous because what Not e (b) required was not that a candidate should be a Hindu by birth but that he should belong to a Scheduled Caste by birth. But even this requirement that a candidate in order to be eligible for a reserved seat should be a member of a Scheduled Caste by birth went beyond the provision in cl. (3) of the Constitution (Scheduled Castes order. 1950 and was rightly condemned as void and no reliance was placed upon it on behalf of the StateThere was no evidence in the present case, contended the State, showing that the respondent, on his conversion to Hinduism, was accepted as a member of the Madiga caste by the other members of that caste and, therefore, he was not at the time of his application for admission a member of a Scheduled casteThe reasoning on which this decision proceeded is equally applicable in a case where the parents of a person are converted from Hinduism to Christianity and he is born after their conversion and on his subsequently embracing Hinduism, the members of the caste to which the parents belonged prior to their conversion accept him as a member within the fold. It is for the members of the caste to decide whether or not to admit a person within the caste. Since the caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member. The only requirement for admission of a person as a member of the caste is the acceptance of the person by the other members of the caste, for, as pointed out by Krishnaswami Ayyangar, J., in Durgaprasada Rao v. Sudarsanaswami, "in matters affecting the well being or composition of a caste, the caste itself is the supreme judge". (emphasis supplied). It will, therefore, be seen that on conversion to Hinduism, a person born of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such member, if the other members of the caste accept him as a member and admit him within the fold.This view would have ordinarily required us to find whether, on the material on record, it could be said to have been established by the respondent that, on conversion to Hinduism, he was accepted as a member of Madiga caste by the other members of that caste, for it is only if he was so accepted that he could claim to be a member of a Scheduled Caste. But it is not necessary for us to undertake this inquiry because, as already pointed out, it has been agreed by the State that, whatever be the result of this appeal, the admission of the respondent will not be disturbed. | 0 | 2,507 | 621 | ### 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:
even this requirement that a candidate in order to be eligible for a reserved seat should be a member of a Scheduled Caste by birth went beyond the provision in cl. (3) of the Constitution (Scheduled Castes order. 1950 and was rightly condemned as void and no reliance was placed upon it on behalf of the State.The principal argument advanced on be half of the State was that when the respondent was converted to Hinduism, he did not automatically become a member of the Madiga caste, out it was open to the members of the Madiga caste to accept him within their fold and it was only if he was so accepted, that he could claim to have become a member of the Madiga caste. There was no evidence in the present case, contended the State, showing that the respondent, on his conversion to Hinduism, was accepted as a member of the Madiga caste by the other members of that caste and, therefore, he was not at the time of his application for admission a member of a Scheduled caste 5. Now, before we proceed to consider this contention, it is necessary to point out that there is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity, he loses his membership of the caste. This question has been considered by this Court in C. M. Arumugam v. S. Rajgopal and it has been pointed out there that ordinarily it is true that on conversion to Christianity, a person would cease to be a member of the caste to which he belongs, but that is not an invariable rule. It would depend on the structure of the caste and its rules and regulations. There are some castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and Christians. Whether Madiga is a caste which falls within this category is a debatable question. The contention of the respondent in his writ petition was that mere are both Hindus and Christians in Madiga caste and even after conversion to Christianity, his parents continued to belong to Madiga caste and he was, therefore, a member of Madiga caste right from the time of his birth. It is not necessary for the purpose of the present appeal to decide this question. We may assume that, on conversion to Christianity, the parents of the respondent lost their membership of Madiga caste and that the respondent was, therefore, not a Madiga by birth. The question is: could the respondent become a member of Madiga caste on conversion to Hindusim ? That is a question on which considerable light is thrown by the decision of this Court in C. M. Arumugam v. S. Rajgopal (supra).The main question which arose for decision in C. M. Arumugamr v. S. Rajgopal (supra) was whether S. Raigopal, who belonged to Adi Dravida caste before his conversion to Christianity, could, on reconversion to Hinduism once again become a member of the Adi Dravida caste. This Court, after examining the question on principle and referring to the decided cases, pointed out that the consistent view taken in this country since 1886 was that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. This Court observe d that there was no reason, either on principle or on authority, which should compel it to disregard this view which has prevailed for almost a century and lay down a different rule on the subject and concluded that on reconversion to Hinduism , S. Rajgopal could once again revert to his Adi Dravida caste, for he was accepted by the other members of the caste. 6. The reasoning on which this decision proceeded is equally applicable in a case where the parents of a person are converted from Hinduism to Christianity and he is born after their conversion and on his subsequently embracing Hinduism, the members of the caste to which the parents belonged prior to their conversion accept him as a member within the fold. It is for the members of the caste to decide whether or not to admit a person within the caste. Since the caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member. The only requirement for admission of a person as a member of the caste is the acceptance of the person by the other members of the caste, for, as pointed out by Krishnaswami Ayyangar, J., in Durgaprasada Rao v. Sudarsanaswami, "in matters affecting the well being or composition of a caste, the caste itself is the supreme judge". (emphasis supplied). It will, therefore, be seen that on conversion to Hinduism, a person born of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such member, if the other members of the caste accept him as a member and admit him within the fold.This view would have ordinarily required us to find whether, on the material on record, it could be said to have been established by the respondent that, on conversion to Hinduism, he was accepted as a member of Madiga caste by the other members of that caste, for it is only if he was so accepted that he could claim to be a member of a Scheduled Caste. But it is not necessary for us to undertake this inquiry because, as already pointed out, it has been agreed by the State that, whatever be the result of this appeal, the admission of the respondent will not be disturbed. 7.
### Response:
0
### Explanation:
But by reason of c]. (3), a person belonging to Madiga caste would not be deemed to be a member of a Scheduled Caste unless he professes Hindu or Sikh religion at the relevant time. It is not necessary that he should have been born a Hindu or a Sikh. The only thing required is that he should at the material time be professing Hindu or Sikh religionThis interpretation was plainly erroneous because what Not e (b) required was not that a candidate should be a Hindu by birth but that he should belong to a Scheduled Caste by birth. But even this requirement that a candidate in order to be eligible for a reserved seat should be a member of a Scheduled Caste by birth went beyond the provision in cl. (3) of the Constitution (Scheduled Castes order. 1950 and was rightly condemned as void and no reliance was placed upon it on behalf of the StateThere was no evidence in the present case, contended the State, showing that the respondent, on his conversion to Hinduism, was accepted as a member of the Madiga caste by the other members of that caste and, therefore, he was not at the time of his application for admission a member of a Scheduled casteThe reasoning on which this decision proceeded is equally applicable in a case where the parents of a person are converted from Hinduism to Christianity and he is born after their conversion and on his subsequently embracing Hinduism, the members of the caste to which the parents belonged prior to their conversion accept him as a member within the fold. It is for the members of the caste to decide whether or not to admit a person within the caste. Since the caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member. The only requirement for admission of a person as a member of the caste is the acceptance of the person by the other members of the caste, for, as pointed out by Krishnaswami Ayyangar, J., in Durgaprasada Rao v. Sudarsanaswami, "in matters affecting the well being or composition of a caste, the caste itself is the supreme judge". (emphasis supplied). It will, therefore, be seen that on conversion to Hinduism, a person born of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such member, if the other members of the caste accept him as a member and admit him within the fold.This view would have ordinarily required us to find whether, on the material on record, it could be said to have been established by the respondent that, on conversion to Hinduism, he was accepted as a member of Madiga caste by the other members of that caste, for it is only if he was so accepted that he could claim to be a member of a Scheduled Caste. But it is not necessary for us to undertake this inquiry because, as already pointed out, it has been agreed by the State that, whatever be the result of this appeal, the admission of the respondent will not be disturbed.
|
State Bank of Travancore Vs. Aravindan Kunju Panicker & Others | purchased his rights. It also held that there is no evidence to show that either Krishnan Krishnan or the subsequent purchasers of the suit property even to the knowledge of the true owners asserted hostile title to the property. The trial Court also did not accept the contention of the defendants that the plaintiffs have not succeeded in proving that the Tharwad which was not succeeded in proving that the Tharwad which was the original owner of the suit property is joint or original first plaintiff was Karanavan of that Tharwad when the suit was instituted. 5. In appeal the learned appellate Judge came to the conclusion that the plaintiffs had not established that the Tharwad in question is undivided nor have they proved that the original first plaintiff was the Karanavan of the Tharwad when the suit was instituted. He further came to the conclusion that Krishnan Krishnan must be held to have acquired an absolute title to the suit property as the plaintiffs have not succeeded in the proving the agreement pleaded by them. It upheld the contention of the defendants that Krishnan Krishnan and thereafter his successors in interest had acquired full title to the property by adverse possession. 6. In second appeal a learned single Judge of the High Court disagreed with each one of the conclusions reached by the first appellate Court and agreed with those reached by the trial Court. Dealing with the question whether the Tharwad in question is an undivided Tharwad, he pointed out that the evidence of the plaintiffs that the regard stands unrebutted. He also accepted the contention of the plaintiffs that the first plaintiff was the Karanavan of that Tharwad when the suit was instituted. He further held that on the basis of the material on record, the only conclusion possible is that Krishnan Krishnan took possession of the suit property as the agent of the plaintiffs in the first suit and as such his possession was permissive. He agreed with the trial Court that the actual possession of the property was always with the tenants and the possession of Krishnan Krishnan and that of his successors in interest has not been shown to be adverse to that of the true owners. Each one of these findings were challenged before us. 7. We shall first take up the questions whether the plaintiffs Tharwad was divided or undivided and further whether the original first plaintiff was the karanavan of the Tharwad when the suit was instituted. On these questions the evidence is completely one sided. The plaintiffs have adduced evidence to show that the Tharwad is undivided and that the original first plaintiff was the karanavan of the Tharwad. There is no reason to disbelieve that evidence. That evidence was unrebutted. That apart, a Hindu family is presumed to be joint unless the contrary is established. There is no evidence on record to rebut that presumption. We agree with the learned Judge of the High Court that there was no basis for the first appellate Court doubting the fact that the original first plaintiff was the Karanavan of the Tharwad at the relevant time. 8. Now coming to the question as to the nature of of the possession of krishnan Krishnan, the High Court has not relied on the agreement pleaded by the plaintiffs. There is no reliable evidence to support that agreement. But the evidence adduced in this case including unimpeachable documentary evidence clearly shows that assistance of Krishnan (Krishnan Krishnan was the father of some of then members of then members of the Tharwad) was sought by the plaintiffs in that suit to tide over the difficulty in the matter of depositing the required amount into Court. As mentioned earlier the amount in question was deposited into Court through the plaintiffs lawyer and Krishnan Krishnan took possession of the suit property in execution of the decree in favour of the plaintiffs in that suit. No sale deed or any other document was executed in favour of Krishnan Krishnan nor could be plaintiffs in that suit validity alienate that property as they were only junior members of the family. We agree with the High Court that as Krishnan Krishnan paid the amount that was payable by the Tharwad and took possession of the property he could only have a lien over the property for the amount advanced by him. Neither Vellu nor Kuruvilla who purchased the rights of Krishnan Krishnan can in law have greater rights in that property than what Krishnan Krishnan had. On purchasing the rights of Krishnan Krishnan they had merely stepped into his shoes. 9. Now coming to the question of adverse possession, there is conclusive evidence to show that the suit property was at all times in the possession of the tenants of the Tharwad referred to earlier. Krishnan Krishnan Vellu and Kuruvilla at best could have only collected the rent. The evidence in this regard has been discussed in detail by the learned Judge of the High Court. It is not necessary to deal with that evidence over again. We accept the conclusion of the learned Judge that the suit property was all along in the possession of the tenants. Further as Krishnan krishnan had only a lien over the property for the amount advanced by him his possession of the suit property which in this case is symbolical, must be held to be a permissive possession. The possession of Vellu and Kuruvilla for the same reason much be held to be permissive possession. A permissive possession can not be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. There is no evidence to show that either Krishnan Krishnan or Vellu or Kuruvilla asserted any hostile title to the suit property to the knowledge of the true owners at any time before he present suit. 10. In | 0[ds]On these questions the evidence is completely one sided. The plaintiffs have adduced evidence to show that the Tharwad is undivided and that the original first plaintiff was the karanavan of the Tharwad. There is no reason to disbelieve that evidence. That evidence was unrebutted. That apart, a Hindu family is presumed to be joint unless the contrary is established. There is no evidence on record to rebut that presumption. We agree with the learned Judge of the High Court that there was no basis for the first appellate Court doubting the fact that the original first plaintiff was the Karanavan of the Tharwad at the relevant timeThere is no reliable evidence to support that agreement. But the evidence adduced in this case including unimpeachable documentary evidence clearly shows that assistance of Krishnan (Krishnan Krishnan was the father of some of then members of then members of the Tharwad) was sought by the plaintiffs in that suit to tide over the difficulty in the matter of depositing the required amount into Court. As mentioned earlier the amount in question was deposited into Court through the plaintiffs lawyer and Krishnan Krishnan took possession of the suit property in execution of the decree in favour of the plaintiffs in that suit. No sale deed or any other document was executed in favour of Krishnan Krishnan nor could be plaintiffs in that suit validity alienate that property as they were only junior members of the family. We agree with the High Court that as Krishnan Krishnan paid the amount that was payable by the Tharwad and took possession of the property he could only have a lien over the property for the amount advanced by him. Neither Vellu nor Kuruvilla who purchased the rights of Krishnan Krishnan can in law have greater rights in that property than what Krishnan Krishnan had. On purchasing the rights of Krishnan Krishnan they had merely stepped into his shoesWe accept the conclusion of the learned Judge that the suit property was all along in the possession of the tenants. Further as Krishnan krishnan had only a lien over the property for the amount advanced by him his possession of the suit property which in this case is symbolical, must be held to be a permissive possession. The possession of Vellu and Kuruvilla for the same reason much be held to be permissive possession. A permissive possession can not be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. There is no evidence to show that either Krishnan Krishnan or Vellu or Kuruvilla asserted any hostile title to the suit property to the knowledge of the true owners at any time before he present suit. | 0 | 1,890 | 498 | ### 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:
purchased his rights. It also held that there is no evidence to show that either Krishnan Krishnan or the subsequent purchasers of the suit property even to the knowledge of the true owners asserted hostile title to the property. The trial Court also did not accept the contention of the defendants that the plaintiffs have not succeeded in proving that the Tharwad which was not succeeded in proving that the Tharwad which was the original owner of the suit property is joint or original first plaintiff was Karanavan of that Tharwad when the suit was instituted. 5. In appeal the learned appellate Judge came to the conclusion that the plaintiffs had not established that the Tharwad in question is undivided nor have they proved that the original first plaintiff was the Karanavan of the Tharwad when the suit was instituted. He further came to the conclusion that Krishnan Krishnan must be held to have acquired an absolute title to the suit property as the plaintiffs have not succeeded in the proving the agreement pleaded by them. It upheld the contention of the defendants that Krishnan Krishnan and thereafter his successors in interest had acquired full title to the property by adverse possession. 6. In second appeal a learned single Judge of the High Court disagreed with each one of the conclusions reached by the first appellate Court and agreed with those reached by the trial Court. Dealing with the question whether the Tharwad in question is an undivided Tharwad, he pointed out that the evidence of the plaintiffs that the regard stands unrebutted. He also accepted the contention of the plaintiffs that the first plaintiff was the Karanavan of that Tharwad when the suit was instituted. He further held that on the basis of the material on record, the only conclusion possible is that Krishnan Krishnan took possession of the suit property as the agent of the plaintiffs in the first suit and as such his possession was permissive. He agreed with the trial Court that the actual possession of the property was always with the tenants and the possession of Krishnan Krishnan and that of his successors in interest has not been shown to be adverse to that of the true owners. Each one of these findings were challenged before us. 7. We shall first take up the questions whether the plaintiffs Tharwad was divided or undivided and further whether the original first plaintiff was the karanavan of the Tharwad when the suit was instituted. On these questions the evidence is completely one sided. The plaintiffs have adduced evidence to show that the Tharwad is undivided and that the original first plaintiff was the karanavan of the Tharwad. There is no reason to disbelieve that evidence. That evidence was unrebutted. That apart, a Hindu family is presumed to be joint unless the contrary is established. There is no evidence on record to rebut that presumption. We agree with the learned Judge of the High Court that there was no basis for the first appellate Court doubting the fact that the original first plaintiff was the Karanavan of the Tharwad at the relevant time. 8. Now coming to the question as to the nature of of the possession of krishnan Krishnan, the High Court has not relied on the agreement pleaded by the plaintiffs. There is no reliable evidence to support that agreement. But the evidence adduced in this case including unimpeachable documentary evidence clearly shows that assistance of Krishnan (Krishnan Krishnan was the father of some of then members of then members of the Tharwad) was sought by the plaintiffs in that suit to tide over the difficulty in the matter of depositing the required amount into Court. As mentioned earlier the amount in question was deposited into Court through the plaintiffs lawyer and Krishnan Krishnan took possession of the suit property in execution of the decree in favour of the plaintiffs in that suit. No sale deed or any other document was executed in favour of Krishnan Krishnan nor could be plaintiffs in that suit validity alienate that property as they were only junior members of the family. We agree with the High Court that as Krishnan Krishnan paid the amount that was payable by the Tharwad and took possession of the property he could only have a lien over the property for the amount advanced by him. Neither Vellu nor Kuruvilla who purchased the rights of Krishnan Krishnan can in law have greater rights in that property than what Krishnan Krishnan had. On purchasing the rights of Krishnan Krishnan they had merely stepped into his shoes. 9. Now coming to the question of adverse possession, there is conclusive evidence to show that the suit property was at all times in the possession of the tenants of the Tharwad referred to earlier. Krishnan Krishnan Vellu and Kuruvilla at best could have only collected the rent. The evidence in this regard has been discussed in detail by the learned Judge of the High Court. It is not necessary to deal with that evidence over again. We accept the conclusion of the learned Judge that the suit property was all along in the possession of the tenants. Further as Krishnan krishnan had only a lien over the property for the amount advanced by him his possession of the suit property which in this case is symbolical, must be held to be a permissive possession. The possession of Vellu and Kuruvilla for the same reason much be held to be permissive possession. A permissive possession can not be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. There is no evidence to show that either Krishnan Krishnan or Vellu or Kuruvilla asserted any hostile title to the suit property to the knowledge of the true owners at any time before he present suit. 10. In
### Response:
0
### Explanation:
On these questions the evidence is completely one sided. The plaintiffs have adduced evidence to show that the Tharwad is undivided and that the original first plaintiff was the karanavan of the Tharwad. There is no reason to disbelieve that evidence. That evidence was unrebutted. That apart, a Hindu family is presumed to be joint unless the contrary is established. There is no evidence on record to rebut that presumption. We agree with the learned Judge of the High Court that there was no basis for the first appellate Court doubting the fact that the original first plaintiff was the Karanavan of the Tharwad at the relevant timeThere is no reliable evidence to support that agreement. But the evidence adduced in this case including unimpeachable documentary evidence clearly shows that assistance of Krishnan (Krishnan Krishnan was the father of some of then members of then members of the Tharwad) was sought by the plaintiffs in that suit to tide over the difficulty in the matter of depositing the required amount into Court. As mentioned earlier the amount in question was deposited into Court through the plaintiffs lawyer and Krishnan Krishnan took possession of the suit property in execution of the decree in favour of the plaintiffs in that suit. No sale deed or any other document was executed in favour of Krishnan Krishnan nor could be plaintiffs in that suit validity alienate that property as they were only junior members of the family. We agree with the High Court that as Krishnan Krishnan paid the amount that was payable by the Tharwad and took possession of the property he could only have a lien over the property for the amount advanced by him. Neither Vellu nor Kuruvilla who purchased the rights of Krishnan Krishnan can in law have greater rights in that property than what Krishnan Krishnan had. On purchasing the rights of Krishnan Krishnan they had merely stepped into his shoesWe accept the conclusion of the learned Judge that the suit property was all along in the possession of the tenants. Further as Krishnan krishnan had only a lien over the property for the amount advanced by him his possession of the suit property which in this case is symbolical, must be held to be a permissive possession. The possession of Vellu and Kuruvilla for the same reason much be held to be permissive possession. A permissive possession can not be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. There is no evidence to show that either Krishnan Krishnan or Vellu or Kuruvilla asserted any hostile title to the suit property to the knowledge of the true owners at any time before he present suit.
|
Novex Dry Cleaners Vs. Its Workmen | workmen in the relevant category. That again is not a very satisfactory solution of the problem. The tribunal should have described the functions of the different categories, and after hearing the parties, have given indications in the award itself as to how different employees should be placed in what category. Therefore, in our opinion, the grievance made by the appellant against that part of the award which deals with the wage structure and the categorization of the employees is justified and it must be set aside. We tried to see if this problem could be settled in this Court and so we gave time to the parties to attempt to find a solution by consent. That attempt, however, failed and so the only alternative left is to send the matter back to the tribunal with a direction that the tribunal should examine the problem afresh in the light of this judgment, allow the parties to lead relevant evidence in respect of their rival contentions and deal with the question of wage structure according to law.4. The next contention raised is in respect of the direction issued by the tribunal for the continuance of the payment of the seasonal allowances. The tribunal has directed that the seasonal allowance that is being paid to the workmen will continue to be paid irrespective of the wages fixed as above. It is fairly conceded by Sri Kumar for the respondents that this direction is presumably the result of an oversight. It appears that pending the enquiry before the tribunal, the employees suggested to the tribunal that by way of interim relief some payment should be made to them before the final award was made. It was urged by them that the employer had agreed before the conciliation officer to give some interim relief as suggested by the conciliation officer himself and that was the basis of the claim which was ultimately awarded by the tribunal under the clause of seasonal allowances. That being so, it would be illogical to direct the continuance of the said seasonal allowance even after the wage structure is fixed. That is why the order made by the tribunal that the seasonal allowance should be a permanent fixture of the wage structure must be set aside. But as we have set aside the wage structure as fixed by the tribunal, the seasonal allowance will continue till such time as the tribunal fixes the wage structure again.The next item of controversy is in relation to the leave facilities prescribed by the award. Here again through oversight, the tribunal has directed the appellant to grant more leave under three items than has been provided for by the awards against the Band Box and the Snowhite Festival leave in factory which has been fixed by the tribunal at twelve, presumably on the ground that it is existing at present, is more than what has been awarded in the Band Box and Snowhite cases. Relevant leave allowed by the said awards is nine days. Similarly, casual-cum-sick leave in factory is fixed at twelve days whereas it is fixed at seven days in the case of the other two concerns and casual-cum-sick leave in shops is fixed at twelve days instead of ten days in the two other concerns. It is not seriously disputed that no injustice would be done to the respondents if in respondents in the same way as the workmen in the two concerns have been treated. Accordingly, leave under the three items would be reduced from twelve, twelve, twelve, to nine, seven and ten, respectively.5. That takes us to the appellants contention about the bonus ordered to be paid by the tribunal for the relevant year. The tribunal has held that the available surplus is Rs. 14, 812-12-0 and so it has directed the appellant to pay a months wages to the respondents by way of bonus. Several contentions have been raised against the award of bonus by the tribunal and it is urged that even the calculation about the total monthly wage bill of the appellant is erroneous. It is, however, not necessary to deal with the appellants contentions on this point because by consent it has been agreed between the parties that by way of bonus, the appellant should pay to all its employees together Rs. 2, 000 for the relevant year.That leaves only one point to be considered and it relates to the provident fund. The tribunal has directed that since the appellant is a fairly established concern, it can afford to have a provident fund scheme and it has ordered that a contributory provident fund scheme and it has ordered that a contributory provident fund scheme shall be introduced by the appellant in accordance with the provisions of and on the lines of the Employees Provident Fund Act. The rate of contribution by the employees has been fixed by the tribunal at six and a half per cent of their wages and the employer is required to contribute an equal amount to the fund. In our opinion, there would be no justification for interfering with this part of the award. The liability imposed on the appellant by the introduction of the provident fund scheme is not shown to be either excessive or to be beyond the paying capacity of the appellant. Unlike the wage structure which cannot be fixed without determining the financial position of the appellant and deciding whether the appellant concern is comparable to Snowhite and Band Box, the liability imposed by the provident fund is not shown to be unreasonable at all. Indeed, though Sri Sastri suggested that the scheme should not be introduced, he was unable to give any satisfactory reason in support of his contention. A provident fund scheme like the one framed by the tribunal in the present case has now become almost a normal feature in many industrial concerns and so, Sri Sastri could not seriously press his objections against the scheme. His main attack was against the wage structure. | 1[ds]It is now well settled that in fixing a minimum wage, the capacity of the industry to pay the wage is not relevant. But in fixing a fair wage, the capacity of the industry to bear the burden of the said wage is a very relevant and very important factor. Therefore, there can be no doubt that before fixing the wage structure, it was necessary that the tribunal should have examined the financial position of the appellant and come to a definite conclusion in that behalf.3. The award shows that in support of their claim for a higher wage, the respondents relied upon the wage structure prevailing in oil companies like the Standard Vacuum Oil Company, or in concerns like Bata Shoe Company, Marshal & Sons, and May and Baker. The tribunal refused to treat these wage structures as relevant and, in our opinion, rightly. The management relied upon the wage structure prescribed by an award in respect of the dry cleaning industry in Bombay on 24 December 1953 (Ex. M105). The tribunal refused to attach any importance to this award on the ground that it related to the industry in a different region. Since the award related to the industry in Bombay, it would naturally not be justified to attach undue importance to it; but, on the other hand, evidence supplied by the said award cannot be said to be altogetherour opinion, this conclusion is open to serious criticism. In dealing with the question as to whether the appellant establishment was comparable to Snowhite and Band Box, it was obviously necessary to compare the three institutions in respect of their standing, the extent of the labour force employed by them, the extent of their respective customers and, what is more important, a comparative study should have been made of the profits and losses incurred by them for some years before the date of the award. Unfortunately, the tribunal has not even considered theproduced by the appellant showing the position of the profit and loss of the appellant itself. These documents are Exs. M2, M4, M6, M8 and M10. The financial position of the two other concerns had not been referred to in the award and presumably no evidence about the said point was adduced before the tribunal. On the question of the strength of the labour force, it appears that the appellant engages 109 permanent employees and twenty to thirty temporary employees, whereas the Snowhite appears to have 258 persons on its rolls; about the labour force of the Band Box, there is no evidence. The oral evidence given by some of the witnesses on behalf of the respondents is very vague and cannot at all serve to support the finding about the financial position of the appellant. Therefore, in our opinion, the tribunal was in error in making a finding about the financial position of the appellant in comparison to that of the Snowhite and the Band Box without applying tits mind to the relevant factors and without calling upon the parties to adduce relevant and material evidence in thatis well known that in fixing the wage structure on a fair basis, an attempt is generally made in assessing the additional liability imposed upon the employer by the new wage structure and trying to anticipate whether the employer would be able to meet it for a reasonably long period in future. Since the tribunal has not considered these aspects of the matter at all, we cannot uphold its award whereby it has merely adopted the wage scale fixed by the two awards in respect of the Snowhite and the Band Box.Besides, having fixed six categories of workmen, the tribunal has left it to the management and the workmen in consultation with each other to place the several workmen in the relevant category. That again is not a very satisfactory solution of the problem. The tribunal should have described the functions of the different categories, and after hearing the parties, have given indications in the award itself as to how different employees should be placed in what category. Therefore, in our opinion, the grievance made by the appellant against that part of the award which deals with the wage structure and the categorization of the employees is justified and it must be set aside. We tried to see if this problem could be settled in this Court and so we gave time to the parties to attempt to find a solution by consent. That attempt, however, failed and so the only alternative left is to send the matter back to the tribunal with a direction that the tribunal should examine the problem afresh in the light of this judgment, allow the parties to lead relevant evidence in respect of their rival contentions and deal with the question of wage structure according towas urged by them that the employer had agreed before the conciliation officer to give some interim relief as suggested by the conciliation officer himself and that was the basis of the claim which was ultimately awarded by the tribunal under the clause of seasonal allowances. That being so, it would be illogical to direct the continuance of the said seasonal allowance even after the wage structure is fixed. That is why the order made by the tribunal that the seasonal allowance should be a permanent fixture of the wage structure must be set aside. But as we have set aside the wage structure as fixed by the tribunal, the seasonal allowance will continue till such time as the tribunal fixes the wage structurenext item of controversy is in relation to the leave facilities prescribed by the award. Here again through oversight, the tribunal has directed the appellant to grant more leave under three items than has been provided for by the awards against the Band Box and the Snowhite Festival leave in factory which has been fixed by the tribunal at twelve, presumably on the ground that it is existing at present, is more than what has been awarded in the Band Box and Snowhite cases. Relevant leave allowed by the said awards is nine days. Similarly,leave in factory is fixed at twelve days whereas it is fixed at seven days in the case of the other two concerns andleave in shops is fixed at twelve days instead of ten days in the two other concerns. It is not seriously disputed that no injustice would be done to the respondents if in respondents in the same way as the workmen in the two concerns have been treated. Accordingly, leave under the three items would be reduced from twelve, twelve, twelve, to nine, seven and ten,contentions have been raised against the award of bonus by the tribunal and it is urged that even the calculation about the total monthly wage bill of the appellant is erroneous. It is, however, not necessary to deal with the appellants contentions on this point because by consent it has been agreed between the parties that by way of bonus, the appellant should pay to all its employees together Rs. 2, 000 for the relevanttribunal has directed that since the appellant is a fairly established concern, it can afford to have a provident fund scheme and it has ordered that a contributory provident fund scheme and it has ordered that a contributory provident fund scheme shall be introduced by the appellant in accordance with the provisions of and on the lines of the Employees Provident Fund Act. The rate of contribution by the employees has been fixed by the tribunal at six and a half per cent of their wages and the employer is required to contribute an equal amount to the fund. In our opinion, there would be no justification for interfering with this part of the award. The liability imposed on the appellant by the introduction of the provident fund scheme is not shown to be either excessive or to be beyond the paying capacity of the appellant. Unlike the wage structure which cannot be fixed without determining the financial position of the appellant and deciding whether the appellant concern is comparable to Snowhite and Band Box, the liability imposed by the provident fund is not shown to be unreasonable at all. Indeed, though Sri Sastri suggested that the scheme should not be introduced, he was unable to give any satisfactory reason in support of his contention. | 1 | 2,438 | 1,508 | ### 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:
workmen in the relevant category. That again is not a very satisfactory solution of the problem. The tribunal should have described the functions of the different categories, and after hearing the parties, have given indications in the award itself as to how different employees should be placed in what category. Therefore, in our opinion, the grievance made by the appellant against that part of the award which deals with the wage structure and the categorization of the employees is justified and it must be set aside. We tried to see if this problem could be settled in this Court and so we gave time to the parties to attempt to find a solution by consent. That attempt, however, failed and so the only alternative left is to send the matter back to the tribunal with a direction that the tribunal should examine the problem afresh in the light of this judgment, allow the parties to lead relevant evidence in respect of their rival contentions and deal with the question of wage structure according to law.4. The next contention raised is in respect of the direction issued by the tribunal for the continuance of the payment of the seasonal allowances. The tribunal has directed that the seasonal allowance that is being paid to the workmen will continue to be paid irrespective of the wages fixed as above. It is fairly conceded by Sri Kumar for the respondents that this direction is presumably the result of an oversight. It appears that pending the enquiry before the tribunal, the employees suggested to the tribunal that by way of interim relief some payment should be made to them before the final award was made. It was urged by them that the employer had agreed before the conciliation officer to give some interim relief as suggested by the conciliation officer himself and that was the basis of the claim which was ultimately awarded by the tribunal under the clause of seasonal allowances. That being so, it would be illogical to direct the continuance of the said seasonal allowance even after the wage structure is fixed. That is why the order made by the tribunal that the seasonal allowance should be a permanent fixture of the wage structure must be set aside. But as we have set aside the wage structure as fixed by the tribunal, the seasonal allowance will continue till such time as the tribunal fixes the wage structure again.The next item of controversy is in relation to the leave facilities prescribed by the award. Here again through oversight, the tribunal has directed the appellant to grant more leave under three items than has been provided for by the awards against the Band Box and the Snowhite Festival leave in factory which has been fixed by the tribunal at twelve, presumably on the ground that it is existing at present, is more than what has been awarded in the Band Box and Snowhite cases. Relevant leave allowed by the said awards is nine days. Similarly, casual-cum-sick leave in factory is fixed at twelve days whereas it is fixed at seven days in the case of the other two concerns and casual-cum-sick leave in shops is fixed at twelve days instead of ten days in the two other concerns. It is not seriously disputed that no injustice would be done to the respondents if in respondents in the same way as the workmen in the two concerns have been treated. Accordingly, leave under the three items would be reduced from twelve, twelve, twelve, to nine, seven and ten, respectively.5. That takes us to the appellants contention about the bonus ordered to be paid by the tribunal for the relevant year. The tribunal has held that the available surplus is Rs. 14, 812-12-0 and so it has directed the appellant to pay a months wages to the respondents by way of bonus. Several contentions have been raised against the award of bonus by the tribunal and it is urged that even the calculation about the total monthly wage bill of the appellant is erroneous. It is, however, not necessary to deal with the appellants contentions on this point because by consent it has been agreed between the parties that by way of bonus, the appellant should pay to all its employees together Rs. 2, 000 for the relevant year.That leaves only one point to be considered and it relates to the provident fund. The tribunal has directed that since the appellant is a fairly established concern, it can afford to have a provident fund scheme and it has ordered that a contributory provident fund scheme and it has ordered that a contributory provident fund scheme shall be introduced by the appellant in accordance with the provisions of and on the lines of the Employees Provident Fund Act. The rate of contribution by the employees has been fixed by the tribunal at six and a half per cent of their wages and the employer is required to contribute an equal amount to the fund. In our opinion, there would be no justification for interfering with this part of the award. The liability imposed on the appellant by the introduction of the provident fund scheme is not shown to be either excessive or to be beyond the paying capacity of the appellant. Unlike the wage structure which cannot be fixed without determining the financial position of the appellant and deciding whether the appellant concern is comparable to Snowhite and Band Box, the liability imposed by the provident fund is not shown to be unreasonable at all. Indeed, though Sri Sastri suggested that the scheme should not be introduced, he was unable to give any satisfactory reason in support of his contention. A provident fund scheme like the one framed by the tribunal in the present case has now become almost a normal feature in many industrial concerns and so, Sri Sastri could not seriously press his objections against the scheme. His main attack was against the wage structure.
### Response:
1
### Explanation:
employees and twenty to thirty temporary employees, whereas the Snowhite appears to have 258 persons on its rolls; about the labour force of the Band Box, there is no evidence. The oral evidence given by some of the witnesses on behalf of the respondents is very vague and cannot at all serve to support the finding about the financial position of the appellant. Therefore, in our opinion, the tribunal was in error in making a finding about the financial position of the appellant in comparison to that of the Snowhite and the Band Box without applying tits mind to the relevant factors and without calling upon the parties to adduce relevant and material evidence in thatis well known that in fixing the wage structure on a fair basis, an attempt is generally made in assessing the additional liability imposed upon the employer by the new wage structure and trying to anticipate whether the employer would be able to meet it for a reasonably long period in future. Since the tribunal has not considered these aspects of the matter at all, we cannot uphold its award whereby it has merely adopted the wage scale fixed by the two awards in respect of the Snowhite and the Band Box.Besides, having fixed six categories of workmen, the tribunal has left it to the management and the workmen in consultation with each other to place the several workmen in the relevant category. That again is not a very satisfactory solution of the problem. The tribunal should have described the functions of the different categories, and after hearing the parties, have given indications in the award itself as to how different employees should be placed in what category. Therefore, in our opinion, the grievance made by the appellant against that part of the award which deals with the wage structure and the categorization of the employees is justified and it must be set aside. We tried to see if this problem could be settled in this Court and so we gave time to the parties to attempt to find a solution by consent. That attempt, however, failed and so the only alternative left is to send the matter back to the tribunal with a direction that the tribunal should examine the problem afresh in the light of this judgment, allow the parties to lead relevant evidence in respect of their rival contentions and deal with the question of wage structure according towas urged by them that the employer had agreed before the conciliation officer to give some interim relief as suggested by the conciliation officer himself and that was the basis of the claim which was ultimately awarded by the tribunal under the clause of seasonal allowances. That being so, it would be illogical to direct the continuance of the said seasonal allowance even after the wage structure is fixed. That is why the order made by the tribunal that the seasonal allowance should be a permanent fixture of the wage structure must be set aside. But as we have set aside the wage structure as fixed by the tribunal, the seasonal allowance will continue till such time as the tribunal fixes the wage structurenext item of controversy is in relation to the leave facilities prescribed by the award. Here again through oversight, the tribunal has directed the appellant to grant more leave under three items than has been provided for by the awards against the Band Box and the Snowhite Festival leave in factory which has been fixed by the tribunal at twelve, presumably on the ground that it is existing at present, is more than what has been awarded in the Band Box and Snowhite cases. Relevant leave allowed by the said awards is nine days. Similarly,leave in factory is fixed at twelve days whereas it is fixed at seven days in the case of the other two concerns andleave in shops is fixed at twelve days instead of ten days in the two other concerns. It is not seriously disputed that no injustice would be done to the respondents if in respondents in the same way as the workmen in the two concerns have been treated. Accordingly, leave under the three items would be reduced from twelve, twelve, twelve, to nine, seven and ten,contentions have been raised against the award of bonus by the tribunal and it is urged that even the calculation about the total monthly wage bill of the appellant is erroneous. It is, however, not necessary to deal with the appellants contentions on this point because by consent it has been agreed between the parties that by way of bonus, the appellant should pay to all its employees together Rs. 2, 000 for the relevanttribunal has directed that since the appellant is a fairly established concern, it can afford to have a provident fund scheme and it has ordered that a contributory provident fund scheme and it has ordered that a contributory provident fund scheme shall be introduced by the appellant in accordance with the provisions of and on the lines of the Employees Provident Fund Act. The rate of contribution by the employees has been fixed by the tribunal at six and a half per cent of their wages and the employer is required to contribute an equal amount to the fund. In our opinion, there would be no justification for interfering with this part of the award. The liability imposed on the appellant by the introduction of the provident fund scheme is not shown to be either excessive or to be beyond the paying capacity of the appellant. Unlike the wage structure which cannot be fixed without determining the financial position of the appellant and deciding whether the appellant concern is comparable to Snowhite and Band Box, the liability imposed by the provident fund is not shown to be unreasonable at all. Indeed, though Sri Sastri suggested that the scheme should not be introduced, he was unable to give any satisfactory reason in support of his contention.
|
Kamta Prasad Aggarwal Etc Vs. Executive Officer, Ballabgarh & Anr | concerned. The provisions of the 1956 Act however continued to be applicable to the State of Haryana and also to the Union Territory of Chandigarh under the relevant provisions of law.8. The Panchayat Samiti, Ballabgarh issued a notice on 19 September, 1962 that it intended to levy professional tax at the maximum rate of Rs. 200/- per annum according to the Schedule specified under the 1961 Act. It may stated here that the Districts Boards in the State of Punjab had imposed a tax on professions, trades, callings and employments. The Districts Boards were abolished in consequence of the 1961 Act. There was however a saving provision in the 1961 Act. Section 64 of the 1961 Act provided that a Panchayat Samiti shall be deemed to have imposed tax at the rate at which immediately before the commencement of the Act it was lawfully levied by the District Board of the District in which Panchayat Samiti is situate until a provision to the contrary is made by the Panchayat Samiti with the previous sanction of the Government. The rates which were adopted by the Panchayat Samiti were different rates on different slabs of income. Income exceeding Rupees 10,000/- was subjected to a tax of Rs. 200/- per annum. It is this levy of additional professional tax against which appellants complain.9. The contention of the appellants that the imposition of tax by the Panchayat Samiti amounts to double taxation and is, therefore, illegal is unsound. A tax on profession is not necessarily connected with income. This is clear from the tax on professions imposed by several municipal authorities at certain rates mentioned in the relevant statutes. A tax on income can be imposed if there is income. A tax on profession can be imposed if a person carries on a profession. Such a tax on profession is irrespective of the question of income.10. Article 276(2) as well as the proviso has the combined effect which precludes a challenge on the ground that the tax on profession is a tax on income or that it exceeds Rs. 250/- per annum. The proviso saves existing taxes. The proviso states that notwithstanding that a profession tax exceeds Rs. 250/- per annum it can continue to be levied until provision to the contrary is made by Parliament by law.11. The provisions of Art. 276(2) were contended by counsel for the appellants to indicate that the total of taxes imposed on professions, trades, callings and employments by the State. Municipality or any other authority should not exceed Rs. 250/- per annum. It was said that the words "total amount by way of taxes" shall not exceed Rs. 250/-. That is totally misreading the Article. It cannot be denied that the State Legislature has power to impose taxes. The words in Article 276 that the total amount payable to the State or to any one Municipality, District Board, Local Board or other local authority cannot mean that the word or is used in a conjunctive sense as a substitute for the word and. The word or is used in disjunctive sense. The proviso to Article 276(2) not only supports that construction but also makes the provision clear. In the proviso to Article 276(2) it is mentioned that if before the commencement of the Constitution any State or any municipal board or authority had imposed a tax exceeding the limit of Rs. 250/- such tax may continue. Therefore, when the proviso speaks of any State or any such municipality it indicates that both can tax separately to the limit imposed by the Article.12. Again, the language of Article 276(2) shows that the Constitution uses the words "any one person" in juxtaposition with any one municipality, district board, local board or other authority. The provisions are clear in their effect that the word "or" occurring between the words "the State" and the words "to any one municipality" cannot be read as the word "and" in a conjunctive sense.13. The words "the total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other authority" mean that tax of and up to the sum of Rs. 250/- can be imposed by any one of the authorities mentioned. If the Constitution wanted the total taxes to be imposed by the State and other authorities to be Rs. 250/- the Constitution would have said that the total amount payable in respect of any one person by way of tax on professions, trades, callings and other employments shall not exceed Rs. 250/- per annum whether imposed by the State, municipality, district board, local board or other authority. Further, if the total of the taxes be a sum of Rs. 250/- as contended for by counsel for the appellants it will mean that if a person is paying professional tax of Rs. 150/- to the State, the local authority can impose on him a similar tax up to the balance sum of Rs. 100/-.14. That may lead to two consequences. One is that one of the authorities will have to tax persons with lower income while those with higher income will escape any payment of tax. The other is that if one authority will impose a tax of the balance sum left after considering the amount imposed by the State all the authorities may not impose taxes. That will be entirely a wrong construction. The High Court was right in reaching the conclusion that the State as well as the authorities mentioned in Article 276 of the Constitution can each impose tax up to a limit of Rs. 250/-. One and the same person may be engaged in more than one of the items suggested in Article 276, namely, professions, trades, callings and employments. Such imposition of tax on more than one item in respect of one and the same person cannot be anything but taxes. The word "total" relates to an authority levying various taxes and not to all authorities put together.15. | 0[ds]A tax on profession is not necessarily connected with income. This is clear from the tax on professions imposed by several municipal authorities at certain rates mentioned in the relevant statutes. A tax on income can be imposed if there is income. A tax on profession can be imposed if a person carries on a profession. Such a tax on profession is irrespective of the question of income.10. Article 276(2) as well as the proviso has the combined effect which precludes a challenge on the ground that the tax on profession is a tax on income or that it exceeds Rs. 250/- per annum. The proviso saves existing taxes. The proviso states that notwithstanding that a profession tax exceeds Rs. 250/- per annum it can continue to be levied until provision to the contrary is made by Parliament byis totally misreading the Article. It cannot be denied that the State Legislature has power to impose taxes. The words in Article 276 that the total amount payable to the State or to any one Municipality, District Board, Local Board or other local authority cannot mean that the word or is used in a conjunctive sense as a substitute for the word and. The word or is used in disjunctive sense. The proviso to Article 276(2) not only supports that construction but also makes the provision clear. In the proviso to Article 276(2) it is mentioned that if before the commencement of the Constitution any State or any municipal board or authority had imposed a tax exceeding the limit of Rs. 250/- such tax may continue. Therefore, when the proviso speaks of any State or any such municipality it indicates that both can tax separately to the limit imposed by the Article.12. Again, the language of Article 276(2) shows that the Constitution uses the words "any one person" in juxtaposition with any one municipality, district board, local board or other authority. The provisions are clear in their effect that the word "or" occurring between the words "the State" and the words "to any one municipality" cannot be read as the word "and" in a conjunctive sense.13. The words "the total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other authority" mean that tax of and up to the sum of Rs. 250/- can be imposed by any one of the authorities mentioned. If the Constitution wanted the total taxes to be imposed by the State and other authorities to be Rs. 250/- the Constitution would have said that the total amount payable in respect of any one person by way of tax on professions, trades, callings and other employments shall not exceed Rs. 250/- per annum whether imposed by the State, municipality, district board, local board or other authority. Further, if the total of the taxes be a sum of Rs. 250/- as contended for by counsel for the appellants it will mean that if a person is paying professional tax of Rs. 150/- to the State, the local authority can impose on him a similar tax up to the balance sum of Rs. 100/-.That may lead to two consequences. One is that one of the authorities will have to tax persons with lower income while those with higher income will escape any payment of tax. The other is that if one authority will impose a tax of the balance sum left after considering the amount imposed by the State all the authorities may not impose taxes. That will be entirely a wrong construction. The High Court was right in reaching the conclusion that the State as well as the authorities mentioned in Article 276 of the Constitution can each impose tax up to a limit of Rs. 250/-. One and the same person may be engaged in more than one of the items suggested in Article 276, namely, professions, trades, callings and employments. Such imposition of tax on more than one item in respect of one and the same person cannot be anything but taxes. The word "total" relates to an authority levying various taxes and not to all authorities put together. | 0 | 1,708 | 783 | ### 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:
concerned. The provisions of the 1956 Act however continued to be applicable to the State of Haryana and also to the Union Territory of Chandigarh under the relevant provisions of law.8. The Panchayat Samiti, Ballabgarh issued a notice on 19 September, 1962 that it intended to levy professional tax at the maximum rate of Rs. 200/- per annum according to the Schedule specified under the 1961 Act. It may stated here that the Districts Boards in the State of Punjab had imposed a tax on professions, trades, callings and employments. The Districts Boards were abolished in consequence of the 1961 Act. There was however a saving provision in the 1961 Act. Section 64 of the 1961 Act provided that a Panchayat Samiti shall be deemed to have imposed tax at the rate at which immediately before the commencement of the Act it was lawfully levied by the District Board of the District in which Panchayat Samiti is situate until a provision to the contrary is made by the Panchayat Samiti with the previous sanction of the Government. The rates which were adopted by the Panchayat Samiti were different rates on different slabs of income. Income exceeding Rupees 10,000/- was subjected to a tax of Rs. 200/- per annum. It is this levy of additional professional tax against which appellants complain.9. The contention of the appellants that the imposition of tax by the Panchayat Samiti amounts to double taxation and is, therefore, illegal is unsound. A tax on profession is not necessarily connected with income. This is clear from the tax on professions imposed by several municipal authorities at certain rates mentioned in the relevant statutes. A tax on income can be imposed if there is income. A tax on profession can be imposed if a person carries on a profession. Such a tax on profession is irrespective of the question of income.10. Article 276(2) as well as the proviso has the combined effect which precludes a challenge on the ground that the tax on profession is a tax on income or that it exceeds Rs. 250/- per annum. The proviso saves existing taxes. The proviso states that notwithstanding that a profession tax exceeds Rs. 250/- per annum it can continue to be levied until provision to the contrary is made by Parliament by law.11. The provisions of Art. 276(2) were contended by counsel for the appellants to indicate that the total of taxes imposed on professions, trades, callings and employments by the State. Municipality or any other authority should not exceed Rs. 250/- per annum. It was said that the words "total amount by way of taxes" shall not exceed Rs. 250/-. That is totally misreading the Article. It cannot be denied that the State Legislature has power to impose taxes. The words in Article 276 that the total amount payable to the State or to any one Municipality, District Board, Local Board or other local authority cannot mean that the word or is used in a conjunctive sense as a substitute for the word and. The word or is used in disjunctive sense. The proviso to Article 276(2) not only supports that construction but also makes the provision clear. In the proviso to Article 276(2) it is mentioned that if before the commencement of the Constitution any State or any municipal board or authority had imposed a tax exceeding the limit of Rs. 250/- such tax may continue. Therefore, when the proviso speaks of any State or any such municipality it indicates that both can tax separately to the limit imposed by the Article.12. Again, the language of Article 276(2) shows that the Constitution uses the words "any one person" in juxtaposition with any one municipality, district board, local board or other authority. The provisions are clear in their effect that the word "or" occurring between the words "the State" and the words "to any one municipality" cannot be read as the word "and" in a conjunctive sense.13. The words "the total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other authority" mean that tax of and up to the sum of Rs. 250/- can be imposed by any one of the authorities mentioned. If the Constitution wanted the total taxes to be imposed by the State and other authorities to be Rs. 250/- the Constitution would have said that the total amount payable in respect of any one person by way of tax on professions, trades, callings and other employments shall not exceed Rs. 250/- per annum whether imposed by the State, municipality, district board, local board or other authority. Further, if the total of the taxes be a sum of Rs. 250/- as contended for by counsel for the appellants it will mean that if a person is paying professional tax of Rs. 150/- to the State, the local authority can impose on him a similar tax up to the balance sum of Rs. 100/-.14. That may lead to two consequences. One is that one of the authorities will have to tax persons with lower income while those with higher income will escape any payment of tax. The other is that if one authority will impose a tax of the balance sum left after considering the amount imposed by the State all the authorities may not impose taxes. That will be entirely a wrong construction. The High Court was right in reaching the conclusion that the State as well as the authorities mentioned in Article 276 of the Constitution can each impose tax up to a limit of Rs. 250/-. One and the same person may be engaged in more than one of the items suggested in Article 276, namely, professions, trades, callings and employments. Such imposition of tax on more than one item in respect of one and the same person cannot be anything but taxes. The word "total" relates to an authority levying various taxes and not to all authorities put together.15.
### Response:
0
### Explanation:
A tax on profession is not necessarily connected with income. This is clear from the tax on professions imposed by several municipal authorities at certain rates mentioned in the relevant statutes. A tax on income can be imposed if there is income. A tax on profession can be imposed if a person carries on a profession. Such a tax on profession is irrespective of the question of income.10. Article 276(2) as well as the proviso has the combined effect which precludes a challenge on the ground that the tax on profession is a tax on income or that it exceeds Rs. 250/- per annum. The proviso saves existing taxes. The proviso states that notwithstanding that a profession tax exceeds Rs. 250/- per annum it can continue to be levied until provision to the contrary is made by Parliament byis totally misreading the Article. It cannot be denied that the State Legislature has power to impose taxes. The words in Article 276 that the total amount payable to the State or to any one Municipality, District Board, Local Board or other local authority cannot mean that the word or is used in a conjunctive sense as a substitute for the word and. The word or is used in disjunctive sense. The proviso to Article 276(2) not only supports that construction but also makes the provision clear. In the proviso to Article 276(2) it is mentioned that if before the commencement of the Constitution any State or any municipal board or authority had imposed a tax exceeding the limit of Rs. 250/- such tax may continue. Therefore, when the proviso speaks of any State or any such municipality it indicates that both can tax separately to the limit imposed by the Article.12. Again, the language of Article 276(2) shows that the Constitution uses the words "any one person" in juxtaposition with any one municipality, district board, local board or other authority. The provisions are clear in their effect that the word "or" occurring between the words "the State" and the words "to any one municipality" cannot be read as the word "and" in a conjunctive sense.13. The words "the total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other authority" mean that tax of and up to the sum of Rs. 250/- can be imposed by any one of the authorities mentioned. If the Constitution wanted the total taxes to be imposed by the State and other authorities to be Rs. 250/- the Constitution would have said that the total amount payable in respect of any one person by way of tax on professions, trades, callings and other employments shall not exceed Rs. 250/- per annum whether imposed by the State, municipality, district board, local board or other authority. Further, if the total of the taxes be a sum of Rs. 250/- as contended for by counsel for the appellants it will mean that if a person is paying professional tax of Rs. 150/- to the State, the local authority can impose on him a similar tax up to the balance sum of Rs. 100/-.That may lead to two consequences. One is that one of the authorities will have to tax persons with lower income while those with higher income will escape any payment of tax. The other is that if one authority will impose a tax of the balance sum left after considering the amount imposed by the State all the authorities may not impose taxes. That will be entirely a wrong construction. The High Court was right in reaching the conclusion that the State as well as the authorities mentioned in Article 276 of the Constitution can each impose tax up to a limit of Rs. 250/-. One and the same person may be engaged in more than one of the items suggested in Article 276, namely, professions, trades, callings and employments. Such imposition of tax on more than one item in respect of one and the same person cannot be anything but taxes. The word "total" relates to an authority levying various taxes and not to all authorities put together.
|
Municipal Corporation Of The City Ofahmedabad & Ors Vs. State Of Gujarat & Ors | = (AIR 1969 SC 634 ), this court observed:"Specification of principles means laying down general guiding rules applicable to all person or transactions governed thereby. Under the Land Acquisition Act compensation is determined on the basis of "market value" of the land on the date of the notification under S. 4 (1) of that Act. That is a specification of principle." At a later stage the court again observed at page 362:"Rules enunciated by the courts for determining compensation for compulsory acquisition under the Land Acquisition Act vary according to the nature of the land acquired. For properties, which are not marketable commodities, such as lands buildings and incorporeal rights, valuation has to be made on the application of different rules. Principle of capitalisation of net rent at the current market rate on guilt-edged securities, principle of reinstatement, principle of determination of original value less depreciation, determination of break-up value in certain types of property which have outgrown their utility, and a host of other so-called principles are employed for determination of compensation payable for acquisition of lands, houses, incorporeal rights etc." The Land Acquisition Act makes market value at a certain date the basis for the determination of compensation. But there is no one sure way of applying the principle. As is well known when set-back is imposed by the line of the street, the land actually acquired by the Corporation may be in some cases a few sq. yards or even a few sq. inches. Then again the land acquired may be of no significant use to anybody except to the Corporation as a part of the street. The land acquired may be wedge-shaped, sometimes irregular in contour and often shapeless. If the principle of a willing seller and a willing buyer is applied there can possibly be no market at all for the property acquired. It is not suggested that in every case of acquisition of land for the street this principle will break down. But having regard to the fact that in the course of widening the street the Corporation may have to acquire very irregular, shapeless and small pieces of land for the purposes of the street, a host of principles may have to be employed to determine the compensation. We asked learned counsel for the respondents what one general principle of determination of compensation in such cases could have been appropriately specified. We did not get any satisfactory reply. It appears to us that this very difficulty in specifying any known rule of compensation is responsible for the wording of section 216 and section 389 of the Act which, in our opinion gets over the difficulty by providing full indemnification for the loss or deprivation suffered by the owner of the building or other interests in the property. We have referred to the provisions with regard to appeals. The first appeal lies to the Judge of the Small Cause Court and a second appeal to the District Judge. The involvement of Civil Courts in finally determining compensation imports judicial norms. Since full indemnification in accordance with judicial norms is the goal set by the Act it is implicit in such a provision that the rules for determination of compensation shall be appropriate to the property acquired and such as will achieve the goal of full indemnity against loss. In other words, the Act provides for compensation to be determined in accordance with judicial principles by the employment of appropriate methods of valuation so that the person who is deprived of property is fully indemnified against the loss. This, by itself, in our opinion, is a specification of a principle for the determination of compensation. 17. As regards the manner of determination of compensation, it is provided in section 390 of the Corporations Act. Under that section the Commissioner or such other officer as may be authorised by him shall hold such enquiry as he thinks fit and determine the amount of compensation to be paid Either the Commissioner or an Officer authorised by him has to hold an appropriate enquiry before determining the amount of compensation. Since, as already seen, there is an appeal from such determination to the Judge of the Small Cause Court under S. 391 and a second appeal to the District Court under section 411 it is clear that the enquiry must be made on broad judicial lines. Any arbitrary determination is bound to be set aside in appeal because the Judges in appeal will be chiefly concerned to see whether the enquiry is made in accordance with normal judicial procedures for evaluating the loss by the application of methods of valuation appropriate to the particular acquisition before them. Since no limitations are placed on the powers of the Appellate Judges in determining the loss in a just and appropriate manner it is expended that the Commissioner or his authorised officer, who holds the enquiry in the first instance, will be guided by principle which meet with the approval of the Appellate authorities. In our opinion therefore, the manner of the determination of compensation is also specified by the act. 18. It is conceded before us that if this Court holds that the Corporations Act has provided for the payment of compensation and also specified the principle on which and the manner in which compensation is to be determined, it would not be possible to say that the Act is either in violation of the provisions of section 299 of the Government of India Act, 1935 of Article 31 of the Constitution. 19. Since the High Court had not considered the challenge to the validity of section 212 and the allied sections of the Act on the ground of infringement of fundamental rights under Article 14 and partially under Article 19 of the Constitution, and the learned counsel for both sides agree that the cases should be remanded to the High Court for disposal after considering the points raised in that regard, we send down the cases accordingly for disposal. | 1[ds]14. We are in agreement with the view of the High Court that the Corporations Act does provide for the payment of compensation for the property acquired. We have only to refer to section 216 and section 389 of the Act for this purpose. Section 216 (1) clearly lays down that compensation shall be paid by the Commissioner to the owner of any building or land required for public street under sections 211, 212, 213 and 214 for any loss which such owner may sustain in consequence of his building or land being so acquired, and for any expense incurred by such owner in consequence of the order made by the Commissioner. Then section 389 (1) provides that compensation assessed in the manner prescribed by or under the Act shall be paid to any person who sustains damage in consequence of the exercise of such power, namely, "(f) acquiring any building or land required for a public street under section 216."The two sections read together make it clear that full indemnification in terms of money for the loss caused is to be made to the owner of the property or other interests affected by reason of the exercise of power under section 212. Under the latter section what is acquired for the purposes of the street is the land of the owner which falls within the regular line of the street. Several provisions are made in Chapter XIV for the widening of streets within the limits of the Corporation. With the enormous increase in traffic in the more congested parts of a growing City, Municipal authorities are constantly under pressure to widen the streets and one of the several methods prescribed in Chapter XIV is contained in section 212. The regular line of the street as prescribed under section 210 often passes through the properties or owners abutting on the streets and it is impossible to widen the streets unless are acquired. Sometimes a building or a structure or part of it stands on such land and unless that portion of the building which falls within the line is removed the acquisition of the land for the purpose of the street is not possible. Therefore, in the first instance the section requires that the Commissioner shall issue a show cause notice why the building or a part of the building which falls within the line of street should not be pulled down with a view to release the land underneath for the purposes of the street. If after hearing the owner the Commissioner is of the opinion that the building or part thereof should be pulled down, he must obtain the approval of the Standing Committee and then serve a notice on the owner to pull down the offending building or part of building within a certain time. If the owner co-operates, he will himself remove the offending structure and release the land underneath it for being absorbed in the street. If he does not, the Commissioner is empowered to pull down the offending structure at the cost of the owner. Then sub-section (4) of section 212 provides that the Commissioner shall at once take possession on behalf of the Corporation of the portion of the land within the said line (line of the public street) theretofore occupied by the said building, and such land shall thenceforward be deemed a part of the public street and shall vest as such in the Corporation. The provisions of S. 212, therefore, clearly declare that what is acquired under that section is the land lying within the line of the public street. The technical question as to whether there is acquisition of the building when the owner himself does not pull down the offending part of the structure but the Commissioner does it at the owners expense is not necessary for the disposal of the question whether the Act provides for the payment of compensation. Since every kind of loss is required to be compensated as a consequence of the order passed by the Commissioner under section 216 of the Act, the question whether the Act need have provided for compensation as on the acquisition of the building or a part of the building which is pulled down under section 212 does not survive. The owner has to be compensated for every deprivation or loss and, therefore, prima facie it must be held that the Corporations Act provides for the payment of compensation for the property acquiredAs a matter of fact in an actual enquiry for determining the amount of compensation to be paid the authority charged with the duty will have to assess, in the first instance, the value of the total loss or deprivation actually suffered. The provisos may in some rare contingencies go to reduce the amount so determined. Proviso (ii) envisages a situation where the widening of the street has so much benefited the owner that the value of the benefit even exceeds the actual loss suffered by him. In such a case instead of getting any compensation for the loss the owner might have to pay out of his own pocket. As to whether proviso (ii) prescribes any principle for determination of compensation or not is not relevant for our present purpose. Both the provisos come into play only after the compensation for loss is determined under sub-section (1) of section 216 and since that sub-section declares that full compensation must be paid for the loss or deprivation suffered by the owner it will be incorrect to say that the Act does not make provision for the payment of compensation for the property acquired. We have, therefore, no hesitation in agreeing with the High Court that the Corporations Act provides for the payment of compensation for the property acquired under section 21217. As regards the manner of determination of compensation, it is provided in section 390 of the Corporations Act. Under that section the Commissioner or such other officer as may be authorised by him shall hold such enquiry as he thinks fit and determine the amount of compensation to be paid Either the Commissioner or an Officer authorised by him has to hold an appropriate enquiry before determining the amount of compensation. Since, as already seen, there is an appeal from such determination to the Judge of the Small Cause Court under S. 391 and a second appeal to the District Court under section 411 it is clear that the enquiry must be made on broad judicial lines. Any arbitrary determination is bound to be set aside in appeal because the Judges in appeal will be chiefly concerned to see whether the enquiry is made in accordance with normal judicial procedures for evaluating the loss by the application of methods of valuation appropriate to the particular acquisition before them. Since no limitations are placed on the powers of the Appellate Judges in determining the loss in a just and appropriate manner it is expended that the Commissioner or his authorised officer, who holds the enquiry in the first instance, will be guided by principle which meet with the approval of the Appellate authorities. In our opinion therefore, the manner of the determination of compensation is also specified by the act19. Since the High Court had not considered the challenge to the validity of section 212 and the allied sections of the Act on the ground of infringement of fundamental rights under Article 14 and partially under Article 19 of the Constitution, and the learned counsel for both sides agree that the cases should be remanded to the High Court for disposal after considering the points raised in that regard, we send down the cases accordingly for disposal. | 1 | 5,507 | 1,364 | ### 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:
= (AIR 1969 SC 634 ), this court observed:"Specification of principles means laying down general guiding rules applicable to all person or transactions governed thereby. Under the Land Acquisition Act compensation is determined on the basis of "market value" of the land on the date of the notification under S. 4 (1) of that Act. That is a specification of principle." At a later stage the court again observed at page 362:"Rules enunciated by the courts for determining compensation for compulsory acquisition under the Land Acquisition Act vary according to the nature of the land acquired. For properties, which are not marketable commodities, such as lands buildings and incorporeal rights, valuation has to be made on the application of different rules. Principle of capitalisation of net rent at the current market rate on guilt-edged securities, principle of reinstatement, principle of determination of original value less depreciation, determination of break-up value in certain types of property which have outgrown their utility, and a host of other so-called principles are employed for determination of compensation payable for acquisition of lands, houses, incorporeal rights etc." The Land Acquisition Act makes market value at a certain date the basis for the determination of compensation. But there is no one sure way of applying the principle. As is well known when set-back is imposed by the line of the street, the land actually acquired by the Corporation may be in some cases a few sq. yards or even a few sq. inches. Then again the land acquired may be of no significant use to anybody except to the Corporation as a part of the street. The land acquired may be wedge-shaped, sometimes irregular in contour and often shapeless. If the principle of a willing seller and a willing buyer is applied there can possibly be no market at all for the property acquired. It is not suggested that in every case of acquisition of land for the street this principle will break down. But having regard to the fact that in the course of widening the street the Corporation may have to acquire very irregular, shapeless and small pieces of land for the purposes of the street, a host of principles may have to be employed to determine the compensation. We asked learned counsel for the respondents what one general principle of determination of compensation in such cases could have been appropriately specified. We did not get any satisfactory reply. It appears to us that this very difficulty in specifying any known rule of compensation is responsible for the wording of section 216 and section 389 of the Act which, in our opinion gets over the difficulty by providing full indemnification for the loss or deprivation suffered by the owner of the building or other interests in the property. We have referred to the provisions with regard to appeals. The first appeal lies to the Judge of the Small Cause Court and a second appeal to the District Judge. The involvement of Civil Courts in finally determining compensation imports judicial norms. Since full indemnification in accordance with judicial norms is the goal set by the Act it is implicit in such a provision that the rules for determination of compensation shall be appropriate to the property acquired and such as will achieve the goal of full indemnity against loss. In other words, the Act provides for compensation to be determined in accordance with judicial principles by the employment of appropriate methods of valuation so that the person who is deprived of property is fully indemnified against the loss. This, by itself, in our opinion, is a specification of a principle for the determination of compensation. 17. As regards the manner of determination of compensation, it is provided in section 390 of the Corporations Act. Under that section the Commissioner or such other officer as may be authorised by him shall hold such enquiry as he thinks fit and determine the amount of compensation to be paid Either the Commissioner or an Officer authorised by him has to hold an appropriate enquiry before determining the amount of compensation. Since, as already seen, there is an appeal from such determination to the Judge of the Small Cause Court under S. 391 and a second appeal to the District Court under section 411 it is clear that the enquiry must be made on broad judicial lines. Any arbitrary determination is bound to be set aside in appeal because the Judges in appeal will be chiefly concerned to see whether the enquiry is made in accordance with normal judicial procedures for evaluating the loss by the application of methods of valuation appropriate to the particular acquisition before them. Since no limitations are placed on the powers of the Appellate Judges in determining the loss in a just and appropriate manner it is expended that the Commissioner or his authorised officer, who holds the enquiry in the first instance, will be guided by principle which meet with the approval of the Appellate authorities. In our opinion therefore, the manner of the determination of compensation is also specified by the act. 18. It is conceded before us that if this Court holds that the Corporations Act has provided for the payment of compensation and also specified the principle on which and the manner in which compensation is to be determined, it would not be possible to say that the Act is either in violation of the provisions of section 299 of the Government of India Act, 1935 of Article 31 of the Constitution. 19. Since the High Court had not considered the challenge to the validity of section 212 and the allied sections of the Act on the ground of infringement of fundamental rights under Article 14 and partially under Article 19 of the Constitution, and the learned counsel for both sides agree that the cases should be remanded to the High Court for disposal after considering the points raised in that regard, we send down the cases accordingly for disposal.
### Response:
1
### Explanation:
prescribed in Chapter XIV is contained in section 212. The regular line of the street as prescribed under section 210 often passes through the properties or owners abutting on the streets and it is impossible to widen the streets unless are acquired. Sometimes a building or a structure or part of it stands on such land and unless that portion of the building which falls within the line is removed the acquisition of the land for the purpose of the street is not possible. Therefore, in the first instance the section requires that the Commissioner shall issue a show cause notice why the building or a part of the building which falls within the line of street should not be pulled down with a view to release the land underneath for the purposes of the street. If after hearing the owner the Commissioner is of the opinion that the building or part thereof should be pulled down, he must obtain the approval of the Standing Committee and then serve a notice on the owner to pull down the offending building or part of building within a certain time. If the owner co-operates, he will himself remove the offending structure and release the land underneath it for being absorbed in the street. If he does not, the Commissioner is empowered to pull down the offending structure at the cost of the owner. Then sub-section (4) of section 212 provides that the Commissioner shall at once take possession on behalf of the Corporation of the portion of the land within the said line (line of the public street) theretofore occupied by the said building, and such land shall thenceforward be deemed a part of the public street and shall vest as such in the Corporation. The provisions of S. 212, therefore, clearly declare that what is acquired under that section is the land lying within the line of the public street. The technical question as to whether there is acquisition of the building when the owner himself does not pull down the offending part of the structure but the Commissioner does it at the owners expense is not necessary for the disposal of the question whether the Act provides for the payment of compensation. Since every kind of loss is required to be compensated as a consequence of the order passed by the Commissioner under section 216 of the Act, the question whether the Act need have provided for compensation as on the acquisition of the building or a part of the building which is pulled down under section 212 does not survive. The owner has to be compensated for every deprivation or loss and, therefore, prima facie it must be held that the Corporations Act provides for the payment of compensation for the property acquiredAs a matter of fact in an actual enquiry for determining the amount of compensation to be paid the authority charged with the duty will have to assess, in the first instance, the value of the total loss or deprivation actually suffered. The provisos may in some rare contingencies go to reduce the amount so determined. Proviso (ii) envisages a situation where the widening of the street has so much benefited the owner that the value of the benefit even exceeds the actual loss suffered by him. In such a case instead of getting any compensation for the loss the owner might have to pay out of his own pocket. As to whether proviso (ii) prescribes any principle for determination of compensation or not is not relevant for our present purpose. Both the provisos come into play only after the compensation for loss is determined under sub-section (1) of section 216 and since that sub-section declares that full compensation must be paid for the loss or deprivation suffered by the owner it will be incorrect to say that the Act does not make provision for the payment of compensation for the property acquired. We have, therefore, no hesitation in agreeing with the High Court that the Corporations Act provides for the payment of compensation for the property acquired under section 21217. As regards the manner of determination of compensation, it is provided in section 390 of the Corporations Act. Under that section the Commissioner or such other officer as may be authorised by him shall hold such enquiry as he thinks fit and determine the amount of compensation to be paid Either the Commissioner or an Officer authorised by him has to hold an appropriate enquiry before determining the amount of compensation. Since, as already seen, there is an appeal from such determination to the Judge of the Small Cause Court under S. 391 and a second appeal to the District Court under section 411 it is clear that the enquiry must be made on broad judicial lines. Any arbitrary determination is bound to be set aside in appeal because the Judges in appeal will be chiefly concerned to see whether the enquiry is made in accordance with normal judicial procedures for evaluating the loss by the application of methods of valuation appropriate to the particular acquisition before them. Since no limitations are placed on the powers of the Appellate Judges in determining the loss in a just and appropriate manner it is expended that the Commissioner or his authorised officer, who holds the enquiry in the first instance, will be guided by principle which meet with the approval of the Appellate authorities. In our opinion therefore, the manner of the determination of compensation is also specified by the act19. Since the High Court had not considered the challenge to the validity of section 212 and the allied sections of the Act on the ground of infringement of fundamental rights under Article 14 and partially under Article 19 of the Constitution, and the learned counsel for both sides agree that the cases should be remanded to the High Court for disposal after considering the points raised in that regard, we send down the cases accordingly for disposal.
|
Oriental Insurance Co. Ltd. & Another Vs. Gokulprasad Maniklal Agarwal & Another | Delay condoned. 2. Leave granted. 3. The respondent-Gokulprasad Maniklal Agarwal was working as an Assistant Administrative Officer with the Appellant insurance company. He challenged initiation of disciplinary proceedings against him by the appellant by filing Writ Petition No. 2128/84 in the High Court of Bombay. While the departmental proceedings were pending a promotion list for the Western Zone for promotion to the post of Administrative Officer was published by the appellant on 8.2.1988. The respondents name appeared at serial No. 1. Instead of promoting him, by letter dated 22.2.1988, the respondent was informed by the appellant that as the disciplinary proceedings were pending against him his promotion to the rank of Administrative Officer has been kept in abeyance till the result of the enquiry.4. The disciplinary proceedings ended with an order dated 19.11.1993 whereby the respondent was awarded penalty of reduction in basic pay by one stage in the time scale of pay on permanent basis. The respondent feeling aggrieved by the letter dated 22.2.1988 and the order of punishment dated 19.11.1993, amended the Writ Petition and challenged the said letter and order also. The High Court considered the punishment imposed upon the respondent as a minor penalty and held that imposition of such a minor penalty could not come in the way of promotion. Taking this view the High Court allowed the Writ Petition and quashed the letter/decision dated 22.2.1988.5. The appellant then filed Special Leave Petition (Civil) No. 3413 of 1998, in this Court. It was withdrawn as the appellant wanted to file a Review Petition before the High Court. The appellant, thereafter, did approach the High Court by way of a Review Petition but the same was dismissed on the ground that there was no error apparent on the face of the record. Aggrieved by both the orders of the High Court, the appellant has filed these appeals. The respondent though served has not thought it fit to appear.What is contended by the learned counsel for the appellant is that the punishment imposed upon the respondent was a major penalty and not a minor penalty. He submitted that it was a mistake on the part of the learned counsel appearing for the Insurance Company to have conceded before the High Court that it was a minor penalty. He further submitted that this error has vitiated the order passed by the High Court. 6. Learned counsel drew our attention to the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 and we find that Rule 23 of the said Rules clearly describes reduction to a lower time scale or to a lower stage in a time as a major penalty. Obviously, the learned counsel who appeared for the Insurance Company had committed a mistake while describing it as a minor penalty. When this mistake was pointed out to the High Court it should have really reviewed its earlier order. 7. As departmental proceedings for a major penalty were started against the respondent, the appellant was justified in not promoting him till the enquiry was over. The learned counsel for the appellant pointed out to us that soon after the order of punishment was passed, the case of the respondent was again considered by the Promotion Committee. He was considered for succeeding years also but was not found fit for promotion on merits. The Promotion Committee for the year 1999-2000 having found him fit he has now been promoted to the higher post. 8. In our opinion the High Court was not right in setting aside the decision of the appellant as contained in the letter dated 22.2.1988 and allowing the petition filed by the respondent. | 1[ds]8. In our opinion the High Court was not right in setting aside the decision of the appellant as contained in the letter dated 22.2.1988 and allowing the petition filed by the respondent. | 1 | 656 | 39 | ### 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:
Delay condoned. 2. Leave granted. 3. The respondent-Gokulprasad Maniklal Agarwal was working as an Assistant Administrative Officer with the Appellant insurance company. He challenged initiation of disciplinary proceedings against him by the appellant by filing Writ Petition No. 2128/84 in the High Court of Bombay. While the departmental proceedings were pending a promotion list for the Western Zone for promotion to the post of Administrative Officer was published by the appellant on 8.2.1988. The respondents name appeared at serial No. 1. Instead of promoting him, by letter dated 22.2.1988, the respondent was informed by the appellant that as the disciplinary proceedings were pending against him his promotion to the rank of Administrative Officer has been kept in abeyance till the result of the enquiry.4. The disciplinary proceedings ended with an order dated 19.11.1993 whereby the respondent was awarded penalty of reduction in basic pay by one stage in the time scale of pay on permanent basis. The respondent feeling aggrieved by the letter dated 22.2.1988 and the order of punishment dated 19.11.1993, amended the Writ Petition and challenged the said letter and order also. The High Court considered the punishment imposed upon the respondent as a minor penalty and held that imposition of such a minor penalty could not come in the way of promotion. Taking this view the High Court allowed the Writ Petition and quashed the letter/decision dated 22.2.1988.5. The appellant then filed Special Leave Petition (Civil) No. 3413 of 1998, in this Court. It was withdrawn as the appellant wanted to file a Review Petition before the High Court. The appellant, thereafter, did approach the High Court by way of a Review Petition but the same was dismissed on the ground that there was no error apparent on the face of the record. Aggrieved by both the orders of the High Court, the appellant has filed these appeals. The respondent though served has not thought it fit to appear.What is contended by the learned counsel for the appellant is that the punishment imposed upon the respondent was a major penalty and not a minor penalty. He submitted that it was a mistake on the part of the learned counsel appearing for the Insurance Company to have conceded before the High Court that it was a minor penalty. He further submitted that this error has vitiated the order passed by the High Court. 6. Learned counsel drew our attention to the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 and we find that Rule 23 of the said Rules clearly describes reduction to a lower time scale or to a lower stage in a time as a major penalty. Obviously, the learned counsel who appeared for the Insurance Company had committed a mistake while describing it as a minor penalty. When this mistake was pointed out to the High Court it should have really reviewed its earlier order. 7. As departmental proceedings for a major penalty were started against the respondent, the appellant was justified in not promoting him till the enquiry was over. The learned counsel for the appellant pointed out to us that soon after the order of punishment was passed, the case of the respondent was again considered by the Promotion Committee. He was considered for succeeding years also but was not found fit for promotion on merits. The Promotion Committee for the year 1999-2000 having found him fit he has now been promoted to the higher post. 8. In our opinion the High Court was not right in setting aside the decision of the appellant as contained in the letter dated 22.2.1988 and allowing the petition filed by the respondent.
### Response:
1
### Explanation:
8. In our opinion the High Court was not right in setting aside the decision of the appellant as contained in the letter dated 22.2.1988 and allowing the petition filed by the respondent.
|
The Sawatram Ramprasad Mills Co. Ltd Vs. Baliram Ukandaji And Another | appropriate Government, and the amount so determined may be recovered as provided for in sub-section (1).(3) For the purposes of computing the money value of a benefit, the Labout Court may, if it so thinks fit, appoint a Commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case."The powers of the Government under the above section admittedly have been delegated to the Second Labour Court, Bombay. Section 31 of this Amending Act provides as follows:-"31. Act not to override State laws.(1) If, immediately before the commencement of this Act, there is in force in any State any Provincial Act or State Act relating to the settlement or adjudication of disputes, the operation of such an Act in that State in relation to matters covered by that Act shall not be affected by the Industrial Disputes Act, 1947, as amended by this Act.(2) * * * * * ** * * * * *"4. From these sections, which we have quoted, certain conclusions indisputably arise. The first conclusion is that compensation for lay off can only be determined under Chapter V-A of the Industrial Disputes Act. This follows from S. 25-J (2) as it is so stated there. The next is that the workmen are entitled under S. 33-C (1) to go before the second Labour Court to realise money due from their employers under Chapter V-A. This is clearly stated in S. 33-C. The contention on behalf of the Mills, however, is that the Industrial Disputes Act. 1947 does not apply to the present matter but the C. P. and Berar Industrial Disputes (Settlement) Act does. This argument is put in two ways. By one argument the application of the Industrial Disputes Act is sought to be evaded and by the second the C. P. and Berar Industrial Disputes (Settlement) Act is sought to be applied. We shall examine these two arguments in the same order. The attempt to oust the Central Act is based upon S. 31 of the 1956 (Amendment) Act and the opening part of S. 25-J. Section 31 can have no application because S. 33-C has been included for the purpose, among others, of enabling the workmen to claim any money due from their employers under the provisions of Chapter V-A. This is expressly so stated in that section. Chapter 5-A is the only Chapter in which there is provision regarding lay off or compensation for lay off. The C. P. and Berar Act contains no provision either for the recovery of money or for compensation for lay off. It is thus obvious that if a workman has a claim for lay off it can only come up for decision under the Industrial Disputes Act, 1947 and, indeed, S. 25-J (2) says so in express terms. The attempt to keep out the provisions of the Industrial disputes Act, particularly Chapter V-A and S. 33-C must, therefore, fail. The next attempt, namely, that the C. P. and Berar Act applies is also ineffective. It is pointed out that the preamble of the C. P. and Berar Act shows that it was an Act for the promotion of peaceful and amicable settlement of industrial disputes by conciliation and arbitration, that industrial dispute means any dispute or difference connected with an industrial matter arising between an employer and between employers or employees and that industrial matter means any matter relating to pay, wages, reward, etc. It is submitted, therefore, that the dispute must come under the C. P. and Berar Act because of S. 31 of the 1956 (Amendment) Act and S. 25-J of the 1953 (Amendment) Act already quoted. The argument is the last one in another form. This argument is fallacious at the very start because lay off and compensation for lay off are to be found only in Chapter V-A of the Industrial Disputes Act, 1947. There is no mention of lay off or compensation for lay off as one of the matters over which the C. P. and Berar Act has any jurisdiction. Next, even if Ss. 31 and 25-J save the application of the C. P. and Berar Act they do so subject to the condition that question of lay off must be decided in accordance with Chapter V-A and S. 33-C clearly provides that a dispute for any money due under Chapter V-A has to go before the appropriate Government or its delegate. Here the delegate is the Second Labour Court. Bombay . The argument that this controversy is wrongly before the Second Labour Court, Bombay is, therefore, entirely erroneous and must be rejected.5. The next contention is that the claim for lay off is not a claim for money due because calculations have to be made before the money due can be found. This argument has been considered on more than one occasion and it was rejected recently by this Court in Kays Construction Co. (P) Ltd. v. State of U. P. (C. As. 1108 and 1109 of 1963, D/ -26-11-1964: (AIR 1965 SC 1488 ). It is not essential that the claim which can be brought before the Government or its delegate under S. 33-C (1) must always be for a predetermined sum. The Government or the Labour Court may satisfy itself about the exact amount and then take action under that section. In the present case the dates of lay off are known and each workman will show to the Second Labour Court that he is qualified to receive compensation for lay off. That will be shown from the muster roll which the employer is required to maintain and it will then be a simple arithmetical calculation which, in our judgment, S. 33-C permits to be made. If there is any question whether there was lay off or not the Labour Court will decide it. This argument, therefore, has no force. | 0[ds]4. From these sections, which we have quoted, certain conclusions indisputably arise. The first conclusion is that compensation for lay off can only be determined under Chapter V-A of the Industrial Disputes Act. This follows from S. 25-J (2) as it is so stated there. The next is that the workmen are entitled under S. 33-C (1) to go before the second Labour Court to realise money due from their employers under Chapter V-A. This is clearly stated in S. 33-C. The contention on behalf of the Mills, however, is that the Industrial Disputes Act. 1947 does not apply to the present matter but the C. P. and Berar Industrial Disputes (Settlement) Actis no mention of lay off or compensation for lay off as one of the matters over which the C. P. and Berar Act has any jurisdiction. Next, even if Ss. 31 and 25-J save the application of the C. P. and Berar Act they do so subject to the condition that question of lay off must be decided in accordance with Chapter V-A and S. 33-C clearly provides that a dispute for any money due under Chapter V-A has to go before the appropriate Government or its delegate. Here the delegate is the Second Labour Court. Bombay . The argument that this controversy is wrongly before the Second Labour Court, Bombay is, therefore, entirely erroneous and must beargument has been considered on more than one occasion and it was rejected recently by this Court in Kays Construction Co. (P) Ltd. v. State of U. P. (C. As. 1108 and 1109 of 1963, D/ -26-11-1964: (AIR 1965 SC 1488 ). It is not essential that the claim which can be brought before the Government or its delegate under S. 33-C (1) must always be for a predetermined sum. The Government or the Labour Court may satisfy itself about the exact amount and then take action under that section. In the present case the dates of lay off are known and each workman will show to the Second Labour Court that he is qualified to receive compensation for lay off. That will be shown from the muster roll which the employer is required to maintain and it will then be a simple arithmetical calculation which, in our judgment, S. 33-C permits to be made. If there is any question whether there was lay off or not the Labour Court will decide it. This argument, therefore, has no force. | 0 | 2,267 | 458 | ### 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:
appropriate Government, and the amount so determined may be recovered as provided for in sub-section (1).(3) For the purposes of computing the money value of a benefit, the Labout Court may, if it so thinks fit, appoint a Commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case."The powers of the Government under the above section admittedly have been delegated to the Second Labour Court, Bombay. Section 31 of this Amending Act provides as follows:-"31. Act not to override State laws.(1) If, immediately before the commencement of this Act, there is in force in any State any Provincial Act or State Act relating to the settlement or adjudication of disputes, the operation of such an Act in that State in relation to matters covered by that Act shall not be affected by the Industrial Disputes Act, 1947, as amended by this Act.(2) * * * * * ** * * * * *"4. From these sections, which we have quoted, certain conclusions indisputably arise. The first conclusion is that compensation for lay off can only be determined under Chapter V-A of the Industrial Disputes Act. This follows from S. 25-J (2) as it is so stated there. The next is that the workmen are entitled under S. 33-C (1) to go before the second Labour Court to realise money due from their employers under Chapter V-A. This is clearly stated in S. 33-C. The contention on behalf of the Mills, however, is that the Industrial Disputes Act. 1947 does not apply to the present matter but the C. P. and Berar Industrial Disputes (Settlement) Act does. This argument is put in two ways. By one argument the application of the Industrial Disputes Act is sought to be evaded and by the second the C. P. and Berar Industrial Disputes (Settlement) Act is sought to be applied. We shall examine these two arguments in the same order. The attempt to oust the Central Act is based upon S. 31 of the 1956 (Amendment) Act and the opening part of S. 25-J. Section 31 can have no application because S. 33-C has been included for the purpose, among others, of enabling the workmen to claim any money due from their employers under the provisions of Chapter V-A. This is expressly so stated in that section. Chapter 5-A is the only Chapter in which there is provision regarding lay off or compensation for lay off. The C. P. and Berar Act contains no provision either for the recovery of money or for compensation for lay off. It is thus obvious that if a workman has a claim for lay off it can only come up for decision under the Industrial Disputes Act, 1947 and, indeed, S. 25-J (2) says so in express terms. The attempt to keep out the provisions of the Industrial disputes Act, particularly Chapter V-A and S. 33-C must, therefore, fail. The next attempt, namely, that the C. P. and Berar Act applies is also ineffective. It is pointed out that the preamble of the C. P. and Berar Act shows that it was an Act for the promotion of peaceful and amicable settlement of industrial disputes by conciliation and arbitration, that industrial dispute means any dispute or difference connected with an industrial matter arising between an employer and between employers or employees and that industrial matter means any matter relating to pay, wages, reward, etc. It is submitted, therefore, that the dispute must come under the C. P. and Berar Act because of S. 31 of the 1956 (Amendment) Act and S. 25-J of the 1953 (Amendment) Act already quoted. The argument is the last one in another form. This argument is fallacious at the very start because lay off and compensation for lay off are to be found only in Chapter V-A of the Industrial Disputes Act, 1947. There is no mention of lay off or compensation for lay off as one of the matters over which the C. P. and Berar Act has any jurisdiction. Next, even if Ss. 31 and 25-J save the application of the C. P. and Berar Act they do so subject to the condition that question of lay off must be decided in accordance with Chapter V-A and S. 33-C clearly provides that a dispute for any money due under Chapter V-A has to go before the appropriate Government or its delegate. Here the delegate is the Second Labour Court. Bombay . The argument that this controversy is wrongly before the Second Labour Court, Bombay is, therefore, entirely erroneous and must be rejected.5. The next contention is that the claim for lay off is not a claim for money due because calculations have to be made before the money due can be found. This argument has been considered on more than one occasion and it was rejected recently by this Court in Kays Construction Co. (P) Ltd. v. State of U. P. (C. As. 1108 and 1109 of 1963, D/ -26-11-1964: (AIR 1965 SC 1488 ). It is not essential that the claim which can be brought before the Government or its delegate under S. 33-C (1) must always be for a predetermined sum. The Government or the Labour Court may satisfy itself about the exact amount and then take action under that section. In the present case the dates of lay off are known and each workman will show to the Second Labour Court that he is qualified to receive compensation for lay off. That will be shown from the muster roll which the employer is required to maintain and it will then be a simple arithmetical calculation which, in our judgment, S. 33-C permits to be made. If there is any question whether there was lay off or not the Labour Court will decide it. This argument, therefore, has no force.
### Response:
0
### Explanation:
4. From these sections, which we have quoted, certain conclusions indisputably arise. The first conclusion is that compensation for lay off can only be determined under Chapter V-A of the Industrial Disputes Act. This follows from S. 25-J (2) as it is so stated there. The next is that the workmen are entitled under S. 33-C (1) to go before the second Labour Court to realise money due from their employers under Chapter V-A. This is clearly stated in S. 33-C. The contention on behalf of the Mills, however, is that the Industrial Disputes Act. 1947 does not apply to the present matter but the C. P. and Berar Industrial Disputes (Settlement) Actis no mention of lay off or compensation for lay off as one of the matters over which the C. P. and Berar Act has any jurisdiction. Next, even if Ss. 31 and 25-J save the application of the C. P. and Berar Act they do so subject to the condition that question of lay off must be decided in accordance with Chapter V-A and S. 33-C clearly provides that a dispute for any money due under Chapter V-A has to go before the appropriate Government or its delegate. Here the delegate is the Second Labour Court. Bombay . The argument that this controversy is wrongly before the Second Labour Court, Bombay is, therefore, entirely erroneous and must beargument has been considered on more than one occasion and it was rejected recently by this Court in Kays Construction Co. (P) Ltd. v. State of U. P. (C. As. 1108 and 1109 of 1963, D/ -26-11-1964: (AIR 1965 SC 1488 ). It is not essential that the claim which can be brought before the Government or its delegate under S. 33-C (1) must always be for a predetermined sum. The Government or the Labour Court may satisfy itself about the exact amount and then take action under that section. In the present case the dates of lay off are known and each workman will show to the Second Labour Court that he is qualified to receive compensation for lay off. That will be shown from the muster roll which the employer is required to maintain and it will then be a simple arithmetical calculation which, in our judgment, S. 33-C permits to be made. If there is any question whether there was lay off or not the Labour Court will decide it. This argument, therefore, has no force.
|
The Commissioner Of Sales Tax' Madhya Pradesh Vs. M/S. H.M. Esufali, H.M. Abdulali Indore | estimate was without any basis. In making that estimate there was an element of guesswork which was inevitable in the circumstances of the case. If the Sales Tax Officer was compelled to adopt a rule of thumb which in a sense is an arbitrary rule, assessee was entirely responsible for that situation. 12. In State of Kerala v. C. Velukutty, (1966) 80 ITR 239 (SC) this Court speaking through Subba Rao J. (as he then was) observed (at p. 244 of the Report):"The limits of the power are implicit in the expression "best of his judgment". judgment faculty to decide matters with wisdom truly and legally. Judgment does not depend upon the arbitrary caprice of a Judge, but on settled and invariable principles of justice. Though there is an element of guess work in a best -judgment" assessment, it shall not be a wild one, but shall have a reasonable nexus to the available material and the circumstances of each case." 13. The question before us is whether there is a reasonable nexus between the basis adopted by the assessing authority and the estimate of escaped turnover made. We have no doubt that there is such a nexus. 14. On behalf of the assessee, reliance was placed on the decision of this Court in Commissioner of Income-tax West Bengali v. Padamchand Ramgopal 76 ITR 719 = (AIR l970 SC 1575) There-in while investigating into the case of the assessee, the Incomes Officer found two insignificant mistakes in the assessees accounts relating to the assessment year 1953-54. No mistakes were found in the accounts relating to the assessment years 1954-55 to 1957-58. Merely because there were some insignificant mistakes in the accounts maintained by the assesses for the assessment year 1953-54 the Income-tax Officer rejected the accounts of the assesses for all the Concerned assessment years and added to the income returned half the amount of gross receipts shown by the assessee under the head "interest" for each of the year as escaped income. The Tribunal upheld the addition but the High Court came to the conclusion that the additions made by the Income-tax Officer were quite arbitrary. This Court agreed with that view. We do not think the said decision lends any support to the assessees contention. 15. For the reasons mentioned above, we are unable to agree with the High Court that the Sales Tax Officer had arbitrarily assessed the assessee. 16.It was next contended that in a re-assessment under Section 19 (1) of the Act. Sales Tax Officer was not competent to make best-judgment assessment as no such power was conferred on him under the said section. This contention had been rejected by the High Court and the assessee had not appealed against that part of the judgment. Be that as it may even though Section 19 does not in specific terms confer on the assessing authority power to make best-judgment assessment that section specifically says that the assessment made under that section is a re-assessment 18 deals with assessment of tax. Section 18 (4) Says :"If a registered dealer- (a) x x x (b) x x x (c) x x x (d) has not maintained any account or has not regularly employed any method of accounting, or if the method employed is such that in the opinion of the Commissioner assessment cannot properly be made on the basis thereof: the Commissioner shall in the prescribed manner assess the dealer to the best of his judgment." 17. What is true of the assessment must also be true of re-assessment because re-assessment is nothing but a fresh assessment. When re-assessment is made under Section 19. the former assessment is completely re-opened and in its place fresh assessment is made. While re-assessing a dealer, the assessing authority does not merely assess him on the escaped turnover but it assesses him on his total estimated turnover. While making re-assessment under Section 19, if the assessing authority has no power to make best judgment assessment all that the assessee need do to escape re-assessment is to refuse to file a return or refuse to produce his account-books. If the contention taken on behalf of the assesses is correct, the assessee can escape his liability to be re-assessed by adopting an obstructive attitude. It is difficult to conceive that such could be the Position in law. 18. Before making re-assessment, the assessing authority has to under Rule 33 (1) framed under the Act, call upon the assesses to produce his books of account and other documents which the assessing authority may require and any evidence which the dealer may wish to produce in support of his objection. When such a notice is issued to the dealer, he may appear before the assessing authority on the date fixed in the notice and prefer his objections and produce such evidence as he may think necessary. Sub-rule (2) of Rule 33 provides that if the assesses appear" in response to the notice under Section 33 (1), the assessing authority may make reassessment, if necessary only after considering the objections raised by the dealer and after examination such evidence as may be produced by him. It is important to note that in the notice which the assessing authority is required to issue to the dealer in Form 16, the extent of the escaped turnover as estimated by the assessing authority has to be specified. The procedure laid down in Rule 33 could not have been a mere empty formality. If the assessees contention is right. in order to escape re-assessment all that the assessee need do is to ignore the notice issued under Rule 33 (1) end refuse to co-operate with the assessing authority in the re-assessment proceedings. We are unable to accept that that is the true position in law. 19. In our opinion the decision of the Andhra Pradesh High Court in State of Andhra Pradesh v. Ravuri V. Narasimhloo (1965) 16 STC 54 (Andh. Pra.) relied on by the assessee was not correctly decided. | 1[ds]The assessing authority while making the best-judgment assessment no doubt should arrive at its conclusion without any bias and on rational basis. That authority should not be vindictive or capricious. If the estimate made by the assessing authority is a bona fide estimate and is based on a rational basis. the fact that there is no good proof in support of that estimate is immaterial. Prima facie the assessing authority is the best Judge of the situation. It is his best-judgment and not of any one elses. The High Court could not substitute its best-judgment for that of the assessing authority. In the case of best-judgment assessments the Courts will have to first see whether the accounts maintained by the assesses were rightly rejected as unreliable. If they come to the conclusion that they were rightly rejected the next question that arises for consideration is whether the basis adopted in estimating the turnover has a reasonable nexus with the estimate made.If the basis adopted is held to be a relevant basis even though the Courts may think that it is not, the most appropriate basis, the estimate made by the assessing authority cannot be disturbed. In the present case, there is no dispute that the assessees accounts were rightly discarded. We do not agree with the High Court that it is the duty of the assessing authority to adduce proof in support of its estimate. The basis adopted by the Sales Tex Officer was a relevant one whether it was the most appropriate or not. Hence the High Court was not justified in interfering with the same11. Applying the rule laid down in Reghubar Mandal Harihar Mandal case, 8 STC 770 = (AIR 1957 SC 810 ) (supra), to the facts of the present case it is seen that the Sales Tax Officer had material before him to find out how much turnover had escaped assessment during a period of 19 days. On the basis of that materia1 he estimated the escaped turnover for the entire year. Hence it cannot be said that there was no basis for the estimate made by the Sales Tax Officer. It may be that his estimate was an over-estimate or an under-estimate but it cannot be said that the estimate was without any basis. In making that estimate there was an element of guesswork which was inevitable in the circumstances of the case. If the Sales Tax Officer was compelled to adopt a rule of thumb which in a sense is an arbitrary rule, assessee was entirely responsible for that situation15. For the reasons mentioned above, we are unable to agree with the High Court that the Sales Tax Officer had arbitrarily assessed the assessee17. What is true of the assessment must also be true of re-assessment because re-assessment is nothing but a fresh assessment. When re-assessment is made under Section 19. the former assessment is completely re-opened and in its place fresh assessment is made. While re-assessing a dealer, the assessing authority does not merely assess him on the escaped turnover but it assesses him on his total estimated turnover. While making re-assessment under Section 19, if the assessing authority has no power to make best judgment assessment all that the assessee need do to escape re-assessment is to refuse to file a return or refuse to produce his account-books. If the contention taken on behalf of the assesses is correct, the assessee can escape his liability to be re-assessed by adopting an obstructive attitude. It is difficult to conceive that such could be the Position in law18. Before making re-assessment, the assessing authority has to under Rule 33 (1) framed under the Act, call upon the assesses to produce his books of account and other documents which the assessing authority may require and any evidence which the dealer may wish to produce in support of his objection. When such a notice is issued to the dealer, he may appear before the assessing authority on the date fixed in the notice and prefer his objections and produce such evidence as he may think necessary. Sub-rule (2) of Rule 33 provides that if the assesses appear" in response to the notice under Section 33 (1), the assessing authority may make reassessment, if necessary only after considering the objections raised by the dealer and after examination such evidence as may be produced by him. It is important to note that in the notice which the assessing authority is required to issue to the dealer in Form 16, the extent of the escaped turnover as estimated by the assessing authority has to be specified. The procedure laid down in Rule 33 could not have been a mere empty formality. If the assessees contention is right. in order to escape re-assessment all that the assessee need do is to ignore the notice issued under Rule 33 (1) end refuse to co-operate with the assessing authority in the re-assessment proceedings. We are unable to accept that that is the true position in lawWe have no doubt that there is such a nexusThis contention had been rejected by the High Court and the assessee had not appealed against that part of the judgment. Be that as it may even though Section 19 does not in specific terms confer on the assessing authority power to maket assessment that section specifically says that the assessment made under that section is areassessment18 deals with assessment of tax. | 1 | 4,353 | 975 | ### 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:
estimate was without any basis. In making that estimate there was an element of guesswork which was inevitable in the circumstances of the case. If the Sales Tax Officer was compelled to adopt a rule of thumb which in a sense is an arbitrary rule, assessee was entirely responsible for that situation. 12. In State of Kerala v. C. Velukutty, (1966) 80 ITR 239 (SC) this Court speaking through Subba Rao J. (as he then was) observed (at p. 244 of the Report):"The limits of the power are implicit in the expression "best of his judgment". judgment faculty to decide matters with wisdom truly and legally. Judgment does not depend upon the arbitrary caprice of a Judge, but on settled and invariable principles of justice. Though there is an element of guess work in a best -judgment" assessment, it shall not be a wild one, but shall have a reasonable nexus to the available material and the circumstances of each case." 13. The question before us is whether there is a reasonable nexus between the basis adopted by the assessing authority and the estimate of escaped turnover made. We have no doubt that there is such a nexus. 14. On behalf of the assessee, reliance was placed on the decision of this Court in Commissioner of Income-tax West Bengali v. Padamchand Ramgopal 76 ITR 719 = (AIR l970 SC 1575) There-in while investigating into the case of the assessee, the Incomes Officer found two insignificant mistakes in the assessees accounts relating to the assessment year 1953-54. No mistakes were found in the accounts relating to the assessment years 1954-55 to 1957-58. Merely because there were some insignificant mistakes in the accounts maintained by the assesses for the assessment year 1953-54 the Income-tax Officer rejected the accounts of the assesses for all the Concerned assessment years and added to the income returned half the amount of gross receipts shown by the assessee under the head "interest" for each of the year as escaped income. The Tribunal upheld the addition but the High Court came to the conclusion that the additions made by the Income-tax Officer were quite arbitrary. This Court agreed with that view. We do not think the said decision lends any support to the assessees contention. 15. For the reasons mentioned above, we are unable to agree with the High Court that the Sales Tax Officer had arbitrarily assessed the assessee. 16.It was next contended that in a re-assessment under Section 19 (1) of the Act. Sales Tax Officer was not competent to make best-judgment assessment as no such power was conferred on him under the said section. This contention had been rejected by the High Court and the assessee had not appealed against that part of the judgment. Be that as it may even though Section 19 does not in specific terms confer on the assessing authority power to make best-judgment assessment that section specifically says that the assessment made under that section is a re-assessment 18 deals with assessment of tax. Section 18 (4) Says :"If a registered dealer- (a) x x x (b) x x x (c) x x x (d) has not maintained any account or has not regularly employed any method of accounting, or if the method employed is such that in the opinion of the Commissioner assessment cannot properly be made on the basis thereof: the Commissioner shall in the prescribed manner assess the dealer to the best of his judgment." 17. What is true of the assessment must also be true of re-assessment because re-assessment is nothing but a fresh assessment. When re-assessment is made under Section 19. the former assessment is completely re-opened and in its place fresh assessment is made. While re-assessing a dealer, the assessing authority does not merely assess him on the escaped turnover but it assesses him on his total estimated turnover. While making re-assessment under Section 19, if the assessing authority has no power to make best judgment assessment all that the assessee need do to escape re-assessment is to refuse to file a return or refuse to produce his account-books. If the contention taken on behalf of the assesses is correct, the assessee can escape his liability to be re-assessed by adopting an obstructive attitude. It is difficult to conceive that such could be the Position in law. 18. Before making re-assessment, the assessing authority has to under Rule 33 (1) framed under the Act, call upon the assesses to produce his books of account and other documents which the assessing authority may require and any evidence which the dealer may wish to produce in support of his objection. When such a notice is issued to the dealer, he may appear before the assessing authority on the date fixed in the notice and prefer his objections and produce such evidence as he may think necessary. Sub-rule (2) of Rule 33 provides that if the assesses appear" in response to the notice under Section 33 (1), the assessing authority may make reassessment, if necessary only after considering the objections raised by the dealer and after examination such evidence as may be produced by him. It is important to note that in the notice which the assessing authority is required to issue to the dealer in Form 16, the extent of the escaped turnover as estimated by the assessing authority has to be specified. The procedure laid down in Rule 33 could not have been a mere empty formality. If the assessees contention is right. in order to escape re-assessment all that the assessee need do is to ignore the notice issued under Rule 33 (1) end refuse to co-operate with the assessing authority in the re-assessment proceedings. We are unable to accept that that is the true position in law. 19. In our opinion the decision of the Andhra Pradesh High Court in State of Andhra Pradesh v. Ravuri V. Narasimhloo (1965) 16 STC 54 (Andh. Pra.) relied on by the assessee was not correctly decided.
### Response:
1
### Explanation:
The assessing authority while making the best-judgment assessment no doubt should arrive at its conclusion without any bias and on rational basis. That authority should not be vindictive or capricious. If the estimate made by the assessing authority is a bona fide estimate and is based on a rational basis. the fact that there is no good proof in support of that estimate is immaterial. Prima facie the assessing authority is the best Judge of the situation. It is his best-judgment and not of any one elses. The High Court could not substitute its best-judgment for that of the assessing authority. In the case of best-judgment assessments the Courts will have to first see whether the accounts maintained by the assesses were rightly rejected as unreliable. If they come to the conclusion that they were rightly rejected the next question that arises for consideration is whether the basis adopted in estimating the turnover has a reasonable nexus with the estimate made.If the basis adopted is held to be a relevant basis even though the Courts may think that it is not, the most appropriate basis, the estimate made by the assessing authority cannot be disturbed. In the present case, there is no dispute that the assessees accounts were rightly discarded. We do not agree with the High Court that it is the duty of the assessing authority to adduce proof in support of its estimate. The basis adopted by the Sales Tex Officer was a relevant one whether it was the most appropriate or not. Hence the High Court was not justified in interfering with the same11. Applying the rule laid down in Reghubar Mandal Harihar Mandal case, 8 STC 770 = (AIR 1957 SC 810 ) (supra), to the facts of the present case it is seen that the Sales Tax Officer had material before him to find out how much turnover had escaped assessment during a period of 19 days. On the basis of that materia1 he estimated the escaped turnover for the entire year. Hence it cannot be said that there was no basis for the estimate made by the Sales Tax Officer. It may be that his estimate was an over-estimate or an under-estimate but it cannot be said that the estimate was without any basis. In making that estimate there was an element of guesswork which was inevitable in the circumstances of the case. If the Sales Tax Officer was compelled to adopt a rule of thumb which in a sense is an arbitrary rule, assessee was entirely responsible for that situation15. For the reasons mentioned above, we are unable to agree with the High Court that the Sales Tax Officer had arbitrarily assessed the assessee17. What is true of the assessment must also be true of re-assessment because re-assessment is nothing but a fresh assessment. When re-assessment is made under Section 19. the former assessment is completely re-opened and in its place fresh assessment is made. While re-assessing a dealer, the assessing authority does not merely assess him on the escaped turnover but it assesses him on his total estimated turnover. While making re-assessment under Section 19, if the assessing authority has no power to make best judgment assessment all that the assessee need do to escape re-assessment is to refuse to file a return or refuse to produce his account-books. If the contention taken on behalf of the assesses is correct, the assessee can escape his liability to be re-assessed by adopting an obstructive attitude. It is difficult to conceive that such could be the Position in law18. Before making re-assessment, the assessing authority has to under Rule 33 (1) framed under the Act, call upon the assesses to produce his books of account and other documents which the assessing authority may require and any evidence which the dealer may wish to produce in support of his objection. When such a notice is issued to the dealer, he may appear before the assessing authority on the date fixed in the notice and prefer his objections and produce such evidence as he may think necessary. Sub-rule (2) of Rule 33 provides that if the assesses appear" in response to the notice under Section 33 (1), the assessing authority may make reassessment, if necessary only after considering the objections raised by the dealer and after examination such evidence as may be produced by him. It is important to note that in the notice which the assessing authority is required to issue to the dealer in Form 16, the extent of the escaped turnover as estimated by the assessing authority has to be specified. The procedure laid down in Rule 33 could not have been a mere empty formality. If the assessees contention is right. in order to escape re-assessment all that the assessee need do is to ignore the notice issued under Rule 33 (1) end refuse to co-operate with the assessing authority in the re-assessment proceedings. We are unable to accept that that is the true position in lawWe have no doubt that there is such a nexusThis contention had been rejected by the High Court and the assessee had not appealed against that part of the judgment. Be that as it may even though Section 19 does not in specific terms confer on the assessing authority power to maket assessment that section specifically says that the assessment made under that section is areassessment18 deals with assessment of tax.
|
M.C. Mehta Vs. Union of India (UOI) and Ors | that all the industries would accept gas as an industrial-fuel. The industries operating in TTZ which are given gas connections to run the industries need not relocate. The whole purpose is to stop air pollution by banishing coke/coal from TTZ. 29. This Court in Vellore Citizens Welfare Forum v. Union of India and Ors. AIR1996SC2715 , has defined the precautionary principle and the polluter pays principle as under: 11. ...We are, however, of the view that the Precautionary Principle and The Polluter Pays principle are essential features of Sustainable Development. The Precautionary Principle-in the context of the municipal law - means: (i) Environmental measures-by the State Government and the statutory authorities-must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be sued as a reason for postponing measures to prevent environmental degradation. (iii) The Onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign. 12. The Polluter Pays principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action v. Union of India [1996]2SCR503 . The Court observed, We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country. The Court ruled that Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on. Consequently the polluting industries are absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas. The polluter Pays principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of Sustainable Development and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. 13. The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47 48A, and 51A(g) of the Constitution are as under: 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.-The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health among its primary duties and in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 48A. Protection and improvement of environment and safeguarding of forest and wild life.-The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. 51A(g). To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Apart from the constitutional mandate to protect and improve the environment there are plenty of post independence legislations on the subject but more relevant enactments for our purpose are : The Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment Protection Act, 1986 (the Environment Act). The Water Act provides for the Constitution of the Central Pollution Control Board by the Central Government and the Constitution of the State Pollution Control Boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. Also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board. Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central Pollution Control Board and the State Pollution Control Boards constituted under the Water Act shall also perform the powers and functions under the Air Act. The main function of the Boards, under the Air Act, is to improve the quality of the air and to prevent, control and abate air pollution in the country. We shall deal with the Environment Act in the later part of this judgment. 14. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country. 30. Based on the reports of various technical authorities mentioned in this judgment, we have already reached the finding that the emissions generated by the coke/coal consuming industries are air-pollutants and have damaging effect on the Taj and the people living in the TTZ. The atmospheric pollution in TTZ has to be eliminated at any cost. Not even one per cent chance can be taken when-human life apart-the preservation of a prestigious monument like the Taj is involved. In any case, in view of the precautionary principle as defined by this Court, the environmental measures must anticipate, prevent and attack the causes of environmental degradation. The onus of proof is on an industry to show that its operation with the aid of coke/coal is environmentally benign. It is, rather, proved beyond doubt that the emissions generated by the use of coke/coal by the industries in TTZ are the main polluters of the ambient air. | 1[ds]16. The NEERI submitted a Technical Report dated March 7, 1994 pertaining to Issues Associated with Fuel Supply Alternatives for Industries in Agra-Mathura Region. Paras 2.4.1 and para 3 of the Report are as under:2.4 Safety Requirements2.4.1. NG : The use of NG involves the defining of No Gas Zone for safe distribution. The new sites in Agra and Firozabad industries being identified by the Government of Uttar Pradesh shall minimise this hazard as the industrial estates shall be suitably designed for NG distribution.The new industrial sites should preferably be out of the Taj Trapezium. The incentives for industries to shift to new industrial estates need to be established to ensure speedy implementation.xxx xxx xxx3.0 SummaryThe various issues raised in this report pertaining to the fuel supply alternatives to the industries in Agra-Firozabad region and the Mathura Refinery, can be summarized as:-Need for relocation of industries.-Availability of cleaner fuel (present and future)-Environmental benefits from alternate fuels-Safety considerationsThe recommendations are summarized hereunder:-Shifting of small-scale polluting industries outside the Taj Trapezium on industrial estate sites to be identified by the Government of Uttar Pradesh;-Provision of natural gas to the industries in Agra-Mathura region and Mathura Refinery.18. The Report clearly shows that the level of Suspended Particulate Matters (SPM) in the Taj Mahal area is high. The relevant part of the Report in this respect is as under:S.P.M. (Period 1981-1993)i. The level of SPM at Taj Mahal is generally quite high, the monthly mean values being above 200 micrograms/cubic metre for all the months during 1981-1985 except for the monsoon months.ii. There is an increasing trend in the monthly mean SPM concentrations from about 380 micrograms/cubic metre to 620 micrograms/cubic metre during the period 1987-1991, and the trend reverses thereafter till 1993. There is a decrease in monthly mean SPM levels from 620 micrograms/cubic metre in 1991 to about 425 micrograms/cubic metre in 1993.22. The industries in Agra have been dealt in paras 92, 93, 95 and 96 which are as under:92. Industries in Agra and Ferozabad have been asked to install APCD to reduce essentially SPM level in air emissions. UPPCB has the authority to monitor their performance to meet standards outlined for different industries by CPCB, noting their capacities. These regulations should be fully enforced. NEERI has suggested suitable sites in Agra and Ferozabad could be identified and developed as industrial estates with facilities, separated from residential area. If such sites are developed, natural gas supply in the industrial estate would be possible with safety, and the industrial units could be shifted.93. ...There is need for a single authority in such estates to coordinate all maintenance and repair work on electrical supply, telecommunications, water, sewage, drains, roads and construction. Any industrial estate in Agra with natural gas will have to be located at a substantial distance from monuments to ensure full safety.xxx xxx xxx95. When industrial units are relocated, it would be appropriate to modernise technology equipment and buildings. Most of the units will need very substantial financial assistance. The value of the present sites and their future use have to be determined. It would not be desirable to promote residential colonies and commercial establishments in such vacated areas as they may in turn add to the problems of water supply and atmospheric quality by excessive use of energy. Major changes of this nature would need a dear development planning strategy and resources, and will also take several years for implementation.96. There is urgent need for quicker measures which could lead to better environment, especially in the Taj Mahal. For this purpose, it is necessary to effect overall reduction in coal/coke consumption by industries and others in Agra and in Taj Trapezium Zone generally. The present level of consumption of 129 metric tonne per day by industry can be substantially reduced by new technology and by use of LPG and HSD of low sulphur. Stricter standards for emissions may be evolved when such technological and fuel changes are effected. Support for development of modifications in design and operation and demonstration should be provided. Some assistance to industries for adoption of these may be considered after careful examination of the costs and benefits to the industry and to society. All those industries not responding for action for feasible changes and contributing disproportionately to atmospheric pollution have to face action.23. The Taj being a monument on the World Heritage List, the Government of India sought the expert advice through UNESCO on the structural and chemical preservation aspects of the monument. Accordingly, two experts, namely, Dr. Mentrizio Marbeilli and Dr. M. Larze Tabasso visited The Taj Mahal between January 17-30 1987 to study the problems pertaining to the conservation of marble and sand stones in The Taj and recommended remedial measures. According to them, the yellowishness of the marble is due to (a) SPM and (b) dust fall impinging on the surface. Opinions of the Archaeological Survey of India and other scientists annexed to the Varadharajan Report unanimously say that the yellow shadow of the marble on different parts of The Taj including four minarets is mainly due to SPM and the dust fall impinging on the surface. The comments of the Archaeological Survey of India as noticed in Varadharajan Report are as under:On the structural side, The Taj Mahal is in a sound state of preservation and the studies conducted so far also confirm the same. The only threat to the Taj Mahal is from the environmental pollution.The Science wing of the ASI is continuously monitoring the level of suspended particulate matter, sulphur dioxide concentration and sulphation rate. The Studies made in this regard shows that suspended particulate matter level has been found to be higher than the maximum permissible level 100 kg/m3. This has imparted a yellowish appearance on the surface of the Taj Mahal.24. After careful examination of the two Varadharajan Reports (1978 and 1995) and the various NEERI reports placed on record, we are of the view that there is no contradiction between the two sets of reports. In the 1978 Report, Varadharajan found substantial level of air pollution because of sulphur dioxide and SPM in the Agra region. The source, according to the report, was the coal-users including approximately 250 small industries mainly foundries. The excess of SPM was because of the use of coal. The Report specifically recommended in para 5.4 for the relocation of the existing small industries particularly the foundries. The 1995 Varadharajan Report clearly shows that the standard of atmospheric pollution is much higher than the 1981-85 period which according to the Report is also because of heavy traffic and operation of generating sets. NEERI reports have clearly recommended the relocation of the industries from the TTZ.26. The chronology of the orders quoted by us in this judgment shows that this Court took cognizance of this matter in January 1993. There are four NEERI reports, two Varadharajan reports and several reports by the Board. After examining all the reports and taking into consideration other material on the record, we have no hesitation in holding that the industries in TTZ are active contributors to the air pollution in the said area. NEERI and Varadharajan (1978) reports have specifically recommended the relocation of industries from the TTZ. Although the Board has placed on record list of 510 industries which are responsible for air pollution but in view of our order dated April 11, 1994 (quoted above), we are confining this order only to 292 industries located and operating in Agra. These industries are listed hereunder:FOUNDRIES (DISTRICT AGRA)1. M/s. Gulab Rai Chottey2. M/s. Gulab Rai Chottey3. M/s. Krishna Iron4. M/s. B.C. Iron5. M/s. Kajeco6. M/s. National Iron7. M/s. Raj Pattern makers &8. M/s. Miraz Iron9. M/s. Mudgal Iron10. M/s. Prabhat Iron11. M/s. Raghav Engg.12. M/s. Raj Iron Foundry13. M/s. Agrawal Tin Mfg. Co.14. M/s. Moti Lal Agrawal &15. M/s. Anil Metal16. M/s. Shree Durga Laxmi Iron17. M/s. S.S. & Iron18. M/s. Randhir Chand Khoob Chand Iron Foundry Masta Ki19. M/s. Shree Ram Metal20. M/s. Indian Iron21. M/s. Suresh Iron Foundary & Engg. Works Langre Ki22. M/s. Sureshe Pass Road, Near Water23. M/s. Mahajan Iron24. M/s. Taj Iron26. M/s. Laxmi27. M/s. Shree Durga Bhagwati Industries & Iron28. M/s. India Casting29. M/s. India Iron30. Shanker Iron31. Jagannath Dewan Chandra32. Agarwal Wire33. Super Chem.34. Uttam Lah35. Mahajan Ispat37. Satya Deep38. Arbaria Iron39. Allied Iron & Steel41. Kalyan Steel Products (P)46. Satya Ind.47. A.R. Iron48. S.A. Iron49. S.K. Iron Foundary & Engg. Co.,50. S.K. Iron Foundary & Engg. Co.,52. Golden Engg.53. Paliwal Iron Foundary & Metal54. Jain Foundary & Engg.56. Oswal Iron58. S.S. Iron60. Dewan Chand Suraj Prakash61. Parolia Engg.62. S.B. Iron64. Sarla & Co.65. Shree Ram Iron Foundary &66. Jagdish Industrial67. R.K. Engineers &68. Goyal Iron & Steel69. R.R. Iron71. Bansal Iron72. Goyal Metal73. Fatehchand Sehgal &74. Adesh Kumar75. Deepak Chemical77. Prakash Iron78. Ravi Agricultural80. Manik Chand Garg &81. Bombay Engg. & Moulding82. Gopal Iron83. Sterling Machine | 1 | 16,029 | 1,718 | ### 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:
that all the industries would accept gas as an industrial-fuel. The industries operating in TTZ which are given gas connections to run the industries need not relocate. The whole purpose is to stop air pollution by banishing coke/coal from TTZ. 29. This Court in Vellore Citizens Welfare Forum v. Union of India and Ors. AIR1996SC2715 , has defined the precautionary principle and the polluter pays principle as under: 11. ...We are, however, of the view that the Precautionary Principle and The Polluter Pays principle are essential features of Sustainable Development. The Precautionary Principle-in the context of the municipal law - means: (i) Environmental measures-by the State Government and the statutory authorities-must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be sued as a reason for postponing measures to prevent environmental degradation. (iii) The Onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign. 12. The Polluter Pays principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action v. Union of India [1996]2SCR503 . The Court observed, We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country. The Court ruled that Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on. Consequently the polluting industries are absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas. The polluter Pays principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of Sustainable Development and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. 13. The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47 48A, and 51A(g) of the Constitution are as under: 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.-The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health among its primary duties and in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 48A. Protection and improvement of environment and safeguarding of forest and wild life.-The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. 51A(g). To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Apart from the constitutional mandate to protect and improve the environment there are plenty of post independence legislations on the subject but more relevant enactments for our purpose are : The Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment Protection Act, 1986 (the Environment Act). The Water Act provides for the Constitution of the Central Pollution Control Board by the Central Government and the Constitution of the State Pollution Control Boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. Also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board. Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central Pollution Control Board and the State Pollution Control Boards constituted under the Water Act shall also perform the powers and functions under the Air Act. The main function of the Boards, under the Air Act, is to improve the quality of the air and to prevent, control and abate air pollution in the country. We shall deal with the Environment Act in the later part of this judgment. 14. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country. 30. Based on the reports of various technical authorities mentioned in this judgment, we have already reached the finding that the emissions generated by the coke/coal consuming industries are air-pollutants and have damaging effect on the Taj and the people living in the TTZ. The atmospheric pollution in TTZ has to be eliminated at any cost. Not even one per cent chance can be taken when-human life apart-the preservation of a prestigious monument like the Taj is involved. In any case, in view of the precautionary principle as defined by this Court, the environmental measures must anticipate, prevent and attack the causes of environmental degradation. The onus of proof is on an industry to show that its operation with the aid of coke/coal is environmentally benign. It is, rather, proved beyond doubt that the emissions generated by the use of coke/coal by the industries in TTZ are the main polluters of the ambient air.
### Response:
1
### Explanation:
are relocated, it would be appropriate to modernise technology equipment and buildings. Most of the units will need very substantial financial assistance. The value of the present sites and their future use have to be determined. It would not be desirable to promote residential colonies and commercial establishments in such vacated areas as they may in turn add to the problems of water supply and atmospheric quality by excessive use of energy. Major changes of this nature would need a dear development planning strategy and resources, and will also take several years for implementation.96. There is urgent need for quicker measures which could lead to better environment, especially in the Taj Mahal. For this purpose, it is necessary to effect overall reduction in coal/coke consumption by industries and others in Agra and in Taj Trapezium Zone generally. The present level of consumption of 129 metric tonne per day by industry can be substantially reduced by new technology and by use of LPG and HSD of low sulphur. Stricter standards for emissions may be evolved when such technological and fuel changes are effected. Support for development of modifications in design and operation and demonstration should be provided. Some assistance to industries for adoption of these may be considered after careful examination of the costs and benefits to the industry and to society. All those industries not responding for action for feasible changes and contributing disproportionately to atmospheric pollution have to face action.23. The Taj being a monument on the World Heritage List, the Government of India sought the expert advice through UNESCO on the structural and chemical preservation aspects of the monument. Accordingly, two experts, namely, Dr. Mentrizio Marbeilli and Dr. M. Larze Tabasso visited The Taj Mahal between January 17-30 1987 to study the problems pertaining to the conservation of marble and sand stones in The Taj and recommended remedial measures. According to them, the yellowishness of the marble is due to (a) SPM and (b) dust fall impinging on the surface. Opinions of the Archaeological Survey of India and other scientists annexed to the Varadharajan Report unanimously say that the yellow shadow of the marble on different parts of The Taj including four minarets is mainly due to SPM and the dust fall impinging on the surface. The comments of the Archaeological Survey of India as noticed in Varadharajan Report are as under:On the structural side, The Taj Mahal is in a sound state of preservation and the studies conducted so far also confirm the same. The only threat to the Taj Mahal is from the environmental pollution.The Science wing of the ASI is continuously monitoring the level of suspended particulate matter, sulphur dioxide concentration and sulphation rate. The Studies made in this regard shows that suspended particulate matter level has been found to be higher than the maximum permissible level 100 kg/m3. This has imparted a yellowish appearance on the surface of the Taj Mahal.24. After careful examination of the two Varadharajan Reports (1978 and 1995) and the various NEERI reports placed on record, we are of the view that there is no contradiction between the two sets of reports. In the 1978 Report, Varadharajan found substantial level of air pollution because of sulphur dioxide and SPM in the Agra region. The source, according to the report, was the coal-users including approximately 250 small industries mainly foundries. The excess of SPM was because of the use of coal. The Report specifically recommended in para 5.4 for the relocation of the existing small industries particularly the foundries. The 1995 Varadharajan Report clearly shows that the standard of atmospheric pollution is much higher than the 1981-85 period which according to the Report is also because of heavy traffic and operation of generating sets. NEERI reports have clearly recommended the relocation of the industries from the TTZ.26. The chronology of the orders quoted by us in this judgment shows that this Court took cognizance of this matter in January 1993. There are four NEERI reports, two Varadharajan reports and several reports by the Board. After examining all the reports and taking into consideration other material on the record, we have no hesitation in holding that the industries in TTZ are active contributors to the air pollution in the said area. NEERI and Varadharajan (1978) reports have specifically recommended the relocation of industries from the TTZ. Although the Board has placed on record list of 510 industries which are responsible for air pollution but in view of our order dated April 11, 1994 (quoted above), we are confining this order only to 292 industries located and operating in Agra. These industries are listed hereunder:FOUNDRIES (DISTRICT AGRA)1. M/s. Gulab Rai Chottey2. M/s. Gulab Rai Chottey3. M/s. Krishna Iron4. M/s. B.C. Iron5. M/s. Kajeco6. M/s. National Iron7. M/s. Raj Pattern makers &8. M/s. Miraz Iron9. M/s. Mudgal Iron10. M/s. Prabhat Iron11. M/s. Raghav Engg.12. M/s. Raj Iron Foundry13. M/s. Agrawal Tin Mfg. Co.14. M/s. Moti Lal Agrawal &15. M/s. Anil Metal16. M/s. Shree Durga Laxmi Iron17. M/s. S.S. & Iron18. M/s. Randhir Chand Khoob Chand Iron Foundry Masta Ki19. M/s. Shree Ram Metal20. M/s. Indian Iron21. M/s. Suresh Iron Foundary & Engg. Works Langre Ki22. M/s. Sureshe Pass Road, Near Water23. M/s. Mahajan Iron24. M/s. Taj Iron26. M/s. Laxmi27. M/s. Shree Durga Bhagwati Industries & Iron28. M/s. India Casting29. M/s. India Iron30. Shanker Iron31. Jagannath Dewan Chandra32. Agarwal Wire33. Super Chem.34. Uttam Lah35. Mahajan Ispat37. Satya Deep38. Arbaria Iron39. Allied Iron & Steel41. Kalyan Steel Products (P)46. Satya Ind.47. A.R. Iron48. S.A. Iron49. S.K. Iron Foundary & Engg. Co.,50. S.K. Iron Foundary & Engg. Co.,52. Golden Engg.53. Paliwal Iron Foundary & Metal54. Jain Foundary & Engg.56. Oswal Iron58. S.S. Iron60. Dewan Chand Suraj Prakash61. Parolia Engg.62. S.B. Iron64. Sarla & Co.65. Shree Ram Iron Foundary &66. Jagdish Industrial67. R.K. Engineers &68. Goyal Iron & Steel69. R.R. Iron71. Bansal Iron72. Goyal Metal73. Fatehchand Sehgal &74. Adesh Kumar75. Deepak Chemical77. Prakash Iron78. Ravi Agricultural80. Manik Chand Garg &81. Bombay Engg. & Moulding82. Gopal Iron83. Sterling Machine
|
EXPORT CREDIT GUARANTEE CORPN.OF INDIA LTD. AND ANOTHER Vs. M.S. CREATIONS AND ANOTHER | insured. Among them, Clauses (ii), (iii) and (iv) provide as follows: (ii) failure of the buyer to pay to the insured, within four months after the due date of payment the gross invoice value of the goods delivered to and accepted by the buyer; or (iii) the failure of the buyer to pay to the Exporter within four months after the date of payment the gross invoice value of goods delivered to and accepted by the buyer, or (iv) failure or refusal on the part of the buyer to accept goods which have already been exported from India, where any such failure or refusal is not excused by and does not arise from or in connection with any breach of condition or warranty on the part of the Exporter or from any other cause within his control; and provided also that the Corporation is satisfied that no good purpose would be served by the institution of legal proceedings against the buyer in respect of his said failure or refusal, The relevant exclusion, proviso (b) to Clause (xii) of the policy, upon which the controversy in the present case has turned, provides as follows: PROVIDED ALWAYS that the Corporation shall not be liable for loss: (a) … (b) which arises from the insolvency of any agent of the Exporter or the insolvency of a co1lecting bank or from any act or default on the part of such agent or collecting bank; 19. The sales contract between the first respondent and SICOREP envisaged that the payment terms, through the bank, would be 60 days DA from the date of the Bill of Lading. The first respondent by its communication dated 1 November 2001 to ECGC, declared that it would conduct business on 60 days DA basis from the date of the Bill of Lading and only with the acceptance of Credit Lyonnais. It was to this document that the specific approval of the ECGC was obtained on 7 November 2001 with reference to the export contract with SICOREP. 20. When SICOREP indicated to the first respondent that it was suggesting a change in the nomination of the foreign bank to BHCI, the first respondent in turn applied for and obtained the approval of ECGC on 7 February 2002, subject to the terms and conditions set out in the earlier approval. 21. After the first respondent submitted a claim to ECGC, a communication was addressed on 25 June 2002 requiring the first respondent to arrange for: (i) the originals of the unpaid bills of exchange; (ii) Advices of non-payment by the foreign correspondent bank; (iii) Advice of the acceptance of documents by the foreign bank, among other documents. 22. ECGC indicated that unless those documents were produced, it would be unable to proceed further in the matter. As the correspondence on the record indicates, the first respondent was unable to produce the relevant documents or to indicate that there was an acceptance of the documents, in terms as required under the approval of the sales contract by ECGC. 23. It was in this background that ECGC rejected the claim of the first respondent on 3 October 2002. The facsimile message dated 22 November 2002 of BHCI to PNB indicates that the original documents of the two shipments had been handed over to M Reda Ali. The communication, however, indicates that the bank could not accept the shipment for payment and that it had not either made any transaction with or effected any payment to PNB. 24. ECGC took up the matter with PNB which in turn corresponded with BHCI. The correspondence was evidently fruitless since there was nothing to indicate that the documents had been duly accepted in terms of the conditions governing the sales contract. 25. Now, it is in this background that ECGC had sought to raise the exclusion contained in the insurance policy. In terms of the proviso (b) extracted above, the insurer was not to be held liable for any loss from any act or default on the part of the collecting bank. Evidently, the collecting bank, as its communication dated 22 November 2002 indicates, handed over the original documents, but then sought to justify its action by contending that the bank was in the housing sector and could not accept the shipment for payment. If this was the position, there was no reason or justification on the part of the collecting bank to hand over the original documents to a person representing SICOREP without acceptance. There was, therefore, clearly a default on the part of the collecting bank. 26. The State Commission and the National Commission held against ECGC inter alia on the ground that by honoring its commitment to PNB under WTPSG Policy, ECGC had in turn admitted its liability to the first respondent. There is a fallacy in this hypothesis. The guarantee which ECGC furnished to PNB, similar to those it furnishes to other bankers, was to secure their exposure against the risks involved in the advances which the bank had made in respect of export contracts to its constituent. This guarantee which ECGC issued to PNB would not conclude the issue as to whether the claim made by the first respondent under a distinct insurance policy was sustainable. Consequently, the basis on which the State Commission and National Commission held against the appellant is erroneous. 27. During the course of the hearing of these proceedings, the Court has been apprised of the fact that the order which was passed by the State Commission was duly executed and in compliance, the amount due and payable has been paid over by ECGC to the first respondent. There is no allegation that the first respondent was in any way connected with or colluded with SICOREP. From the record, it appears that the first respondent was itself a victim of SICOREP having retired the documents without making payment for the export consignments. No submission has been urged on behalf of ECGC to indicate the complicity of the first respondent. | 1[ds]23. It was in this background that ECGC rejected the claim of the first respondent on 3 October 2002. The facsimile message dated 22 November 2002 of BHCI to PNB indicates that the original documents of the two shipments had been handed over to M Reda Ali. The communication, however, indicates that the bank could not accept the shipment for payment and that it had not either made any transaction with or effected any payment to PNB24. ECGC took up the matter with PNB which in turn corresponded with BHCI. The correspondence was evidently fruitless since there was nothing to indicate that the documents had been duly accepted in terms of the conditions governing the sales contract25. Now, it is in this background that ECGC had sought to raise the exclusion contained in the insurance policy. In terms of the proviso (b) extracted above, the insurer was not to be held liable for any loss from any act or default on the part of the collecting bank. Evidently, the collecting bank, as its communication dated 22 November 2002 indicates, handed over the original documents, but then sought to justify its action by contending that the bank was in the housing sector and could not accept the shipment for payment. If this was the position, there was no reason or justification on the part of the collecting bank to hand over the original documents to a person representing SICOREP without acceptance. There was, therefore, clearly a default on the part of the collecting bank26. The State Commission and the National Commission held against ECGC inter alia on the ground that by honoring its commitment to PNB under WTPSG Policy, ECGC had in turn admitted its liability to the first respondent. There is a fallacy in this hypothesis. The guarantee which ECGC furnished to PNB, similar to those it furnishes to other bankers, was to secure their exposure against the risks involved in the advances which the bank had made in respect of export contracts to its constituent. This guarantee which ECGC issued to PNB would not conclude the issue as to whether the claim made by the first respondent under a distinct insurance policy was sustainable. Consequently, the basis on which the State Commission and National Commission held against the appellant is erroneous27. During the course of the hearing of these proceedings, the Court has been apprised of the fact that the order which was passed by the State Commission was duly executed and in compliance, the amount due and payable has been paid over by ECGC to the first respondent. There is no allegation that the first respondent was in any way connected with or colluded with SICOREP. From the record, it appears that the first respondent was itself a victim of SICOREP having retired the documents without making payment for the export consignments. No submission has been urged on behalf of ECGC to indicate the complicity of the first respondent. | 1 | 2,679 | 535 | ### 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:
insured. Among them, Clauses (ii), (iii) and (iv) provide as follows: (ii) failure of the buyer to pay to the insured, within four months after the due date of payment the gross invoice value of the goods delivered to and accepted by the buyer; or (iii) the failure of the buyer to pay to the Exporter within four months after the date of payment the gross invoice value of goods delivered to and accepted by the buyer, or (iv) failure or refusal on the part of the buyer to accept goods which have already been exported from India, where any such failure or refusal is not excused by and does not arise from or in connection with any breach of condition or warranty on the part of the Exporter or from any other cause within his control; and provided also that the Corporation is satisfied that no good purpose would be served by the institution of legal proceedings against the buyer in respect of his said failure or refusal, The relevant exclusion, proviso (b) to Clause (xii) of the policy, upon which the controversy in the present case has turned, provides as follows: PROVIDED ALWAYS that the Corporation shall not be liable for loss: (a) … (b) which arises from the insolvency of any agent of the Exporter or the insolvency of a co1lecting bank or from any act or default on the part of such agent or collecting bank; 19. The sales contract between the first respondent and SICOREP envisaged that the payment terms, through the bank, would be 60 days DA from the date of the Bill of Lading. The first respondent by its communication dated 1 November 2001 to ECGC, declared that it would conduct business on 60 days DA basis from the date of the Bill of Lading and only with the acceptance of Credit Lyonnais. It was to this document that the specific approval of the ECGC was obtained on 7 November 2001 with reference to the export contract with SICOREP. 20. When SICOREP indicated to the first respondent that it was suggesting a change in the nomination of the foreign bank to BHCI, the first respondent in turn applied for and obtained the approval of ECGC on 7 February 2002, subject to the terms and conditions set out in the earlier approval. 21. After the first respondent submitted a claim to ECGC, a communication was addressed on 25 June 2002 requiring the first respondent to arrange for: (i) the originals of the unpaid bills of exchange; (ii) Advices of non-payment by the foreign correspondent bank; (iii) Advice of the acceptance of documents by the foreign bank, among other documents. 22. ECGC indicated that unless those documents were produced, it would be unable to proceed further in the matter. As the correspondence on the record indicates, the first respondent was unable to produce the relevant documents or to indicate that there was an acceptance of the documents, in terms as required under the approval of the sales contract by ECGC. 23. It was in this background that ECGC rejected the claim of the first respondent on 3 October 2002. The facsimile message dated 22 November 2002 of BHCI to PNB indicates that the original documents of the two shipments had been handed over to M Reda Ali. The communication, however, indicates that the bank could not accept the shipment for payment and that it had not either made any transaction with or effected any payment to PNB. 24. ECGC took up the matter with PNB which in turn corresponded with BHCI. The correspondence was evidently fruitless since there was nothing to indicate that the documents had been duly accepted in terms of the conditions governing the sales contract. 25. Now, it is in this background that ECGC had sought to raise the exclusion contained in the insurance policy. In terms of the proviso (b) extracted above, the insurer was not to be held liable for any loss from any act or default on the part of the collecting bank. Evidently, the collecting bank, as its communication dated 22 November 2002 indicates, handed over the original documents, but then sought to justify its action by contending that the bank was in the housing sector and could not accept the shipment for payment. If this was the position, there was no reason or justification on the part of the collecting bank to hand over the original documents to a person representing SICOREP without acceptance. There was, therefore, clearly a default on the part of the collecting bank. 26. The State Commission and the National Commission held against ECGC inter alia on the ground that by honoring its commitment to PNB under WTPSG Policy, ECGC had in turn admitted its liability to the first respondent. There is a fallacy in this hypothesis. The guarantee which ECGC furnished to PNB, similar to those it furnishes to other bankers, was to secure their exposure against the risks involved in the advances which the bank had made in respect of export contracts to its constituent. This guarantee which ECGC issued to PNB would not conclude the issue as to whether the claim made by the first respondent under a distinct insurance policy was sustainable. Consequently, the basis on which the State Commission and National Commission held against the appellant is erroneous. 27. During the course of the hearing of these proceedings, the Court has been apprised of the fact that the order which was passed by the State Commission was duly executed and in compliance, the amount due and payable has been paid over by ECGC to the first respondent. There is no allegation that the first respondent was in any way connected with or colluded with SICOREP. From the record, it appears that the first respondent was itself a victim of SICOREP having retired the documents without making payment for the export consignments. No submission has been urged on behalf of ECGC to indicate the complicity of the first respondent.
### Response:
1
### Explanation:
23. It was in this background that ECGC rejected the claim of the first respondent on 3 October 2002. The facsimile message dated 22 November 2002 of BHCI to PNB indicates that the original documents of the two shipments had been handed over to M Reda Ali. The communication, however, indicates that the bank could not accept the shipment for payment and that it had not either made any transaction with or effected any payment to PNB24. ECGC took up the matter with PNB which in turn corresponded with BHCI. The correspondence was evidently fruitless since there was nothing to indicate that the documents had been duly accepted in terms of the conditions governing the sales contract25. Now, it is in this background that ECGC had sought to raise the exclusion contained in the insurance policy. In terms of the proviso (b) extracted above, the insurer was not to be held liable for any loss from any act or default on the part of the collecting bank. Evidently, the collecting bank, as its communication dated 22 November 2002 indicates, handed over the original documents, but then sought to justify its action by contending that the bank was in the housing sector and could not accept the shipment for payment. If this was the position, there was no reason or justification on the part of the collecting bank to hand over the original documents to a person representing SICOREP without acceptance. There was, therefore, clearly a default on the part of the collecting bank26. The State Commission and the National Commission held against ECGC inter alia on the ground that by honoring its commitment to PNB under WTPSG Policy, ECGC had in turn admitted its liability to the first respondent. There is a fallacy in this hypothesis. The guarantee which ECGC furnished to PNB, similar to those it furnishes to other bankers, was to secure their exposure against the risks involved in the advances which the bank had made in respect of export contracts to its constituent. This guarantee which ECGC issued to PNB would not conclude the issue as to whether the claim made by the first respondent under a distinct insurance policy was sustainable. Consequently, the basis on which the State Commission and National Commission held against the appellant is erroneous27. During the course of the hearing of these proceedings, the Court has been apprised of the fact that the order which was passed by the State Commission was duly executed and in compliance, the amount due and payable has been paid over by ECGC to the first respondent. There is no allegation that the first respondent was in any way connected with or colluded with SICOREP. From the record, it appears that the first respondent was itself a victim of SICOREP having retired the documents without making payment for the export consignments. No submission has been urged on behalf of ECGC to indicate the complicity of the first respondent.
|
Satyanarayana Modi Vs. The Controller Of Estate Duty, Delhi And Rajasthan,N | Krishnamurthi, AIR 1933 Mad 628 in which Beasley, C. J. speaking for the Court observed that when a Bank having notice that the administrators of the estate of the depositor intended to commit a breach of trust by seeking to invest monies contrary to express directions of the will paid out the money, the Bank was liable to make good to the beneficiary the money deposited by the testator. In that case one Naidu had deposited a sum of money with the Imperial Bank of India a fixed deposit. Naidu died having bequeathed by his will the amount deposited to his son Krishnamurthi who was then a minor. Naidu had appointed by his will two persons to be guardians of Krishnamurthi with authority to receive the amount in fixed deposit with the Imperial Bank and to apply the same for the maintenance and education of Krishnamurthi. The guardians obtained from the High Court of Madras grant of letters of administration with copy of the will annexed. After the death of one of the guardians the surviving guardian withdrew the money from the Bank on the pretext that he wanted to invest it on more advantageous terms in house property or some other form of investment and misappropriated it. On attaining the age of majority Krishnamurthi sued the Bank. It was held by the High Court that the Bank knowing of the trust created by the will had parted with and delivered the amount deposited to the administrator who intended to commit a breach of the trust. The learned Chief Justice quoted a passage from Harts Law of Banking (Edn. 3) at p. 159 that "A banker who receives into his possession moneys of which his customer to his knowledge became the owner in a fiduciary character, contracts the duty not to part with them even at the mandate of his customer for purposes which are inconsistent with the customers fiduciary character and duty," and upheld the claim of Krishnamurthi.10. It is unnecessary to consider whether in the present case the investment was made by renewal of fixed deposit receipts after August 16, 1953 for a purpose which the Bank knew was inconsistent with Purnabais fiduciary character and duty. We are not concerned in this case to decide whether the Bank could have refused to pay the amount of the renewed deposit receipts if demanded by Purnabai. Whether the amount of deposit receipts was liable to estate duty must be determined on the true effect of Section 10 of the Estate Duty Act 34 of 1953. Section 10 of that Act provides:"Property taken under any gift, whenever made, shall be deemed to pass on the donors death to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise:Provided that the property shall not be deemed to pass by reason only that it was not, as from the date of the gift, exclusively retained as aforesaid, if by means of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the donor or of any benefit to him for at least two years before the death. Provided ........ ."The phraseology of the section is some what involved. The purport of the section is however, clear. The section clearly means that if in respect of any property which is gifted, bona fide possession and enjoyment is not immediately assumed by the donee and thenceforward retained by him to the entire exclusion of the donor or of any benefit to him therein the property gifted shall not be excluded from the estate subject to estate duty.11. The question which must be determined therefore, is whether in the present case the donee did under the deed of gift immediately assumed bona fide possession and enjoyment of the fixed deposit receipts gifted to him, and thenceforward retained the same to the entire exclusion of Purnabai or of any benefit arising to her to contract or otherwise.The conduct of Purnabai clearly indicates that she had no intention to part with control over the property; the deposit receipts were obtained in joint names, and Purnabai had authority to withdraw the amount from the Bank, without consulting the guardian of Suryakant.The deposit receipts were renewed on several occasions even after the execution of the deed of gift in the joint names of Purnabai and Suryakant. Purnabai alone presented the fixed deposit receipts for renewal. She could under the terms of the receipts receive the moneys to the entire exclusion of Suryakant.We are unable to hold, in the circumstances, that bona fide possession and enjoyment of the property gifted was immediately assumed by Suryakant and thenceforward retained by him to the entire exclusion of Purnabai. The right retained by Purnabai to have the receipts made out in her name jointly with Suryakant and the power to recover the amount form the Bank without the concurrence of Suryakant clearly indicate that she was not excluded, but she had retained important benefits in herself in the fixed deposit receipts.12. It is true that the third receipt was encashed during the life time of Purnabai, and the amount was invested in the name of Suryakant alone. But the encashment and reinvestment were within two years of the death of Purnabai and the amounts so reinvested were liable to be included in the estate of Purnabai.13. The argument that fixed deposit receipts had remained exclusively in the possession of Satyanarayana as guardian of Suryakant and they were obtained by him from Purnabai for the purpose of renewal is not supported by any evidence. There is also no evidence that in obtaining the receipts in the joint names Purnabai acted as a guardian of Suryakant nor that she was a benamidar of Suryakant. We are of the view that the High Court was right in answering the question against the appellant. | 0[ds]It is clear that Purnabai desired to make a gift of the amount represented by the previous deposit receipts and did in fact execute a deed of gift. The Bank had notice of the gift deed.It is unnecessary to consider whether in the present case the investment was made by renewal of fixed deposit receipts after August 16, 1953 for a purpose which the Bank knew was inconsistent with Purnabais fiduciary character and duty. We are not concerned in this case to decide whether the Bank could have refused to pay the amount of the renewed deposit receipts if demanded byphraseology of the section is some what involved. The purport of the section is however, clear. The section clearly means that if in respect of any property which is gifted, bona fide possession and enjoyment is not immediately assumed by the donee and thenceforward retained by him to the entire exclusion of the donor or of any benefit to him therein the property gifted shall not be excluded from the estate subject to estateconduct of Purnabai clearly indicates that she had no intention to part with control over the property; the deposit receipts were obtained in joint names, and Purnabai had authority to withdraw the amount from the Bank, without consulting the guardian of Suryakant.The deposit receipts were renewed on several occasions even after the execution of the deed of gift in the joint names of Purnabai and Suryakant. Purnabai alone presented the fixed deposit receipts for renewal. She could under the terms of the receipts receive the moneys to the entire exclusion of Suryakant.We are unable to hold, in the circumstances, that bona fide possession and enjoyment of the property gifted was immediately assumed by Suryakant and thenceforward retained by him to the entire exclusion of Purnabai. The right retained by Purnabai to have the receipts made out in her name jointly with Suryakant and the power to recover the amount form the Bank without the concurrence of Suryakant clearly indicate that she was not excluded, but she had retained important benefits in herself in the fixed deposit receipts.12. It is true that the third receipt was encashed during the life time of Purnabai, and the amount was invested in the name of Suryakant alone. But the encashment and reinvestment were within two years of the death of Purnabai and the amounts so reinvested were liable to be included in the estate of Purnabai.13. The argument that fixed deposit receipts had remained exclusively in the possession of Satyanarayana as guardian of Suryakant and they were obtained by him from Purnabai for the purpose of renewal is not supported by any evidence. There is also no evidence that in obtaining the receipts in the joint names Purnabai acted as a guardian of Suryakant nor that she was a benamidar of Suryakant. We are of the view that the High Court was right in answering the question against the appellant. | 0 | 2,530 | 516 | ### 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:
Krishnamurthi, AIR 1933 Mad 628 in which Beasley, C. J. speaking for the Court observed that when a Bank having notice that the administrators of the estate of the depositor intended to commit a breach of trust by seeking to invest monies contrary to express directions of the will paid out the money, the Bank was liable to make good to the beneficiary the money deposited by the testator. In that case one Naidu had deposited a sum of money with the Imperial Bank of India a fixed deposit. Naidu died having bequeathed by his will the amount deposited to his son Krishnamurthi who was then a minor. Naidu had appointed by his will two persons to be guardians of Krishnamurthi with authority to receive the amount in fixed deposit with the Imperial Bank and to apply the same for the maintenance and education of Krishnamurthi. The guardians obtained from the High Court of Madras grant of letters of administration with copy of the will annexed. After the death of one of the guardians the surviving guardian withdrew the money from the Bank on the pretext that he wanted to invest it on more advantageous terms in house property or some other form of investment and misappropriated it. On attaining the age of majority Krishnamurthi sued the Bank. It was held by the High Court that the Bank knowing of the trust created by the will had parted with and delivered the amount deposited to the administrator who intended to commit a breach of the trust. The learned Chief Justice quoted a passage from Harts Law of Banking (Edn. 3) at p. 159 that "A banker who receives into his possession moneys of which his customer to his knowledge became the owner in a fiduciary character, contracts the duty not to part with them even at the mandate of his customer for purposes which are inconsistent with the customers fiduciary character and duty," and upheld the claim of Krishnamurthi.10. It is unnecessary to consider whether in the present case the investment was made by renewal of fixed deposit receipts after August 16, 1953 for a purpose which the Bank knew was inconsistent with Purnabais fiduciary character and duty. We are not concerned in this case to decide whether the Bank could have refused to pay the amount of the renewed deposit receipts if demanded by Purnabai. Whether the amount of deposit receipts was liable to estate duty must be determined on the true effect of Section 10 of the Estate Duty Act 34 of 1953. Section 10 of that Act provides:"Property taken under any gift, whenever made, shall be deemed to pass on the donors death to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise:Provided that the property shall not be deemed to pass by reason only that it was not, as from the date of the gift, exclusively retained as aforesaid, if by means of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the donor or of any benefit to him for at least two years before the death. Provided ........ ."The phraseology of the section is some what involved. The purport of the section is however, clear. The section clearly means that if in respect of any property which is gifted, bona fide possession and enjoyment is not immediately assumed by the donee and thenceforward retained by him to the entire exclusion of the donor or of any benefit to him therein the property gifted shall not be excluded from the estate subject to estate duty.11. The question which must be determined therefore, is whether in the present case the donee did under the deed of gift immediately assumed bona fide possession and enjoyment of the fixed deposit receipts gifted to him, and thenceforward retained the same to the entire exclusion of Purnabai or of any benefit arising to her to contract or otherwise.The conduct of Purnabai clearly indicates that she had no intention to part with control over the property; the deposit receipts were obtained in joint names, and Purnabai had authority to withdraw the amount from the Bank, without consulting the guardian of Suryakant.The deposit receipts were renewed on several occasions even after the execution of the deed of gift in the joint names of Purnabai and Suryakant. Purnabai alone presented the fixed deposit receipts for renewal. She could under the terms of the receipts receive the moneys to the entire exclusion of Suryakant.We are unable to hold, in the circumstances, that bona fide possession and enjoyment of the property gifted was immediately assumed by Suryakant and thenceforward retained by him to the entire exclusion of Purnabai. The right retained by Purnabai to have the receipts made out in her name jointly with Suryakant and the power to recover the amount form the Bank without the concurrence of Suryakant clearly indicate that she was not excluded, but she had retained important benefits in herself in the fixed deposit receipts.12. It is true that the third receipt was encashed during the life time of Purnabai, and the amount was invested in the name of Suryakant alone. But the encashment and reinvestment were within two years of the death of Purnabai and the amounts so reinvested were liable to be included in the estate of Purnabai.13. The argument that fixed deposit receipts had remained exclusively in the possession of Satyanarayana as guardian of Suryakant and they were obtained by him from Purnabai for the purpose of renewal is not supported by any evidence. There is also no evidence that in obtaining the receipts in the joint names Purnabai acted as a guardian of Suryakant nor that she was a benamidar of Suryakant. We are of the view that the High Court was right in answering the question against the appellant.
### Response:
0
### Explanation:
It is clear that Purnabai desired to make a gift of the amount represented by the previous deposit receipts and did in fact execute a deed of gift. The Bank had notice of the gift deed.It is unnecessary to consider whether in the present case the investment was made by renewal of fixed deposit receipts after August 16, 1953 for a purpose which the Bank knew was inconsistent with Purnabais fiduciary character and duty. We are not concerned in this case to decide whether the Bank could have refused to pay the amount of the renewed deposit receipts if demanded byphraseology of the section is some what involved. The purport of the section is however, clear. The section clearly means that if in respect of any property which is gifted, bona fide possession and enjoyment is not immediately assumed by the donee and thenceforward retained by him to the entire exclusion of the donor or of any benefit to him therein the property gifted shall not be excluded from the estate subject to estateconduct of Purnabai clearly indicates that she had no intention to part with control over the property; the deposit receipts were obtained in joint names, and Purnabai had authority to withdraw the amount from the Bank, without consulting the guardian of Suryakant.The deposit receipts were renewed on several occasions even after the execution of the deed of gift in the joint names of Purnabai and Suryakant. Purnabai alone presented the fixed deposit receipts for renewal. She could under the terms of the receipts receive the moneys to the entire exclusion of Suryakant.We are unable to hold, in the circumstances, that bona fide possession and enjoyment of the property gifted was immediately assumed by Suryakant and thenceforward retained by him to the entire exclusion of Purnabai. The right retained by Purnabai to have the receipts made out in her name jointly with Suryakant and the power to recover the amount form the Bank without the concurrence of Suryakant clearly indicate that she was not excluded, but she had retained important benefits in herself in the fixed deposit receipts.12. It is true that the third receipt was encashed during the life time of Purnabai, and the amount was invested in the name of Suryakant alone. But the encashment and reinvestment were within two years of the death of Purnabai and the amounts so reinvested were liable to be included in the estate of Purnabai.13. The argument that fixed deposit receipts had remained exclusively in the possession of Satyanarayana as guardian of Suryakant and they were obtained by him from Purnabai for the purpose of renewal is not supported by any evidence. There is also no evidence that in obtaining the receipts in the joint names Purnabai acted as a guardian of Suryakant nor that she was a benamidar of Suryakant. We are of the view that the High Court was right in answering the question against the appellant.
|
Girdhar Das and Ors. Vs. The District Judge, Varanasi and Ors. | BHAGWATI, J. 1. Respondents Nos. 3 & 4 made an application to the Prescribed Authority for release of certain premises which were in the occupation of the appellants as tenants. The ground on which the application for release was made was that respondents 3 & 4 bona fide required the premises for the purpose of their own use and occupation under Sec. 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The Prescribed Authority took the view that the bona fide requirement of respondents 3 and 4 was established and that greater hardship would be caused to respondents 3 & 4 if an order of eviction was refused than what would be caused to the appellants if an order of eviction was passed. On this view, the Prescribed Authority passed an order of eviction against the appellants. The appellants preferred an appeal to the District Judge, Varanasi. The learned District Judge found in favour of respondents 3 & 4 on the question of bona fide reqrirement of the premises but so far as the question of greater hardship was concerned, the learned District Judge held that greater hardship would be caused to the appellants by passing an order of eviction than that which would be caused to respondents 3 and 4 by refusing to pass it. The learned District Judge accordingly allowed the appeal and rejected the application of respondents 3 and 4 for release of the premises. Respondents 3 and 4 thereupon preferred a writ petition in the High Court of Allahabad. The question of greater hardship was considered by the Prescribed Authority and the learned District Judge in view of Rule 16 of the Rules framed under the Act and respondents 3 & 4, therefore, challenged the validity of that rule in the Writ Petition. Since the question of validity of Rule 16 was a question of some importance, the learned single Judge of the High Court, before whom the Writ petition came up for hearing, referred this question to a Full Bench. The Full Bench in a decision reported in Chandra Kumar Shah v. District Judge, 1976 All WC 50 = (AIR 1976 All 328 ) held that Rule 16 was ultra vires the Act and with this opinion of the Full Bench, the case once again came back to a single Judge of the High Court. The learned Single Judge in view of this opinion of the Full Bench held that the District Judge was in error in considering the question of comparative hardship and remanded the case to the District Judge for disposing of the appeal before him in the light of the opinion rendered by the Full Bench. The appellants being dissatisfied by this order of remand preferred the present appeal with special leave obtained from this Court. 2. Since the filing of the present appeal, the Uttar pradesh Legislature has enacted the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) (Amendment) Act, 1976, amending the principal Act. By this amendment a new proviso has been added after the third proviso in Section 21, requiring that the Prescribed Authority shall take into account the question of comparative hardship of the landlord and the tenant for the purpose of deciding whether or not an order of eviction should be passed and the comparative hardship of the landlord and tenant shall be taken into consideration in the light of the factors prescribed by the Rules. Section 27 of the amending Act has retrospectively validated Rule 16 and, therefore, now in view of the amendment, the comparative hardship of the landlord and the tenant has to be taken into account in the light of the factors set out in Rule 16. The judgment of the Full Bench has thus been set at naught by the amendment and the order passed by the learned Single Judge of the High Court on the basis of the judgment of the Full Bench must be set aside. The case will, therefore, have to go back to the High Court for the purpose of disposing of the Writ Application in the light of the amended Section 21 read with Rule 16. The High Court will examine whether this is a fit case in which the finding of the District Judge in regard to the question of comparative hardship should be set aside. Since the case is an old one, the High Court will dispose of the Writ Application as expeditiously as possible, and in any event not later than three months from today. 3. We are told that pursuant to the order of remand made by the Single Judge of the High Court, the District Judge has disposed of the appeal before him by holding that the bonafide requirement of respondents 3 and 4 was established and they were, therefore, entitled to obtain a release order against the appellants. The appellants being aggrieved by this release order passed by the District Judge have preferred a writ application in the High Court and this writ application is pending. Since we are setting aside the order of the learned single Judge remanding the case to the District Judge, the subsequent proceedings before the District Judge as also the writ application filed by the appellants before the High Court against the subsequent order of the District Judge will also fall and the subsequent order dated 12th March 1976 made by the District Judge will stand vacated and | 0[ds]3. We are told that pursuant to the order of remand made by the Single Judge of the High Court, the District Judge has disposed of the appeal before him by holding that the bonafide requirement of respondents 3 and 4 was established and they were, therefore, entitled to obtain a release order against the appellants. The appellants being aggrieved by this release order passed by the District Judge have preferred a writ application in the High Court and this writ application is pending. Since we are setting aside the order of the learned single Judge remanding the case to the District Judge, the subsequent proceedings before the District Judge as also the writ application filed by the appellants before the High Court against the subsequent order of the District Judge will also fall and the subsequent order dated 12th March 1976 made by the District Judge will stand vacated | 0 | 980 | 161 | ### 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:
BHAGWATI, J. 1. Respondents Nos. 3 & 4 made an application to the Prescribed Authority for release of certain premises which were in the occupation of the appellants as tenants. The ground on which the application for release was made was that respondents 3 & 4 bona fide required the premises for the purpose of their own use and occupation under Sec. 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The Prescribed Authority took the view that the bona fide requirement of respondents 3 and 4 was established and that greater hardship would be caused to respondents 3 & 4 if an order of eviction was refused than what would be caused to the appellants if an order of eviction was passed. On this view, the Prescribed Authority passed an order of eviction against the appellants. The appellants preferred an appeal to the District Judge, Varanasi. The learned District Judge found in favour of respondents 3 & 4 on the question of bona fide reqrirement of the premises but so far as the question of greater hardship was concerned, the learned District Judge held that greater hardship would be caused to the appellants by passing an order of eviction than that which would be caused to respondents 3 and 4 by refusing to pass it. The learned District Judge accordingly allowed the appeal and rejected the application of respondents 3 and 4 for release of the premises. Respondents 3 and 4 thereupon preferred a writ petition in the High Court of Allahabad. The question of greater hardship was considered by the Prescribed Authority and the learned District Judge in view of Rule 16 of the Rules framed under the Act and respondents 3 & 4, therefore, challenged the validity of that rule in the Writ Petition. Since the question of validity of Rule 16 was a question of some importance, the learned single Judge of the High Court, before whom the Writ petition came up for hearing, referred this question to a Full Bench. The Full Bench in a decision reported in Chandra Kumar Shah v. District Judge, 1976 All WC 50 = (AIR 1976 All 328 ) held that Rule 16 was ultra vires the Act and with this opinion of the Full Bench, the case once again came back to a single Judge of the High Court. The learned Single Judge in view of this opinion of the Full Bench held that the District Judge was in error in considering the question of comparative hardship and remanded the case to the District Judge for disposing of the appeal before him in the light of the opinion rendered by the Full Bench. The appellants being dissatisfied by this order of remand preferred the present appeal with special leave obtained from this Court. 2. Since the filing of the present appeal, the Uttar pradesh Legislature has enacted the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) (Amendment) Act, 1976, amending the principal Act. By this amendment a new proviso has been added after the third proviso in Section 21, requiring that the Prescribed Authority shall take into account the question of comparative hardship of the landlord and the tenant for the purpose of deciding whether or not an order of eviction should be passed and the comparative hardship of the landlord and tenant shall be taken into consideration in the light of the factors prescribed by the Rules. Section 27 of the amending Act has retrospectively validated Rule 16 and, therefore, now in view of the amendment, the comparative hardship of the landlord and the tenant has to be taken into account in the light of the factors set out in Rule 16. The judgment of the Full Bench has thus been set at naught by the amendment and the order passed by the learned Single Judge of the High Court on the basis of the judgment of the Full Bench must be set aside. The case will, therefore, have to go back to the High Court for the purpose of disposing of the Writ Application in the light of the amended Section 21 read with Rule 16. The High Court will examine whether this is a fit case in which the finding of the District Judge in regard to the question of comparative hardship should be set aside. Since the case is an old one, the High Court will dispose of the Writ Application as expeditiously as possible, and in any event not later than three months from today. 3. We are told that pursuant to the order of remand made by the Single Judge of the High Court, the District Judge has disposed of the appeal before him by holding that the bonafide requirement of respondents 3 and 4 was established and they were, therefore, entitled to obtain a release order against the appellants. The appellants being aggrieved by this release order passed by the District Judge have preferred a writ application in the High Court and this writ application is pending. Since we are setting aside the order of the learned single Judge remanding the case to the District Judge, the subsequent proceedings before the District Judge as also the writ application filed by the appellants before the High Court against the subsequent order of the District Judge will also fall and the subsequent order dated 12th March 1976 made by the District Judge will stand vacated and
### Response:
0
### Explanation:
3. We are told that pursuant to the order of remand made by the Single Judge of the High Court, the District Judge has disposed of the appeal before him by holding that the bonafide requirement of respondents 3 and 4 was established and they were, therefore, entitled to obtain a release order against the appellants. The appellants being aggrieved by this release order passed by the District Judge have preferred a writ application in the High Court and this writ application is pending. Since we are setting aside the order of the learned single Judge remanding the case to the District Judge, the subsequent proceedings before the District Judge as also the writ application filed by the appellants before the High Court against the subsequent order of the District Judge will also fall and the subsequent order dated 12th March 1976 made by the District Judge will stand vacated
|
COMMISSIONER OF CENTRAL EXCISE, NAGPUR Vs. M/S UNIVERSAL FERRO & ALLIED CHEMICALS LTD. & ANR. | excise leviable under the said Section 3 of the Central Excise Act or under any other law for the time being in force on like goods, produced or manufactured in India other than in a hundred per cent export-oriented undertaking or a free trade zone, if sold in India. 51. It could thus be seen, that the said notification specifically provides grant of exemption to the EOUs from the payment of duties, which are in excess of what is leviable under sub-section (1) of Section 3 of the Central Excise Act, 1944 on like goods, produced or manufactured in India. In our considered view, since the said Exemption Notification specifically mentions, that the goods produced or manufactured by an 100% EOU, which are allowed to be sold in India in accordance with para 9.9(b) of the EXIM Policy, the proviso would be inapplicable thereby, requiring the duties to be paid, as are required to be paid under sub- Section (1) of Section 3 of the said Act. The conditions which can be culled out for enabling to get the benefit of the said Exemption Notification are as under: (i) The finished products, rejects and waste or scrap specified in the Schedule to the Central Excise Tariff Act, 1985 should be produced or manufactured in the 100% export-oriented undertaking or a free trade zone; (ii) The said finished products should be manufactured wholly from the raw materials produced or manufactured in India; (iii) They are allowed to be sold in India under and in accordance with the provisions of sub-paragraphs (a), (b), (c), (d) and (f) of paragraph 9.9 or of paragraph 9.20 of the EXIM Policy. 52. Undisputedly, in the present case, the transaction between UFAC and TISCO satisfies all the three conditions. The goods are produced and manufactured by UFAC, an 100% export-oriented unit; they are manufactured wholly from the raw materials produced or manufactured in India and, thirdly, they have been allowed to be sold in India in accordance with the provisions of paragraph 9.9(b) of the EXIM Policy. 53. We will now consider the submission of Shri Radhakrishnan, learned Senior Counsel, that in view of substitution of the words allowed to be sold in India by brought to any other place in India, the said Exemption Notification shall stand impliedly overruled/repealed. 54. No doubt, that the reliance placed by the learned Senior Counsel on the judgments of this Court to the effect that if there are inconsistencies in two statutes, the later would prevail is well placed. This Court in Deep Chand vs. State of Uttar Pradesh AIR 1959 SC 648 has laid down the following principles to ascertain whether there is repugnancy or not: (1) Whether there is direct conflict between the two provisions; (2) Whether the legislature intended to lay down an exhaustive code in respect of the subject matter replacing the earlier law; (3) Whether the two laws occupy the same field. The said view has been consistently followed by this Court in catena of judgments. 55. We do not find, that there would be any conflict in the amended provisions of clause (ii) of the proviso to sub- section (1) of Section 5A of the Act and the said Exemption Notification. In any case, by the 2001 Amendment, the legislature has not laid down any exhaustive code in respect of the subject matter in replacing the earlier law. It appears, that the said Amendment has been incorporated to bring the said clause (ii) of sub-Section (1) of Section 5A in sync with the words used in clause (i) of the proviso to sub-section (1) of Section 5A of the Act and the words used in the proviso to sub-section (1) of Section 3 of the Act. In that view of the matter, we find, that the said contention is without substance. 56. Insofar as the reliance placed by the learned Senior Counsel on the judgment of this Court in the case of Siv Industries Ltd. (supra) so as to distinguish the terms allowed to be sold in India and brought to any other place in India is concerned, we find, that the said judgment would rather support the case of the respondent – Assessee. It would be relevant to refer to the following observation in paragraph 18 of the said judgment, which reads thus: Thus it is apparent that debonding and permission to sell in India are two different things having no connection with each other. It also becomes apparent that in view of the EOU Scheme as modified from time to time and corresponding amendments to Section 3 of the Act the expression allowed to be sold in India in the proviso to Section 3(1) of the Act is applicable only to sales made up to 25% of production by 100% EOU in DTA and with the permission of the Development Commissioner. No permission is required to sell goods manufactured by 100% EOU lying with it at the time approval is granted to debond. 57. It is to be noted that the case that fell for consideration before this Court was with regard to debonding. What this Court has held is, that no permission is required to sell goods manufactured by 100% EOU lying with it, at the time approval is granted to debond. It has been held, that the expression allowed to be sold in India in the proviso to Section 3(1) of the Act was applicable only to sales made upto 25% of production by 100% EOU in DTA and with the permission of the Development Commissioner. Admittedly, in the present case, the sales made by UFAC to TISCO are within the permissible limits and with the permission of the Development Commissioner. 58. The view taken by this Court in the case of Sarla Performance Fibers Limited (supra) is a similar view, taken following the decision of this Court in Siv Industries Ltd. (supra). As such, the said judgment also is of no assistance to the case of the appellant. | 0[ds]19. We do not find any merit in the submission of Shri Radhakrishnan in this regard20. The perusal of the definition makes it clear that when there is a transfer of possession of goods in the ordinary course of trade or business either for cash or for deferred payment or any other valuable consideration, the same would be covered by the terms sale and purchase within the meaning of the Central Excise Act, 1944. Undisputedly, in the present case, there is a transfer of Manganese Ore by TISCO to UFAC for the purposes of processing the same and converting it into Silicon Manganese. Undisputedly, the same is also for a valuable consideration23. It is also equally well settled that the first principle of interpretation of plain and literal interpretation has to be adhered to. We are therefore of the considered view, that the narrower scope of the term sale as found in the Sale of Goods Act, 1930 cannot be applied in the present case. The term sale and purchase under the Central Excise Act, 1944, if construed literally, it would give a wider scope and also include transfer of possession for valuable consideration under the definition of the term sale27. It can therefore be seen, that under para 9.9(a) of the EXIM Policy, EOU is entitled to sell the rejects in the DTA on prior intimation to the Customs authorities. Such sales are to be counted against DTA sale entitlement under paragraph 9.9(b) of the EXIM Policy. The sale of rejects shall be subject to payment of duties as applicable to sale under paragraph 9.9(b) of the EXIM Policy30. It can thus clearly be seen, that paragraph 9.9(b) and paragraph 9.17(b) of the EXIM Policy operate in totally different fields. Under paragraph 9.9 (b), an EOU is entitled to sell upto 50% of the FOB value of exports to DTA subject to payment of applicable duties and fulfilment of minimum NFEP as prescribed in Appendix-I of the Policy, whereas under paragraph 9.17(b), an EOU is entitled to undertake job-work for export, on behalf of DTA units, with the permission of Assistant Commissioner of Customs, provided the goods are exported direct from the EOU/EPZ units. In such type of exports, the DTA units would be entitled for refund of duty paid on the inputs by way of Brand Rate of duty drawback34. We find, that failure on the part of the Commissioner, who passed the order-in-original, to notice the Circular dated 22.5.2000 has resulted in passing an erroneous order. It also appears, that after the show cause notice was issued to UFAC, the Commissioner had sought a clarification from the Sponsoring Authority i.e. the Development Commissioner, SEEPZ vide communication dated 6.11.200136. It is not in dispute that all transactions between UFAC and TISCO have been entered into after the necessary permission was obtained from the Development Commissioner37. It could thus be clearly seen, that the Original Authority itself has found that clearance of the goods manufactured on the basis of job-work had been effected on payment of duty vide Exemption Notification of 1997 against permission for DTA sales granted by the Development Commissioner, SEEPZ, Mumbai from time to time38. The combined reading of paragraph 9.9(b) of the EXIM Policy, the Circulars issued by the Board, particularly, the Circular dated 22.5.2000 and reply to the query of the Customs Authorities by the Development Commissioner, SEEPZ would clearly show, that the UFAC was entitled to carry out the job-work on behalf of TISCO on payment of duty as provided under Exemption Notification of 199746. We are of the considered view, that if such an interpretation is accepted, the words unless specifically provided in such notification in sub-section (1) of Section 5A will have to be ignored and the said words would be rendered otiose. It is a settled principle of law that while interpreting a provision due weightage will have to be given to each and every word used in the statute48. We therefore find, that the interpretation as sought to be placed by Shri Radhakrishnan would render the term unless specifically provided in such notificationin sub- section (1) of Section 5A otiose or useless. Such an interpretation would not be permissible. We find, that the harmonious construction of sub-Section (1) of Section 5A of the Act and the proviso thereto would be, that an EOU which brings the excisable goods to any other place in India would not be entitled for a general exemption notification unless it is so specifically provided in such a notification50. The bare reading of the aforesaid Notification would amply make it clear, that the Central Government after being satisfied that it was necessary in the public interest so to do, thereby exempted the finished products, rejects and waste or scrap which was produced or manufactured in a hundred per cent export-oriented undertaking or a free trade zone wholly from the raw materials produced or manufactured in India and allowed to be sold in India under and in accordance with the provisions of sub-paragraphs (a), (b), (c), (d) and (f) of paragraph 9.9 or of paragraph 9.20 of the EXIM Policy, from so much of the duty of excise leviable thereon under Section 3 of the Central Excise Act, 1944, as is in excess of an amount equal to the aggregate of the duties of excise leviable under the said Section 3 of the Central Excise Act or under any other law for the time being in force on like goods, produced or manufactured in India other than in a hundred per cent export-oriented undertaking or a free trade zone, if sold in India51. It could thus be seen, that the said notification specifically provides grant of exemption to the EOUs from the payment of duties, which are in excess of what is leviable under sub-section (1) of Section 3 of the Central Excise Act, 1944 on like goods, produced or manufactured in India. In our considered view, since the said Exemption Notification specifically mentions, that the goods produced or manufactured by an 100% EOU, which are allowed to be sold in India in accordance with para 9.9(b) of the EXIM Policy, the proviso would be inapplicable thereby, requiring the duties to be paid, as are required to be paid under sub- Section (1) of Section 3 of the said Act. The conditions which can be culled out for enabling to get the benefit of the said Exemption Notification are as under:(i) The finished products, rejects and waste or scrap specified in the Schedule to the Central Excise Tariff Act, 1985 should be produced or manufactured in the 100% export-oriented undertaking or a free trade zone;(ii) The said finished products should be manufactured wholly from the raw materials produced or manufactured in India;(iii) They are allowed to be sold in India under and in accordance with the provisions of sub-paragraphs (a), (b), (c), (d) and (f) of paragraph 9.9 or of paragraph 9.20 of the EXIM Policy52. Undisputedly, in the present case, the transaction between UFAC and TISCO satisfies all the three conditions. The goods are produced and manufactured by UFAC, an 100% export-oriented unit; they are manufactured wholly from the raw materials produced or manufactured in India and, thirdly, they have been allowed to be sold in India in accordance with the provisions of paragraph 9.9(b) of the EXIM Policy54. No doubt, that the reliance placed by the learned Senior Counsel on the judgments of this Court to the effect that if there are inconsistencies in two statutes, the later would prevail is well placed55. We do not find, that there would be any conflict in the amended provisions of clause (ii) of the proviso to sub- section (1) of Section 5A of the Act and the said Exemption Notification. In any case, by the 2001 Amendment, the legislature has not laid down any exhaustive code in respect of the subject matter in replacing the earlier law. It appears, that the said Amendment has been incorporated to bring the said clause (ii) of sub-Section (1) of Section 5A in sync with the words used in clause (i) of the proviso to sub-section (1) of Section 5A of the Act and the words used in the proviso to sub-section (1) of Section 3 of the Act. In that view of the matter, we find, that the said contention is without substance56. Insofar as the reliance placed by the learned Senior Counsel on the judgment of this Court in the case of Siv Industries Ltd. (supra) so as to distinguish the terms allowed to be sold in India and brought to any other place in India is concerned, we find, that the said judgment would rather support the case of the respondent – AssesseeAdmittedly, in the present case, the sales made by UFAC to TISCO are within the permissible limits and with the permission of the Development Commissioner58. The view taken by this Court in the case of Sarla Performance Fibers Limited (supra) is a similar view, taken following the decision of this Court in Siv Industries Ltd. (supra). As such, the said judgment also is of no assistance to the case of the appellant. | 0 | 9,242 | 1,751 | ### 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:
excise leviable under the said Section 3 of the Central Excise Act or under any other law for the time being in force on like goods, produced or manufactured in India other than in a hundred per cent export-oriented undertaking or a free trade zone, if sold in India. 51. It could thus be seen, that the said notification specifically provides grant of exemption to the EOUs from the payment of duties, which are in excess of what is leviable under sub-section (1) of Section 3 of the Central Excise Act, 1944 on like goods, produced or manufactured in India. In our considered view, since the said Exemption Notification specifically mentions, that the goods produced or manufactured by an 100% EOU, which are allowed to be sold in India in accordance with para 9.9(b) of the EXIM Policy, the proviso would be inapplicable thereby, requiring the duties to be paid, as are required to be paid under sub- Section (1) of Section 3 of the said Act. The conditions which can be culled out for enabling to get the benefit of the said Exemption Notification are as under: (i) The finished products, rejects and waste or scrap specified in the Schedule to the Central Excise Tariff Act, 1985 should be produced or manufactured in the 100% export-oriented undertaking or a free trade zone; (ii) The said finished products should be manufactured wholly from the raw materials produced or manufactured in India; (iii) They are allowed to be sold in India under and in accordance with the provisions of sub-paragraphs (a), (b), (c), (d) and (f) of paragraph 9.9 or of paragraph 9.20 of the EXIM Policy. 52. Undisputedly, in the present case, the transaction between UFAC and TISCO satisfies all the three conditions. The goods are produced and manufactured by UFAC, an 100% export-oriented unit; they are manufactured wholly from the raw materials produced or manufactured in India and, thirdly, they have been allowed to be sold in India in accordance with the provisions of paragraph 9.9(b) of the EXIM Policy. 53. We will now consider the submission of Shri Radhakrishnan, learned Senior Counsel, that in view of substitution of the words allowed to be sold in India by brought to any other place in India, the said Exemption Notification shall stand impliedly overruled/repealed. 54. No doubt, that the reliance placed by the learned Senior Counsel on the judgments of this Court to the effect that if there are inconsistencies in two statutes, the later would prevail is well placed. This Court in Deep Chand vs. State of Uttar Pradesh AIR 1959 SC 648 has laid down the following principles to ascertain whether there is repugnancy or not: (1) Whether there is direct conflict between the two provisions; (2) Whether the legislature intended to lay down an exhaustive code in respect of the subject matter replacing the earlier law; (3) Whether the two laws occupy the same field. The said view has been consistently followed by this Court in catena of judgments. 55. We do not find, that there would be any conflict in the amended provisions of clause (ii) of the proviso to sub- section (1) of Section 5A of the Act and the said Exemption Notification. In any case, by the 2001 Amendment, the legislature has not laid down any exhaustive code in respect of the subject matter in replacing the earlier law. It appears, that the said Amendment has been incorporated to bring the said clause (ii) of sub-Section (1) of Section 5A in sync with the words used in clause (i) of the proviso to sub-section (1) of Section 5A of the Act and the words used in the proviso to sub-section (1) of Section 3 of the Act. In that view of the matter, we find, that the said contention is without substance. 56. Insofar as the reliance placed by the learned Senior Counsel on the judgment of this Court in the case of Siv Industries Ltd. (supra) so as to distinguish the terms allowed to be sold in India and brought to any other place in India is concerned, we find, that the said judgment would rather support the case of the respondent – Assessee. It would be relevant to refer to the following observation in paragraph 18 of the said judgment, which reads thus: Thus it is apparent that debonding and permission to sell in India are two different things having no connection with each other. It also becomes apparent that in view of the EOU Scheme as modified from time to time and corresponding amendments to Section 3 of the Act the expression allowed to be sold in India in the proviso to Section 3(1) of the Act is applicable only to sales made up to 25% of production by 100% EOU in DTA and with the permission of the Development Commissioner. No permission is required to sell goods manufactured by 100% EOU lying with it at the time approval is granted to debond. 57. It is to be noted that the case that fell for consideration before this Court was with regard to debonding. What this Court has held is, that no permission is required to sell goods manufactured by 100% EOU lying with it, at the time approval is granted to debond. It has been held, that the expression allowed to be sold in India in the proviso to Section 3(1) of the Act was applicable only to sales made upto 25% of production by 100% EOU in DTA and with the permission of the Development Commissioner. Admittedly, in the present case, the sales made by UFAC to TISCO are within the permissible limits and with the permission of the Development Commissioner. 58. The view taken by this Court in the case of Sarla Performance Fibers Limited (supra) is a similar view, taken following the decision of this Court in Siv Industries Ltd. (supra). As such, the said judgment also is of no assistance to the case of the appellant.
### Response:
0
### Explanation:
to time38. The combined reading of paragraph 9.9(b) of the EXIM Policy, the Circulars issued by the Board, particularly, the Circular dated 22.5.2000 and reply to the query of the Customs Authorities by the Development Commissioner, SEEPZ would clearly show, that the UFAC was entitled to carry out the job-work on behalf of TISCO on payment of duty as provided under Exemption Notification of 199746. We are of the considered view, that if such an interpretation is accepted, the words unless specifically provided in such notification in sub-section (1) of Section 5A will have to be ignored and the said words would be rendered otiose. It is a settled principle of law that while interpreting a provision due weightage will have to be given to each and every word used in the statute48. We therefore find, that the interpretation as sought to be placed by Shri Radhakrishnan would render the term unless specifically provided in such notificationin sub- section (1) of Section 5A otiose or useless. Such an interpretation would not be permissible. We find, that the harmonious construction of sub-Section (1) of Section 5A of the Act and the proviso thereto would be, that an EOU which brings the excisable goods to any other place in India would not be entitled for a general exemption notification unless it is so specifically provided in such a notification50. The bare reading of the aforesaid Notification would amply make it clear, that the Central Government after being satisfied that it was necessary in the public interest so to do, thereby exempted the finished products, rejects and waste or scrap which was produced or manufactured in a hundred per cent export-oriented undertaking or a free trade zone wholly from the raw materials produced or manufactured in India and allowed to be sold in India under and in accordance with the provisions of sub-paragraphs (a), (b), (c), (d) and (f) of paragraph 9.9 or of paragraph 9.20 of the EXIM Policy, from so much of the duty of excise leviable thereon under Section 3 of the Central Excise Act, 1944, as is in excess of an amount equal to the aggregate of the duties of excise leviable under the said Section 3 of the Central Excise Act or under any other law for the time being in force on like goods, produced or manufactured in India other than in a hundred per cent export-oriented undertaking or a free trade zone, if sold in India51. It could thus be seen, that the said notification specifically provides grant of exemption to the EOUs from the payment of duties, which are in excess of what is leviable under sub-section (1) of Section 3 of the Central Excise Act, 1944 on like goods, produced or manufactured in India. In our considered view, since the said Exemption Notification specifically mentions, that the goods produced or manufactured by an 100% EOU, which are allowed to be sold in India in accordance with para 9.9(b) of the EXIM Policy, the proviso would be inapplicable thereby, requiring the duties to be paid, as are required to be paid under sub- Section (1) of Section 3 of the said Act. The conditions which can be culled out for enabling to get the benefit of the said Exemption Notification are as under:(i) The finished products, rejects and waste or scrap specified in the Schedule to the Central Excise Tariff Act, 1985 should be produced or manufactured in the 100% export-oriented undertaking or a free trade zone;(ii) The said finished products should be manufactured wholly from the raw materials produced or manufactured in India;(iii) They are allowed to be sold in India under and in accordance with the provisions of sub-paragraphs (a), (b), (c), (d) and (f) of paragraph 9.9 or of paragraph 9.20 of the EXIM Policy52. Undisputedly, in the present case, the transaction between UFAC and TISCO satisfies all the three conditions. The goods are produced and manufactured by UFAC, an 100% export-oriented unit; they are manufactured wholly from the raw materials produced or manufactured in India and, thirdly, they have been allowed to be sold in India in accordance with the provisions of paragraph 9.9(b) of the EXIM Policy54. No doubt, that the reliance placed by the learned Senior Counsel on the judgments of this Court to the effect that if there are inconsistencies in two statutes, the later would prevail is well placed55. We do not find, that there would be any conflict in the amended provisions of clause (ii) of the proviso to sub- section (1) of Section 5A of the Act and the said Exemption Notification. In any case, by the 2001 Amendment, the legislature has not laid down any exhaustive code in respect of the subject matter in replacing the earlier law. It appears, that the said Amendment has been incorporated to bring the said clause (ii) of sub-Section (1) of Section 5A in sync with the words used in clause (i) of the proviso to sub-section (1) of Section 5A of the Act and the words used in the proviso to sub-section (1) of Section 3 of the Act. In that view of the matter, we find, that the said contention is without substance56. Insofar as the reliance placed by the learned Senior Counsel on the judgment of this Court in the case of Siv Industries Ltd. (supra) so as to distinguish the terms allowed to be sold in India and brought to any other place in India is concerned, we find, that the said judgment would rather support the case of the respondent – AssesseeAdmittedly, in the present case, the sales made by UFAC to TISCO are within the permissible limits and with the permission of the Development Commissioner58. The view taken by this Court in the case of Sarla Performance Fibers Limited (supra) is a similar view, taken following the decision of this Court in Siv Industries Ltd. (supra). As such, the said judgment also is of no assistance to the case of the appellant.
|
NEETU YADAV Vs. SACHIN YADAV | Admittedly, the respondent-husband filed a petition for dissolution of marriage on the ground of cruelty in H.M.A case No.3200 of 2019 on the file of the Principal Judge, Family Court, South West, Dwarka Courts, New Delhi. The wife seeks transfer of the said petition to the Court of the Principal Judge, Family Court, Indore, Madhya Pradesh primarily on the ground that she and her two children are entirely dependent on her old and ailing parents and that it would be impossible for her to travel a distance of 800 kms. to attend to the hearing of the case in New Delhi. 5. The respondent has filed a counter affidavit contending inter alia that the petitioner is a Post Graduate; that the entire family of the petitioner is influentially associated with the judicial structure of Madhya Pradesh; that the petitioners mother retired from a senior Administrative position from the District judiciary; that the petitioners mother has very good family relations with the judicial officers who worked in the district; that the petitioners mother is still closely associated with the Unionised Cadre of District Court and their Cooperative Societies; that several officials of the Indore Court used to visit her home for each and every small function in their family; that due to the managerial skill of the petitioners mother and her influence, the petitioner managed to have the first notice in the divorce petition returned unserved; that the petitioners brother is a distinguished lawyer practising in the High Court of Madhya Pradesh and the Subordinate Courts for more than twelve years; that the petitioners brother has friendly relationship with the judicial officers of the District Court, as can be evident from his Facebook page; that the petitioners brother is an associate of one Mr. Sunil Choudhary who was the President of the District Bar Association, Indore: that he is politically well connected and has connection with the sitting member of the Parliament who was also a Judicial Officer (retired); that the petitioners brother is an active member of the Indore Bar Association and is a close friend of many leaders of the Bar; that the petitioners younger brother is working in the Information Technology Department, Indore Bench of the High Court of Madhya Pradesh and that, therefore, it is not possible for the respondent to get justice through free and fair hearing. The respondent-husband has stated that the petitioner is capable of travelling alone to Delhi and that he is also prepared to bear the expenses of her travel. 6. I have carefully considered the rival submissions. 7. It is not the case of the respondent that the petitioner is gainfully employed. The claim of the petitioner that she is now staying with her parents is not disputed by the respondent. That both the children are staying with the petitioner is also not disputed. The elder child is a girl aged about 11 years and whenever the case is fixed for hearing, the petitioner has to travel about 800 kms. 8. The respondent is working as Vigilance Officer in the Airport Authority of India. He is currently posted in Delhi. The fact that the marriage was solemnized at Indore is borne out by the pleadings in the Divorce Petition filed by the respondent. As per the averments contained in the Divorce Petition, the couple lived at Indore till July-2020. Thereafter the couple lived in Delhi for some time. 9. The only reason why the respondent has chosen to file the Divorce Petition at Dwarka is that he is now posted in New Delhi and that the couple last resided together at New Delhi. 10. Keeping the above mentioned admitted facts in mind, if we look at the counter affidavit filed by the respondent, it is seen that the request for transfer is contested mainly on the ground that the petitioners mother is a retired employee of the District Court and that the petitioners elder brother is a practicing advocate and the younger brother is working in the I.T. department of the Indore Bench of the Madhya Pradesh High Court and that they wield enormous influence. 11. To prove his contention regarding the status of the petitioners family and the influence that they allegedly have, the respondent has filed print outs of a few pages from the Facebook account of the petitioners brother. While one of those print outs has photographs taken on the occasion of a cricket tournament held under the aegis of Indore Bar Association and another print out relates to the greetings extended to the Ex-President of Indore Bar Association, the print outs of all other Facebook pages contain nothing other than the photographs of the petitioners brother with comments revolving around some joyous occasions. 12. I do not know how the pictures taken on the occasion of a cricket tournament conducted by a Bar Association and witnessed by a few judicial officers can be an indication of the influence exerted by the petitioners family on the entire district judiciary, merely because the judicial officers and Advocates have stood shoulder to shoulder on that occasion. It was not a private event but an event open to all lawyers of the District Bar. The fact that the petitioners brother who is a lawyer, has a Facebook page and that the same has lot of followers and that it attracts a lot of comments and likes cannot be the basis to conclude that the petitioners brother is very influential with the local judiciary. 13. I am not convinced that there is any real likelihood of bias. Out of the seven print outs of the Facebook pages of the petitioners brother, filed by respondent as Annexures R/1, R/2 and R/3 (colly), only one contains the photographs of a few persons who had participated in the cricket competition conducted by Indore Bar Association. On the basis of this, it is not appropriate to come to the conclusion that the respondent will not receive a fair treatment at the hands of the Family Court. | 1[ds]7. It is not the case of the respondent that the petitioner is gainfully employed. The claim of the petitioner that she is now staying with her parents is not disputed by the respondent. That both the children are staying with the petitioner is also not disputed. The elder child is a girl aged about 11 years and whenever the case is fixed for hearing, the petitioner has to travel about 800 kms.9. The only reason why the respondent has chosen to file the Divorce Petition at Dwarka is that he is now posted in New Delhi and that the couple last resided together at New Delhi.10. Keeping the above mentioned admitted facts in mind, if we look at the counter affidavit filed by the respondent, it is seen that the request for transfer is contested mainly on the ground that the petitioners mother is a retired employee of the District Court and that the petitioners elder brother is a practicing advocate and the younger brother is working in the I.T. department of the Indore Bench of the Madhya Pradesh High Court and that they wield enormous influence.While one of those print outs has photographs taken on the occasion of a cricket tournament held under the aegis of Indore Bar Association and another print out relates to the greetings extended to the Ex-President of Indore Bar Association, the print outs of all other Facebook pages contain nothing other than the photographs of the petitioners brother with comments revolving around some joyous occasions.12. I do not know how the pictures taken on the occasion of a cricket tournament conducted by a Bar Association and witnessed by a few judicial officers can be an indication of the influence exerted by the petitioners family on the entire district judiciary, merely because the judicial officers and Advocates have stood shoulder to shoulder on that occasion. It was not a private event but an event open to all lawyers of the District Bar. The fact that the petitioners brother who is a lawyer, has a Facebook page and that the same has lot of followers and that it attracts a lot of comments and likes cannot be the basis to conclude that the petitioners brother is very influential with the local judiciary.13. I am not convinced that there is any real likelihood of bias. Out of the seven print outs of the Facebook pages of the petitioners brother, filed by respondent as Annexures R/1, R/2 and R/3 (colly), only one contains the photographs of a few persons who had participated in the cricket competition conducted by Indore Bar Association. On the basis of this, it is not appropriate to come to the conclusion that the respondent will not receive a fair treatment at the hands of the Family Court. | 1 | 1,212 | 495 | ### 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:
Admittedly, the respondent-husband filed a petition for dissolution of marriage on the ground of cruelty in H.M.A case No.3200 of 2019 on the file of the Principal Judge, Family Court, South West, Dwarka Courts, New Delhi. The wife seeks transfer of the said petition to the Court of the Principal Judge, Family Court, Indore, Madhya Pradesh primarily on the ground that she and her two children are entirely dependent on her old and ailing parents and that it would be impossible for her to travel a distance of 800 kms. to attend to the hearing of the case in New Delhi. 5. The respondent has filed a counter affidavit contending inter alia that the petitioner is a Post Graduate; that the entire family of the petitioner is influentially associated with the judicial structure of Madhya Pradesh; that the petitioners mother retired from a senior Administrative position from the District judiciary; that the petitioners mother has very good family relations with the judicial officers who worked in the district; that the petitioners mother is still closely associated with the Unionised Cadre of District Court and their Cooperative Societies; that several officials of the Indore Court used to visit her home for each and every small function in their family; that due to the managerial skill of the petitioners mother and her influence, the petitioner managed to have the first notice in the divorce petition returned unserved; that the petitioners brother is a distinguished lawyer practising in the High Court of Madhya Pradesh and the Subordinate Courts for more than twelve years; that the petitioners brother has friendly relationship with the judicial officers of the District Court, as can be evident from his Facebook page; that the petitioners brother is an associate of one Mr. Sunil Choudhary who was the President of the District Bar Association, Indore: that he is politically well connected and has connection with the sitting member of the Parliament who was also a Judicial Officer (retired); that the petitioners brother is an active member of the Indore Bar Association and is a close friend of many leaders of the Bar; that the petitioners younger brother is working in the Information Technology Department, Indore Bench of the High Court of Madhya Pradesh and that, therefore, it is not possible for the respondent to get justice through free and fair hearing. The respondent-husband has stated that the petitioner is capable of travelling alone to Delhi and that he is also prepared to bear the expenses of her travel. 6. I have carefully considered the rival submissions. 7. It is not the case of the respondent that the petitioner is gainfully employed. The claim of the petitioner that she is now staying with her parents is not disputed by the respondent. That both the children are staying with the petitioner is also not disputed. The elder child is a girl aged about 11 years and whenever the case is fixed for hearing, the petitioner has to travel about 800 kms. 8. The respondent is working as Vigilance Officer in the Airport Authority of India. He is currently posted in Delhi. The fact that the marriage was solemnized at Indore is borne out by the pleadings in the Divorce Petition filed by the respondent. As per the averments contained in the Divorce Petition, the couple lived at Indore till July-2020. Thereafter the couple lived in Delhi for some time. 9. The only reason why the respondent has chosen to file the Divorce Petition at Dwarka is that he is now posted in New Delhi and that the couple last resided together at New Delhi. 10. Keeping the above mentioned admitted facts in mind, if we look at the counter affidavit filed by the respondent, it is seen that the request for transfer is contested mainly on the ground that the petitioners mother is a retired employee of the District Court and that the petitioners elder brother is a practicing advocate and the younger brother is working in the I.T. department of the Indore Bench of the Madhya Pradesh High Court and that they wield enormous influence. 11. To prove his contention regarding the status of the petitioners family and the influence that they allegedly have, the respondent has filed print outs of a few pages from the Facebook account of the petitioners brother. While one of those print outs has photographs taken on the occasion of a cricket tournament held under the aegis of Indore Bar Association and another print out relates to the greetings extended to the Ex-President of Indore Bar Association, the print outs of all other Facebook pages contain nothing other than the photographs of the petitioners brother with comments revolving around some joyous occasions. 12. I do not know how the pictures taken on the occasion of a cricket tournament conducted by a Bar Association and witnessed by a few judicial officers can be an indication of the influence exerted by the petitioners family on the entire district judiciary, merely because the judicial officers and Advocates have stood shoulder to shoulder on that occasion. It was not a private event but an event open to all lawyers of the District Bar. The fact that the petitioners brother who is a lawyer, has a Facebook page and that the same has lot of followers and that it attracts a lot of comments and likes cannot be the basis to conclude that the petitioners brother is very influential with the local judiciary. 13. I am not convinced that there is any real likelihood of bias. Out of the seven print outs of the Facebook pages of the petitioners brother, filed by respondent as Annexures R/1, R/2 and R/3 (colly), only one contains the photographs of a few persons who had participated in the cricket competition conducted by Indore Bar Association. On the basis of this, it is not appropriate to come to the conclusion that the respondent will not receive a fair treatment at the hands of the Family Court.
### Response:
1
### Explanation:
7. It is not the case of the respondent that the petitioner is gainfully employed. The claim of the petitioner that she is now staying with her parents is not disputed by the respondent. That both the children are staying with the petitioner is also not disputed. The elder child is a girl aged about 11 years and whenever the case is fixed for hearing, the petitioner has to travel about 800 kms.9. The only reason why the respondent has chosen to file the Divorce Petition at Dwarka is that he is now posted in New Delhi and that the couple last resided together at New Delhi.10. Keeping the above mentioned admitted facts in mind, if we look at the counter affidavit filed by the respondent, it is seen that the request for transfer is contested mainly on the ground that the petitioners mother is a retired employee of the District Court and that the petitioners elder brother is a practicing advocate and the younger brother is working in the I.T. department of the Indore Bench of the Madhya Pradesh High Court and that they wield enormous influence.While one of those print outs has photographs taken on the occasion of a cricket tournament held under the aegis of Indore Bar Association and another print out relates to the greetings extended to the Ex-President of Indore Bar Association, the print outs of all other Facebook pages contain nothing other than the photographs of the petitioners brother with comments revolving around some joyous occasions.12. I do not know how the pictures taken on the occasion of a cricket tournament conducted by a Bar Association and witnessed by a few judicial officers can be an indication of the influence exerted by the petitioners family on the entire district judiciary, merely because the judicial officers and Advocates have stood shoulder to shoulder on that occasion. It was not a private event but an event open to all lawyers of the District Bar. The fact that the petitioners brother who is a lawyer, has a Facebook page and that the same has lot of followers and that it attracts a lot of comments and likes cannot be the basis to conclude that the petitioners brother is very influential with the local judiciary.13. I am not convinced that there is any real likelihood of bias. Out of the seven print outs of the Facebook pages of the petitioners brother, filed by respondent as Annexures R/1, R/2 and R/3 (colly), only one contains the photographs of a few persons who had participated in the cricket competition conducted by Indore Bar Association. On the basis of this, it is not appropriate to come to the conclusion that the respondent will not receive a fair treatment at the hands of the Family Court.
|
Jsw Infrastructure Limited Vs. Kakinada Seaports Limited | On a bare reading of the Policy Clause some weightage and meaning has to be given not only to the word “next” as done by the High Court but also to the words “only one private operator” appearing in the opening part of the Clause. The words “only one private operator” cannot be treated as surplusage. The entire clause has to be read as a whole in the context of the purpose of the policy which is to avoid and restrict monopoly. In our opinion, this Clause will apply only when there is one single private operator in a port. If this single private operator is operating a berth, dealing with one specific cargo then alone will he not be allowed to bid for next berth for handling the same specific cargo. The High Court erred in interpreting the clause only in the context of the word “next” and ignored the opening part of the Clause which clearly indicates that the Clause is only applicable when there is only one private berth operator. It appears to us that the intention is that when a port is started, if the first berth for a specific cargo is awarded in favour of one private operator then he cannot be permitted to bid for the next berth for the same type of cargo. However, once there are more than one private operators operating in the port then any one of them can be permitted to bid even for successive berths. In the present case, as pointed out above there already 5 private operators other than the first consortium.9. We may also add that the law is well settled that superior courts while exercising their power of judicial review must act with restraint while dealing with contractual matters. A Three Judge Bench of this Court in Tata Cellular vs. Union of India (1994) 6 SCC 651 ) held that (i) there should be judicial restraint in review of administrative action; (ii) the court should not act like court of appeal; it cannot review the decision but can only review the decision making process (iii) the court does not usually have the necessary expertise to correct such technical decisions.; (iv) the employer must have play in the joints i.e., necessary freedom to take administrative decisions within certain boundaries.10. In Jagdish Mandal vs. State of Orissa (2007) 14 SCC 517 )this Court held that evaluation of tenders and awarding contracts are essentially commercial functions and if the decision is bonafide and taken in the public interest the superior courts should refrain from exercising their power of judicial review. In the present case there are no allegations of mala fides and the appellant consortium has offered better revenue sharing to the employer.11. In Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Anr. (2016 SCC Online SC 940).This Court held as follows:-“14.....a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision.xxx xxx xxx16. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given.17. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court....”The view taken in Afcons (supra) was followed in Monte Carlo Ltd. Vs. NTPC Ltd. (2016 SCC Online SC 1149). Thus it is apparent that in contractual matters, the Writ Courts should not interfere unless the decision taken is totally arbitrary, perverse or mala fide.12. Strong reliance has been placed on behalf of the second consortium on the judgment rendered in APM Terminals B.V. vs. Union of India and Another (2011 ) 6 SCC 756) . We are of the considered view that the said judgment cannot be applied to the present case because in that case this court considered the clauses of the contract. The policy which was applicable in APM Terminal, was not the policy of 2010 but the policy of 2007, the wording of which is totally different. True it is, that in the said judgment reference has also been made to the new policy but that was not specifically dealt with by the Court, and the matter was decided on an interpretation of the terms of the contract and the policy of 2007.13. In view of the above discussion we are clearly of the view that the High Court erred in interpreting the Clause in the manner which it is done. As explained above, the Clause will apply only when there is single private operator operating a single berth. Once there are more than one private operators then the Clause will not apply. The decision taken by Paradip Port Trust could not be termed to be arbitrary, perverse or mala fide. Therefore, the High Court was not justified in setting aside the same. | 1[ds]8. On a bare reading of the Policy Clause some weightage and meaning has to be given not only to the wordas done by the High Court but also to the wordsappearing in the opening part of the Clause. The wordscannot be treated as surplusage. The entire clause has to be read as a whole in the context of the purpose of the policy which is to avoid and restrict monopoly. In our opinion, this Clause will apply only when there is one single private operator in a port. If this single private operator is operating a berth, dealing with one specific cargo then alone will he not be allowed to bid for next berth for handling the same specific cargo. The High Court erred in interpreting the clause only in the context of the wordand ignored the opening part of the Clause which clearly indicates that the Clause is only applicable when there is only one private berth operator. It appears to us that the intention is that when a port is started, if the first berth for a specific cargo is awarded in favour of one private operator then he cannot be permitted to bid for the next berth for the same type of cargo. However, once there are more than one private operators operating in the port then any one of them can be permitted to bid even for successive berths. In the present case, as pointed out above there already 5 private operators other than the first consortium.9. We may also add that the law is well settled that superior courts while exercising their power of judicial review must act with restraint while dealing with contractualIn Jagdish Mandal vs. State of Orissa (2007) 14 SCC 517 )this Court held that evaluation of tenders and awarding contracts are essentially commercial functions and if the decision is bonafide and taken in the public interest the superior courts should refrain from exercising their power of judicial review. In the present case there are no allegations of mala fides and the appellant consortium has offered better revenue sharing to the employer.Strong reliance has been placed on behalf of the second consortium on the judgment rendered in APM Terminals B.V. vs. Union of India and Another (2011 ) 6 SCC 756) . We are of the considered view that the said judgment cannot be applied to the present case because in that case this court considered the clauses of the contract. The policy which was applicable in APM Terminal, was not the policy of 2010 but the policy of 2007, the wording of which is totally different. True it is, that in the said judgment reference has also been made to the new policy but that was not specifically dealt with by the Court, and the matter was decided on an interpretation of the terms of the contract and the policy of 2007.13. In view of the above discussion we are clearly of the view that the High Court erred in interpreting the Clause in the manner which it is done. As explained above, the Clause will apply only when there is single private operator operating a single berth. Once there are more than one private operators then the Clause will not apply. The decision taken by Paradip Port Trust could not be termed to be arbitrary, perverse or mala fide. Therefore, the High Court was not justified in setting aside the same. | 1 | 2,462 | 614 | ### 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 a bare reading of the Policy Clause some weightage and meaning has to be given not only to the word “next” as done by the High Court but also to the words “only one private operator” appearing in the opening part of the Clause. The words “only one private operator” cannot be treated as surplusage. The entire clause has to be read as a whole in the context of the purpose of the policy which is to avoid and restrict monopoly. In our opinion, this Clause will apply only when there is one single private operator in a port. If this single private operator is operating a berth, dealing with one specific cargo then alone will he not be allowed to bid for next berth for handling the same specific cargo. The High Court erred in interpreting the clause only in the context of the word “next” and ignored the opening part of the Clause which clearly indicates that the Clause is only applicable when there is only one private berth operator. It appears to us that the intention is that when a port is started, if the first berth for a specific cargo is awarded in favour of one private operator then he cannot be permitted to bid for the next berth for the same type of cargo. However, once there are more than one private operators operating in the port then any one of them can be permitted to bid even for successive berths. In the present case, as pointed out above there already 5 private operators other than the first consortium.9. We may also add that the law is well settled that superior courts while exercising their power of judicial review must act with restraint while dealing with contractual matters. A Three Judge Bench of this Court in Tata Cellular vs. Union of India (1994) 6 SCC 651 ) held that (i) there should be judicial restraint in review of administrative action; (ii) the court should not act like court of appeal; it cannot review the decision but can only review the decision making process (iii) the court does not usually have the necessary expertise to correct such technical decisions.; (iv) the employer must have play in the joints i.e., necessary freedom to take administrative decisions within certain boundaries.10. In Jagdish Mandal vs. State of Orissa (2007) 14 SCC 517 )this Court held that evaluation of tenders and awarding contracts are essentially commercial functions and if the decision is bonafide and taken in the public interest the superior courts should refrain from exercising their power of judicial review. In the present case there are no allegations of mala fides and the appellant consortium has offered better revenue sharing to the employer.11. In Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Anr. (2016 SCC Online SC 940).This Court held as follows:-“14.....a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision.xxx xxx xxx16. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given.17. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court....”The view taken in Afcons (supra) was followed in Monte Carlo Ltd. Vs. NTPC Ltd. (2016 SCC Online SC 1149). Thus it is apparent that in contractual matters, the Writ Courts should not interfere unless the decision taken is totally arbitrary, perverse or mala fide.12. Strong reliance has been placed on behalf of the second consortium on the judgment rendered in APM Terminals B.V. vs. Union of India and Another (2011 ) 6 SCC 756) . We are of the considered view that the said judgment cannot be applied to the present case because in that case this court considered the clauses of the contract. The policy which was applicable in APM Terminal, was not the policy of 2010 but the policy of 2007, the wording of which is totally different. True it is, that in the said judgment reference has also been made to the new policy but that was not specifically dealt with by the Court, and the matter was decided on an interpretation of the terms of the contract and the policy of 2007.13. In view of the above discussion we are clearly of the view that the High Court erred in interpreting the Clause in the manner which it is done. As explained above, the Clause will apply only when there is single private operator operating a single berth. Once there are more than one private operators then the Clause will not apply. The decision taken by Paradip Port Trust could not be termed to be arbitrary, perverse or mala fide. Therefore, the High Court was not justified in setting aside the same.
### Response:
1
### Explanation:
8. On a bare reading of the Policy Clause some weightage and meaning has to be given not only to the wordas done by the High Court but also to the wordsappearing in the opening part of the Clause. The wordscannot be treated as surplusage. The entire clause has to be read as a whole in the context of the purpose of the policy which is to avoid and restrict monopoly. In our opinion, this Clause will apply only when there is one single private operator in a port. If this single private operator is operating a berth, dealing with one specific cargo then alone will he not be allowed to bid for next berth for handling the same specific cargo. The High Court erred in interpreting the clause only in the context of the wordand ignored the opening part of the Clause which clearly indicates that the Clause is only applicable when there is only one private berth operator. It appears to us that the intention is that when a port is started, if the first berth for a specific cargo is awarded in favour of one private operator then he cannot be permitted to bid for the next berth for the same type of cargo. However, once there are more than one private operators operating in the port then any one of them can be permitted to bid even for successive berths. In the present case, as pointed out above there already 5 private operators other than the first consortium.9. We may also add that the law is well settled that superior courts while exercising their power of judicial review must act with restraint while dealing with contractualIn Jagdish Mandal vs. State of Orissa (2007) 14 SCC 517 )this Court held that evaluation of tenders and awarding contracts are essentially commercial functions and if the decision is bonafide and taken in the public interest the superior courts should refrain from exercising their power of judicial review. In the present case there are no allegations of mala fides and the appellant consortium has offered better revenue sharing to the employer.Strong reliance has been placed on behalf of the second consortium on the judgment rendered in APM Terminals B.V. vs. Union of India and Another (2011 ) 6 SCC 756) . We are of the considered view that the said judgment cannot be applied to the present case because in that case this court considered the clauses of the contract. The policy which was applicable in APM Terminal, was not the policy of 2010 but the policy of 2007, the wording of which is totally different. True it is, that in the said judgment reference has also been made to the new policy but that was not specifically dealt with by the Court, and the matter was decided on an interpretation of the terms of the contract and the policy of 2007.13. In view of the above discussion we are clearly of the view that the High Court erred in interpreting the Clause in the manner which it is done. As explained above, the Clause will apply only when there is single private operator operating a single berth. Once there are more than one private operators then the Clause will not apply. The decision taken by Paradip Port Trust could not be termed to be arbitrary, perverse or mala fide. Therefore, the High Court was not justified in setting aside the same.
|
KANTABAI VASANT AHIR Vs. SLUM REHABILITATION AUTHORITY | and 3D of the Act. 17. Another submission made on behalf of the Appellants is that the Slum Clearance Order dated 01.09.2009 is vitiated as it is contrary to Section 12 of the Act. The basis for the said argument is that the clearance is made in respect 5168.50 sq. mts. which includes 1045.50 sq. mts. un-declared area. Section 12 as substituted by Section 3D of the Act enables the Chief Executive Officer to make a Clearance Order to a slum area after it has been declared to be a Slum Rehabilitation Area. The submission of Mr. Kumar, learned Senior Counsel for the Appellants is that the words ?slum area? have been defined in Section 2(ga) to mean any area declared as such by the competent authority under Section 4(1). In the absence of a declaration of a slum area under Section 4(1), no action can be initiated under Section 3D of the Act. Mr. Divan, learned Senior Counsel appearing for Respondent Nos.1 and 2 submitted that the phrase ?any slum area? in Section 12 is used in general parlance. He relied upon Section 2 of the Act which starts with the following ?in this Act unless the context otherwise requires?. In the context of Chapter I-A of the Act, the phrase ?slum area? used in Section 12(1) cannot have the same meaning as found in Section 2(ga). The Slum Clearance Order is passed under Section 3D and Section 12(1) after an area is declared as a Slum Rehabilitation Area under Section 3C. Chapter I-A is a self- contained code dealing with Slum Rehabilitation Schemes. The words ?any slum area? in Section 12 are used in generic sense. Therefore, we do not accept the submission made on behalf of the Appellants that ?any slum area? in Section 12 is only that area which has been notified under Section 4(1) of the Act. Section 4 of the Act not being applicable to proceedings under Chapter I-A is a relevant factor to hold that the context warrants such interpretation. 18. The order dated 24.05.2006, passed under Section 3C of the Act was held to be vitiated by the Tribunal due to non-compliance of Section 36 of the Act. The manner of service of every notice, order or direction issued under the Act is provided under Section 36. A plain reading of Section 3C of the Act discloses that the declaration of a Slum Rehabilitation Area requires to be published in the official gazette. The Slum Rehabilitation Order under Section 3C shall also be given wide publicity. An appeal to the special Tribunal, against the Slum Rehabilitation Order, can be availed by any aggrieved person. Pursuant to the publication of the Slum Rehabilitation Scheme on 28.11.2005, a survey was conducted by the Slum Rehabilitation Authority to prepare a list of eligible slum dwellers. It has been stated in the counter affidavit filed by Respondent Nos. 1 & 2 that the Appellants participated in the said survey and showed willingness to be a part of the scheme. A list of eligible slum dwellers was published on 18.04.2006 and names of the Appellants were found in the list which was published by affixing the same at a conspicuous place in the area on 12.05.2006. After the order dated 24.05.2006 was passed, the Appellants submitted objections on 26.05.2006, 21.06.2006, 20.07.2006 and 07.08.2006. Thereafter, the Appellants filed appeal No.24 of 2014 under Section 3C (2) of the Act, challenging the order dated 24.05.2006 which was partially allowed. 19. There is no requirement of issuance of notice prior to the declaration under Section 3C. The Tribunal committed an error in relying upon Section 36 to hold that the appellants were entitled to a notice before order dated 24.05.2006 was passed. Section 36 only deals with the manner in which notice issued under the Act is to be served. No complaint of violation of principles of natural justice can be made by the Appellants as there is no violation of the procedure prescribed in Section 3C. That apart, the remedy resorted to by the Appellants under Section 3C(2) resulted in their favor. There is no prejudice caused to the Appellants. The complaint of the Appellants that they should have been given an opportunity before the order dated 24.05.2006 was passed cannot be entertained. 20. Clause (d) of the Special Rules and Regulations for Slum Rehabilitation Scheme under the jurisdiction of Slum Rehabilitation Authority for Pune and Pimpri Chinchwad area is as follows:"D) Definition of slum and Rehabilitation Area: Where the CEO (SRA) is satisfied that any area is or may be a source of danger to the health, safety or convenience of the public of that area or of its neighbourhood, by person of the area having inadequate or no basic amenities or being insanity, squalid, overcrowded or otherwise, or the buildings in any area used or intended to be used for human habitation area in any respect until for human habitation by reasons of dilapidation, overcrowding, faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors, detrimental to the health, safety or convenience of the pubic of that area is defined as Slum. This shall form the basic parameter for declaration of the rehabilitation area. Further that any such area, encumbered or unencumbered, that the CEO(SRA) may require for implementation of SRS proposal, shall be declared as rehabilitation area."21. It is clear that even encumbered area shall be declared as a rehabilitation area provided the Slum Rehabilitation Authority requires the said area for implementation of the Scheme. Admittedly, the disputed area of 1045.50 sq. mts. is adjacent to the declared area and is required for effective implementation of the Scheme. The contention of the Appellant that the declaration of 1045.50 sq. mts. under Section 3C of the Act is in colourable exercise of power is not acceptable. In view of the aforementioned findings, it is not necessary to deal with other contentions. | 0[ds]There is no dispute that the declared area is only to an extent of 4123 sq. mts. The entire area of 5168.50 sq. mts. was declared as a Slum Rehabilitation Area under Section 3C which falls in Chapter I-A. As stated above, Section 3D provides that Chapter II has no application to orders passed under Chapter I-A. Section 4(1) of the Act is in Chapter II. Therefore, it is not necessary that an area should be notified under Section 4 as slum area before proceedings under Chapter I-A are initiated. Hence, we do not agree with the Appellants that a notification under Section 4 is a pre- requisite for orders to be passed under Sections 3C and 3D of thewords ?any slum area? in Section 12 are used in generic sense. Therefore, we do not accept the submission made on behalf of the Appellants that ?any slum area? in Section 12 is only that area which has been notified under Section 4(1) of the Act. Section 4 of the Act not being applicable to proceedings under Chapter I-A is a relevant factor to hold that the context warrants such interpretation.There is no requirement of issuance of notice prior to the declaration under Section 3C. The Tribunal committed an error in relying upon Section 36 to hold that the appellants were entitled to a notice before order dated 24.05.2006 was passed. Section 36 only deals with the manner in which notice issued under the Act is to be served. No complaint of violation of principles of natural justice can be made by the Appellants as there is no violation of the procedure prescribed in Section 3C. That apart, the remedy resorted to by the Appellants under Section 3C(2) resulted in their favor. There is no prejudice caused to the Appellants. The complaint of the Appellants that they should have been given an opportunity before the order dated 24.05.2006 was passed cannot be entertained.It is clear that even encumbered area shall be declared as a rehabilitation area provided the Slum Rehabilitation Authority requires the said area for implementation of the Scheme. Admittedly, the disputed area of 1045.50 sq. mts. is adjacent to the declared area and is required for effective implementation of the Scheme. The contention of the Appellant that the declaration of 1045.50 sq. mts. under Section 3C of the Act is in colourable exercise of power is not acceptable. In view of the aforementioned findings, it is not necessary to deal with other contentions. | 0 | 4,159 | 463 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
and 3D of the Act. 17. Another submission made on behalf of the Appellants is that the Slum Clearance Order dated 01.09.2009 is vitiated as it is contrary to Section 12 of the Act. The basis for the said argument is that the clearance is made in respect 5168.50 sq. mts. which includes 1045.50 sq. mts. un-declared area. Section 12 as substituted by Section 3D of the Act enables the Chief Executive Officer to make a Clearance Order to a slum area after it has been declared to be a Slum Rehabilitation Area. The submission of Mr. Kumar, learned Senior Counsel for the Appellants is that the words ?slum area? have been defined in Section 2(ga) to mean any area declared as such by the competent authority under Section 4(1). In the absence of a declaration of a slum area under Section 4(1), no action can be initiated under Section 3D of the Act. Mr. Divan, learned Senior Counsel appearing for Respondent Nos.1 and 2 submitted that the phrase ?any slum area? in Section 12 is used in general parlance. He relied upon Section 2 of the Act which starts with the following ?in this Act unless the context otherwise requires?. In the context of Chapter I-A of the Act, the phrase ?slum area? used in Section 12(1) cannot have the same meaning as found in Section 2(ga). The Slum Clearance Order is passed under Section 3D and Section 12(1) after an area is declared as a Slum Rehabilitation Area under Section 3C. Chapter I-A is a self- contained code dealing with Slum Rehabilitation Schemes. The words ?any slum area? in Section 12 are used in generic sense. Therefore, we do not accept the submission made on behalf of the Appellants that ?any slum area? in Section 12 is only that area which has been notified under Section 4(1) of the Act. Section 4 of the Act not being applicable to proceedings under Chapter I-A is a relevant factor to hold that the context warrants such interpretation. 18. The order dated 24.05.2006, passed under Section 3C of the Act was held to be vitiated by the Tribunal due to non-compliance of Section 36 of the Act. The manner of service of every notice, order or direction issued under the Act is provided under Section 36. A plain reading of Section 3C of the Act discloses that the declaration of a Slum Rehabilitation Area requires to be published in the official gazette. The Slum Rehabilitation Order under Section 3C shall also be given wide publicity. An appeal to the special Tribunal, against the Slum Rehabilitation Order, can be availed by any aggrieved person. Pursuant to the publication of the Slum Rehabilitation Scheme on 28.11.2005, a survey was conducted by the Slum Rehabilitation Authority to prepare a list of eligible slum dwellers. It has been stated in the counter affidavit filed by Respondent Nos. 1 & 2 that the Appellants participated in the said survey and showed willingness to be a part of the scheme. A list of eligible slum dwellers was published on 18.04.2006 and names of the Appellants were found in the list which was published by affixing the same at a conspicuous place in the area on 12.05.2006. After the order dated 24.05.2006 was passed, the Appellants submitted objections on 26.05.2006, 21.06.2006, 20.07.2006 and 07.08.2006. Thereafter, the Appellants filed appeal No.24 of 2014 under Section 3C (2) of the Act, challenging the order dated 24.05.2006 which was partially allowed. 19. There is no requirement of issuance of notice prior to the declaration under Section 3C. The Tribunal committed an error in relying upon Section 36 to hold that the appellants were entitled to a notice before order dated 24.05.2006 was passed. Section 36 only deals with the manner in which notice issued under the Act is to be served. No complaint of violation of principles of natural justice can be made by the Appellants as there is no violation of the procedure prescribed in Section 3C. That apart, the remedy resorted to by the Appellants under Section 3C(2) resulted in their favor. There is no prejudice caused to the Appellants. The complaint of the Appellants that they should have been given an opportunity before the order dated 24.05.2006 was passed cannot be entertained. 20. Clause (d) of the Special Rules and Regulations for Slum Rehabilitation Scheme under the jurisdiction of Slum Rehabilitation Authority for Pune and Pimpri Chinchwad area is as follows:"D) Definition of slum and Rehabilitation Area: Where the CEO (SRA) is satisfied that any area is or may be a source of danger to the health, safety or convenience of the public of that area or of its neighbourhood, by person of the area having inadequate or no basic amenities or being insanity, squalid, overcrowded or otherwise, or the buildings in any area used or intended to be used for human habitation area in any respect until for human habitation by reasons of dilapidation, overcrowding, faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors, detrimental to the health, safety or convenience of the pubic of that area is defined as Slum. This shall form the basic parameter for declaration of the rehabilitation area. Further that any such area, encumbered or unencumbered, that the CEO(SRA) may require for implementation of SRS proposal, shall be declared as rehabilitation area."21. It is clear that even encumbered area shall be declared as a rehabilitation area provided the Slum Rehabilitation Authority requires the said area for implementation of the Scheme. Admittedly, the disputed area of 1045.50 sq. mts. is adjacent to the declared area and is required for effective implementation of the Scheme. The contention of the Appellant that the declaration of 1045.50 sq. mts. under Section 3C of the Act is in colourable exercise of power is not acceptable. In view of the aforementioned findings, it is not necessary to deal with other contentions.
### Response:
0
### Explanation:
There is no dispute that the declared area is only to an extent of 4123 sq. mts. The entire area of 5168.50 sq. mts. was declared as a Slum Rehabilitation Area under Section 3C which falls in Chapter I-A. As stated above, Section 3D provides that Chapter II has no application to orders passed under Chapter I-A. Section 4(1) of the Act is in Chapter II. Therefore, it is not necessary that an area should be notified under Section 4 as slum area before proceedings under Chapter I-A are initiated. Hence, we do not agree with the Appellants that a notification under Section 4 is a pre- requisite for orders to be passed under Sections 3C and 3D of thewords ?any slum area? in Section 12 are used in generic sense. Therefore, we do not accept the submission made on behalf of the Appellants that ?any slum area? in Section 12 is only that area which has been notified under Section 4(1) of the Act. Section 4 of the Act not being applicable to proceedings under Chapter I-A is a relevant factor to hold that the context warrants such interpretation.There is no requirement of issuance of notice prior to the declaration under Section 3C. The Tribunal committed an error in relying upon Section 36 to hold that the appellants were entitled to a notice before order dated 24.05.2006 was passed. Section 36 only deals with the manner in which notice issued under the Act is to be served. No complaint of violation of principles of natural justice can be made by the Appellants as there is no violation of the procedure prescribed in Section 3C. That apart, the remedy resorted to by the Appellants under Section 3C(2) resulted in their favor. There is no prejudice caused to the Appellants. The complaint of the Appellants that they should have been given an opportunity before the order dated 24.05.2006 was passed cannot be entertained.It is clear that even encumbered area shall be declared as a rehabilitation area provided the Slum Rehabilitation Authority requires the said area for implementation of the Scheme. Admittedly, the disputed area of 1045.50 sq. mts. is adjacent to the declared area and is required for effective implementation of the Scheme. The contention of the Appellant that the declaration of 1045.50 sq. mts. under Section 3C of the Act is in colourable exercise of power is not acceptable. In view of the aforementioned findings, it is not necessary to deal with other contentions.
|
Ladhu Ram Taparia Vs. Commissioner of Income Tax (Central), Calcutta | High Court was right in declining to call for a statement of the case from the Tribunal on the first three questions. It is manifest that question No. 2 does not raise any question of law and question No. 1 was not raised before the Tribunal. Again, because a partnership is registered under the Partnership Act, the income-tax authorities are not obliged to register it under section 26A. The concession made by counsel for the appellants was, therefore, properly made. It was urged that statements of accounts prepared by the appellants and submitted to the Tribunal were not taken on the record and were not considered. But these statements, it is admitted were prepared from the books of account produced before the income-tax authorities. These statements might have facilitated the work of the Tribunal, but if the Tribunal did not think it necessary to look into those statements and they were willing to look into the original record, it cannot be said that in refusing to admit the statements on the record of the appeals, any error of law was committed. It was also urged that the Tribunal did not consider the arguments advanced at the bar as to the quantum of the taxable income of the appellants on the footing that the income of firms I to IV were liable to be amalgamated for the purpose of assessment and therefore the High Court should have called for a statement of case on questions 4 and 5. Counsel submitted that detailed arguments were advanced before the Tribunal on diverse items having bearing on the quantum of assessable income, but the Tribunal only dealt with one item, viz., the unexplained cash credits of Rs. 36, 776 in the account of firm No. II, and did not consider the remaining items. We are unable to accept this argument. The Tribunal in paragraph 13 of its order, after referring to the unexplained cash credit of Rs. 36, 776 and directing that they be deleted from the total assessable income, observed" There is no ground to interfere in any other respect "5. In their order refusing to state a case, in paragraph 7, the Tribunal observed that counsel for the appellants " had said nothing about the reasons given by the Income-tax Officer and the Appellate Assistant Commissioner for rejecting the accounts." They also observed"It was clear that profits had in all these firms to be estimated under the proviso to section 13. About the estimates of profit, the main argument of the assessees counsel was that as there had been purchases and sales by firms Nos. I, II and III inter se, that fact should be taken into consideration in estimating profits. The Tribunal took into consideration all the submissions of the assessee but came to the conclusion that no case had been made out for the Tribunals interference with the estimates of profit in the various concerns. In our opinion, the decision of the Tribunal on this point is concluded by findings of fact which are based on ample material on the record and no question of law arises out of this part of the order."6. Our attention was invited to an item of Rs. 2, 39, 796, which was added back in assessing the taxable income. Counsel for the. appellants contended that in respect of this item, the Tribunal should have given a considered finding. We do not think that failure by the Tribunal to deal with this item expressly justifies interference by this court. The Income-tax Officer found that " Jagadishprosad & Co., Jagmohan Jayantilal, Jewanbhai Jewandas, Ramgopal Agarwala and Rupnarain Gaggar " were merely benami concerns of Ladhuram and his brother, Ganpatrai. He observed that the genuineness of the accounts had not been established although the appellants were given an opportunity to do so. The appellants in their written statement dated January 4, 1950, merely averred that the nature of the credits will be apparent from the " narrations " in the book of account " which will speak for itself. " He further observed" The explanation given is not at all convincing and absolutely no evidence has been produced to substantiate the nature and source of the credits appearing in accounts Nos. (1) to (5) above as well as the genuineness of those parties. In view of what has been fully discussed before it appears to me quite clear that the credits in those accounts represented nothing but assessees undisclosed income."7. The Appellate Assistant Commissioner observed that the appellants had not been able to establish by " any fresh evidence " that the evidence on which the Income-tax Officer based his finding was wrong or that there was anything to show that the concerns referred to in the Income-tax Officers order were not benami concerns of the appellants. The Tribunal, it is true, did not expressly refer to the five accounts, but observed that the fact the appellants " put themselves to such shifts and devices to bolster up a false story showed that they were uneasy under the knowledge that the ostensible firms were anything but real. " They also observed in paragraph 13 of their order that there was no ground to interfere in any other respect (i.e., except the amount of Rs. 36, 776) with the order of the Appellate Assistant Commissioner8. In paragraph 7 of the Appellate Tribunals order under section 66(1), they also made the observations already set out. In this state of the record, we do not think that there is any substance in the plea that the Tribunal had not considered the question whether the amount of Rs. 2, 39, 796 was properly added to the income of the appellants as undisclosed profits9. In our view, the High Court was right in holding that no question of law arose out of the order of the Tribunal. We are also of the view that no case is made out justifying interference in the appeals filed directly against the orders of the Tribunal | 0[ds]We are unable to accept thisWe do not think that failure by the Tribunal to deal with this item expressly justifies interference by this court. TheOfficer found that " Jagadishprosad & Co., Jagmohan Jayantilal, Jewanbhai Jewandas, Ramgopal Agarwala and Rupnarain Gaggar " were merely benami concerns of Ladhuram and his brother, Ganpatrai. He observed that the genuineness of the accounts had not been established although the appellants were given an opportunity to do so. The appellants in their written statement dated January 4, 1950, merely averred that the nature of the credits will be apparent from the " narrations " in the book of account " which will speak for itself. " He further observed" The explanation given is not at all convincing and absolutely no evidence has been produced to substantiate the nature and source of the credits appearing in accounts Nos. (1) to (5) above as well as the genuineness of those parties. In view of what has been fully discussed before it appears to me quite clear that the credits in those accounts represented nothing but assessees undisclosed income."7. The Appellate Assistant Commissioner observed that the appellants had not been able to establish by " any fresh evidence " that the evidence on which theOfficer based his finding was wrong or that there was anything to show that the concerns referred to in theOfficers order were not benami concerns of the appellants. The Tribunal, it is true, did not expressly refer to the five accounts, but observed that the fact the appellants " put themselves to such shifts and devices to bolster up a false story showed that they were uneasy under the knowledge that the ostensible firms were anything but real. " They also observed in paragraph 13 of their order that there was no ground to interfere in any other respect (i.e., except the amount of Rs. 36, 776) with the order of the Appellate Assistant Commissioner8. In paragraph 7 of the Appellate Tribunals order under section 66(1), they also made the observations already set out. In this state of the record, we do not think that there is any substance in the plea that the Tribunal had not considered the question whether the amount of Rs. 2, 39, 796 was properly added to the income of the appellants as undisclosed profits9. In our view, the High Court was right in holding that no question of law arose out of the order of the Tribunal. We are also of the view that no case is made out justifying interference in the appeals filed directly against the orders of the Tribunal | 0 | 3,341 | 480 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
High Court was right in declining to call for a statement of the case from the Tribunal on the first three questions. It is manifest that question No. 2 does not raise any question of law and question No. 1 was not raised before the Tribunal. Again, because a partnership is registered under the Partnership Act, the income-tax authorities are not obliged to register it under section 26A. The concession made by counsel for the appellants was, therefore, properly made. It was urged that statements of accounts prepared by the appellants and submitted to the Tribunal were not taken on the record and were not considered. But these statements, it is admitted were prepared from the books of account produced before the income-tax authorities. These statements might have facilitated the work of the Tribunal, but if the Tribunal did not think it necessary to look into those statements and they were willing to look into the original record, it cannot be said that in refusing to admit the statements on the record of the appeals, any error of law was committed. It was also urged that the Tribunal did not consider the arguments advanced at the bar as to the quantum of the taxable income of the appellants on the footing that the income of firms I to IV were liable to be amalgamated for the purpose of assessment and therefore the High Court should have called for a statement of case on questions 4 and 5. Counsel submitted that detailed arguments were advanced before the Tribunal on diverse items having bearing on the quantum of assessable income, but the Tribunal only dealt with one item, viz., the unexplained cash credits of Rs. 36, 776 in the account of firm No. II, and did not consider the remaining items. We are unable to accept this argument. The Tribunal in paragraph 13 of its order, after referring to the unexplained cash credit of Rs. 36, 776 and directing that they be deleted from the total assessable income, observed" There is no ground to interfere in any other respect "5. In their order refusing to state a case, in paragraph 7, the Tribunal observed that counsel for the appellants " had said nothing about the reasons given by the Income-tax Officer and the Appellate Assistant Commissioner for rejecting the accounts." They also observed"It was clear that profits had in all these firms to be estimated under the proviso to section 13. About the estimates of profit, the main argument of the assessees counsel was that as there had been purchases and sales by firms Nos. I, II and III inter se, that fact should be taken into consideration in estimating profits. The Tribunal took into consideration all the submissions of the assessee but came to the conclusion that no case had been made out for the Tribunals interference with the estimates of profit in the various concerns. In our opinion, the decision of the Tribunal on this point is concluded by findings of fact which are based on ample material on the record and no question of law arises out of this part of the order."6. Our attention was invited to an item of Rs. 2, 39, 796, which was added back in assessing the taxable income. Counsel for the. appellants contended that in respect of this item, the Tribunal should have given a considered finding. We do not think that failure by the Tribunal to deal with this item expressly justifies interference by this court. The Income-tax Officer found that " Jagadishprosad & Co., Jagmohan Jayantilal, Jewanbhai Jewandas, Ramgopal Agarwala and Rupnarain Gaggar " were merely benami concerns of Ladhuram and his brother, Ganpatrai. He observed that the genuineness of the accounts had not been established although the appellants were given an opportunity to do so. The appellants in their written statement dated January 4, 1950, merely averred that the nature of the credits will be apparent from the " narrations " in the book of account " which will speak for itself. " He further observed" The explanation given is not at all convincing and absolutely no evidence has been produced to substantiate the nature and source of the credits appearing in accounts Nos. (1) to (5) above as well as the genuineness of those parties. In view of what has been fully discussed before it appears to me quite clear that the credits in those accounts represented nothing but assessees undisclosed income."7. The Appellate Assistant Commissioner observed that the appellants had not been able to establish by " any fresh evidence " that the evidence on which the Income-tax Officer based his finding was wrong or that there was anything to show that the concerns referred to in the Income-tax Officers order were not benami concerns of the appellants. The Tribunal, it is true, did not expressly refer to the five accounts, but observed that the fact the appellants " put themselves to such shifts and devices to bolster up a false story showed that they were uneasy under the knowledge that the ostensible firms were anything but real. " They also observed in paragraph 13 of their order that there was no ground to interfere in any other respect (i.e., except the amount of Rs. 36, 776) with the order of the Appellate Assistant Commissioner8. In paragraph 7 of the Appellate Tribunals order under section 66(1), they also made the observations already set out. In this state of the record, we do not think that there is any substance in the plea that the Tribunal had not considered the question whether the amount of Rs. 2, 39, 796 was properly added to the income of the appellants as undisclosed profits9. In our view, the High Court was right in holding that no question of law arose out of the order of the Tribunal. We are also of the view that no case is made out justifying interference in the appeals filed directly against the orders of the Tribunal
### Response:
0
### Explanation:
We are unable to accept thisWe do not think that failure by the Tribunal to deal with this item expressly justifies interference by this court. TheOfficer found that " Jagadishprosad & Co., Jagmohan Jayantilal, Jewanbhai Jewandas, Ramgopal Agarwala and Rupnarain Gaggar " were merely benami concerns of Ladhuram and his brother, Ganpatrai. He observed that the genuineness of the accounts had not been established although the appellants were given an opportunity to do so. The appellants in their written statement dated January 4, 1950, merely averred that the nature of the credits will be apparent from the " narrations " in the book of account " which will speak for itself. " He further observed" The explanation given is not at all convincing and absolutely no evidence has been produced to substantiate the nature and source of the credits appearing in accounts Nos. (1) to (5) above as well as the genuineness of those parties. In view of what has been fully discussed before it appears to me quite clear that the credits in those accounts represented nothing but assessees undisclosed income."7. The Appellate Assistant Commissioner observed that the appellants had not been able to establish by " any fresh evidence " that the evidence on which theOfficer based his finding was wrong or that there was anything to show that the concerns referred to in theOfficers order were not benami concerns of the appellants. The Tribunal, it is true, did not expressly refer to the five accounts, but observed that the fact the appellants " put themselves to such shifts and devices to bolster up a false story showed that they were uneasy under the knowledge that the ostensible firms were anything but real. " They also observed in paragraph 13 of their order that there was no ground to interfere in any other respect (i.e., except the amount of Rs. 36, 776) with the order of the Appellate Assistant Commissioner8. In paragraph 7 of the Appellate Tribunals order under section 66(1), they also made the observations already set out. In this state of the record, we do not think that there is any substance in the plea that the Tribunal had not considered the question whether the amount of Rs. 2, 39, 796 was properly added to the income of the appellants as undisclosed profits9. In our view, the High Court was right in holding that no question of law arose out of the order of the Tribunal. We are also of the view that no case is made out justifying interference in the appeals filed directly against the orders of the Tribunal
|
A. C. Jose Vs. Sivan Pillai & Ors | or recording votes, as by voting machine."In Strouds Judicial dictionary (Third Edn.), however, ballot means "votes recorded all ballot papers put into the ballot boxes by the electors (p. 3239)". Stroud therefore, does not subscribe to the view of casting of vote through a voting machine and we agree with this view because casting of votes by machine is a mechanical process, which has come into existence long after the Act was passed and is not generally invoked in most of the democratic countries of the world.30. Concise Oxford dictionary defines the word ballot thus: "(usu. secret) voting, small ball, ticket or paper used in voting; votes so recorded; lot-drawing." In Websters Third New International Dictionary (Vol.I) at page 168 ballot is defined thus:"to obtain a vote from (a body of voters) (the men on the proposal), to select by ballot or by the drawing of lots."31. It may be mentioned here that the word ballot has been derived from the word ballota which existed at a time when there was no question of any system of voting machine. Even in 1951 when the Act was passed or the Rules were made, the system of voting by machine was not in vogue in this country. In these circumstances, therefore, we are constrained to hold that the word ballot in its strict sense would not include voting by the use of voting machines. Legislatures must be deemed to be aware of the modern tendencies in various democratic countries of the world where the mechanical System has been introduced and if despite the plain meaning of the word ballot they did not choose to extend the definition given as far back as 1950, it may be safely presumed that the Parliament intended to use the word ballot in its popular rather than a technical sense. Our view finds a good deal of support from the circumstance that even though the system of voting by mechanical process was submitted to the Government for approval yet the same was declined which shows that the rule-making authority was not prepared to switch over to the system of voting by machines, perhaps on Account of the legal bar as indicated by us.32. It is rather unfortunate that the Union of India which is a party to this case, has taken a very neutral stand by neither supporting nor opposing the direction given by the Commission.33. Having regard to these circumstances, therefore, we are clearly of the opinion that according to the law as it stands at present, the Order of the Commission directing casting of ballot by machines in some of the polling stations, as indicated above, was without jurisdiction and could not have been resorted to.34. It was further pointed out by the respondent that the process of voting by machines is very useful as it eliminates a number of drawbacks and expedites, to a great extent, the declaration of the result of the election by eliminating the process of counting of votes from the ballot boxes. On the other hand, the appellant has pointed out a number of defects, some of them being of a vital nature, which would defeat the electoral process. We would now indicate some of the apparent defects which were pointed out to us by the counsel for the appellant after giving a demonstration of the voting machine before us:"The absence of a provision for identifying the candidate for whom a void vote has been cast(a) by impersonating a dead voter,(b) by impersonating an absentee voter,(c) by the genuine voter who tenders a vote after a vote has been cast in his name by an impersonator (R. 42),(d) where a vote is void having been cast after closing time (R. 43),(e) where the voter has cast votes in more than one booth in the same constituency (s. 62 (2)),(f) where the voter has cast two votes in two constituencies (S. 53(3) ),(g) where the voter is disqualified under S.16 of the Act (S. 62(4)),(h) where an elector marks a ballot paper wrongly for a candidate, be loses the right to get a fresh ballot paper for casting his vote correctly (R. 41).The provisions of S.100(1)(d) and more so S.101 (a) and (b) under which by excluding the void votes or votes cast as a result of corrupt practices any other candidate can be declared duly elected as the true representative of the constituency."35. On the other hand, a number of advantages which could be obtained by using the mechanical process were pointed out by the respondent, the sum and substance of which was that despite some defects the electoral process would be expeditious and would cut out a number of delays or mistakes committed at various stages. The fact, however, remains that if the mechanical process is adopted, full and proper training will have to be given to the voters which will take quite some time. However, we refrain from making any comments on either the defects or advantages of voting machines because it would be for the Legislature and the Government, if it revises its decision at one time or the other, to give legal sanction to the direction given by the Commission. For these reasons, it is not necessary for us to go into the very detailed notes of arguments submitted by the parties in respect of this aspect of the matter.36. Lastly, it was argued by the counsel for the respondents that the appellant would be estopped from challenging the mechanical process because he did not oppose the introduction of this process although he was present in the meeting personally or through his agent. This argument is wholly untenable because when we are considering a constitutional or statutory provision there can be no estoppel against a statute and whether or not the appellant agreed or participated in the meeting which was held before introduction of the voting machines, if such a process is not permissible or authorised by law he cannot be estopped from challenging the same. | 1[ds]18. This is actually the mainspirit and gist of the decision which appears to have been relied upon by the appellant but which does not at all support his stand. In the aforesaid case, there did not appear to be any conflict between the Order passed by the Commission and the Act or the Rules. The question at issue in the instant case did not really arise in the form and shape as has been presented before us. On the other hand, the matter seems to have been fully settled by an earlier decision of this Court in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency & Ors. (1952) SCR 218 , where Fazl Ali, J. (as he then was) while making a very pointed and crisp approach, scientifically analysed the positionspeaking, before an election machinery can be brought into operation there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections. Art.327 and 328 deal with the first of these requisites, Art.324 with the second and Art.329 with the third requisite. The other two articles in Part XV. viz., Art.325 and 326, deal with two matters of principle to which the Constitution-framers have attached much importance. They are: (1) prohibition against discrimination in the preparation of, or eligibility for inclusion in, the electoral rolls, on grounds of religion, race, caste, sex or any of them; and (2) adult suffrage. Part XV of the Constitution is really a code in itself providing the entire ground-work for enacting appropriate laws and setting up suitable machinery for the conduct of elections.We fully endorse and follow the above observations of the Constitution Bench which lay down the correct law on the subject and we have nothing further to add to the approach made by this Court in the case referred to above. On the other hand, our view that Art.324 to 329 have to be construed harmoniously flows as a logical corollary from the ratio in Ponnuswamis case.Further, such an absolute and uncanalised power given to the Commission without providing any guidelines would itself destroy the basic structure of the Rule of Law. It is manifest that such a disastrous consequence could never have been contemplated by the Constitution makers, for such an interpretation, as suggested by the counsel for the respondent, would be far from attaining the goal of purity and sanctity of the electoral process. Hence, we must construe Art.324 to 329 as an integral part of the same scheme collaborating rather than colliding with one another. Moreover, a perusal of Art.324 to 329 would reveal that the legislative powers in respect of matters relating to Parliament or the State Legislatures vests in Parliament and in no other body. The Commission would come into the picture only if no provision has been made by Parliament in regard to the elections to the Parliament or State Legislatures. Furthermore, the power under Art.324 relating to superintendence, direction and control was actually vesting of merely all the executive powers and not the legislative powers. In other words, the legislative power of Parliament or of the legislature of a State being made subject to Art.324 only means that no law made by Parliament under Art.327 or by a State legislature under Art.328 can take away or deprive the Commission of the executive power in regard to matters entrusted to it, viz, superintendence, direction and control of elections. The right to file an election petition directly flows from Art.329 and cannot be affected in any manner by the exercise of executive power by the Commission under Art.324.22. In view of the above, it is not necessary for us to consider a number of other authorities that were cited before us as they do not appear to be directly on point.23. It is pertinent to indicate that the High Court fell into an obvious fallacy by acceptance of the position that the direction of the Commission was intended to operate in an uncovered field. When the Act and the Rules prescribed a particular method of voting, the Commission could not innovate a new method and contend that use of the mechanical process was not covered by the existing law and, therefore did not come in conflict with the law in the field.It may be mentioned here that the word ballot has been derived from the word ballota which existed at a time when there was no question of any system of voting machine. Even in 1951 when the Act was passed or the Rules were made, the system of voting by machine was not in vogue in this country. In these circumstances, therefore, we are constrained to hold that the word ballot in its strict sense would not include voting by the use of voting machines. Legislatures must be deemed to be aware of the modern tendencies in various democratic countries of the world where the mechanical System has been introduced and if despite the plain meaning of the word ballot they did not choose to extend the definition given as far back as 1950, it may be safely presumed that the Parliament intended to use the word ballot in its popular rather than a technical sense. Our view finds a good deal of support from the circumstance that even though the system of voting by mechanical process was submitted to the Government for approval yet the same was declined which shows that the rule-making authority was not prepared to switch over to the system of voting by machines, perhaps on Account of the legal bar as indicated by us.On the other hand, a number of advantages which could be obtained by using the mechanical process were pointed out by the respondent, the sum and substance of which was that despite some defects the electoral process would be expeditious and would cut out a number of delays or mistakes committed at various stages. The fact, however, remains that if the mechanical process is adopted, full and proper training will have to be given to the voters which will take quite some time. However, we refrain from making any comments on either the defects or advantages of voting machines because it would be for the Legislature and the Government, if it revises its decision at one time or the other, to give legal sanction to the direction given by the Commission. For these reasons, it is not necessary for us to go into the very detailed notes of arguments submitted by the parties in respect of this aspect of the matter.36. Lastly, it was argued by the counsel for the respondents that the appellant would be estopped from challenging the mechanical process because he did not oppose the introduction of this process although he was present in the meeting personally or through his agent. This argument is wholly untenable because when we are considering a constitutional or statutory provision there can be no estoppel against a statute and whether or not the appellant agreed or participated in the meeting which was held before introduction of the voting machines, if such a process is not permissible or authorised by law he cannot be estopped from challenging the same. | 1 | 6,460 | 1,374 | ### 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:
or recording votes, as by voting machine."In Strouds Judicial dictionary (Third Edn.), however, ballot means "votes recorded all ballot papers put into the ballot boxes by the electors (p. 3239)". Stroud therefore, does not subscribe to the view of casting of vote through a voting machine and we agree with this view because casting of votes by machine is a mechanical process, which has come into existence long after the Act was passed and is not generally invoked in most of the democratic countries of the world.30. Concise Oxford dictionary defines the word ballot thus: "(usu. secret) voting, small ball, ticket or paper used in voting; votes so recorded; lot-drawing." In Websters Third New International Dictionary (Vol.I) at page 168 ballot is defined thus:"to obtain a vote from (a body of voters) (the men on the proposal), to select by ballot or by the drawing of lots."31. It may be mentioned here that the word ballot has been derived from the word ballota which existed at a time when there was no question of any system of voting machine. Even in 1951 when the Act was passed or the Rules were made, the system of voting by machine was not in vogue in this country. In these circumstances, therefore, we are constrained to hold that the word ballot in its strict sense would not include voting by the use of voting machines. Legislatures must be deemed to be aware of the modern tendencies in various democratic countries of the world where the mechanical System has been introduced and if despite the plain meaning of the word ballot they did not choose to extend the definition given as far back as 1950, it may be safely presumed that the Parliament intended to use the word ballot in its popular rather than a technical sense. Our view finds a good deal of support from the circumstance that even though the system of voting by mechanical process was submitted to the Government for approval yet the same was declined which shows that the rule-making authority was not prepared to switch over to the system of voting by machines, perhaps on Account of the legal bar as indicated by us.32. It is rather unfortunate that the Union of India which is a party to this case, has taken a very neutral stand by neither supporting nor opposing the direction given by the Commission.33. Having regard to these circumstances, therefore, we are clearly of the opinion that according to the law as it stands at present, the Order of the Commission directing casting of ballot by machines in some of the polling stations, as indicated above, was without jurisdiction and could not have been resorted to.34. It was further pointed out by the respondent that the process of voting by machines is very useful as it eliminates a number of drawbacks and expedites, to a great extent, the declaration of the result of the election by eliminating the process of counting of votes from the ballot boxes. On the other hand, the appellant has pointed out a number of defects, some of them being of a vital nature, which would defeat the electoral process. We would now indicate some of the apparent defects which were pointed out to us by the counsel for the appellant after giving a demonstration of the voting machine before us:"The absence of a provision for identifying the candidate for whom a void vote has been cast(a) by impersonating a dead voter,(b) by impersonating an absentee voter,(c) by the genuine voter who tenders a vote after a vote has been cast in his name by an impersonator (R. 42),(d) where a vote is void having been cast after closing time (R. 43),(e) where the voter has cast votes in more than one booth in the same constituency (s. 62 (2)),(f) where the voter has cast two votes in two constituencies (S. 53(3) ),(g) where the voter is disqualified under S.16 of the Act (S. 62(4)),(h) where an elector marks a ballot paper wrongly for a candidate, be loses the right to get a fresh ballot paper for casting his vote correctly (R. 41).The provisions of S.100(1)(d) and more so S.101 (a) and (b) under which by excluding the void votes or votes cast as a result of corrupt practices any other candidate can be declared duly elected as the true representative of the constituency."35. On the other hand, a number of advantages which could be obtained by using the mechanical process were pointed out by the respondent, the sum and substance of which was that despite some defects the electoral process would be expeditious and would cut out a number of delays or mistakes committed at various stages. The fact, however, remains that if the mechanical process is adopted, full and proper training will have to be given to the voters which will take quite some time. However, we refrain from making any comments on either the defects or advantages of voting machines because it would be for the Legislature and the Government, if it revises its decision at one time or the other, to give legal sanction to the direction given by the Commission. For these reasons, it is not necessary for us to go into the very detailed notes of arguments submitted by the parties in respect of this aspect of the matter.36. Lastly, it was argued by the counsel for the respondents that the appellant would be estopped from challenging the mechanical process because he did not oppose the introduction of this process although he was present in the meeting personally or through his agent. This argument is wholly untenable because when we are considering a constitutional or statutory provision there can be no estoppel against a statute and whether or not the appellant agreed or participated in the meeting which was held before introduction of the voting machines, if such a process is not permissible or authorised by law he cannot be estopped from challenging the same.
### Response:
1
### Explanation:
to which the Constitution-framers have attached much importance. They are: (1) prohibition against discrimination in the preparation of, or eligibility for inclusion in, the electoral rolls, on grounds of religion, race, caste, sex or any of them; and (2) adult suffrage. Part XV of the Constitution is really a code in itself providing the entire ground-work for enacting appropriate laws and setting up suitable machinery for the conduct of elections.We fully endorse and follow the above observations of the Constitution Bench which lay down the correct law on the subject and we have nothing further to add to the approach made by this Court in the case referred to above. On the other hand, our view that Art.324 to 329 have to be construed harmoniously flows as a logical corollary from the ratio in Ponnuswamis case.Further, such an absolute and uncanalised power given to the Commission without providing any guidelines would itself destroy the basic structure of the Rule of Law. It is manifest that such a disastrous consequence could never have been contemplated by the Constitution makers, for such an interpretation, as suggested by the counsel for the respondent, would be far from attaining the goal of purity and sanctity of the electoral process. Hence, we must construe Art.324 to 329 as an integral part of the same scheme collaborating rather than colliding with one another. Moreover, a perusal of Art.324 to 329 would reveal that the legislative powers in respect of matters relating to Parliament or the State Legislatures vests in Parliament and in no other body. The Commission would come into the picture only if no provision has been made by Parliament in regard to the elections to the Parliament or State Legislatures. Furthermore, the power under Art.324 relating to superintendence, direction and control was actually vesting of merely all the executive powers and not the legislative powers. In other words, the legislative power of Parliament or of the legislature of a State being made subject to Art.324 only means that no law made by Parliament under Art.327 or by a State legislature under Art.328 can take away or deprive the Commission of the executive power in regard to matters entrusted to it, viz, superintendence, direction and control of elections. The right to file an election petition directly flows from Art.329 and cannot be affected in any manner by the exercise of executive power by the Commission under Art.324.22. In view of the above, it is not necessary for us to consider a number of other authorities that were cited before us as they do not appear to be directly on point.23. It is pertinent to indicate that the High Court fell into an obvious fallacy by acceptance of the position that the direction of the Commission was intended to operate in an uncovered field. When the Act and the Rules prescribed a particular method of voting, the Commission could not innovate a new method and contend that use of the mechanical process was not covered by the existing law and, therefore did not come in conflict with the law in the field.It may be mentioned here that the word ballot has been derived from the word ballota which existed at a time when there was no question of any system of voting machine. Even in 1951 when the Act was passed or the Rules were made, the system of voting by machine was not in vogue in this country. In these circumstances, therefore, we are constrained to hold that the word ballot in its strict sense would not include voting by the use of voting machines. Legislatures must be deemed to be aware of the modern tendencies in various democratic countries of the world where the mechanical System has been introduced and if despite the plain meaning of the word ballot they did not choose to extend the definition given as far back as 1950, it may be safely presumed that the Parliament intended to use the word ballot in its popular rather than a technical sense. Our view finds a good deal of support from the circumstance that even though the system of voting by mechanical process was submitted to the Government for approval yet the same was declined which shows that the rule-making authority was not prepared to switch over to the system of voting by machines, perhaps on Account of the legal bar as indicated by us.On the other hand, a number of advantages which could be obtained by using the mechanical process were pointed out by the respondent, the sum and substance of which was that despite some defects the electoral process would be expeditious and would cut out a number of delays or mistakes committed at various stages. The fact, however, remains that if the mechanical process is adopted, full and proper training will have to be given to the voters which will take quite some time. However, we refrain from making any comments on either the defects or advantages of voting machines because it would be for the Legislature and the Government, if it revises its decision at one time or the other, to give legal sanction to the direction given by the Commission. For these reasons, it is not necessary for us to go into the very detailed notes of arguments submitted by the parties in respect of this aspect of the matter.36. Lastly, it was argued by the counsel for the respondents that the appellant would be estopped from challenging the mechanical process because he did not oppose the introduction of this process although he was present in the meeting personally or through his agent. This argument is wholly untenable because when we are considering a constitutional or statutory provision there can be no estoppel against a statute and whether or not the appellant agreed or participated in the meeting which was held before introduction of the voting machines, if such a process is not permissible or authorised by law he cannot be estopped from challenging the same.
|
Pr. Commissioner of Income Tax, New Delhi Vs. Maruti Suzuki India Limited | recovered in the manner provided in section 171, but without prejudice to the provisions of this section. Explanation.—For the purposes of this section, ?income? includes any gain accruing from the transfer, in any manner whatsoever, of the business or profession as a result of the succession?Now, in the present case, learned Counsel appearing on behalf of the respondent submitted that SPIL ceased to be an eligible assessee in terms of the provisions of Section 144C read with clause (b) of sub section 15. Moreover, it has been urged that in consequence, the final assessment order dated 31 October 2016 was beyond limitation in terms of Section 153(1) read with Section 153 (4). For the purposes of the present proceeding, we do not consider it necessary to delve into that aspect of the matter having regard to the reasons which have weighed us in the earlier part of this judgment.32. On behalf of the Revenue, reliance has been placed on the decision of this Court in Commissioner of Income Tax, Shillong v Jai Prakash Singh (1996) 3 SCC 525 (?Jai Prakash Singh?). That was a case where the assessee did not file a return for three assessment years and died in the meantime. His son who was one of the legal representatives filed returns upon which the assessing officer issued notices under Section 142 (1) and Section 143 (2). These were complied with and no objections were raised to the assessment proceedings. The assessment order mentioned the names of all the legal representatives and the assessment was made in the status of an individual. In appeal, it was contended that the assessment proceedings were void as all the legal representatives were not given notice. In this backdrop, a two judge Bench of this Court held that the assessment proceedings were not null and void, and at the worst, that they were defective. In this context, reliance was placed on the decision of the Federal Court in Chatturam v CIT (1947) 15 ITR 302 (FC) holding that the jurisdiction to assess and the liability to pay tax are not conditional on the validity of the notice : the liability to pay tax is founded in the charging sections and not in the machinery provisions to determine the amount of tax. Reliance was also placed on the decision in Maharaja of Patiala v CIT (1943) 11 ITR 202 (Bombay) (?Maharaja of Patiala?). That was a case where two notices were issued after the death of the assessee in his name, requiring him to make a return of income. The notices were served upon the successor Maharaja and the assessment order was passed describing the assessee as ?His Highness…late Maharaja of Patiala?. The successor appealed against the assessment contending that since the notices were sent in the name of the Maharaja of Patiala and not to him as the legal representative of the Maharaja of Patiala, the assessments were illegal. The Bombay High Court held that the successor Maharaja was a legal representative of the deceased and while it would have been better to so describe him in the notice, the notice was not bad merely because it omitted to state that it was served in that capacity. Following these two decisions, this Court in Jai Prakash Singh held that an omission to serve or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where the liability is created by a distinct substantive provision. The omission or defect may render the order irregular but not void or illegal. Jai Prakash Singh and the two decisions that it placed reliance upon were evidently based upon the specific facts. Jai Prakash Singh involved a situation where the return of income had been filed by one of the legal representatives to whom notices were issued under Section 142(1) and 143(2). No objection was raised by the legal representative who had filed the return that a notice should also to be served to other legal representatives of the deceased assessee. No objection was raised before the assessing officer. Similarly, the decision in Maharaja of Patiala was a case where the notice had been served on the legal representative, the successor Maharaja and the Bombay High Court held that it was not void merely because it omitted to state that it was served in that capacity.33. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment.34. We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable. | 0[ds]19. While assessing the merits of the rival submissions, it is necessary at the outset to advert to certain significant facets of the presentFirstly, the income which is sought to be subjected to the charge of tax for AY 2012-13 is the income of the erstwhile entity (SPIL) prior to amalgamation. This is on account of a transfer pricing addition of Rs. 78.97Secondly, under the approved scheme of amalgamation, the transferee has assumed the liabilities of the transferor company, including taxThirdly, the consequence of the scheme of amalgamation approved under Section 394 of the Companies Act 1956 is that the amalgamating company ceased to exist. In Saraswati Industrial Syndicate Ltd., the principle has been formulated by this Court in the followingGenerally, where only one company is involved in change and the rights of the shareholders and creditors are varied, it amounts to reconstruction or reorganisation of scheme of arrangement. In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or ‘amalgamation? has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly ‘amalgamation? does not cover the mere acquisition by a company of the share capital of other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See: Halsburys Laws of England (4th edition volume 7 para 1539). Two companies may join to form a new company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamating company loses itsFourthly, upon the amalgamating company ceasing to exist, it cannot be regarded as a person under Section 2(31) of the Act 1961 against whom assessment proceedings can be initiated or an order of assessmentFifthly, a notice under Section 143 (2) was issued on 26 September 2013 to the amalgamating company, SPIL, which was followed by a notice to it under SectionSixthly, prior to the date on which the jurisdictional notice under Section 143 (2) was issued, the scheme of amalgamation had been approved on 29 January 2013 by the High Court of Delhi under the Companies Act 1956 with effect from 1 AprilSeventhly, the assessing officer assumed jurisdiction to make an assessment in pursuance of the notice under Section 143 (2). The notice was issued in the name of the amalgamating company in spite of the fact that on 2 April 2013, the amalgamated company MSIL had addressed a communication to the assessing officer intimating the fact of amalgamation. In the above conspectus of the facts, the initiation of assessment proceedings against an entity which had ceased to exist was void ab initio.In Spice Entertainment, a Division Bench of the Delhi High Court dealt with the question as to whether an assessment in the name of a company which has been amalgamated and has been dissolved is null and void or, whether the framing of an assessment in the name of such company is merely a procedural defect which can be cured. The High Court held that upon a notice under Section 143 (2) being addressed, the amalgamated company had brought the fact of the amalgamation to the notice of the assessing officer. Despite this, the assessing officer did not substitute the name of the amalgamated company and proceeded to make an assessment in the name of a non-existent company which renders it void. This, in the view of the High Court, was not merely a procedural defect. Moreover, the participation by the amalgamated company would have no effect since there could be no estoppel against lawAfter the sanction of the scheme on 11th April, 2004, the Spice ceases to exit w.e.f. 1st July, 2003. Even if Spice had filed the returns, it became incumbent upon the Income tax authorities to substitute the successor in place of the said „dead person?. When notice under Section 143 (2) was sent, the appellant/amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the appellant on record. Instead, the Assessing Officer made the assessment in the name of M/s Spice which was non existing entity on that day. In such proceedings an assessment order passed in the name of M/s Spice would clearly be void. Such a defect cannot be treated as procedural defect. Mere participation by the appellant would be of no effect as there is no estoppel against law.Once it is found that assessment is framed in the name of non-existing entity, it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B of thethe decision in Spice Entertainment, the Delhi High Court quashed assessment orders which were framed in the name of the amalgamating companyi) Micron Steels;5. The doctrine of merger results in the settled legal position that the judgment of the Delhi High Court stands affirmed by the above decision in the Civil Appeals.The order of assessment in the case of the respondent for AY 2011-12 was set aside on the same ground. This resulted in a Special Leave Petition by the Principal Commissioner of Income Tax – 6 Delhi (Special Leave Petition (C) (D) No. 14106 of 2018). The Special Leave Petition was dismissed by a two judge Bench of this Court consisting of Hon?ble Mr Justice Rohinton Fali Nariman and Hon?ble Ms Justice Indu Malhotra on 16 July 2018 in view of the order dated 2 November 2017 governing Civil Appeal No. 285 of 2014 in Spice Enfotainment and the connected batch of cases. Though, leave was not granted by this Court, reasons have been assigned by this Court for rejecting the Special Leave Petition. The law declared would attract the applicability of Article 141 of the Constitution. For, as this Court has held inthe order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger.The submission however which has been urged on behalf of the Revenue is that a contrary position emerges from the decision of the Delhi High Court in Skylight Hospitality LLP which was affirmed on 6 April 2018 by a two judge Bench of this Court consisting of Hon?ble Mr Justice A K Sikri and Hon?ble Mr Justice Ashok BhushanSpecial Leave Petition (C) No. 7409 of 2018. In assessing the merits of the above submission, it is necessary to extract the order dated 6 April 2018 of thisthe peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292B of the Income Taxspecial leave petition isapplications stand disposedit is evident from the above extract that it was in the peculiar facts of the case that this Court indicated its agreement that the wrong name given in the notice was merely a clerical error, capable of being corrected under Section 292B. The ?peculiar facts? of Skylight Hospitality emerge from the decision of the Delhi High Court ?Sky Light Hospitality LLP v Assistant Commissioner of Income Tax : (2018) 405 ITR 296 . Skylight Hospitality, an LLP, had taken over on 13 May 2016 and acquired the rights and liabilities of Skylight Hospitality Pvt. Ltd upon conversion under the Limited Liability Partnership Act 2008 ( ?LLP Act 2008?). It instituted writ proceedings for challenging a notice under Sections 147/148 of the Act 1961 dated 30 March 2017 for AY 2010-2011. The ?reasons to believe? made a reference to a tax evasion report received from the investigation unit of the income tax department. The facts were ascertained by the investigation unit. The reasons to believe referred to the assessment order for AY 2013-2014 and the findings recorded in it. Though the notice under Sections 147/148 was issued in the name of Skylight Hospitality Pvt. Ltd. (which had ceased to exist upon conversion into an LLP), there was, as the Delhi High Court held ?substantial and affirmative material and evidence on record? to show that the issuance of the notice in the name of the dissolved company was a mistake. The tax evasion report adverted to the conversion of the private limited company into an LLP. Moreover, the reasons to believe recorded by the assessing officer adverted to the approval of the Principal Commissioner. The PAN number of the LLP was also mentioned in some of the documents. The notice under Sections 147/148 was not in conformity with the reasons to believe and the approval of the Principal Commissioner. It was in this background that the Delhi High Court held that the case fell within the purview of Section 292B for the followingwas no doubt and debate that the notice was meant for the petitioner and no one else. Legal error and mistake was made in addressing the notice. Noticeably, the appellant having received the said notice, had filed without prejudice reply/letter dated 11.04.2017. They had objected to the notice being issued in the name of the Company, which had ceased to exist. However, the reading of the said letter indicates that they had understood and were aware, that the notice was for them. It was replied and dealt with by them. The fact that notice was addressed to M/s. Skylight Hospitality Pvt. Ltd., a company which had been dissolved, was an error and technical lapse on the part of the respondent. No prejudice was caused.From a reading of the order of this Court dated 6 April 2018 in the Special Leave Petition filed by Skylight Hospitality LLP against the judgment of the Delhi High Court rejecting its challenge, it is evident that the peculiar facts of the case weighed with this Court in coming to this conclusion that there was only a clerical mistake within the meaning of Section 292B. The decision in Skylight Hospitality LLP has been distinguished by the Delhi, Gujarat and Madras High Courtsii) Chandreshbhai Jayantibhai Patel;0. There is no conflict between the decisions of this Court in Spice Enfotainment (dated 2 November 2017) and in Skylight Hospitality LLP (dated 6 Aprilclose reading of the order of this Court dated 6 April 2018, however indicates that what weighed in the dismissal of the Special Leave Petition were the peculiar facts of the case. Those facts have been noted above. What had weighed with the Delhi High Court was that though the notice to reopen had been issued in the name of the erstwhile entity, all the material on record including the tax evasion report suggested that there was no manner of doubt that the notice was always intended to be issued to the successor entity. Hence, while dismissing the Special Leave Petition this Court observed that it was the peculiar facts of the case which led the court to accept the finding that the wrong name given in the notice was merely a technical error which could be corrected under Section 292B. Thus, there is no conflict between the decisions in Spice Enfotainment on the one hand and Skylight Hospitality LLP on the otherthis case, the notice under Section 143(2) under which jurisdiction was assumed by the assessing officer was issued to a non-existent company. The assessment order was issued against the amalgamating company. This is a substantive illegality and not a procedural violation of the nature adverted to in Sectionin the present case, learned Counsel appearing on behalf of the respondent submitted that SPIL ceased to be an eligible assessee in terms of the provisions of Section 144C read with clause (b) of sub section 15. Moreover, it has been urged that in consequence, the final assessment order dated 31 October 2016 was beyond limitation in terms of Section 153(1) read with Section 153 (4). For the purposes of the present proceeding, we do not consider it necessary to delve into that aspect of the matter having regard to the reasons which have weighed us in the earlier part of this judgment.In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment.We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient norPrakash Singh and the two decisions that it placed reliance upon were evidently based upon the specific facts. Jai Prakash Singh involved a situation where the return of income had been filed by one of the legal representatives to whom notices were issued under Section 142(1) and 143(2). No objection was raised by the legal representative who had filed the return that a notice should also to be served to other legal representatives of the deceased assessee. No objection was raised before the assessing officer. Similarly, the decision in Maharaja of Patiala was a case where the notice had been served on the legal representative, the successor Maharaja and the Bombay High Court held that it was not void merely because it omitted to state that it was served in that capacity. | 0 | 8,791 | 2,897 | ### 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:
recovered in the manner provided in section 171, but without prejudice to the provisions of this section. Explanation.—For the purposes of this section, ?income? includes any gain accruing from the transfer, in any manner whatsoever, of the business or profession as a result of the succession?Now, in the present case, learned Counsel appearing on behalf of the respondent submitted that SPIL ceased to be an eligible assessee in terms of the provisions of Section 144C read with clause (b) of sub section 15. Moreover, it has been urged that in consequence, the final assessment order dated 31 October 2016 was beyond limitation in terms of Section 153(1) read with Section 153 (4). For the purposes of the present proceeding, we do not consider it necessary to delve into that aspect of the matter having regard to the reasons which have weighed us in the earlier part of this judgment.32. On behalf of the Revenue, reliance has been placed on the decision of this Court in Commissioner of Income Tax, Shillong v Jai Prakash Singh (1996) 3 SCC 525 (?Jai Prakash Singh?). That was a case where the assessee did not file a return for three assessment years and died in the meantime. His son who was one of the legal representatives filed returns upon which the assessing officer issued notices under Section 142 (1) and Section 143 (2). These were complied with and no objections were raised to the assessment proceedings. The assessment order mentioned the names of all the legal representatives and the assessment was made in the status of an individual. In appeal, it was contended that the assessment proceedings were void as all the legal representatives were not given notice. In this backdrop, a two judge Bench of this Court held that the assessment proceedings were not null and void, and at the worst, that they were defective. In this context, reliance was placed on the decision of the Federal Court in Chatturam v CIT (1947) 15 ITR 302 (FC) holding that the jurisdiction to assess and the liability to pay tax are not conditional on the validity of the notice : the liability to pay tax is founded in the charging sections and not in the machinery provisions to determine the amount of tax. Reliance was also placed on the decision in Maharaja of Patiala v CIT (1943) 11 ITR 202 (Bombay) (?Maharaja of Patiala?). That was a case where two notices were issued after the death of the assessee in his name, requiring him to make a return of income. The notices were served upon the successor Maharaja and the assessment order was passed describing the assessee as ?His Highness…late Maharaja of Patiala?. The successor appealed against the assessment contending that since the notices were sent in the name of the Maharaja of Patiala and not to him as the legal representative of the Maharaja of Patiala, the assessments were illegal. The Bombay High Court held that the successor Maharaja was a legal representative of the deceased and while it would have been better to so describe him in the notice, the notice was not bad merely because it omitted to state that it was served in that capacity. Following these two decisions, this Court in Jai Prakash Singh held that an omission to serve or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where the liability is created by a distinct substantive provision. The omission or defect may render the order irregular but not void or illegal. Jai Prakash Singh and the two decisions that it placed reliance upon were evidently based upon the specific facts. Jai Prakash Singh involved a situation where the return of income had been filed by one of the legal representatives to whom notices were issued under Section 142(1) and 143(2). No objection was raised by the legal representative who had filed the return that a notice should also to be served to other legal representatives of the deceased assessee. No objection was raised before the assessing officer. Similarly, the decision in Maharaja of Patiala was a case where the notice had been served on the legal representative, the successor Maharaja and the Bombay High Court held that it was not void merely because it omitted to state that it was served in that capacity.33. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment.34. We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable.
### Response:
0
### Explanation:
number of the LLP was also mentioned in some of the documents. The notice under Sections 147/148 was not in conformity with the reasons to believe and the approval of the Principal Commissioner. It was in this background that the Delhi High Court held that the case fell within the purview of Section 292B for the followingwas no doubt and debate that the notice was meant for the petitioner and no one else. Legal error and mistake was made in addressing the notice. Noticeably, the appellant having received the said notice, had filed without prejudice reply/letter dated 11.04.2017. They had objected to the notice being issued in the name of the Company, which had ceased to exist. However, the reading of the said letter indicates that they had understood and were aware, that the notice was for them. It was replied and dealt with by them. The fact that notice was addressed to M/s. Skylight Hospitality Pvt. Ltd., a company which had been dissolved, was an error and technical lapse on the part of the respondent. No prejudice was caused.From a reading of the order of this Court dated 6 April 2018 in the Special Leave Petition filed by Skylight Hospitality LLP against the judgment of the Delhi High Court rejecting its challenge, it is evident that the peculiar facts of the case weighed with this Court in coming to this conclusion that there was only a clerical mistake within the meaning of Section 292B. The decision in Skylight Hospitality LLP has been distinguished by the Delhi, Gujarat and Madras High Courtsii) Chandreshbhai Jayantibhai Patel;0. There is no conflict between the decisions of this Court in Spice Enfotainment (dated 2 November 2017) and in Skylight Hospitality LLP (dated 6 Aprilclose reading of the order of this Court dated 6 April 2018, however indicates that what weighed in the dismissal of the Special Leave Petition were the peculiar facts of the case. Those facts have been noted above. What had weighed with the Delhi High Court was that though the notice to reopen had been issued in the name of the erstwhile entity, all the material on record including the tax evasion report suggested that there was no manner of doubt that the notice was always intended to be issued to the successor entity. Hence, while dismissing the Special Leave Petition this Court observed that it was the peculiar facts of the case which led the court to accept the finding that the wrong name given in the notice was merely a technical error which could be corrected under Section 292B. Thus, there is no conflict between the decisions in Spice Enfotainment on the one hand and Skylight Hospitality LLP on the otherthis case, the notice under Section 143(2) under which jurisdiction was assumed by the assessing officer was issued to a non-existent company. The assessment order was issued against the amalgamating company. This is a substantive illegality and not a procedural violation of the nature adverted to in Sectionin the present case, learned Counsel appearing on behalf of the respondent submitted that SPIL ceased to be an eligible assessee in terms of the provisions of Section 144C read with clause (b) of sub section 15. Moreover, it has been urged that in consequence, the final assessment order dated 31 October 2016 was beyond limitation in terms of Section 153(1) read with Section 153 (4). For the purposes of the present proceeding, we do not consider it necessary to delve into that aspect of the matter having regard to the reasons which have weighed us in the earlier part of this judgment.In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment.We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient norPrakash Singh and the two decisions that it placed reliance upon were evidently based upon the specific facts. Jai Prakash Singh involved a situation where the return of income had been filed by one of the legal representatives to whom notices were issued under Section 142(1) and 143(2). No objection was raised by the legal representative who had filed the return that a notice should also to be served to other legal representatives of the deceased assessee. No objection was raised before the assessing officer. Similarly, the decision in Maharaja of Patiala was a case where the notice had been served on the legal representative, the successor Maharaja and the Bombay High Court held that it was not void merely because it omitted to state that it was served in that capacity.
|
Harish Chander & Others Vs. Ghisa Ram & Another | KOSHAL, J.1. This appeal by special leave is directed against the judgment dated July 27, 1970 of the High Court of Punjab and Haryana affirming the decrees passed by the trial court and the first appellate court in a suit for possession by way of pre-emption of the land in dispute in favour of plaintiff-respondent No. 1 on the ground that he was a tenant of the disputed land when it was sold to the appellants by respondents No s. 2 to 4 through a registered sale deed dated September 29, 1967.2. The suit was resisted by the appellants with the counter-claim that they, and not respondent No. 1, were in possession of the land on the relevant date as tenants inasmuch as it had been leased out to them by their vendor Kanti Prasad two years prior to the sale, i.e., in the year 1965. The decrees passed by the courts below proceed on the basis of evidence to the effect that the name of respondent No. 1 was recorded as a tenant in the Jamabandi for the year 1959-60 (Ex. P. 1) and consistently thereafter till the year 1968 (Khasragirdawaris Exs. P. 2 to P. 7). Apart from the oral evidence there is no material on the record which may indicate the falsity of any of the entries in the revenue records and we are of the opinion that the lower courts were fully justified in relying on them.3. Learned counsel for the appellants relies upon three documents in support of his contention that the Khasra-girdawaris should not be believed. First in point of time is an application (Ex. A31) which was sent to the concerned Deputy Commissioner through the military authorities by one of the appellants who was an army hand. That application is dated December 11, 1967 and states that the land in dispute was taken by him on lease from Kanti Prasad in the year 1965 and prays that the Khasra-girdawari should be corrected accordingly. The second is the sale-deed itself in which appears a recital to the effect that on the date of the sale the vendors had been in possession of the land covered by it for the preceding two years. The third is the plaint itself which seeks "possession by way of pre-emption". None of these documents is of any help to the case of the appellants. The recital in the plaint is easily explained. It is no more than the usual prayer made in suits for preemption and may well be interpreted to mean that possession be granted to the plaintiff by the decree in his capacity of a pre-emptor (and not that of a mere tenant). It cannot be implied therefrom that the plaintiff was out of actual possession. In fact the case made out in the plaint was specifically founded on the plea that the plaintiff had been in possession of the land in dispute as a tenant right upto the date of the institution of the suit. Paragraph 4 of the plaint reads:"4. The plaintiff has been continuously cultivating the aforesaid land mentioned in para No. 1 of the plaint, for a long time as non-occupancy tenant and I, the plaintiff, have been cultivating the same even uptil now. The Vendees are outsiders, therefore, I, the plaintiff have the preferential right of pre- emption."This plea clearly negatives the contention based on the recital contained in the prayer clause of the plaint.5. The averments appearing in the sale deed and application Ex. A. 31 (which was made about 2/1/2 months later) to the effect that the appellants had been in possession of the land as tenants since 1965 appears to have been falsely made in an attempt to defeat prospective preemptors. Had it been a correct statement of fact, there is no reason why it should not have found a place in the agreement of sale which is dated the 24th April, 1967 but in which no mention of delivery of possession of the land to the appellants is made. Nor is any cogent explanation forthcoming for the fact that no attempt was made by any of the appellants to have their possession over the land as tenants made the subject-matter of an entry in the relevant records at any time before the sale deed was registered.6. No suspicion can attach to the entries in the jamabandi for the year 1959-60, nor have the contents of that document been assailed before us. A presumption of truth attaches to those entries in view of the provisions of s. 44 of the Punjab Land Revenue Act. That presumption is no doubt rebuttable but no attempt has been made to displace it. Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in s. 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It may therefore be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit.Even though the question of possession of the plaintiff as a tenant is a question of fact which is concluded by concurrent findings arrived at by the courts below, we confirm these findings after consideration of the relevant material.7. The decree passed in favour of respondent No. 1 is not challenged on any other ground. | 0[ds]The averments appearing in the sale deed and application Ex. A. 31 (which was made about 2/1/2 months later) to the effect that the appellants had been in possession of the land as tenants since 1965 appears to have been falsely made in an attempt to defeat prospective preemptors. Had it been a correct statement of fact, there is no reason why it should not have found a place in the agreement of sale which is dated the 24th April, 1967 but in which no mention of delivery of possession of the land to the appellants is made. Nor is any cogent explanation forthcoming for the fact that no attempt was made by any of the appellants to have their possession over the land as tenants made the subject-matter of an entry in the relevant records at any time before the sale deed wassuspicion can attach to the entries in the jamabandi for the year 1959-60, nor have the contents of that document been assailed before us. A presumption of truth attaches to those entries in view of the provisions of s. 44 of the Punjab Land Revenue Act. That presumption is no doubt rebuttable but no attempt has been made to displace it. Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in s. 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It may therefore be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit.Even though the question of possession of the plaintiff as a tenant is a question of fact which is concluded by concurrent findings arrived at by the courts below, we confirm these findings after consideration of the relevant material.The decree passed in favour of respondent No. 1 is not challenged on any other ground. | 0 | 1,004 | 373 | ### 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:
KOSHAL, J.1. This appeal by special leave is directed against the judgment dated July 27, 1970 of the High Court of Punjab and Haryana affirming the decrees passed by the trial court and the first appellate court in a suit for possession by way of pre-emption of the land in dispute in favour of plaintiff-respondent No. 1 on the ground that he was a tenant of the disputed land when it was sold to the appellants by respondents No s. 2 to 4 through a registered sale deed dated September 29, 1967.2. The suit was resisted by the appellants with the counter-claim that they, and not respondent No. 1, were in possession of the land on the relevant date as tenants inasmuch as it had been leased out to them by their vendor Kanti Prasad two years prior to the sale, i.e., in the year 1965. The decrees passed by the courts below proceed on the basis of evidence to the effect that the name of respondent No. 1 was recorded as a tenant in the Jamabandi for the year 1959-60 (Ex. P. 1) and consistently thereafter till the year 1968 (Khasragirdawaris Exs. P. 2 to P. 7). Apart from the oral evidence there is no material on the record which may indicate the falsity of any of the entries in the revenue records and we are of the opinion that the lower courts were fully justified in relying on them.3. Learned counsel for the appellants relies upon three documents in support of his contention that the Khasra-girdawaris should not be believed. First in point of time is an application (Ex. A31) which was sent to the concerned Deputy Commissioner through the military authorities by one of the appellants who was an army hand. That application is dated December 11, 1967 and states that the land in dispute was taken by him on lease from Kanti Prasad in the year 1965 and prays that the Khasra-girdawari should be corrected accordingly. The second is the sale-deed itself in which appears a recital to the effect that on the date of the sale the vendors had been in possession of the land covered by it for the preceding two years. The third is the plaint itself which seeks "possession by way of pre-emption". None of these documents is of any help to the case of the appellants. The recital in the plaint is easily explained. It is no more than the usual prayer made in suits for preemption and may well be interpreted to mean that possession be granted to the plaintiff by the decree in his capacity of a pre-emptor (and not that of a mere tenant). It cannot be implied therefrom that the plaintiff was out of actual possession. In fact the case made out in the plaint was specifically founded on the plea that the plaintiff had been in possession of the land in dispute as a tenant right upto the date of the institution of the suit. Paragraph 4 of the plaint reads:"4. The plaintiff has been continuously cultivating the aforesaid land mentioned in para No. 1 of the plaint, for a long time as non-occupancy tenant and I, the plaintiff, have been cultivating the same even uptil now. The Vendees are outsiders, therefore, I, the plaintiff have the preferential right of pre- emption."This plea clearly negatives the contention based on the recital contained in the prayer clause of the plaint.5. The averments appearing in the sale deed and application Ex. A. 31 (which was made about 2/1/2 months later) to the effect that the appellants had been in possession of the land as tenants since 1965 appears to have been falsely made in an attempt to defeat prospective preemptors. Had it been a correct statement of fact, there is no reason why it should not have found a place in the agreement of sale which is dated the 24th April, 1967 but in which no mention of delivery of possession of the land to the appellants is made. Nor is any cogent explanation forthcoming for the fact that no attempt was made by any of the appellants to have their possession over the land as tenants made the subject-matter of an entry in the relevant records at any time before the sale deed was registered.6. No suspicion can attach to the entries in the jamabandi for the year 1959-60, nor have the contents of that document been assailed before us. A presumption of truth attaches to those entries in view of the provisions of s. 44 of the Punjab Land Revenue Act. That presumption is no doubt rebuttable but no attempt has been made to displace it. Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in s. 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It may therefore be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit.Even though the question of possession of the plaintiff as a tenant is a question of fact which is concluded by concurrent findings arrived at by the courts below, we confirm these findings after consideration of the relevant material.7. The decree passed in favour of respondent No. 1 is not challenged on any other ground.
### Response:
0
### Explanation:
The averments appearing in the sale deed and application Ex. A. 31 (which was made about 2/1/2 months later) to the effect that the appellants had been in possession of the land as tenants since 1965 appears to have been falsely made in an attempt to defeat prospective preemptors. Had it been a correct statement of fact, there is no reason why it should not have found a place in the agreement of sale which is dated the 24th April, 1967 but in which no mention of delivery of possession of the land to the appellants is made. Nor is any cogent explanation forthcoming for the fact that no attempt was made by any of the appellants to have their possession over the land as tenants made the subject-matter of an entry in the relevant records at any time before the sale deed wassuspicion can attach to the entries in the jamabandi for the year 1959-60, nor have the contents of that document been assailed before us. A presumption of truth attaches to those entries in view of the provisions of s. 44 of the Punjab Land Revenue Act. That presumption is no doubt rebuttable but no attempt has been made to displace it. Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in s. 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It may therefore be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit.Even though the question of possession of the plaintiff as a tenant is a question of fact which is concluded by concurrent findings arrived at by the courts below, we confirm these findings after consideration of the relevant material.The decree passed in favour of respondent No. 1 is not challenged on any other ground.
|
The General Manager, Southern Railway, Madras & Another Vs. T. N. Paramasivam | Beg, J.1. The General Manager, Southern Railway obtained special leave to appeal to this Court against a judgment of a Division Bench of the Madras High Court. The learned Judges, Veeraswami, G.J., and Raghavan J., bad held, in a very short judgments notification of the Railway Department, retiring the petitioner-respondent from service with effect from 3rd October, 1970 to be inoperative.2. The petitioner-respondent had been appointed a temporary clerk on 10th December, 1936 and had been confirmed in that post on 1st September, 1938. He contended that he was entitled to continue in service until he had attained the age of 60 years. He alleged that the notification retiring him had been issued on the wrong assumption that he had to retire at the age of the 58 years which is the normal age of retirement. He claimed the benefit of rule 2046 (a) of the Railway Establishment Code.3. According to rule 2046 (b), a Ministerial Railway servant was entitled to the higher age of retirement provided firstly, he had entered Government service on or before 31st March,1938, and secondly, he had held “on that date” (i.e., on 31st March, 1938), either: (i) “ a lien or, a suspended lien on a permanent post ; or (ii) a permanent post in a provisional substantive capacity under clause (d) of rule 2008 and had continued to hold the same without interruption until he was confirmed in that post.”4. It is clear that the respondent-petitioner fulfilled the first condition inasmuch as he had entered Government service on 10th December, 1936, which was obviously before 31st March, 1938. The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the benefit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement. It is very difficult to appreciate the reasoning of the High Court when rule 2046 (b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Government servant “on that date”, that is to say, on 3lst March, 1938. The specified requirements of the rule could not be over-ridden by some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, .1938.5. The second of the two alternatives in the second set of conditions could not apply to the respondent-petitioner as he was only a ‘temporary Government servant’ and not a ‘provisioned Government servant’ as defined by “ rule 2008. (2). Rule 2008 may be reproduced here. It reads:”2008 - Suspension of lien:(a) A competent authority shall suspend the lien of a railway servant on a permanent post which he holds substantively if he is appointed in a substantive capacity:(1) to a tenure post, or(2) to a permanent post outside the cadre on which he is borne, or(3) provisionally, to a post on which another railway servant would hold a lien had his lien not been suspended under this rule.(b) A competent authority, may, at its option, suspend the lien of a railway servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this rule, is transferred whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is a reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.(c) Notwithstanding anything contained in clauses (a) and (b) of this Rule a railway servants lien on a tenure post may, in circumstances, be suspended. If he is appointed substantively to another permanent post, his lien on the tenure must be terminated.(i) If a railway servants lien on a post is suspended under clause (a) or (6) of this Rule, the post may be filled substantively and the railway servant appointed to hold it substantively shall acquire a lien on it provided that the arrangements shall be reversed as soon as the suspended lien revises.Note: This clause applies if the post concerned is a post in a selection grade of a cadre”.6. The respondent-petitioner having been confirmed on 1st September, 1938, could be said to be appointed in substantive capacity only on that date. He could neither have a lien nor a suspended lien on a permanent post. He could also not be found to hold a permanent post in a provisional capacity under clause (d) of rule 2008 before 31st March, 1938. The respondent-petitioner had not been shown to hold a permanent post on 31st March, 1938. Learned counsel for the appellant therefore, relied on: State of Punjab v. Dharam Singh, State of Nagaland v. G. Vasantha, Director of Panchayat Raj and another v. Babu Singh. Learned counsel for the respondent-petitioner found it impossible to justify the order of the Madras High Court.7. Learned counsel for the appellant stated that the Railway Administration doss not propose to claim any refund of salary paid to the respondent-petitioner, who had worked until he retired at the age of sixty, and that this appeal was filed only to get the question of law involved settled. The position was so’ clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision. | 1[ds]er having been confirmed on 1st September, 1938, could be said to be appointed in substantive capacity only on that date. He could neither have a lien nor a suspended lien on a permanent post. He could also not be found to hold a permanent post in a provisional capacity under clause (d) of rule 2008 before 31st March, 1938. Thehad not been shown to hold a permanent post on 31st March, 1938. Learned counsel for the appellant therefore, relied on: State of Punjab v. Dharam Singh, State of Nagaland v. G. Vasantha, Director of Panchayat Raj and another v. Babu Singh. Learned counsel for thefound it impossible to justify the order of the Madras High Court.It is clear that thed the first condition inasmuch as he had entered Government service on 10th December, 1936, which was obviously before 31st March, 1938. The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the benefit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement. It is very difficult to appreciate the reasoning of the High Court when rule 2046 (b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Government servantthat is to say, on 3lst March, 1938. The specified requirements of the rule could not bey some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, .1938. | 1 | 1,090 | 315 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Beg, J.1. The General Manager, Southern Railway obtained special leave to appeal to this Court against a judgment of a Division Bench of the Madras High Court. The learned Judges, Veeraswami, G.J., and Raghavan J., bad held, in a very short judgments notification of the Railway Department, retiring the petitioner-respondent from service with effect from 3rd October, 1970 to be inoperative.2. The petitioner-respondent had been appointed a temporary clerk on 10th December, 1936 and had been confirmed in that post on 1st September, 1938. He contended that he was entitled to continue in service until he had attained the age of 60 years. He alleged that the notification retiring him had been issued on the wrong assumption that he had to retire at the age of the 58 years which is the normal age of retirement. He claimed the benefit of rule 2046 (a) of the Railway Establishment Code.3. According to rule 2046 (b), a Ministerial Railway servant was entitled to the higher age of retirement provided firstly, he had entered Government service on or before 31st March,1938, and secondly, he had held “on that date” (i.e., on 31st March, 1938), either: (i) “ a lien or, a suspended lien on a permanent post ; or (ii) a permanent post in a provisional substantive capacity under clause (d) of rule 2008 and had continued to hold the same without interruption until he was confirmed in that post.”4. It is clear that the respondent-petitioner fulfilled the first condition inasmuch as he had entered Government service on 10th December, 1936, which was obviously before 31st March, 1938. The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the benefit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement. It is very difficult to appreciate the reasoning of the High Court when rule 2046 (b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Government servant “on that date”, that is to say, on 3lst March, 1938. The specified requirements of the rule could not be over-ridden by some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, .1938.5. The second of the two alternatives in the second set of conditions could not apply to the respondent-petitioner as he was only a ‘temporary Government servant’ and not a ‘provisioned Government servant’ as defined by “ rule 2008. (2). Rule 2008 may be reproduced here. It reads:”2008 - Suspension of lien:(a) A competent authority shall suspend the lien of a railway servant on a permanent post which he holds substantively if he is appointed in a substantive capacity:(1) to a tenure post, or(2) to a permanent post outside the cadre on which he is borne, or(3) provisionally, to a post on which another railway servant would hold a lien had his lien not been suspended under this rule.(b) A competent authority, may, at its option, suspend the lien of a railway servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this rule, is transferred whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is a reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.(c) Notwithstanding anything contained in clauses (a) and (b) of this Rule a railway servants lien on a tenure post may, in circumstances, be suspended. If he is appointed substantively to another permanent post, his lien on the tenure must be terminated.(i) If a railway servants lien on a post is suspended under clause (a) or (6) of this Rule, the post may be filled substantively and the railway servant appointed to hold it substantively shall acquire a lien on it provided that the arrangements shall be reversed as soon as the suspended lien revises.Note: This clause applies if the post concerned is a post in a selection grade of a cadre”.6. The respondent-petitioner having been confirmed on 1st September, 1938, could be said to be appointed in substantive capacity only on that date. He could neither have a lien nor a suspended lien on a permanent post. He could also not be found to hold a permanent post in a provisional capacity under clause (d) of rule 2008 before 31st March, 1938. The respondent-petitioner had not been shown to hold a permanent post on 31st March, 1938. Learned counsel for the appellant therefore, relied on: State of Punjab v. Dharam Singh, State of Nagaland v. G. Vasantha, Director of Panchayat Raj and another v. Babu Singh. Learned counsel for the respondent-petitioner found it impossible to justify the order of the Madras High Court.7. Learned counsel for the appellant stated that the Railway Administration doss not propose to claim any refund of salary paid to the respondent-petitioner, who had worked until he retired at the age of sixty, and that this appeal was filed only to get the question of law involved settled. The position was so’ clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision.
### Response:
1
### Explanation:
er having been confirmed on 1st September, 1938, could be said to be appointed in substantive capacity only on that date. He could neither have a lien nor a suspended lien on a permanent post. He could also not be found to hold a permanent post in a provisional capacity under clause (d) of rule 2008 before 31st March, 1938. Thehad not been shown to hold a permanent post on 31st March, 1938. Learned counsel for the appellant therefore, relied on: State of Punjab v. Dharam Singh, State of Nagaland v. G. Vasantha, Director of Panchayat Raj and another v. Babu Singh. Learned counsel for thefound it impossible to justify the order of the Madras High Court.It is clear that thed the first condition inasmuch as he had entered Government service on 10th December, 1936, which was obviously before 31st March, 1938. The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the benefit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement. It is very difficult to appreciate the reasoning of the High Court when rule 2046 (b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Government servantthat is to say, on 3lst March, 1938. The specified requirements of the rule could not bey some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, .1938.
|
MOHAMMADE YUSUF & ORS Vs. RAJKUMAR & ORS. | 12. The Supreme Court in the matter of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala reported in 2014(3) MPLJ 36 has settled that declaratory decree based on plea of adverse possession cannot be claimed and adverse possession can be used only as shield in defence by the defendant. It has been held that:- 7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.13. The plea of the petitioner based upon Sec.27 of the Limitation Act is found to be devoid of any merit since it relates to the extinction of the right of the lawful owner after expiry of the Limitation Act, but in view of the judgment of the supreme court in the matter of Gurudwara Sahib (supra), the petitioner cannot claim himself to be the owner automatically after the expiry of the said limitation. 9. The judgment of Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another (supra) has now been expressly overruled by a Three Judge Bench judgment in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others, (2019) 8 SCC 729 . This Court held in the above case in paragraph 62 that once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner. In paragraph 62, following has been laid down: 62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owners title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit. 10. In paragraph 61, this Court has expressly overruled the Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another (supra). 11. In view of the pronouncement of this Court by Three Judge Bench judgment in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others (supra), the very basis of the High Court for holding that compromise deed dated 04.10.1985 requires registration is knocked out. The present is not a case where there is any allegation that the decree dated 04.10.1985 is a collusive decree. The decree dated 04.10.1985 was in favour of the plaintiff of 7 biswa land, survey No.203 and for remaining land of survey No.203, it was held that it belonged to defendants. 12. In Bhoop Singh (supra), this Court held that the earlier decree required registration for the reasons as mentioned in paragraph 19. The reasons given in paragraph 19 of the above case has no application in the facts of the present case. 13. This Court in Som Dev and Others Vs. Rati Ram and Another, (2006) 10 SCC 788 while explaining Section 17(2)(vi) and Section 17(1)(b) and (c) held that all decree and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In paragraph 18, this Court laid down following: - 18. ……………But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit……………………. 14. In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., any decree or order of a Court. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub-section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise. | 1[ds]6. A compromise decree passed by a Court would ordinarily be covered by Section 17(1)(b) but sub- section(2) of Section 17 provides for an exception for any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by virtue of sub-section(2)(vi) of Section 17 any decree or order of a Court does not require registration. In sub-clause(vi) of sub-section (2), one category is excepted from sub-clause(vi), i.e., a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject matter of the suit or proceeding requires registration, although any decree or order of a Court is exempted from registration by virtue of Section 17(2)(vi). A copy of the decree passed in Suit No.250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 04.10.1985 was passed by the Court for the property, which was subject matter of the suit. Thus, the exclusionary clause in Section 17(2)(vi) is not applicable and the compromise decree dated 04.10.1985 was not required to be registered on plain reading of Section 17(2)(vi)9. The judgment of Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another (supra) has now been expressly overruled by a Three Judge Bench judgment in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others, (2019) 8 SCC 729 . This Court held in the above case in paragraph 62 that once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner. In paragraph 62, following has been laid down:62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owners title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit10. In paragraph 61, this Court has expressly overruled the Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another (supra)11. In view of the pronouncement of this Court by Three Judge Bench judgment in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others (supra), the very basis of the High Court for holding that compromise deed dated 04.10.1985 requires registration is knocked out. The present is not a case where there is any allegation that the decree dated 04.10.1985 is a collusive decree. The decree dated 04.10.1985 was in favour of the plaintiff of 7 biswa land, survey No.203 and for remaining land of survey No.203, it was held that it belonged to defendants14. In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., any decree or order of a Court. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub-section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise13. This Court in Som Dev and Others Vs. Rati Ram and Another, (2006) 10 SCC 788 while explaining Section 17(2)(vi) and Section 17(1)(b) and (c) held that all decree and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In paragraph 18, this Court laid down following: -18. ……………But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit……………………. | 1 | 3,821 | 1,154 | ### 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:
12. The Supreme Court in the matter of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala reported in 2014(3) MPLJ 36 has settled that declaratory decree based on plea of adverse possession cannot be claimed and adverse possession can be used only as shield in defence by the defendant. It has been held that:- 7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.13. The plea of the petitioner based upon Sec.27 of the Limitation Act is found to be devoid of any merit since it relates to the extinction of the right of the lawful owner after expiry of the Limitation Act, but in view of the judgment of the supreme court in the matter of Gurudwara Sahib (supra), the petitioner cannot claim himself to be the owner automatically after the expiry of the said limitation. 9. The judgment of Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another (supra) has now been expressly overruled by a Three Judge Bench judgment in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others, (2019) 8 SCC 729 . This Court held in the above case in paragraph 62 that once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner. In paragraph 62, following has been laid down: 62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owners title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit. 10. In paragraph 61, this Court has expressly overruled the Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another (supra). 11. In view of the pronouncement of this Court by Three Judge Bench judgment in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others (supra), the very basis of the High Court for holding that compromise deed dated 04.10.1985 requires registration is knocked out. The present is not a case where there is any allegation that the decree dated 04.10.1985 is a collusive decree. The decree dated 04.10.1985 was in favour of the plaintiff of 7 biswa land, survey No.203 and for remaining land of survey No.203, it was held that it belonged to defendants. 12. In Bhoop Singh (supra), this Court held that the earlier decree required registration for the reasons as mentioned in paragraph 19. The reasons given in paragraph 19 of the above case has no application in the facts of the present case. 13. This Court in Som Dev and Others Vs. Rati Ram and Another, (2006) 10 SCC 788 while explaining Section 17(2)(vi) and Section 17(1)(b) and (c) held that all decree and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In paragraph 18, this Court laid down following: - 18. ……………But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit……………………. 14. In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., any decree or order of a Court. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub-section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise.
### Response:
1
### Explanation:
6. A compromise decree passed by a Court would ordinarily be covered by Section 17(1)(b) but sub- section(2) of Section 17 provides for an exception for any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by virtue of sub-section(2)(vi) of Section 17 any decree or order of a Court does not require registration. In sub-clause(vi) of sub-section (2), one category is excepted from sub-clause(vi), i.e., a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject matter of the suit or proceeding requires registration, although any decree or order of a Court is exempted from registration by virtue of Section 17(2)(vi). A copy of the decree passed in Suit No.250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 04.10.1985 was passed by the Court for the property, which was subject matter of the suit. Thus, the exclusionary clause in Section 17(2)(vi) is not applicable and the compromise decree dated 04.10.1985 was not required to be registered on plain reading of Section 17(2)(vi)9. The judgment of Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another (supra) has now been expressly overruled by a Three Judge Bench judgment in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others, (2019) 8 SCC 729 . This Court held in the above case in paragraph 62 that once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner. In paragraph 62, following has been laid down:62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owners title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit10. In paragraph 61, this Court has expressly overruled the Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another (supra)11. In view of the pronouncement of this Court by Three Judge Bench judgment in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others (supra), the very basis of the High Court for holding that compromise deed dated 04.10.1985 requires registration is knocked out. The present is not a case where there is any allegation that the decree dated 04.10.1985 is a collusive decree. The decree dated 04.10.1985 was in favour of the plaintiff of 7 biswa land, survey No.203 and for remaining land of survey No.203, it was held that it belonged to defendants14. In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., any decree or order of a Court. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub-section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise13. This Court in Som Dev and Others Vs. Rati Ram and Another, (2006) 10 SCC 788 while explaining Section 17(2)(vi) and Section 17(1)(b) and (c) held that all decree and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In paragraph 18, this Court laid down following: -18. ……………But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit…………………….
|
B.P. Achala Anand Vs. S. Appi Reddy | the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant subject to satisfying two conditions : first, that the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than that of the tenant himself. In other words, such a wife would be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as, by availing the benefit of the provisions of the Transfer of Property Act and Rent Control Legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end. 31. We are also of the opinion that a deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of subletting. Having been deserted by the tenant-husband, she cannot be deprived of the roof over her head where the tenant has conveniently left her to face the peril of eviction attributable to default or neglect of himself. We are inclined to hold - and we do so - that a deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of such wife has not come to an end. The tenant having lost interest in protecting his tenancy rights as available to him under the law, the same right would devolve upon and inhere in the wife so long as she continues in occupation of the premises. Her rights and obligations shall not be higher or larger than those of the tenant himself. A suitable amendment in the legislation is called for to that effect. And, so long as that is not done, we, responding to the demands of social and gender justice, need to mould the relief and do complete justice by exercising our jurisdiction under Article 142 of the Constitution. We hasten to add that the purpose of our holding as above is to give the wifes right to residence a meaningful efficacy as dictated by the needs of the times; we do not intend nor do we propose the landlords right to eviction against his tenant to be subordinated to wifes right to residence enforceable against her husband. Let both the rights co-exist so long as they can. 32. We have dealt with all the abovesaid aspects of the law as it was urged on behalf of the landlord respondent No. 1 that Smt. Achala, the appellant has no right to contest or defend herself in these proceedings nor a right to file and prosecute this appeal as there is no privity of contract between the appellant and landlord and the appellant is neither a tenant nor so recognized ever by the respondent No. 1 landlord. We cannot agree. We feel that the appellant was rightly in the facts and circumstances of the case permitted by the High Court to be joined as a party to the proceedings. She was also rightly allowed to contest the suit and deposit the rent in the court for payment to landlord for and on behalf of the tenant-husband. 33. So far as a deserted wife, whose status as wife has not come to an end by a decree of divorce or by decree for annulment of marriage, is concerned, we have made the position of law clear as above. However, the case of a divorced wife stands on a little different footing. Divorce is termination of matrimonial relationship and brings to an end the status of wife as such. Whether or not she has the right of residence in the matrimonial home, would depend on the terms and conditions in which the decree of divorce has been granted and provision for maintenance (including residence) has been made. In the event of the provision for residence of a divorced wife having been made by the husband in the matrimonial home situated in the tenanted premises, such divorced wife too would be entitled to defend, in the eviction proceedings, the tenancy rights and rights of occupation thereunder in the same manner in which the husband-tenant could have done and certainly not higher or larger than that. She would be liable to be evicted in the same manner in which her husband as tenant would have been liable to be evicted. 34. In the present case, it is admitted by the appellant that on 3.12.1998, that is, during the pendency of these proceedings and while the matter was pending in the High Court a decree for dissolution of marriage by divorce based on mutual consent has been passed. The terms and conditions of such settlement have not been brought on record by the appellant which she ought to have done. It is not the case of Smt. Achala, the appellant that she is entitled to continue her residence in the tenanted premises by virtue of an obligation incurred by her husband to provide residence for her as a part of maintenance. She cannot, therefore, be allowed to prosecute the appeal and defend her right against the claim for eviction made by the landlord. | 0[ds]12. The position of law which emerges on a conjoint reading of the Rent Control Legislation and Personal Laws providing for right to maintenance ___ which will include the right to residence of a wife, including a deserted or divorced wife, may be examined. The Rent Control Law makes provision for protection of the tenant not only for his own benefit but also for the benefit of all those residing or entitled to reside with him or for whose residence he must provide for. A decree or order for eviction would deprive not only the tenant of such protection but members of his family (including the spouse) will also suffer eviction. So long as the tenant defends himself, the interest of his family members merges with that of the tenant and they too are protected. The tenant cannot, by collusion or by deliberate prejudicial act, give up the protection of law to the detriment of his family members. So long as a decree for eviction has not been passed the members of the family are entitled to come to the court and seek leave to defend and thereby contest the proceedings and such leave may be granted by the court if the court is satisfied that the tenant was not defending ___ by collusion, connivance or neglect ___ or was acting to the detriment of such persons. Such a situation would be rare and the court shall always be on its guard in entertaining any such prayer. But the existence of such a right flows from what has been stated hereinabove and must be recognized. Persons residing with the tenant as members of his family would obviously be aware of the litigation and, therefore, it will be for them to act diligently and approach the court promptly and in any case before the decree of eviction is passed as delay defeats equity. Such a prayer or any dispute sought to be raised post- decree by a member of family of the tenant may not be entertained by the court20. This indicates that the right of residence is a part of the right to maintenance and in which case in the absence of an order by the matrimonial court in the proceedings for divorce, she would not be able to set up a claim in respect of the house even as against her husband, leave alone the landlord of her husband22. It has been held in India that right to maintenance arises out of the status as a wife and not by way of a contract or otherwise. In Sri Raja Bommadevara Raja Lakshmi Devi Amma Garu v. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu and another, AIR 1925 Madras 75732. We have dealt with all the abovesaid aspects of the law as it was urged on behalf of the landlord respondent No. 1 that Smt. Achala, the appellant has no right to contest or defend herself in these proceedings nor a right to file and prosecute this appeal as there is no privity of contract between the appellant and landlord and the appellant is neither a tenant nor so recognized ever by the respondent No. 1 landlord. We cannot agree. We feel that the appellant was rightly in the facts and circumstances of the case permitted by the High Court to be joined as a party to the proceedings. She was also rightly allowed to contest the suit and deposit the rent in the court for payment to landlord for and on behalf of the tenant-husband33. So far as a deserted wife, whose status as wife has not come to an end by a decree of divorce or by decree for annulment of marriage, is concerned, we have made the position of law clear as above. However, the case of a divorced wife stands on a little different footing. Divorce is termination of matrimonial relationship and brings to an end the status of wife as such. Whether or not she has the right of residence in the matrimonial home, would depend on the terms and conditions in which the decree of divorce has been granted and provision for maintenance (including residence) has been made. In the event of the provision for residence of a divorced wife having been made by the husband in the matrimonial home situated in the tenanted premises, such divorced wife too would be entitled to defend, in the eviction proceedings, the tenancy rights and rights of occupation thereunder in the same manner in which the husband-tenant could have done and certainly not higher or larger than that. She would be liable to be evicted in the same manner in which her husband as tenant would have been liable to be evicted34. In the present case, it is admitted by the appellant that on 3.12.1998, that is, during the pendency of these proceedings and while the matter was pending in the High Court a decree for dissolution of marriage by divorce based on mutual consent has been passed. The terms and conditions of such settlement have not been brought on record by the appellant which she ought to have done. It is not the case of Smt. Achala, the appellant that she is entitled to continue her residence in the tenanted premises by virtue of an obligation incurred by her husband to provide residence for her as a part of maintenance. She cannot, therefore, be allowed to prosecute the appeal and defend her right against the claim for eviction made by the landlord. | 0 | 7,480 | 986 | ### 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 matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant subject to satisfying two conditions : first, that the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than that of the tenant himself. In other words, such a wife would be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as, by availing the benefit of the provisions of the Transfer of Property Act and Rent Control Legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end. 31. We are also of the opinion that a deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of subletting. Having been deserted by the tenant-husband, she cannot be deprived of the roof over her head where the tenant has conveniently left her to face the peril of eviction attributable to default or neglect of himself. We are inclined to hold - and we do so - that a deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of such wife has not come to an end. The tenant having lost interest in protecting his tenancy rights as available to him under the law, the same right would devolve upon and inhere in the wife so long as she continues in occupation of the premises. Her rights and obligations shall not be higher or larger than those of the tenant himself. A suitable amendment in the legislation is called for to that effect. And, so long as that is not done, we, responding to the demands of social and gender justice, need to mould the relief and do complete justice by exercising our jurisdiction under Article 142 of the Constitution. We hasten to add that the purpose of our holding as above is to give the wifes right to residence a meaningful efficacy as dictated by the needs of the times; we do not intend nor do we propose the landlords right to eviction against his tenant to be subordinated to wifes right to residence enforceable against her husband. Let both the rights co-exist so long as they can. 32. We have dealt with all the abovesaid aspects of the law as it was urged on behalf of the landlord respondent No. 1 that Smt. Achala, the appellant has no right to contest or defend herself in these proceedings nor a right to file and prosecute this appeal as there is no privity of contract between the appellant and landlord and the appellant is neither a tenant nor so recognized ever by the respondent No. 1 landlord. We cannot agree. We feel that the appellant was rightly in the facts and circumstances of the case permitted by the High Court to be joined as a party to the proceedings. She was also rightly allowed to contest the suit and deposit the rent in the court for payment to landlord for and on behalf of the tenant-husband. 33. So far as a deserted wife, whose status as wife has not come to an end by a decree of divorce or by decree for annulment of marriage, is concerned, we have made the position of law clear as above. However, the case of a divorced wife stands on a little different footing. Divorce is termination of matrimonial relationship and brings to an end the status of wife as such. Whether or not she has the right of residence in the matrimonial home, would depend on the terms and conditions in which the decree of divorce has been granted and provision for maintenance (including residence) has been made. In the event of the provision for residence of a divorced wife having been made by the husband in the matrimonial home situated in the tenanted premises, such divorced wife too would be entitled to defend, in the eviction proceedings, the tenancy rights and rights of occupation thereunder in the same manner in which the husband-tenant could have done and certainly not higher or larger than that. She would be liable to be evicted in the same manner in which her husband as tenant would have been liable to be evicted. 34. In the present case, it is admitted by the appellant that on 3.12.1998, that is, during the pendency of these proceedings and while the matter was pending in the High Court a decree for dissolution of marriage by divorce based on mutual consent has been passed. The terms and conditions of such settlement have not been brought on record by the appellant which she ought to have done. It is not the case of Smt. Achala, the appellant that she is entitled to continue her residence in the tenanted premises by virtue of an obligation incurred by her husband to provide residence for her as a part of maintenance. She cannot, therefore, be allowed to prosecute the appeal and defend her right against the claim for eviction made by the landlord.
### Response:
0
### Explanation:
12. The position of law which emerges on a conjoint reading of the Rent Control Legislation and Personal Laws providing for right to maintenance ___ which will include the right to residence of a wife, including a deserted or divorced wife, may be examined. The Rent Control Law makes provision for protection of the tenant not only for his own benefit but also for the benefit of all those residing or entitled to reside with him or for whose residence he must provide for. A decree or order for eviction would deprive not only the tenant of such protection but members of his family (including the spouse) will also suffer eviction. So long as the tenant defends himself, the interest of his family members merges with that of the tenant and they too are protected. The tenant cannot, by collusion or by deliberate prejudicial act, give up the protection of law to the detriment of his family members. So long as a decree for eviction has not been passed the members of the family are entitled to come to the court and seek leave to defend and thereby contest the proceedings and such leave may be granted by the court if the court is satisfied that the tenant was not defending ___ by collusion, connivance or neglect ___ or was acting to the detriment of such persons. Such a situation would be rare and the court shall always be on its guard in entertaining any such prayer. But the existence of such a right flows from what has been stated hereinabove and must be recognized. Persons residing with the tenant as members of his family would obviously be aware of the litigation and, therefore, it will be for them to act diligently and approach the court promptly and in any case before the decree of eviction is passed as delay defeats equity. Such a prayer or any dispute sought to be raised post- decree by a member of family of the tenant may not be entertained by the court20. This indicates that the right of residence is a part of the right to maintenance and in which case in the absence of an order by the matrimonial court in the proceedings for divorce, she would not be able to set up a claim in respect of the house even as against her husband, leave alone the landlord of her husband22. It has been held in India that right to maintenance arises out of the status as a wife and not by way of a contract or otherwise. In Sri Raja Bommadevara Raja Lakshmi Devi Amma Garu v. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu and another, AIR 1925 Madras 75732. We have dealt with all the abovesaid aspects of the law as it was urged on behalf of the landlord respondent No. 1 that Smt. Achala, the appellant has no right to contest or defend herself in these proceedings nor a right to file and prosecute this appeal as there is no privity of contract between the appellant and landlord and the appellant is neither a tenant nor so recognized ever by the respondent No. 1 landlord. We cannot agree. We feel that the appellant was rightly in the facts and circumstances of the case permitted by the High Court to be joined as a party to the proceedings. She was also rightly allowed to contest the suit and deposit the rent in the court for payment to landlord for and on behalf of the tenant-husband33. So far as a deserted wife, whose status as wife has not come to an end by a decree of divorce or by decree for annulment of marriage, is concerned, we have made the position of law clear as above. However, the case of a divorced wife stands on a little different footing. Divorce is termination of matrimonial relationship and brings to an end the status of wife as such. Whether or not she has the right of residence in the matrimonial home, would depend on the terms and conditions in which the decree of divorce has been granted and provision for maintenance (including residence) has been made. In the event of the provision for residence of a divorced wife having been made by the husband in the matrimonial home situated in the tenanted premises, such divorced wife too would be entitled to defend, in the eviction proceedings, the tenancy rights and rights of occupation thereunder in the same manner in which the husband-tenant could have done and certainly not higher or larger than that. She would be liable to be evicted in the same manner in which her husband as tenant would have been liable to be evicted34. In the present case, it is admitted by the appellant that on 3.12.1998, that is, during the pendency of these proceedings and while the matter was pending in the High Court a decree for dissolution of marriage by divorce based on mutual consent has been passed. The terms and conditions of such settlement have not been brought on record by the appellant which she ought to have done. It is not the case of Smt. Achala, the appellant that she is entitled to continue her residence in the tenanted premises by virtue of an obligation incurred by her husband to provide residence for her as a part of maintenance. She cannot, therefore, be allowed to prosecute the appeal and defend her right against the claim for eviction made by the landlord.
|
Sudesh Kedia Vs. Union of India | accused of providing funds to a terrorist organization. According to the prosecution, he has entered into a conspiracy with the other members of the organization to strengthen and promote the activities of the organization. Further, an amount of Rs. 9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand only) was seized from the Appellants house, making him liable for punishable under Section 21 of the Act. 10. In National Investigation Agency v. Zahoor Ahmad Shah Watali (supra), this Court considered the parameters for exercise of the power under Section 43 (5) D, held as follows: 23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is prima facie true. By its very nature, the expression prima facie true would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is prima facie true, as compared to the opinion of the accused not guilty of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act…. 11. While considering the grant of bail under Section 43 (5) D, it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. We have gone through the material on record and are satisfied that the Appellant is entitled for bail and that the Special Court and High Court erred in not granting bail to the Appellant for the following reasons: (A) A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy / extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the area of operation of the organization. It is alleged in the second supplementary chargesheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization. (B) Another factor taken into account by the Special Court and the High Court relates to the allegation of the Appellant meeting the members of the terror organization. It has been held by the High Court that the Appellant has been in constant touch with the other accused. The Appellant has revealed in his statement recorded under Section 164 Cr.PC that he was summoned to meet A-14 and the other members of the organization in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the Appellant met the members of the organization. (C) An amount of Rs. 9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand only) was seized from the house of the Appellant which was accounted for by the Appellant who stated that the amount was withdrawn from the bank to pay salaries to his employees and other expenses. We do not agree with the prosecution that the amount is terror fund. At this stage, it cannot be said that the amount seized from the Appellant is proceeds from terrorist activity. There is no allegation that Appellant was receiving any money. On the other hand, the Appellant is accused of providing money to the members of TPC. 12. After a detailed examination of the contentions of the parties and scrutiny of the material on record, we are not satisfied that a prima facie case has been made out against the Appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the Appellant and the trial court shall not be influenced by these observations during trial. | 1[ds]9. Section 43-D (5) mandates that a person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true. Apart from the other offences, the Appellant is accused of committing offences under Section 17, 18 and 21 of the UA (P) Act. The Appellant is accused of providing funds to a terrorist organization. According to the prosecution, he has entered into a conspiracy with the other members of the organization to strengthen and promote the activities of the organization. Further, an amount of Rs. 9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand only) was seized from the Appellants house, making him liable for punishable under Section 21 of the Act.10. In National Investigation Agency v. Zahoor Ahmad Shah Watali (supra), this Court considered the parameters for exercise of the power under Section 43 (5) D, held as follows:23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is prima facie true. By its very nature, the expression prima facie true would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is prima facie true, as compared to the opinion of the accused not guilty of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act….11. While considering the grant of bail under Section 43 (5) D, it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. We have gone through the material on record and are satisfied that the Appellant is entitled for bail and that the Special Court and High Court erred in not granting bail to the Appellant for the following reasons:(A) A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy / extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the area of operation of the organization. It is alleged in the second supplementary chargesheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization.(B) Another factor taken into account by the Special Court and the High Court relates to the allegation of the Appellant meeting the members of the terror organization. It has been held by the High Court that the Appellant has been in constant touch with the other accused. The Appellant has revealed in his statement recorded under Section 164 Cr.PC that he was summoned to meet A-14 and the other members of the organization in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the Appellant met the members of the organization.(C) An amount of Rs. 9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand only) was seized from the house of the Appellant which was accounted for by the Appellant who stated that the amount was withdrawn from the bank to pay salaries to his employees and other expenses. We do not agree with the prosecution that the amount is terror fund. At this stage, it cannot be said that the amount seized from the Appellant is proceeds from terrorist activity. There is no allegation that Appellant was receiving any money. On the other hand, the Appellant is accused of providing money to the members of TPC.12. After a detailed examination of the contentions of the parties and scrutiny of the material on record, we are not satisfied that a prima facie case has been made out against the Appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the Appellant and the trial court shall not be influenced by these observations during trial. | 1 | 2,361 | 1,152 | ### 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:
accused of providing funds to a terrorist organization. According to the prosecution, he has entered into a conspiracy with the other members of the organization to strengthen and promote the activities of the organization. Further, an amount of Rs. 9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand only) was seized from the Appellants house, making him liable for punishable under Section 21 of the Act. 10. In National Investigation Agency v. Zahoor Ahmad Shah Watali (supra), this Court considered the parameters for exercise of the power under Section 43 (5) D, held as follows: 23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is prima facie true. By its very nature, the expression prima facie true would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is prima facie true, as compared to the opinion of the accused not guilty of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act…. 11. While considering the grant of bail under Section 43 (5) D, it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. We have gone through the material on record and are satisfied that the Appellant is entitled for bail and that the Special Court and High Court erred in not granting bail to the Appellant for the following reasons: (A) A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy / extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the area of operation of the organization. It is alleged in the second supplementary chargesheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization. (B) Another factor taken into account by the Special Court and the High Court relates to the allegation of the Appellant meeting the members of the terror organization. It has been held by the High Court that the Appellant has been in constant touch with the other accused. The Appellant has revealed in his statement recorded under Section 164 Cr.PC that he was summoned to meet A-14 and the other members of the organization in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the Appellant met the members of the organization. (C) An amount of Rs. 9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand only) was seized from the house of the Appellant which was accounted for by the Appellant who stated that the amount was withdrawn from the bank to pay salaries to his employees and other expenses. We do not agree with the prosecution that the amount is terror fund. At this stage, it cannot be said that the amount seized from the Appellant is proceeds from terrorist activity. There is no allegation that Appellant was receiving any money. On the other hand, the Appellant is accused of providing money to the members of TPC. 12. After a detailed examination of the contentions of the parties and scrutiny of the material on record, we are not satisfied that a prima facie case has been made out against the Appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the Appellant and the trial court shall not be influenced by these observations during trial.
### Response:
1
### Explanation:
the UA (P) Act. The Appellant is accused of providing funds to a terrorist organization. According to the prosecution, he has entered into a conspiracy with the other members of the organization to strengthen and promote the activities of the organization. Further, an amount of Rs. 9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand only) was seized from the Appellants house, making him liable for punishable under Section 21 of the Act.10. In National Investigation Agency v. Zahoor Ahmad Shah Watali (supra), this Court considered the parameters for exercise of the power under Section 43 (5) D, held as follows:23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is prima facie true. By its very nature, the expression prima facie true would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is prima facie true, as compared to the opinion of the accused not guilty of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act….11. While considering the grant of bail under Section 43 (5) D, it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. We have gone through the material on record and are satisfied that the Appellant is entitled for bail and that the Special Court and High Court erred in not granting bail to the Appellant for the following reasons:(A) A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy / extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the area of operation of the organization. It is alleged in the second supplementary chargesheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization.(B) Another factor taken into account by the Special Court and the High Court relates to the allegation of the Appellant meeting the members of the terror organization. It has been held by the High Court that the Appellant has been in constant touch with the other accused. The Appellant has revealed in his statement recorded under Section 164 Cr.PC that he was summoned to meet A-14 and the other members of the organization in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the Appellant met the members of the organization.(C) An amount of Rs. 9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand only) was seized from the house of the Appellant which was accounted for by the Appellant who stated that the amount was withdrawn from the bank to pay salaries to his employees and other expenses. We do not agree with the prosecution that the amount is terror fund. At this stage, it cannot be said that the amount seized from the Appellant is proceeds from terrorist activity. There is no allegation that Appellant was receiving any money. On the other hand, the Appellant is accused of providing money to the members of TPC.12. After a detailed examination of the contentions of the parties and scrutiny of the material on record, we are not satisfied that a prima facie case has been made out against the Appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the Appellant and the trial court shall not be influenced by these observations during trial.
|
Commodore B.Y. Wad Vs. Rallis India Limited | they were not interested in the flat or in retaining possession thereof nor were they liable to pay compensation from 1st January 1975..." (7) Similar averments were made by the 1st respondent in the written statement filed by them in the 2nd respondents suit. Thus the 1st respondent was admitting that they were no longer interested in the flat or in retaining possession of the flat.(8) Both the suits were tried together. The trial court held that the 2nd respondent had failed to prove any relationship of landlord and tenant between him and the appellant. In view of this finding and in view of the admission, in the written statement, by the 1st respondent-company a decree for eviction should have been passed. Instead by a common judgment the trial court proceeded to dismiss both the suits.(9) The appellant and 2nd respondent filed appeals against this judgment. In this appeal the appellant sought to amend the plaint by taking a plea that a decree should be passed in their favour in view of the admission made by the 1st respondent in the written statement. That amendment application was rejected by order dated 19-4-1995. Thereafter, by two separate judgments dated 22-12-1995 both the appeals were dismissed. As against this dismissal both parties filed writ petitions before the High Court. The writ petition filed by the appellant challenged not only the order dated 22-12-1995 but also the order dated 19-4-1995. The High Court has, by the impugned judgment, dismissed both the writ petitions. While dismissing the writ petitions the High Court confirmed the finding of the lower courts that the 2nd respondent had failed to make out a case that he was a tenant of the appellant. The High Court still dismissed the writ petition of the appellant on the ground that the 2nd respondent was a trespasser and therefore the remedy of the appellant was to file a suit in a civil court. The High Court held that the small causes court would not have the jurisdiction to entertain such a suit. (10) In our view, the law is well settled by authorities of this Court. In the case of Srinivas Ram Kumar v. Mahabir Prasad and Ors., it has been held that even though the plaintiff may not have claimed relief on a particular ground or may have claimed relief on a different ground, if in the written statement a case is set up by the defendant then on the basis of such written statement a decree can be granted to the plaintiff. This principle has been affirmed by this Court in the case of JJ Lal Pvt. Ltd. and Ors. v. MR. Murali and Anr. wherein it has been categorically laid down as follows: "...To sum up, the gist of holding in Firm Srinivas Ram Kumar case [AIR 1951 SC 177 ] is: If the facts stated and pleading raised in the written statement, though by way of defence to the case of the plaintiff, are such which could have entitled the plaintiff to a relief in the alternative, the plaintiff may rely on such pleading of the defendant and claim an alternate decree based thereon subject to four conditions being satisfied viz. (i) the statement of case by the defendant in his written statement amounts to an express admission of the facts entitling the plaintiff to an alternative relief, (ii) in granting such relief the defendant is not taken by surprise, (iii) no injustice can possibly result to the defendant, and (iv) though the plaintiff would have been entitled to the same relief in a separate suit the interests of justice demand that the plaintiff not being driven to the need of filing another suit.." (11) ln the case of South Asia Industries Pvt. Ltd. v. S. Sarup Singh and Ors., it has been held that in a suit for ejectment of a tenant, a decree for ejection can be passed even against other persons who are in possession. In the case of M/s Importers and Manufacturers Ltd. v. Pheroze Framroze Taraporewala and Ors., it has been held that a sub-tenant may not be a necessary party but he is proper party in a suit for ejectment of a tenant. It has been held that merely because a sub-tenant has been joined the nature of the suit does not get altered. It must be mentioned that the Act prohibits subletting without consent of the landlord. Thus a sub-tenant would be in the same position as a trespasser. This position is reiterated in Thakker Keshavalal Mohanlal v. Parekh Amrutlal Harilal and Ors., wherein it is held that there is no substance in the contention that the rent court had no jurisdiction to entertain a suit merely because a person who was not the tenant has been made a party to the suit. (12) Thus the law is clear. On the basis of the admission, by the 1st respondent- company that they were no longer interested in the said flat and were not interested in retaining possession of the said flat a decree could and should have been passed. To be remembered that all courts have held that the 2nd respondent was not a tenant of the appellant. It was held that 2nd respondent was merely a trespasser, the appellant was entitled to a decree for eviction even against the 2nd respondent. Merely because the 2nd respondent was a party to the eviction suit did not alter the nature of the suit. The suit remained an eviction suit between a landlord, viz, the appellant and a tenant, viz, the 1st respondent. In the suit the 2nd respondent was a proper party. The courts below were therefore wrong in dismissing the appellants suit. The High Court was wrong in not entertaining the writ petition of the appellant.(13) We see no substance in civil appeal no. 595 of 2000. We agree with the concurrent finding of fact that the 2nd respondent has failed to prove that he was the tenant of the appellant. | 0[ds](10) In our view, the law is well settled by authorities of this Court. In the case of Srinivas Ram Kumar v. Mahabir Prasad and Ors., it has been held that even though the plaintiff may not have claimed relief on a particular ground or may have claimed relief on a different ground, if in the written statement a case is set up by the defendant then on the basis of such written statement a decree can be granted to theThus the law is clear. On the basis of the admission, by the 1st respondentcompany that they were no longer interested in the said flat and were not interested in retaining possession of the said flat a decree could and should have been passed. To be remembered that all courts have held that the 2nd respondent was not a tenant of the appellant. It was held that 2nd respondent was merely a trespasser, the appellant was entitled to a decree for eviction even against the 2nd respondent. Merely because the 2nd respondent was a party to the eviction suit did not alter the nature of the suit. The suit remained an eviction suit between a landlord, viz, the appellant and a tenant, viz, the 1st respondent. In the suit the 2nd respondent was a proper party. The courts below were therefore wrong in dismissing the appellants suit. The High Court was wrong in not entertaining the writ petition of the appellant.(13) We see no substance in civil appeal no. 595 of 2000. We agree with the concurrent finding of fact that the 2nd respondent has failed to prove that he was the tenant of the appellant. | 0 | 1,988 | 307 | ### 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:
they were not interested in the flat or in retaining possession thereof nor were they liable to pay compensation from 1st January 1975..." (7) Similar averments were made by the 1st respondent in the written statement filed by them in the 2nd respondents suit. Thus the 1st respondent was admitting that they were no longer interested in the flat or in retaining possession of the flat.(8) Both the suits were tried together. The trial court held that the 2nd respondent had failed to prove any relationship of landlord and tenant between him and the appellant. In view of this finding and in view of the admission, in the written statement, by the 1st respondent-company a decree for eviction should have been passed. Instead by a common judgment the trial court proceeded to dismiss both the suits.(9) The appellant and 2nd respondent filed appeals against this judgment. In this appeal the appellant sought to amend the plaint by taking a plea that a decree should be passed in their favour in view of the admission made by the 1st respondent in the written statement. That amendment application was rejected by order dated 19-4-1995. Thereafter, by two separate judgments dated 22-12-1995 both the appeals were dismissed. As against this dismissal both parties filed writ petitions before the High Court. The writ petition filed by the appellant challenged not only the order dated 22-12-1995 but also the order dated 19-4-1995. The High Court has, by the impugned judgment, dismissed both the writ petitions. While dismissing the writ petitions the High Court confirmed the finding of the lower courts that the 2nd respondent had failed to make out a case that he was a tenant of the appellant. The High Court still dismissed the writ petition of the appellant on the ground that the 2nd respondent was a trespasser and therefore the remedy of the appellant was to file a suit in a civil court. The High Court held that the small causes court would not have the jurisdiction to entertain such a suit. (10) In our view, the law is well settled by authorities of this Court. In the case of Srinivas Ram Kumar v. Mahabir Prasad and Ors., it has been held that even though the plaintiff may not have claimed relief on a particular ground or may have claimed relief on a different ground, if in the written statement a case is set up by the defendant then on the basis of such written statement a decree can be granted to the plaintiff. This principle has been affirmed by this Court in the case of JJ Lal Pvt. Ltd. and Ors. v. MR. Murali and Anr. wherein it has been categorically laid down as follows: "...To sum up, the gist of holding in Firm Srinivas Ram Kumar case [AIR 1951 SC 177 ] is: If the facts stated and pleading raised in the written statement, though by way of defence to the case of the plaintiff, are such which could have entitled the plaintiff to a relief in the alternative, the plaintiff may rely on such pleading of the defendant and claim an alternate decree based thereon subject to four conditions being satisfied viz. (i) the statement of case by the defendant in his written statement amounts to an express admission of the facts entitling the plaintiff to an alternative relief, (ii) in granting such relief the defendant is not taken by surprise, (iii) no injustice can possibly result to the defendant, and (iv) though the plaintiff would have been entitled to the same relief in a separate suit the interests of justice demand that the plaintiff not being driven to the need of filing another suit.." (11) ln the case of South Asia Industries Pvt. Ltd. v. S. Sarup Singh and Ors., it has been held that in a suit for ejectment of a tenant, a decree for ejection can be passed even against other persons who are in possession. In the case of M/s Importers and Manufacturers Ltd. v. Pheroze Framroze Taraporewala and Ors., it has been held that a sub-tenant may not be a necessary party but he is proper party in a suit for ejectment of a tenant. It has been held that merely because a sub-tenant has been joined the nature of the suit does not get altered. It must be mentioned that the Act prohibits subletting without consent of the landlord. Thus a sub-tenant would be in the same position as a trespasser. This position is reiterated in Thakker Keshavalal Mohanlal v. Parekh Amrutlal Harilal and Ors., wherein it is held that there is no substance in the contention that the rent court had no jurisdiction to entertain a suit merely because a person who was not the tenant has been made a party to the suit. (12) Thus the law is clear. On the basis of the admission, by the 1st respondent- company that they were no longer interested in the said flat and were not interested in retaining possession of the said flat a decree could and should have been passed. To be remembered that all courts have held that the 2nd respondent was not a tenant of the appellant. It was held that 2nd respondent was merely a trespasser, the appellant was entitled to a decree for eviction even against the 2nd respondent. Merely because the 2nd respondent was a party to the eviction suit did not alter the nature of the suit. The suit remained an eviction suit between a landlord, viz, the appellant and a tenant, viz, the 1st respondent. In the suit the 2nd respondent was a proper party. The courts below were therefore wrong in dismissing the appellants suit. The High Court was wrong in not entertaining the writ petition of the appellant.(13) We see no substance in civil appeal no. 595 of 2000. We agree with the concurrent finding of fact that the 2nd respondent has failed to prove that he was the tenant of the appellant.
### Response:
0
### Explanation:
(10) In our view, the law is well settled by authorities of this Court. In the case of Srinivas Ram Kumar v. Mahabir Prasad and Ors., it has been held that even though the plaintiff may not have claimed relief on a particular ground or may have claimed relief on a different ground, if in the written statement a case is set up by the defendant then on the basis of such written statement a decree can be granted to theThus the law is clear. On the basis of the admission, by the 1st respondentcompany that they were no longer interested in the said flat and were not interested in retaining possession of the said flat a decree could and should have been passed. To be remembered that all courts have held that the 2nd respondent was not a tenant of the appellant. It was held that 2nd respondent was merely a trespasser, the appellant was entitled to a decree for eviction even against the 2nd respondent. Merely because the 2nd respondent was a party to the eviction suit did not alter the nature of the suit. The suit remained an eviction suit between a landlord, viz, the appellant and a tenant, viz, the 1st respondent. In the suit the 2nd respondent was a proper party. The courts below were therefore wrong in dismissing the appellants suit. The High Court was wrong in not entertaining the writ petition of the appellant.(13) We see no substance in civil appeal no. 595 of 2000. We agree with the concurrent finding of fact that the 2nd respondent has failed to prove that he was the tenant of the appellant.
|
Ugamsingh & Mishrimal Vs. Kesrimal & Ors, | Temple or of the idol. We have earlier indicated the plaint averments in which there is no mention of the ownership of the Temple or the idol but that paragraphs 2 and 3 of the plaint merely gave a description of the Temple and the idol when it is averred that the idol was constructed and consecrated according to and by the followers of the Digamberi Sect and that the Plaintiffus and the other followers of the Digamberi sect have been performing Darshan, Prakshal and Poojan of the said deity in the said Temple for a considerable number of years past and really ever since the Temple was founded. There is therefore, force in the contention of Shri Gupte, learned Advocate for the Respondents that having regard to the concurrent findings of the Courts below that the idol was Nirakar (nacked) that there were no Chakshus, no Mukat, no Armlet, no Dhwajadand or no Kalash, would show that the idol was consecrated by the Digamberies. It was also held as had already been noticed that though it is not possible to say when the Temple was constructed and the idol consecrated it was an ancient Temple and that both the Digamberies and the Swetamberies worship the idol. It is not denied that while the Digamberies will not worship an idol which has Chakshus or which has clothes or Mukat, the Swetamberies would worship a Digamberi idol without these and hence the right to workship a Digamberi idol by both the sects is possible and indeed has been so held by all the Courts. Even the Defendants witnesses substantiate these finding. We would refer to only two of these witnesses. Shri Suwa Lal D. W. 4 even though he says that the Temple belonged to the Oswals in which he and his father has been performing Sewa for the last 30 or 35 years on behalf of the Oswals (Swetamberies) admitted that since he attained the age of discretion and upto the time of giving evidence he had never seen Adinathji wearing clothes, never saw the idol with eyes and had never seen Dhwajadand or Kalash on the Temple and does not know whether the idol belongs to Oswals or Saravagis (Digamberies). D. W. 3 Shri Pokhar a barber of Oswals also supports this witness, that the Digamberies had a right to worship is also borne out by Ex. 1 dated 23-12-49 which was a compromise entered into between Swetamberies and Digamberies at the time when the Swetamberies attempted to put Chakshus in the idol. No doubt this was an interim arrangement till the decision of a Civil Court adjudicating the respective rights, but there was never any question of either Sect not having the right to worship the idol by both the Sects. The dispute had arisen only as to whether Swetamberies can fix Chakshus in the idol. Exh. 1 states as follows:"We Panchas give this award that a dispute had arisen between the Swetamberies and Digamberies as Swetamberies recently fixed eyes on the idol. This new thing should not continue. These eyes should be removed. Digamberies have a right to perform Poojan so they can mark saffron Tiki and have Darshan and come back. Digamberies will not perform Prakshal, Poojan, Swetamberies will continue incurring expenses as usual. The idol shall remain nacked (Niraker)". The representatives of both Sects have signed this award, as a temporary measure agreeable to both the Sects, who indicated that they would press their rights in a Civil Court. Once the right of worship of the Digamberies is established there is little doubt that they are entitled to the injunction sought for by them against the Defendants Appellants from preventing them from worshipping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple. In view of these findings the further question that when once it has been found that the Swetamberies have the right of management and possession of the Temple there is a presumption of ownership under Section l10 of the Evidence Act does not arise nor is it relevant. It is no doubt contended by the Respondents Advocate that when consecration of an idol takes place the ownership of the Temple is in the idol and therefore, the question of presumption under Section l10 does not arise. It is again contended by Shri Desai that the moment it is held that it is not possible to come to a conclusion as to which Sect the idol belongs, as has been held by the Court below, the Respondents cannot be allowed to object to the Appellants worshipping the idol according to their tenets. This contention, however, in our view, ignores the rights of the Digamberies to worship in accordance with their tenets. If the contention of the learned Advocate for the Appellants is accepted it will be tantamount to holding that Digamberies have no right to worship as there would be denominal (denominational - Ed.) change in the idol if the Swetamberies are held to have the right to worship it according to their tenets by placing Chakshus in the idol or by errecting their Dhwajadand or Kalash over the Temple. 19. Lastly it is urged that the High Court ought not to have entertained the cross objection by extending the time for worship from 1 hour to 3 hours. In our view the directions of the High Court are not unreasonable nor do they in any way affect the right of the Respondents to worship because the directions clearly enable the Swetamberies who wish to worship the deity within that period without disturbing the Digamberies to be at liberty to do so and likewise it will be open to Digamberies to go and worship in the temple during the period it is kept open. In view of the acute controversy between these 2 Sects and their reluctance to arrive at an amicable settlement the directions given by the High Court are manifestly reasonable just and proper. | 0[ds]It is clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier disputes which are in respect of rituals or ceremonies alone cannot be adjudicated by Civil Courts if they are not essentially connected with Civil rights of an individual or a sect on behalf of whom a suit is filed. In our view the contention of the learned Advocate for the Appellant to the maintainability of the suit is not well foundedThe Judgment in our view is not based solely on the result of personal inspection made by the Trial Judge, which inspection was for the purposes of understanding the evidence in the case and has been so used by the Trial Judge. We must, therefore, reject the contention of the learned Advocate for the Appellants that the finding in respect of the idol is vitiated. In this view it is not necessary to deal with any of the decisions referred to before usThe representatives of both Sects have signed this award, as a temporary measure agreeable to both the Sects, who indicated that they would press their rights in a Civil Court. Once the right of worship of the Digamberies is established there is little doubt that they are entitled to the injunction sought for by them against the Defendants Appellants from preventing them from worshipping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple. In view of these findings the further question that when once it has been found that the Swetamberies have the right of management and possession of the Temple there is a presumption of ownership under Section l10 of the Evidence Act does not arise nor is it relevant. It is no doubt contended by the Respondents Advocate that when consecration of an idol takes place the ownership of the Temple is in the idol and therefore, the question of presumption under Section l10 does not arise. It is again contended by Shri Desai that the moment it is held that it is not possible to come to a conclusion as to which Sect the idol belongs, as has been held by the Court below, the Respondents cannot be allowed to object to the Appellants worshipping the idol according to their tenets. This contention, however, in our view, ignores the rights of the Digamberies to worship in accordance with their tenets. If the contention of the learned Advocate for the Appellants is accepted it will be tantamount to holding that Digamberies have no right to worship as there would be denominal (denominational - Ed.) change in the idol if the Swetamberies are held to have the right to worship it according to their tenets by placing Chakshus in the idol or by errecting their Dhwajadand or Kalash over the Temple19. Lastly it is urged that the High Court ought not to have entertained the cross objection by extending the time for worship from 1 hour to 3 hours. In our view the directions of the High Court are not unreasonable nor do they in any way affect the right of the Respondents to worship because the directions clearly enable the Swetamberies who wish to worship the deity within that period without disturbing the Digamberies to be at liberty to do so and likewise it will be open to Digamberies to go and worship in the temple during the period it is kept open. In view of the acute controversy between these 2 Sects and their reluctance to arrive at an amicable settlement the directions given by the High Court are manifestly reasonable just and proper. | 0 | 5,325 | 650 | ### 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:
Temple or of the idol. We have earlier indicated the plaint averments in which there is no mention of the ownership of the Temple or the idol but that paragraphs 2 and 3 of the plaint merely gave a description of the Temple and the idol when it is averred that the idol was constructed and consecrated according to and by the followers of the Digamberi Sect and that the Plaintiffus and the other followers of the Digamberi sect have been performing Darshan, Prakshal and Poojan of the said deity in the said Temple for a considerable number of years past and really ever since the Temple was founded. There is therefore, force in the contention of Shri Gupte, learned Advocate for the Respondents that having regard to the concurrent findings of the Courts below that the idol was Nirakar (nacked) that there were no Chakshus, no Mukat, no Armlet, no Dhwajadand or no Kalash, would show that the idol was consecrated by the Digamberies. It was also held as had already been noticed that though it is not possible to say when the Temple was constructed and the idol consecrated it was an ancient Temple and that both the Digamberies and the Swetamberies worship the idol. It is not denied that while the Digamberies will not worship an idol which has Chakshus or which has clothes or Mukat, the Swetamberies would worship a Digamberi idol without these and hence the right to workship a Digamberi idol by both the sects is possible and indeed has been so held by all the Courts. Even the Defendants witnesses substantiate these finding. We would refer to only two of these witnesses. Shri Suwa Lal D. W. 4 even though he says that the Temple belonged to the Oswals in which he and his father has been performing Sewa for the last 30 or 35 years on behalf of the Oswals (Swetamberies) admitted that since he attained the age of discretion and upto the time of giving evidence he had never seen Adinathji wearing clothes, never saw the idol with eyes and had never seen Dhwajadand or Kalash on the Temple and does not know whether the idol belongs to Oswals or Saravagis (Digamberies). D. W. 3 Shri Pokhar a barber of Oswals also supports this witness, that the Digamberies had a right to worship is also borne out by Ex. 1 dated 23-12-49 which was a compromise entered into between Swetamberies and Digamberies at the time when the Swetamberies attempted to put Chakshus in the idol. No doubt this was an interim arrangement till the decision of a Civil Court adjudicating the respective rights, but there was never any question of either Sect not having the right to worship the idol by both the Sects. The dispute had arisen only as to whether Swetamberies can fix Chakshus in the idol. Exh. 1 states as follows:"We Panchas give this award that a dispute had arisen between the Swetamberies and Digamberies as Swetamberies recently fixed eyes on the idol. This new thing should not continue. These eyes should be removed. Digamberies have a right to perform Poojan so they can mark saffron Tiki and have Darshan and come back. Digamberies will not perform Prakshal, Poojan, Swetamberies will continue incurring expenses as usual. The idol shall remain nacked (Niraker)". The representatives of both Sects have signed this award, as a temporary measure agreeable to both the Sects, who indicated that they would press their rights in a Civil Court. Once the right of worship of the Digamberies is established there is little doubt that they are entitled to the injunction sought for by them against the Defendants Appellants from preventing them from worshipping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple. In view of these findings the further question that when once it has been found that the Swetamberies have the right of management and possession of the Temple there is a presumption of ownership under Section l10 of the Evidence Act does not arise nor is it relevant. It is no doubt contended by the Respondents Advocate that when consecration of an idol takes place the ownership of the Temple is in the idol and therefore, the question of presumption under Section l10 does not arise. It is again contended by Shri Desai that the moment it is held that it is not possible to come to a conclusion as to which Sect the idol belongs, as has been held by the Court below, the Respondents cannot be allowed to object to the Appellants worshipping the idol according to their tenets. This contention, however, in our view, ignores the rights of the Digamberies to worship in accordance with their tenets. If the contention of the learned Advocate for the Appellants is accepted it will be tantamount to holding that Digamberies have no right to worship as there would be denominal (denominational - Ed.) change in the idol if the Swetamberies are held to have the right to worship it according to their tenets by placing Chakshus in the idol or by errecting their Dhwajadand or Kalash over the Temple. 19. Lastly it is urged that the High Court ought not to have entertained the cross objection by extending the time for worship from 1 hour to 3 hours. In our view the directions of the High Court are not unreasonable nor do they in any way affect the right of the Respondents to worship because the directions clearly enable the Swetamberies who wish to worship the deity within that period without disturbing the Digamberies to be at liberty to do so and likewise it will be open to Digamberies to go and worship in the temple during the period it is kept open. In view of the acute controversy between these 2 Sects and their reluctance to arrive at an amicable settlement the directions given by the High Court are manifestly reasonable just and proper.
### Response:
0
### Explanation:
It is clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier disputes which are in respect of rituals or ceremonies alone cannot be adjudicated by Civil Courts if they are not essentially connected with Civil rights of an individual or a sect on behalf of whom a suit is filed. In our view the contention of the learned Advocate for the Appellant to the maintainability of the suit is not well foundedThe Judgment in our view is not based solely on the result of personal inspection made by the Trial Judge, which inspection was for the purposes of understanding the evidence in the case and has been so used by the Trial Judge. We must, therefore, reject the contention of the learned Advocate for the Appellants that the finding in respect of the idol is vitiated. In this view it is not necessary to deal with any of the decisions referred to before usThe representatives of both Sects have signed this award, as a temporary measure agreeable to both the Sects, who indicated that they would press their rights in a Civil Court. Once the right of worship of the Digamberies is established there is little doubt that they are entitled to the injunction sought for by them against the Defendants Appellants from preventing them from worshipping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple. In view of these findings the further question that when once it has been found that the Swetamberies have the right of management and possession of the Temple there is a presumption of ownership under Section l10 of the Evidence Act does not arise nor is it relevant. It is no doubt contended by the Respondents Advocate that when consecration of an idol takes place the ownership of the Temple is in the idol and therefore, the question of presumption under Section l10 does not arise. It is again contended by Shri Desai that the moment it is held that it is not possible to come to a conclusion as to which Sect the idol belongs, as has been held by the Court below, the Respondents cannot be allowed to object to the Appellants worshipping the idol according to their tenets. This contention, however, in our view, ignores the rights of the Digamberies to worship in accordance with their tenets. If the contention of the learned Advocate for the Appellants is accepted it will be tantamount to holding that Digamberies have no right to worship as there would be denominal (denominational - Ed.) change in the idol if the Swetamberies are held to have the right to worship it according to their tenets by placing Chakshus in the idol or by errecting their Dhwajadand or Kalash over the Temple19. Lastly it is urged that the High Court ought not to have entertained the cross objection by extending the time for worship from 1 hour to 3 hours. In our view the directions of the High Court are not unreasonable nor do they in any way affect the right of the Respondents to worship because the directions clearly enable the Swetamberies who wish to worship the deity within that period without disturbing the Digamberies to be at liberty to do so and likewise it will be open to Digamberies to go and worship in the temple during the period it is kept open. In view of the acute controversy between these 2 Sects and their reluctance to arrive at an amicable settlement the directions given by the High Court are manifestly reasonable just and proper.
|
PARSA KENTA COLLIERIES LTD Vs. RAJASTHAN RAJYA VIDYUT UTPADAN NIGAM LTD | purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and therefore zero year for the purpose of price escalation has to be 2011-12. Accordingly, the learned arbitrator considered the escalated price in F.Y. 2013¬14 at Rs.895/- per MT. However, according to the respondent, as the date of commencement was changed from 25.06.2011 to 25.03.2013, the zero year for the purpose of price escalation would be 2013-14. It is required to be noted that it is not in dispute that price escalation is permissible under the contract/agreement itself and there shall be price escalation every year as per the formulae mentioned in the agreement, commencing from the date of commencement. However, it is true that the initial date of commencement, i.e.,25.06.2011 came to be extended to 25.03.2013 by mutual agreement. However, the same was due to force majeure as there was a delay of 21 months in obtaining the forest clearance and environmental clearance. The price was quoted in the year 2007¬ 08, applicable from 2011. However, there was a delay in obtaining the forest clearance and environmental clearance and therefore the date of commencement of supply came to be changed. In between there would be hike in labour charges, transportation charges, etc. Though the date of commencement of supply was extended, there was no corresponding amendment in the relevant clauses of the agreement with respect to price escalation. There was no specific agreement that in the year 2013, the appellant would supply the coal at the same price, without any price escalation. Therefore, considering the overall facts and circumstances of the case and by giving cogent reasons, the learned arbitrator interpreted the relevant clauses of the contract and specifically held that the date of commencement of the first operating year for the purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and accordingly the zero year for the purpose of price escalation would be 2011¬12 and therefore the appellant shall be entitled to the enhanced amount as is applicable in the year 2013-14 (the price escalation). Having considered the reasoning given by the learned arbitrator, we are of the opinion that the interpretation by the learned arbitrator was both possible as well as plausible. Therefore, merely because some other view could have been taken, the High Court is not justified in interfering with the interpretation made by the arbitrator which as observed was possible and plausible. Therefore, in the facts and circumstances of the case, we are of the opinion that the High Court has clearly exceeded in its jurisdiction in interfering with the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation. At this stage, it is required to be noted that though the High Court has observed that the award passed by the learned arbitrator with respect to claim no.1 was against the public policy, with respect, we do not see any element of public policy. It was pure and simple case of interpretation of the relevant clauses of the agreement which does not involve any public policy. Therefore, we are of the opinion that the impugned judgment and order passed by the High Court for quashing and setting aside the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation cannot be sustained and the same deserves to be quashed and set aside.11.2 Now so far as claim no.2 – ?fixed costs? and an amount of Rs.78 crores awarded by the learned arbitrator with respect to compensation of loss is concerned, having gone through the relevant material on record, we are of the opinion that the High Court has rightly set aside the award passed by the learned arbitrator with respect to claim no.2. Except the CA?s certificate, no further evidence had been led with respect to actual loss. Considering the material on record, it is on the contrary found that in the relevant year the quantity of the coal lifted by the respondent was much above the fixed quantity. Thus, the award passed by the learned arbitrator with respect to claim no.2 was contrary to the evidence on record and therefore is rightly set aside by the High Court.11.3 Similarly, even with respect to claim no.3 – ?Escrow Account? is concerned, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3. It is required to be noted that the escrow account was required to be opened as per the guidelines issued by the Ministry of Coal, Government of India for the preparation of mine closure plant. The guidelines required, inter alia, the mining company to open an escrow account with any schedule bank. Accordingly, the respondent opened an escrow account and executed an escrow agreement. From the correspondence between the parties, it appears that even the appellant consented for opening the escrow account. The appellant also agreed that the amount to be deposited in the escrow account will be recovered by the respondent from immediate next payment of the coal bills of the joint venture company – PKCL raised towards dispatches of coal from appellant?s coal blocks. Thus, thereafter it was not open for the appellant to claim the amount lying in the escrow account. If the amount lying in the escrow account is returned to the appellant, the purpose and object of opening the escrow account which was as per the guidelines of the Ministry of Coal would be frustrated. The object and purpose of opening the escrow account was to see that the appellant company fulfils the contract as per the agreement and till the closure of the coal blocks. Therefore, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3 – escrow account by observing that the reasoning is perverse or so irrational that no reasonable person could have arrived at on the material/evidence on record. We are in complete agreement with the view taken by the learned Division Bench of the High Court. | 1[ds]8. At the outset, it is required to be noted that by the impugned judgment and order, the Division Bench of the High Court in exercise of its powers under Section 37 of the Arbitration Act has set aside the award passed by the learned Arbitrator, confirmed by the learned Commercial Court.For convenience, we shall deal with the impugned judgment and order passed by the High Court claim¬wise. The first claim is with respect to ?price adjustment/escalation?; the second claim is with respect to ?fixed costs? and the third claim is with respect to ?escrow account?.11.1 Now so far as the claim with respect to ?price adjustment/escalation? is concerned, the learned arbitrator held that the date of commencement of the first operating year for the purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and therefore zero year for the purpose of price escalation has to be 2011-12. Accordingly, the learned arbitrator considered the escalated price in F.Y. 2013¬14 at Rs.895/- per MT. However, according to the respondent, as the date of commencement was changed from 25.06.2011 to 25.03.2013, the zero year for the purpose of price escalation would be 2013-14. It is required to be noted that it is not in dispute that price escalation is permissible under the contract/agreement itself and there shall be price escalation every year as per the formulae mentioned in the agreement, commencing from the date of commencement. However, it is true that the initial date of commencement, i.e.,25.06.2011 came to be extended to 25.03.2013 by mutual agreement. However, the same was due to force majeure as there was a delay of 21 months in obtaining the forest clearance and environmental clearance. The price was quoted in the year 2007¬ 08, applicable from 2011. However, there was a delay in obtaining the forest clearance and environmental clearance and therefore the date of commencement of supply came to be changed. In between there would be hike in labour charges, transportation charges, etc. Though the date of commencement of supply was extended, there was no corresponding amendment in the relevant clauses of the agreement with respect to price escalation. There was no specific agreement that in the year 2013, the appellant would supply the coal at the same price, without any price escalation. Therefore, considering the overall facts and circumstances of the case and by giving cogent reasons, the learned arbitrator interpreted the relevant clauses of the contract and specifically held that the date of commencement of the first operating year for the purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and accordingly the zero year for the purpose of price escalation would be 2011¬12 and therefore the appellant shall be entitled to the enhanced amount as is applicable in the year 2013-14 (the price escalation). Having considered the reasoning given by the learned arbitrator, we are of the opinion that the interpretation by the learned arbitrator was both possible as well as plausible. Therefore, merely because some other view could have been taken, the High Court is not justified in interfering with the interpretation made by the arbitrator which as observed was possible and plausible. Therefore, in the facts and circumstances of the case, we are of the opinion that the High Court has clearly exceeded in its jurisdiction in interfering with the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation. At this stage, it is required to be noted that though the High Court has observed that the award passed by the learned arbitrator with respect to claim no.1 was against the public policy, with respect, we do not see any element of public policy. It was pure and simple case of interpretation of the relevant clauses of the agreement which does not involve any public policy. Therefore, we are of the opinion that the impugned judgment and order passed by the High Court for quashing and setting aside the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation cannot be sustained and the same deserves to be quashed and set aside.11.2 Now so far as claim no.2 – ?fixed costs? and an amount of Rs.78 crores awarded by the learned arbitrator with respect to compensation of loss is concerned, having gone through the relevant material on record, we are of the opinion that the High Court has rightly set aside the award passed by the learned arbitrator with respect to claim no.2. Except the CA?s certificate, no further evidence had been led with respect to actual loss. Considering the material on record, it is on the contrary found that in the relevant year the quantity of the coal lifted by the respondent was much above the fixed quantity. Thus, the award passed by the learned arbitrator with respect to claim no.2 was contrary to the evidence on record and therefore is rightly set aside by the High Court.11.3 Similarly, even with respect to claim no.3 – ?Escrow Account? is concerned, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3. It is required to be noted that the escrow account was required to be opened as per the guidelines issued by the Ministry of Coal, Government of India for the preparation of mine closure plant. The guidelines required, inter alia, the mining company to open an escrow account with any schedule bank. Accordingly, the respondent opened an escrow account and executed an escrow agreement. From the correspondence between the parties, it appears that even the appellant consented for opening the escrow account. The appellant also agreed that the amount to be deposited in the escrow account will be recovered by the respondent from immediate next payment of the coal bills of the joint venture company – PKCL raised towards dispatches of coal from appellant?s coal blocks. Thus, thereafter it was not open for the appellant to claim the amount lying in the escrow account. If the amount lying in the escrow account is returned to the appellant, the purpose and object of opening the escrow account which was as per the guidelines of the Ministry of Coal would be frustrated. The object and purpose of opening the escrow account was to see that the appellant company fulfils the contract as per the agreement and till the closure of the coal blocks. Therefore, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3 – escrow account by observing that the reasoning is perverse or so irrational that no reasonable person could have arrived at on the material/evidence on record. We are in complete agreement with the view taken by the learned Division Bench of the High Court. | 1 | 5,406 | 1,230 | ### 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:
purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and therefore zero year for the purpose of price escalation has to be 2011-12. Accordingly, the learned arbitrator considered the escalated price in F.Y. 2013¬14 at Rs.895/- per MT. However, according to the respondent, as the date of commencement was changed from 25.06.2011 to 25.03.2013, the zero year for the purpose of price escalation would be 2013-14. It is required to be noted that it is not in dispute that price escalation is permissible under the contract/agreement itself and there shall be price escalation every year as per the formulae mentioned in the agreement, commencing from the date of commencement. However, it is true that the initial date of commencement, i.e.,25.06.2011 came to be extended to 25.03.2013 by mutual agreement. However, the same was due to force majeure as there was a delay of 21 months in obtaining the forest clearance and environmental clearance. The price was quoted in the year 2007¬ 08, applicable from 2011. However, there was a delay in obtaining the forest clearance and environmental clearance and therefore the date of commencement of supply came to be changed. In between there would be hike in labour charges, transportation charges, etc. Though the date of commencement of supply was extended, there was no corresponding amendment in the relevant clauses of the agreement with respect to price escalation. There was no specific agreement that in the year 2013, the appellant would supply the coal at the same price, without any price escalation. Therefore, considering the overall facts and circumstances of the case and by giving cogent reasons, the learned arbitrator interpreted the relevant clauses of the contract and specifically held that the date of commencement of the first operating year for the purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and accordingly the zero year for the purpose of price escalation would be 2011¬12 and therefore the appellant shall be entitled to the enhanced amount as is applicable in the year 2013-14 (the price escalation). Having considered the reasoning given by the learned arbitrator, we are of the opinion that the interpretation by the learned arbitrator was both possible as well as plausible. Therefore, merely because some other view could have been taken, the High Court is not justified in interfering with the interpretation made by the arbitrator which as observed was possible and plausible. Therefore, in the facts and circumstances of the case, we are of the opinion that the High Court has clearly exceeded in its jurisdiction in interfering with the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation. At this stage, it is required to be noted that though the High Court has observed that the award passed by the learned arbitrator with respect to claim no.1 was against the public policy, with respect, we do not see any element of public policy. It was pure and simple case of interpretation of the relevant clauses of the agreement which does not involve any public policy. Therefore, we are of the opinion that the impugned judgment and order passed by the High Court for quashing and setting aside the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation cannot be sustained and the same deserves to be quashed and set aside.11.2 Now so far as claim no.2 – ?fixed costs? and an amount of Rs.78 crores awarded by the learned arbitrator with respect to compensation of loss is concerned, having gone through the relevant material on record, we are of the opinion that the High Court has rightly set aside the award passed by the learned arbitrator with respect to claim no.2. Except the CA?s certificate, no further evidence had been led with respect to actual loss. Considering the material on record, it is on the contrary found that in the relevant year the quantity of the coal lifted by the respondent was much above the fixed quantity. Thus, the award passed by the learned arbitrator with respect to claim no.2 was contrary to the evidence on record and therefore is rightly set aside by the High Court.11.3 Similarly, even with respect to claim no.3 – ?Escrow Account? is concerned, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3. It is required to be noted that the escrow account was required to be opened as per the guidelines issued by the Ministry of Coal, Government of India for the preparation of mine closure plant. The guidelines required, inter alia, the mining company to open an escrow account with any schedule bank. Accordingly, the respondent opened an escrow account and executed an escrow agreement. From the correspondence between the parties, it appears that even the appellant consented for opening the escrow account. The appellant also agreed that the amount to be deposited in the escrow account will be recovered by the respondent from immediate next payment of the coal bills of the joint venture company – PKCL raised towards dispatches of coal from appellant?s coal blocks. Thus, thereafter it was not open for the appellant to claim the amount lying in the escrow account. If the amount lying in the escrow account is returned to the appellant, the purpose and object of opening the escrow account which was as per the guidelines of the Ministry of Coal would be frustrated. The object and purpose of opening the escrow account was to see that the appellant company fulfils the contract as per the agreement and till the closure of the coal blocks. Therefore, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3 – escrow account by observing that the reasoning is perverse or so irrational that no reasonable person could have arrived at on the material/evidence on record. We are in complete agreement with the view taken by the learned Division Bench of the High Court.
### Response:
1
### Explanation:
purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and therefore zero year for the purpose of price escalation has to be 2011-12. Accordingly, the learned arbitrator considered the escalated price in F.Y. 2013¬14 at Rs.895/- per MT. However, according to the respondent, as the date of commencement was changed from 25.06.2011 to 25.03.2013, the zero year for the purpose of price escalation would be 2013-14. It is required to be noted that it is not in dispute that price escalation is permissible under the contract/agreement itself and there shall be price escalation every year as per the formulae mentioned in the agreement, commencing from the date of commencement. However, it is true that the initial date of commencement, i.e.,25.06.2011 came to be extended to 25.03.2013 by mutual agreement. However, the same was due to force majeure as there was a delay of 21 months in obtaining the forest clearance and environmental clearance. The price was quoted in the year 2007¬ 08, applicable from 2011. However, there was a delay in obtaining the forest clearance and environmental clearance and therefore the date of commencement of supply came to be changed. In between there would be hike in labour charges, transportation charges, etc. Though the date of commencement of supply was extended, there was no corresponding amendment in the relevant clauses of the agreement with respect to price escalation. There was no specific agreement that in the year 2013, the appellant would supply the coal at the same price, without any price escalation. Therefore, considering the overall facts and circumstances of the case and by giving cogent reasons, the learned arbitrator interpreted the relevant clauses of the contract and specifically held that the date of commencement of the first operating year for the purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and accordingly the zero year for the purpose of price escalation would be 2011¬12 and therefore the appellant shall be entitled to the enhanced amount as is applicable in the year 2013-14 (the price escalation). Having considered the reasoning given by the learned arbitrator, we are of the opinion that the interpretation by the learned arbitrator was both possible as well as plausible. Therefore, merely because some other view could have been taken, the High Court is not justified in interfering with the interpretation made by the arbitrator which as observed was possible and plausible. Therefore, in the facts and circumstances of the case, we are of the opinion that the High Court has clearly exceeded in its jurisdiction in interfering with the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation. At this stage, it is required to be noted that though the High Court has observed that the award passed by the learned arbitrator with respect to claim no.1 was against the public policy, with respect, we do not see any element of public policy. It was pure and simple case of interpretation of the relevant clauses of the agreement which does not involve any public policy. Therefore, we are of the opinion that the impugned judgment and order passed by the High Court for quashing and setting aside the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation cannot be sustained and the same deserves to be quashed and set aside.11.2 Now so far as claim no.2 – ?fixed costs? and an amount of Rs.78 crores awarded by the learned arbitrator with respect to compensation of loss is concerned, having gone through the relevant material on record, we are of the opinion that the High Court has rightly set aside the award passed by the learned arbitrator with respect to claim no.2. Except the CA?s certificate, no further evidence had been led with respect to actual loss. Considering the material on record, it is on the contrary found that in the relevant year the quantity of the coal lifted by the respondent was much above the fixed quantity. Thus, the award passed by the learned arbitrator with respect to claim no.2 was contrary to the evidence on record and therefore is rightly set aside by the High Court.11.3 Similarly, even with respect to claim no.3 – ?Escrow Account? is concerned, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3. It is required to be noted that the escrow account was required to be opened as per the guidelines issued by the Ministry of Coal, Government of India for the preparation of mine closure plant. The guidelines required, inter alia, the mining company to open an escrow account with any schedule bank. Accordingly, the respondent opened an escrow account and executed an escrow agreement. From the correspondence between the parties, it appears that even the appellant consented for opening the escrow account. The appellant also agreed that the amount to be deposited in the escrow account will be recovered by the respondent from immediate next payment of the coal bills of the joint venture company – PKCL raised towards dispatches of coal from appellant?s coal blocks. Thus, thereafter it was not open for the appellant to claim the amount lying in the escrow account. If the amount lying in the escrow account is returned to the appellant, the purpose and object of opening the escrow account which was as per the guidelines of the Ministry of Coal would be frustrated. The object and purpose of opening the escrow account was to see that the appellant company fulfils the contract as per the agreement and till the closure of the coal blocks. Therefore, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3 – escrow account by observing that the reasoning is perverse or so irrational that no reasonable person could have arrived at on the material/evidence on record. We are in complete agreement with the view taken by the learned Division Bench of the High Court.
|
Baldev Raj Guliani & Others Vs. The Punjab & Haryana High Court & Others | It is true that the aforesaid submission was disposed of in this particular manner by this Court in the above decision. That however, does not mean that this Court categorically held Article 320(3)(c) was attracted in the case of judicial officers. The question did not arise in that form. The matter should not be considered from the angle of supremacy of one organ over the other. That will be an entirely erroneous approach. The Constitution reposes certain power in the Governor even under Article 235. He is the authority to pass the order of removal, albeit, on the recommendation of the High Court. That is the constitutional scheme. The Governor, however, cannot pass any order, as has been done in this case, without reference to the High Court and except on its recommendation. Solution must be found in harmony and not in cold war between the two organs. The Governor could not have-passed any order on the advice of the Public Service Commission in this case. The advice Should be no other authority than the High Court in the matter of judicial officers. This is the plain implication of Article 235. Article 320 (3) (c) is entirely out of place so far as the High Court is concerned dealing with judicial officers. To give any other interpretation to Article 320(3)(c) will be to defeat the supreme object underlying Article 235 of the Constitution specially intended for protection of the judicial officer s and necessarily the independence of the subordinate judiciary. It is absolutely clear that the Governor cannot consult the Public Service Commission in the case of judicial officers and accept its advice and act according to it. There is no room for any outside body between the Governor and the High Court.The Governor in relying upon the advice of the Public Service Commission in this case took alien considerations into account and acted erroneously in passing the order of reinstatement based on the same. The order of the Governor is, therefore, constitutionally invalid and is liable to be quashed and we order accordingly.23. That brings us to the third submission of the appellants. At one stage we thought that we would not consider this submission since this may arise at the time of payment of salary for the period of suspension as the officer has already retired. We, however, find that even in the writ application there was a prayer for a mandamus to the Government to disburse the officers full salary during the entire period of suspension up to the date of his retirement. The learned counsel for the officer has also argued the matter fully before us. We would, therefore, deal with the same. Since the order of reinstatement of August 24, 1968, is quashed the officer is reverted to the status quo ante as on the date prior to the aforesaid order. It is undisputed that he had been under suspension during that period. It is submitted that on the passing of the order of reinstatement the order of suspension merged in that order -and since there is no other order of suspension passed thereafter either by the High Court or by the Governor the officer on his compulsory retirement will be entitled to his full salary as an officer who had already ceased to be under suspension. It is submitted that the principle of merger which is generally invoked when an order of dismissal is passed against an officer under suspension should apply also in the case of reinstatement.24. We are, however, unable to accept this submission. The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely different. Suspension is a step to dismissal and may culminate in dismissal. When an officer is suspended no work is taken from him but he does not cease to be in service. When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal. Nothing remains to be done about his suspension. When, however, a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect. The suspended officer, on reinstatement, goes back to service. A further order may have to be passed by the authority as to in what manner the period of suspension will be treated. That will be, therefore, a distinct and separate proceeding apart from the earlier departmental proceeding in which the order of reinstatement was passed. If, therefore, the order of reinstatement is set aside the officer is bound to revert to his immediate anterior status of suspension. There may be certain service rules to take care of this position but even otherwise the position will be automatic and the order of reinstatement being quashed the position of the officer, in absence of any order in that behalf from the court, will be what he was earlier, viz., that of a suspended officer. In this view of the matter, since the order of reinstatement stands quashed and the officer had been under suspension in a departmental proceeding awaiting orders of the Governor for removal, on t he recommendation of the High Court, he would have the status of a suspended officer on the date of his compulsory retirement. The officer in this case was, therefore, compulsorily retired while he was under suspension from service. It is not for us to decide whether being in such a position he would be entitled to his full salary for the entire period of suspension and we refrain from expressing any opinion on that aspect of the matter. It should, however, be observed that since the officer has already retired it will not be necessary for the Governor to consider the recommendation of the High Court for the purpose of removal of the officer. We, however, do not fail to see that the Government, on its own was inclined to accept the recommendation of the High Court at the initial stage. | 0[ds]We are unable to accept this submission since, as we have pointed out, just as the High Court staff are not serving under the Government of the State, the judicial officers are also not serving under the Statebrings us to the third submission of the appellants. At one stage we thought that we would not consider this submission since this may arise at the time of payment of salary for the period of suspension as the officer has already retired. We, however, find that even in the writ application there was a prayer for a mandamus to the Government to disburse the officers full salary during the entire period of suspension up to the date of his retirement. The learned counsel for the officer has also argued the matter fully before us. We would, therefore, deal with the same. Since the order of reinstatement of August 24, 1968, is quashed the officer is reverted to the status quo ante as on the date prior to the aforesaid order. It is undisputed that he had been under suspension during that period. It is submitted that on the passing of the order of reinstatement the order of suspension merged in that order -and since there is no other order of suspension passed thereafter either by the High Court or by the Governor the officer on his compulsory retirement will be entitled to his full salary as an officer who had already ceased to be under suspension. It is submitted that the principle of merger which is generally invoked when an order of dismissal is passed against an officer under suspension should apply also in the case ofare, however, unable to accept this submission. The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely different. Suspension is a step to dismissal and may culminate in dismissal. When an officer is suspended no work is taken from him but he does not cease to be in service. When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal. Nothing remains to be done about his suspension. When, however, a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect. The suspended officer, on reinstatement, goes back to service. A further order may have to be passed by the authority as to in what manner the period of suspension will be treated. That will be, therefore, a distinct and separate proceeding apart from the earlier departmental proceeding in which the order of reinstatement was passed. If, therefore, the order of reinstatement is set aside the officer is bound to revert to his immediate anterior status of suspension. There may be certain service rules to take care of this position but even otherwise the position will be automatic and the order of reinstatement being quashed the position of the officer, in absence of any order in that behalf from the court, will be what he was earlier, viz., that of a suspended officer. In this view of the matter, since the order of reinstatement stands quashed and the officer had been under suspension in a departmental proceeding awaiting orders of the Governor for removal, on t he recommendation of the High Court, he would have the status of a suspended officer on the date of his compulsory retirement. The officer in this case was, therefore, compulsorily retired while he was under suspension from service. It is not for us to decide whether being in such a position he would be entitled to his full salary for the entire period of suspension and we refrain from expressing any opinion on that aspect of the matter. It should, however, be observed that since the officer has already retired it will not be necessary for the Governor to consider the recommendation of the High Court for the purpose of removal of the officer. We, however, do not fail to see that the Government, on its own was inclined to accept the recommendation of the High Court at the initial stage. | 0 | 6,247 | 751 | ### 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:
It is true that the aforesaid submission was disposed of in this particular manner by this Court in the above decision. That however, does not mean that this Court categorically held Article 320(3)(c) was attracted in the case of judicial officers. The question did not arise in that form. The matter should not be considered from the angle of supremacy of one organ over the other. That will be an entirely erroneous approach. The Constitution reposes certain power in the Governor even under Article 235. He is the authority to pass the order of removal, albeit, on the recommendation of the High Court. That is the constitutional scheme. The Governor, however, cannot pass any order, as has been done in this case, without reference to the High Court and except on its recommendation. Solution must be found in harmony and not in cold war between the two organs. The Governor could not have-passed any order on the advice of the Public Service Commission in this case. The advice Should be no other authority than the High Court in the matter of judicial officers. This is the plain implication of Article 235. Article 320 (3) (c) is entirely out of place so far as the High Court is concerned dealing with judicial officers. To give any other interpretation to Article 320(3)(c) will be to defeat the supreme object underlying Article 235 of the Constitution specially intended for protection of the judicial officer s and necessarily the independence of the subordinate judiciary. It is absolutely clear that the Governor cannot consult the Public Service Commission in the case of judicial officers and accept its advice and act according to it. There is no room for any outside body between the Governor and the High Court.The Governor in relying upon the advice of the Public Service Commission in this case took alien considerations into account and acted erroneously in passing the order of reinstatement based on the same. The order of the Governor is, therefore, constitutionally invalid and is liable to be quashed and we order accordingly.23. That brings us to the third submission of the appellants. At one stage we thought that we would not consider this submission since this may arise at the time of payment of salary for the period of suspension as the officer has already retired. We, however, find that even in the writ application there was a prayer for a mandamus to the Government to disburse the officers full salary during the entire period of suspension up to the date of his retirement. The learned counsel for the officer has also argued the matter fully before us. We would, therefore, deal with the same. Since the order of reinstatement of August 24, 1968, is quashed the officer is reverted to the status quo ante as on the date prior to the aforesaid order. It is undisputed that he had been under suspension during that period. It is submitted that on the passing of the order of reinstatement the order of suspension merged in that order -and since there is no other order of suspension passed thereafter either by the High Court or by the Governor the officer on his compulsory retirement will be entitled to his full salary as an officer who had already ceased to be under suspension. It is submitted that the principle of merger which is generally invoked when an order of dismissal is passed against an officer under suspension should apply also in the case of reinstatement.24. We are, however, unable to accept this submission. The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely different. Suspension is a step to dismissal and may culminate in dismissal. When an officer is suspended no work is taken from him but he does not cease to be in service. When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal. Nothing remains to be done about his suspension. When, however, a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect. The suspended officer, on reinstatement, goes back to service. A further order may have to be passed by the authority as to in what manner the period of suspension will be treated. That will be, therefore, a distinct and separate proceeding apart from the earlier departmental proceeding in which the order of reinstatement was passed. If, therefore, the order of reinstatement is set aside the officer is bound to revert to his immediate anterior status of suspension. There may be certain service rules to take care of this position but even otherwise the position will be automatic and the order of reinstatement being quashed the position of the officer, in absence of any order in that behalf from the court, will be what he was earlier, viz., that of a suspended officer. In this view of the matter, since the order of reinstatement stands quashed and the officer had been under suspension in a departmental proceeding awaiting orders of the Governor for removal, on t he recommendation of the High Court, he would have the status of a suspended officer on the date of his compulsory retirement. The officer in this case was, therefore, compulsorily retired while he was under suspension from service. It is not for us to decide whether being in such a position he would be entitled to his full salary for the entire period of suspension and we refrain from expressing any opinion on that aspect of the matter. It should, however, be observed that since the officer has already retired it will not be necessary for the Governor to consider the recommendation of the High Court for the purpose of removal of the officer. We, however, do not fail to see that the Government, on its own was inclined to accept the recommendation of the High Court at the initial stage.
### Response:
0
### Explanation:
We are unable to accept this submission since, as we have pointed out, just as the High Court staff are not serving under the Government of the State, the judicial officers are also not serving under the Statebrings us to the third submission of the appellants. At one stage we thought that we would not consider this submission since this may arise at the time of payment of salary for the period of suspension as the officer has already retired. We, however, find that even in the writ application there was a prayer for a mandamus to the Government to disburse the officers full salary during the entire period of suspension up to the date of his retirement. The learned counsel for the officer has also argued the matter fully before us. We would, therefore, deal with the same. Since the order of reinstatement of August 24, 1968, is quashed the officer is reverted to the status quo ante as on the date prior to the aforesaid order. It is undisputed that he had been under suspension during that period. It is submitted that on the passing of the order of reinstatement the order of suspension merged in that order -and since there is no other order of suspension passed thereafter either by the High Court or by the Governor the officer on his compulsory retirement will be entitled to his full salary as an officer who had already ceased to be under suspension. It is submitted that the principle of merger which is generally invoked when an order of dismissal is passed against an officer under suspension should apply also in the case ofare, however, unable to accept this submission. The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely different. Suspension is a step to dismissal and may culminate in dismissal. When an officer is suspended no work is taken from him but he does not cease to be in service. When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal. Nothing remains to be done about his suspension. When, however, a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect. The suspended officer, on reinstatement, goes back to service. A further order may have to be passed by the authority as to in what manner the period of suspension will be treated. That will be, therefore, a distinct and separate proceeding apart from the earlier departmental proceeding in which the order of reinstatement was passed. If, therefore, the order of reinstatement is set aside the officer is bound to revert to his immediate anterior status of suspension. There may be certain service rules to take care of this position but even otherwise the position will be automatic and the order of reinstatement being quashed the position of the officer, in absence of any order in that behalf from the court, will be what he was earlier, viz., that of a suspended officer. In this view of the matter, since the order of reinstatement stands quashed and the officer had been under suspension in a departmental proceeding awaiting orders of the Governor for removal, on t he recommendation of the High Court, he would have the status of a suspended officer on the date of his compulsory retirement. The officer in this case was, therefore, compulsorily retired while he was under suspension from service. It is not for us to decide whether being in such a position he would be entitled to his full salary for the entire period of suspension and we refrain from expressing any opinion on that aspect of the matter. It should, however, be observed that since the officer has already retired it will not be necessary for the Governor to consider the recommendation of the High Court for the purpose of removal of the officer. We, however, do not fail to see that the Government, on its own was inclined to accept the recommendation of the High Court at the initial stage.
|
THE HOME SECRETARY (PRISON) Vs. H. NILOFER NISHA | timelines can be laid down but the Court must give reasonable time to the State to decide the representation. We are clearly of the view that the Court itself cannot examine the eligibility of the detenu to be granted release under the Scheme at this stage. There are various factors, enumerated above, which have to be considered by the committees. The report of the Probation Officer is only one of them. After that, the District Committee has to make a recommendation and finally it is the State Level Committee which takes a final call on the matter. We are clearly of the view that the High Court erred in directing the release of the detenu forthwith without first directing the competent authority to take a decision in the matter. Merely because a practice has been followed in the Madras High Court of issuing such type of writs for a long time cannot clothe these orders with legality if the orders are without jurisdiction. Past practice or the fact that the State has not challenged some of the orders is not sufficient to hold that these orders are legal. 32. In case, as pointed out above, a petition is filed without any decision(s) of the State Level Committee in terms of Para 5(I) of the G.O. in question, the Court should direct the concerned Committee/authority to take decision within a reasonable period. Obviously, too much time cannot be given because the liberty of a person is at stake. This order would be more in the nature of a writ of mandamus directing the State to perform its duty under the Scheme. The authorities must pass a reasoned order in case they refuse to grant benefit under the Scheme. Once a reasoned order is passed then obviously the detenu has a right to challenge that order but that again would not be a writ of habeas corpus but would be more in the nature of a writ of certiorari. In such cases, where reasoned orders have been passed the High Court may call for the record of the case, examine the same and after examining the same in the context of the parameters of the Scheme decide whether the order rejecting the prayer for premature release is justified or not. If it comes to the conclusion that the order is not a proper order then obviously it can direct the release of the prisoner by giving him the benefit of the Scheme. There may be cases where the State may not pass any order on the representation of the petitioner for releasing him in terms of the G.O.(Ms) No.64 dated 01.02.2018 despite the orders of the Court. If no orders have been passed and there is no explanation for the delay then the Court would be justified in again calling for the record of the case and examining the same in terms of the policy and then passing the orders. 33. As far as the present cases are concerned, we find that the High Court though it had the report of the Probation Officer before it, has only noted one line of the order of the Probation Officer and not the entire report(s). The report of the Probation Officer in all the cases is almost identical. One of the reports reads as follows:- Report of the Probation Officer regarding premature release of a prisoner ME No 39/2018 Date 07.02.2018 Prisoner Number & Name 4346, Abuthahir S/o Hussain, Central Prison, Coimbatore 1 If the above mentioned prisoner if prematurely released (a) What will be the effect in that place It was known during the enquiry that some problems may arise (b) What will be mental feelings of Enmity still prevails the relatives of the deceased (c) Are the family members/relatives likely to accept him into their fold and renew their old relationship Yes (d) Will the life of the prisoner be safe There is a danger to the life 2 Report of the local Sub Inspector of Police with regard to loss of peace If the prisoner is prematurely released, on account of previous enmity The Commissioner of Police, Coimbatore City has opined that the premature release of the prisoner will create tension on religious grounds 3 Previous conduct of the prisoner and gist of the history of the prisoner Satisfactory 4 Has the prisoner been awarded any punishment previously No 5 Does the prisoner have any property and permanent residence in his name? If so, please furnish their details and its value. Permanent address is available and not owning any property 6 Are any relatives standing surety for the prisoner? If yes, complete address and status may be furnished Yes 7 Will the prisoner be able to earn a livelihood if prematurely released Yes 8 Was the murder committed due to any social or religious animosity or self satisfaction and does the enmity still exist or not? The incident of murder occurred due to religious problems and the enmity still exists 9 What was his behaviour during the period he was released on leave on the promise of good behaviour? He was released on leave with police escort 10 Is the premature release for the prisoner recommended not recommended 11 Remarks of the Probation Officer on the premature release of the prisoner For the above said reasons, I am to inform that the prisoner is not recommended for the premature release Sd/- Probation Officer, Division I, Prison Department, Coimbatore 641037 Though the relevant columns are Column No. 1(b), 1(d), 2, 8, 9, 10 and 11, the High Court has only dealt with what is stated in 1(d) and has not dealt with the other observations made in the report of the Probation Officer. We are constrained to observe that this was not at all proper. In the other cases also, there are similar observations but these are not being repeated just to avoid repetition. 34. We have examined the record of each case and now we shall deal with each case separately. | 0[ds]4. At the outset, we may mention that on 17.10.2019 we had framed two issues. We have reframed the first issue and on closer examination we are of the view that the second issue does not arise for decision in this caseWe may note that in many of these orders this Court has not approved of the manner in which the Madras High Court has ordered the release of prisoners but has upheld the order of release on account of the long incarceration of the detenu12. We feel that a quietus has to be given to this matter and the legal issue must be decided. As far as the objection of selective filing of petitions by the State against orders of release by the High Court is concerned, that objection is meaningless. We are not aware of the other orders and, in any event, there can be no claim of negative discrimination under Article 14 of the Constitution of India13. Article 226 of the Constitution of India empowers the High Courts to issue certain writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any right conferred under Part III of the Constitution dealing with the fundamental rights. In this case, we are concerned with the scope and ambit of the jurisdiction of the High Court while dealing with the writ of habeas corpus27. We would also like to point out that the grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions. This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/regulations. The court cannot exercise these powers though once the powers are exercised, the Court may hold that the exercise of powers is not in accordance with rulesWhat description has to be given to a writ is for the High Court to decide. But the Rules cannot confer jurisdiction which is not conferred by the Constitution. We are even otherwise unable to accept the argument of learned senior counsel for the detenus because the Rules obviously deal with cases of detention/preventive detention where the detenu is under custody. If that custody is legal then obviously no writ of habeas corpus can be issued for release of the detenu. We are also of the view that merely because the Rules provide that in the petition details of the detention order, prison etc., have to be given does not mean that the writ of habeas corpus cannot be issued where the Rules are silent. The Rules cannot override the Constitution30. As already mentioned above, it is well settled law that even if the detenu is in private detention then also a writ of habeas corpus would lie. If the Rules are to be the masters and not the Constitution, then, probably in the Madras High Court no writ of habeas corpus would be entertained in the case of private detention. This would be against the spirit of the Constitution of India. Therefore, we are clearly of the view that reference to the Rules is of no aid whatsoeverWe do not think so. In all these cases, the representations made by the detenus had not been decided. In our view, the proper course for the Court was to direct that the representations of the detenus be decided within a short period. Keeping in view the fact that the Scheme envisages a report of the Probation Officer, a reference by the District Level Committee and thereafter the matter has to be placed before the concerned Range Deputy Inspector General and before Regional Probation Officer and thereafter before the State Level Committee, we feel that it would be reasonable to grant 2-3 months depending on the time when the representation was filed for the State to deal with them. When the petition is filed just a few days before filing the representation then the Court may be justified in granting up to 3 months time to consider the same. However, if the representation is filed a couple of months earlier and the report of the Probation Officer is already available then lesser time can be granted. No hard and fast timelines can be laid down but the Court must give reasonable time to the State to decide the representation. We are clearly of the view that the Court itself cannot examine the eligibility of the detenu to be granted release under the Scheme at this stage. There are various factors, enumerated above, which have to be considered by the committees. The report of the Probation Officer is only one of them. After that, the District Committee has to make a recommendation and finally it is the State Level Committee which takes a final call on the matter. We are clearly of the view that the High Court erred in directing the release of the detenu forthwith without first directing the competent authority to take a decision in the matter. Merely because a practice has been followed in the Madras High Court of issuing such type of writs for a long time cannot clothe these orders with legality if the orders are without jurisdiction. Past practice or the fact that the State has not challenged some of the orders is not sufficient to hold that these orders are legal33. As far as the present cases are concerned, we find that the High Court though it had the report of the Probation Officer before it, has only noted one line of the order of the Probation Officer and not the entire report(s). The report of the Probation Officer in all the cases is almost identicalCRIMINAL APPEAL NO(S). 144 OF 2020 (@ SPECIAL LEAVE PETITION (CRL) NO(S). 626 OF 2020) (@ SPECIAL LEAVE PETITION (CRL) D. NO. 18046 OF 2019)35. The detenu was aged about 21 years when he was detained. More than 17 years have elapsed and he is about 38 years of age nowThis young man who may have committed a heinous crime, has obtained various degrees including Masters in Computer Application, Masters of Business Administration, Master Degree in Criminology & Criminal Justice Administration and M.A. in Journalism & Mass Communication and various other Vocational Diplomas. The learning which he has obtained in jail must be put to use outside. The jail record shows that his behaviour in jail has been satisfactory. The only ground against him is that he had murdered a person from another community and, therefore, it is said that some religious enmity may still prevail. It has come on record that on various occasions, he has gone back to his native place though under police escort. We are clearly of the view that in these circumstances this is a fit case where we should not send this respondent to another round of litigationCRIMINAL APPEAL NO(S). 145 OF 2020 (@ SPECIAL LEAVE PETITION (CRL) NO(S). 627 OF 2020) (@ SPECIAL LEAVE PETITION (CRL) D. NO. 18016 OF 2019)36. The detenu in this case is about 43 years of age now and we are informed that during the period of incarceration in jail, he has completed the following educational courses:(i) B.B.A., from Madras University, May, 2008;(ii) Diploma in Hardware Servicing from Tamil Nadu Open University, January, 2014;(iii) Hindu Course from Dakshina Hindi Prachar Saba;(iv) Workshop and Bakery and Confectionary dated 12/13.09.2008;(v) Degree of Master of Arts and Political Science [First Class] from Tamil Nadu Open University, June 2014;(vi) National Certificate in Modular Employable Skills from Ministry of Labour and Employment, 18.11.2003;(vii) Certificate in Electrical Wiring from Govt. Polytechnic, 03.12.2013;(viii) Undergone training for two wheeler repairing, 18.03.2010;(ix) Certificate course in Diploma in Four Wheeler Mechanism dated 30.04.2013 done in Tamil Nadu Open University; (x) Done Vocational Diploma in DTP Operator dated January, 2013 in Tamil Nadu Open University;(xi) Diploma in Computer Hardware servicing in Tamil Nadu Open University, January, 2014We are also informed that the detenu in this case has gone on emergency leave 42 times (89 days) and by Court order, he has been granted leave 2 (37 days) times and during the said occasions, neither life threat to him nor was there any law and order problemCrl.Appeal No. 146 /2020 @ SLP(Crl)No.7697 of 201938. The detenu in this case is about 38 years of age now and we are informed that during the period of incarceration in jail, he has completed the following educational courses:1. Diploma in Computer Hardware Servicing from Tamil Nadu Open University;2. Bachelor of Business Administration from University of Madras;3. Master of Business Administration from University of Madras39. We are clearly of the view that in these circumstances this is a fit case where we should not send this respondent to another round of litigationCrl.Appeal No. 148 of 2020 @ SLP(Crl) No.11494 of 201940. The detenu in this case is about 39 years of age now and we are informed that during the period of incarceration in jail, he has completed the following educational courses:-1. Higher Secondary Course from State Board of School, Tamil. Bachelor of Arts in History from University of Madras;3. Master of Arts in Political Science from University of Madras;4. Post Graduate Diploma in Human Rights from Tamil Nadu Open University;5. Post Graduate Diploma in International Business;6. Master of Business Administration (Human Resources) from Bharathiar University, Coimbatore;7. M. A. Criminology and Criminal Justice Administration from Tamil Nadu Open University41. We are clearly of the view that in these circumstances this is a fit case where we should not send this respondent to another round of litigationCrl.Appeal No. 147 of 2020 @ SLP(Crl)No.6159 of 201942. The detenu in this case is about 46 years of age now and we are informed that during the period of incarceration in jail, he has completed the following educational courses:-(i) Completed 8 th Standard;(ii) Course of Preparatory Programme for Secondary (PPS) dated 23.11.2012 in Tamil Nadu Open University;(iii) Completed 10 th Standard;(iv) Completed 12 th Standard;(v) Certificate course in Diploma in Four Wheeler Mechanism dated 30.04.2013 done in Tamil Nadu Open University;(vi) Done B. Literature dated May, 2017 & June, 2018 in Bharathiar University, Coimbatore;(vii) Done Vocational Diploma in DTP Operator dated June, 2017 in Tamil Nadu Open University;43. We find that the detenu in this case was convicted in another case under Section 120(B) of the Indian Penal Code, 1860 and sentenced to imprisonment for 5 years and was convicted under Section 4(a) and 4(b) of the Explosives Substances Act, 1908 and was awarded 5 years imprisonment and 4 years imprisonment under each of these sections vide judgment dated 28.12.2018. This judgment of conviction and sentence is after the date of the G.O.(Ms.) No. 64 dated 01.02.2018 in question and this will also have to be taken into consideration. | 0 | 6,598 | 2,093 | ### 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:
timelines can be laid down but the Court must give reasonable time to the State to decide the representation. We are clearly of the view that the Court itself cannot examine the eligibility of the detenu to be granted release under the Scheme at this stage. There are various factors, enumerated above, which have to be considered by the committees. The report of the Probation Officer is only one of them. After that, the District Committee has to make a recommendation and finally it is the State Level Committee which takes a final call on the matter. We are clearly of the view that the High Court erred in directing the release of the detenu forthwith without first directing the competent authority to take a decision in the matter. Merely because a practice has been followed in the Madras High Court of issuing such type of writs for a long time cannot clothe these orders with legality if the orders are without jurisdiction. Past practice or the fact that the State has not challenged some of the orders is not sufficient to hold that these orders are legal. 32. In case, as pointed out above, a petition is filed without any decision(s) of the State Level Committee in terms of Para 5(I) of the G.O. in question, the Court should direct the concerned Committee/authority to take decision within a reasonable period. Obviously, too much time cannot be given because the liberty of a person is at stake. This order would be more in the nature of a writ of mandamus directing the State to perform its duty under the Scheme. The authorities must pass a reasoned order in case they refuse to grant benefit under the Scheme. Once a reasoned order is passed then obviously the detenu has a right to challenge that order but that again would not be a writ of habeas corpus but would be more in the nature of a writ of certiorari. In such cases, where reasoned orders have been passed the High Court may call for the record of the case, examine the same and after examining the same in the context of the parameters of the Scheme decide whether the order rejecting the prayer for premature release is justified or not. If it comes to the conclusion that the order is not a proper order then obviously it can direct the release of the prisoner by giving him the benefit of the Scheme. There may be cases where the State may not pass any order on the representation of the petitioner for releasing him in terms of the G.O.(Ms) No.64 dated 01.02.2018 despite the orders of the Court. If no orders have been passed and there is no explanation for the delay then the Court would be justified in again calling for the record of the case and examining the same in terms of the policy and then passing the orders. 33. As far as the present cases are concerned, we find that the High Court though it had the report of the Probation Officer before it, has only noted one line of the order of the Probation Officer and not the entire report(s). The report of the Probation Officer in all the cases is almost identical. One of the reports reads as follows:- Report of the Probation Officer regarding premature release of a prisoner ME No 39/2018 Date 07.02.2018 Prisoner Number & Name 4346, Abuthahir S/o Hussain, Central Prison, Coimbatore 1 If the above mentioned prisoner if prematurely released (a) What will be the effect in that place It was known during the enquiry that some problems may arise (b) What will be mental feelings of Enmity still prevails the relatives of the deceased (c) Are the family members/relatives likely to accept him into their fold and renew their old relationship Yes (d) Will the life of the prisoner be safe There is a danger to the life 2 Report of the local Sub Inspector of Police with regard to loss of peace If the prisoner is prematurely released, on account of previous enmity The Commissioner of Police, Coimbatore City has opined that the premature release of the prisoner will create tension on religious grounds 3 Previous conduct of the prisoner and gist of the history of the prisoner Satisfactory 4 Has the prisoner been awarded any punishment previously No 5 Does the prisoner have any property and permanent residence in his name? If so, please furnish their details and its value. Permanent address is available and not owning any property 6 Are any relatives standing surety for the prisoner? If yes, complete address and status may be furnished Yes 7 Will the prisoner be able to earn a livelihood if prematurely released Yes 8 Was the murder committed due to any social or religious animosity or self satisfaction and does the enmity still exist or not? The incident of murder occurred due to religious problems and the enmity still exists 9 What was his behaviour during the period he was released on leave on the promise of good behaviour? He was released on leave with police escort 10 Is the premature release for the prisoner recommended not recommended 11 Remarks of the Probation Officer on the premature release of the prisoner For the above said reasons, I am to inform that the prisoner is not recommended for the premature release Sd/- Probation Officer, Division I, Prison Department, Coimbatore 641037 Though the relevant columns are Column No. 1(b), 1(d), 2, 8, 9, 10 and 11, the High Court has only dealt with what is stated in 1(d) and has not dealt with the other observations made in the report of the Probation Officer. We are constrained to observe that this was not at all proper. In the other cases also, there are similar observations but these are not being repeated just to avoid repetition. 34. We have examined the record of each case and now we shall deal with each case separately.
### Response:
0
### Explanation:
it is the State Level Committee which takes a final call on the matter. We are clearly of the view that the High Court erred in directing the release of the detenu forthwith without first directing the competent authority to take a decision in the matter. Merely because a practice has been followed in the Madras High Court of issuing such type of writs for a long time cannot clothe these orders with legality if the orders are without jurisdiction. Past practice or the fact that the State has not challenged some of the orders is not sufficient to hold that these orders are legal33. As far as the present cases are concerned, we find that the High Court though it had the report of the Probation Officer before it, has only noted one line of the order of the Probation Officer and not the entire report(s). The report of the Probation Officer in all the cases is almost identicalCRIMINAL APPEAL NO(S). 144 OF 2020 (@ SPECIAL LEAVE PETITION (CRL) NO(S). 626 OF 2020) (@ SPECIAL LEAVE PETITION (CRL) D. NO. 18046 OF 2019)35. The detenu was aged about 21 years when he was detained. More than 17 years have elapsed and he is about 38 years of age nowThis young man who may have committed a heinous crime, has obtained various degrees including Masters in Computer Application, Masters of Business Administration, Master Degree in Criminology & Criminal Justice Administration and M.A. in Journalism & Mass Communication and various other Vocational Diplomas. The learning which he has obtained in jail must be put to use outside. The jail record shows that his behaviour in jail has been satisfactory. The only ground against him is that he had murdered a person from another community and, therefore, it is said that some religious enmity may still prevail. It has come on record that on various occasions, he has gone back to his native place though under police escort. We are clearly of the view that in these circumstances this is a fit case where we should not send this respondent to another round of litigationCRIMINAL APPEAL NO(S). 145 OF 2020 (@ SPECIAL LEAVE PETITION (CRL) NO(S). 627 OF 2020) (@ SPECIAL LEAVE PETITION (CRL) D. NO. 18016 OF 2019)36. The detenu in this case is about 43 years of age now and we are informed that during the period of incarceration in jail, he has completed the following educational courses:(i) B.B.A., from Madras University, May, 2008;(ii) Diploma in Hardware Servicing from Tamil Nadu Open University, January, 2014;(iii) Hindu Course from Dakshina Hindi Prachar Saba;(iv) Workshop and Bakery and Confectionary dated 12/13.09.2008;(v) Degree of Master of Arts and Political Science [First Class] from Tamil Nadu Open University, June 2014;(vi) National Certificate in Modular Employable Skills from Ministry of Labour and Employment, 18.11.2003;(vii) Certificate in Electrical Wiring from Govt. Polytechnic, 03.12.2013;(viii) Undergone training for two wheeler repairing, 18.03.2010;(ix) Certificate course in Diploma in Four Wheeler Mechanism dated 30.04.2013 done in Tamil Nadu Open University; (x) Done Vocational Diploma in DTP Operator dated January, 2013 in Tamil Nadu Open University;(xi) Diploma in Computer Hardware servicing in Tamil Nadu Open University, January, 2014We are also informed that the detenu in this case has gone on emergency leave 42 times (89 days) and by Court order, he has been granted leave 2 (37 days) times and during the said occasions, neither life threat to him nor was there any law and order problemCrl.Appeal No. 146 /2020 @ SLP(Crl)No.7697 of 201938. The detenu in this case is about 38 years of age now and we are informed that during the period of incarceration in jail, he has completed the following educational courses:1. Diploma in Computer Hardware Servicing from Tamil Nadu Open University;2. Bachelor of Business Administration from University of Madras;3. Master of Business Administration from University of Madras39. We are clearly of the view that in these circumstances this is a fit case where we should not send this respondent to another round of litigationCrl.Appeal No. 148 of 2020 @ SLP(Crl) No.11494 of 201940. The detenu in this case is about 39 years of age now and we are informed that during the period of incarceration in jail, he has completed the following educational courses:-1. Higher Secondary Course from State Board of School, Tamil. Bachelor of Arts in History from University of Madras;3. Master of Arts in Political Science from University of Madras;4. Post Graduate Diploma in Human Rights from Tamil Nadu Open University;5. Post Graduate Diploma in International Business;6. Master of Business Administration (Human Resources) from Bharathiar University, Coimbatore;7. M. A. Criminology and Criminal Justice Administration from Tamil Nadu Open University41. We are clearly of the view that in these circumstances this is a fit case where we should not send this respondent to another round of litigationCrl.Appeal No. 147 of 2020 @ SLP(Crl)No.6159 of 201942. The detenu in this case is about 46 years of age now and we are informed that during the period of incarceration in jail, he has completed the following educational courses:-(i) Completed 8 th Standard;(ii) Course of Preparatory Programme for Secondary (PPS) dated 23.11.2012 in Tamil Nadu Open University;(iii) Completed 10 th Standard;(iv) Completed 12 th Standard;(v) Certificate course in Diploma in Four Wheeler Mechanism dated 30.04.2013 done in Tamil Nadu Open University;(vi) Done B. Literature dated May, 2017 & June, 2018 in Bharathiar University, Coimbatore;(vii) Done Vocational Diploma in DTP Operator dated June, 2017 in Tamil Nadu Open University;43. We find that the detenu in this case was convicted in another case under Section 120(B) of the Indian Penal Code, 1860 and sentenced to imprisonment for 5 years and was convicted under Section 4(a) and 4(b) of the Explosives Substances Act, 1908 and was awarded 5 years imprisonment and 4 years imprisonment under each of these sections vide judgment dated 28.12.2018. This judgment of conviction and sentence is after the date of the G.O.(Ms.) No. 64 dated 01.02.2018 in question and this will also have to be taken into consideration.
|
Laxman Vs. State Industrial Court & Ors | what is meant by an "industrial dispute" in this definition can be ascertained by reference to Section 2 (12) under which any dispute or difference connected with an industrial matter arising between employer and employee or between employers or employees is an industrial dispute. No doubt it was contended in the Central Provinces Transport Services Ltds case, 1956 SCR 956 = (AIR 1957 SC 104 ) that where a person is dismissed, discharged or retrenched, the relationship of an employer and employee is terminated and there is no longer an industrial dispute. This very contention was negatived in that case for the obvious reason that the dispute or difference referred to in Section 2 (12) should be connected with an industrial matter arising between an employer and an employee, which industrial matter as defined in S.2(13) covers any matter relating to refusal to employ and includes questions pertaining to the dismissal or non-employment of any person. If so considered, since a question or reinstatement is an industrial dispute, the appellant would be an employee within the meaning of S.2(10) of the Act for the purposes of availing himself of the right under sub-s. (2) of S.16.Even under a restricted definition of the word "employee" under S.2(10) before the amendment, this Court in the Central Provinces Transport Services Ltd.s case, 1956 SCR 956 = (AIR 1957 SC 104 ) had held that a workman whose services had been terminated could have resort to sub-section (2) of Section 16 of the Act. The High Court thought that the decision is inapplicable as in that case an enquiry had been held before the employees services were terminated which amounted to an industrial dispute but in the instant case no such industrial dispute arose as it was a retrenchment simpliciter. We are unable to appreciate this distinction as in our view it is a distinction without a difference. The ratio in the Central Provinces Transport Services Ltds case, 1956 SCR 956 = (AIR 1957 SC 104 ) is clearly applicable notwithstanding the amendment of S.2 (10) and S.16 of the Act. After pointing out that S. 2(k) of the Central Act and Sections 2 (12) and 2 (13) of the Act are substantially in pari materia, the ratio of Western India Automobile Association v. Industrial Tribunal, Bombay, 1949 FCR 321 = (AIR 1949 FC 111) will be as much applicable to the one enactment as to the other, this Court pointed out in the Central Provinces Transport Services Ltds case, 1956 SCR 956 at pp. 961 - 962 = (AIR 1957 SC 104):"We are also unable to accede to the contention of the appellant that the inclusive clause in S.2(10) of the Act is an indication that the legislature did not intend to include within that definition those who had ceased to be in service. In our opinion, that clause was inserted ex abundanti cautela to repel a possible contention that employees discharged under Ss. 31 and 32 of the Act would not fall within S.2(10) and cannot be read as importing an intention generally to exclude dismissed employees from that definition. On the other hand, S.16 of the Act expressly provides for relief being granted to dismissed employees by way of reinstatement and compensation, and that provision must become useless and inoperative. If we are to adopt the construction which the appellant seeks to put on the definition of employee in Sec. 2 (10). We must accordingly hold agreeing with the decision in 1949 FCR 321 = (AIR 1949 FC 111) (supra), that the definition of "employee" in the Act would include one who has been dismissed and the respondent cannot be denied relief only by reason of the fact that he was not in employment on the date of the application."This case was referred to and considered in Bannett Coleman and Co. (P) Ltd. v. Punya Priya Das Gupta, (1969) 2 Lab LJ 554 = (AIR 1970 SC 426 ). The case was under the Working Journalists (Conditions of Services and Miscellaneous Provisions) Act, 1955, where a newspaper employee was defined in a language similar to that used in defining an "employee" under the Act and the Central Act. This Court took note of the amendment in the Act and even so held that both the decisions in the Western India Automobile Associations case, 1949 FCR 321 = (AIR 1949 FC 111) and the Central Provinces Transport Services Ltds case, 1956 SCR 956 = (AIR 1957 SC 104 ) were authorities for the view that an ex-employee would, for the purposes of the controversy before them, be a working journalist. The contention that Dhrangadhra Chemical Works Ltd. v. State of Saurashtra, (1957) 1 Lab LJ 477 = (AIR 1957 SC 264 ) and Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate, (1958) 1 Lab LJ 500 = (AIR 1958 SC 353 ) took a contrary view was examined and distinguished. It was, however, observed that even assuming that there is such a conflict as contended, it was not necessary to resolve it for the purposes of the problem before the Court, because the Act which was being considered there and the Central Act, the Minimum Wages Act, 1948, the Central Provinces Act with which we are concerned disclose a similar scheme under which an ex-employee is permitted to avail of the benefits of these provisions, the only requirmeent being that the claim in dispute must be one which has arisen or accrued whilst the claimant was in employment of the person against whom it is made.5. In view of what has been stated, we think the High Court was in error in holding that the application of the appellant could not be entertained by the Labour Commissioner. As this was the only question decided, we allow these appeals, set aside the judgment and decree of the High Court and remand the case to the High Court for disposal according to law. The appellant will have his costs in this Court, one | 1[ds]4. It is contended that an "employee" having been defined as a person employed, the Legislature intended that the provisions of the Act should be availed of only by persons who were still in the employment at the time when an application was filed under the Act, and even if the employee who invokes the provisions of the Act can be considered to be a person who is dismissed, discharged or retrenched, it is not every such employee who has that right, but only those employee have the right to invoke the provisions of the Act who have been dismissed, discharged or retrenched and in respect of whom an industrial dispute is pending.In our view both these contentions are untenable. A combined reading of the definition of an "employee" in S. 2 (10) with S.2(12) and (13) would negative the submission that those who had cessed to be in service were not intended to be included within the definition of an "employee". When the Legislature is defining a word or term refers to certain matters as being included therein it does so because either that word or term does not generically include what is sought to be included or that it is anxious to dispel any doubt as to what is included therein is not so included and by abundanti cautela it is specifically shown as having been included in order to repel any such contention to the contra. Under Section 16 (2) an employee working in an industry to which a notification under sub-section (1) is applied can within six months of his dismissal, discharge, removal or suspension apply to the Labour Commissioner for reinstatement and payment of compensation for loss of wages. A person who applies within six months from the date of his dismissal, discharge, removal or suspension is certainly not employed on that date and yet if the argument of the respondents is accepted he is not an employee within the meaning of Section 2(10) and hence has no right to apply under sub-section (2) of Section 16.An employee dismissed, discharged or removed on account of any industrial dispute is certainly an employee under Section 2 (10). But what is meant by an "industrial dispute" in this definition can be ascertained by reference to Section 2 (12) under which any dispute or difference connected with an industrial matter arising between employer and employee or between employers or employees is an industrial dispute.In view of what has been stated, we think the High Court was in error in holding that the application of the appellant could not be entertained by the Labour Commissioner. As this was the only question decided, we allow these appeals, set aside the judgment and decree of the High Court and remand the case to the High Court for disposal according to law. The appellant will have his costs in this Court, onemay be observed that S.2 (10) before its amendment included an employee discharged on account of any dispute relating to a change in respect of which a notice was given under Section 31 or 32 of the Act. It will be seen that S.31 dealt. With the procedure to be followed by an employer desiring change in the standing orders or in respect of any industrial matter mentioned in Sch.II, Section 32 dealt. With the procedure to be followed by a representative of employees desiring change in the standing orders or in respect of any other industrial matter. One of the industrial matters referred to in item 3 of Sch. II is "Dismissal of any employee except in accordance with law or as provided for in the standing orders settled under Section 30 of this Act". This definition of "employee" in S.2(1) appears to have been enlarged by the amendment by including an employee dismissed, discharged or removed on account of any industrial dispute and not necessarily confined only to any dispute relating to a change in respect of which notice is given under S.31 or 32 of the Act. The High Court appears to have read the definition of "employee" in S.2 (10) as contemplating two categories of persons(1) consisting of persons who are actually in the employment of the employer at the date of the application; and (2) of those who have ceased to be in the employment prior to the date of the application, the reason for ceasing to be an employee being "dismissal, discharge or removal on account of any industrial dispute". In its view, the words of the definition did not include allbut only specified categories which have to be correlated to any industrial dispute, and as there was no industrial dispute between Laxman and the employer prior to the termination of his service. Laxman cannot be considered to be an "employee" within the meaning of S.2 (10) of the Act. A decision of this Court in Central Provinces Transport Services Ltd. Nagpur v. Raghunath Gopal Patwardhan, 1956 SCR 956 = (AIR 1957 SC 104 ) was referred to, but the High Court sought to distinguish it on the ground that in that case the employee had been dismissed after an inquiry which involved an industrialthe view of the High Court, therefore, a plain reading of the definition of the term "employee" in S.2 (10) shows that the only category of persons who, though not in actual employment at the date of the application included within that term is of persons who areand were dismissed, discharged or removed on account of any industrial dispute of any industrial dispute which dispute must precede the dismissal, discharge or removal, and that their dismissal, discharge or removal must be the result of suchour view both these contentions are untenable. A combined reading of the definition of an "employee" in S. 2 (10) with S.2(12) and (13) would negative the submission that those who had cessed to be in service were not intended to be included within the definition of an "employee". When the Legislature is defining a word or term refers to certain matters as being included therein it does so because either that word or term does not generically include what is sought to be included or that it is anxious to dispel any doubt as to what is included therein is not so included and by abundanti cautela it is specifically shown as having been included in order to repel any such contention to the contra. Under Section 16 (2) an employee working in an industry to which a notification under(1) is applied can within six months of his dismissal, discharge, removal or suspension apply to the Labour Commissioner for reinstatement and payment of compensation for loss of wages. A person who applies within six months from the date of his dismissal, discharge, removal or suspension is certainly not employed on that date and yet if the argument of the respondents is accepted he is not an employee within the meaning of Section 2(10) and hence has no right to apply under(2) of Section 16.An employee dismissed, discharged or removed on account of any industrial dispute is certainly an employee under Section 2 (10). But what is meant by an "industrial dispute" in this definition can be ascertained by reference to Section 2 (12) under which any dispute or difference connected with an industrial matter arising between employer and employee or between employers or employees is an industrialvery contention was negatived in that case for the obvious reason that the dispute or difference referred to in Section 2 (12) should be connected with an industrial matter arising between an employer and an employee, which industrial matter as defined in S.2(13) covers any matter relating to refusal to employ and includes questions pertaining to the dismissal orof any person. If so considered, since a question or reinstatement is an industrial dispute, the appellant would be an employee within the meaning of S.2(10) of the Act for the purposes of availing himself of the right under(2) of S.16.Even under a restricted definition of the word "employee" under S.2(10) before the amendment, this Court in the Central Provinces Transport Services Ltd.s case, 1956 SCR 956 = (AIR 1957 SC 104 ) had held that a workman whose services had been terminated could have resort to(2) of Section 16 of the Act. The High Court thought that the decision is inapplicable as in that case an enquiry had been held before the employees services were terminated which amounted to an industrial dispute but in the instant case no such industrial dispute arose as it was a retrenchment simpliciter. We are unable to appreciate this distinction as in our view it is a distinction without a difference. The ratio in the Central Provinces Transport Services Ltds case, 1956 SCR 956 = (AIR 1957 SC 104 ) is clearly applicable notwithstanding the amendment of S.2 (10) and S.16 of the Act. After pointing out that S. 2(k) of the Central Act and Sections 2 (12) and 2 (13) of the Act are substantially in pari materia, the ratio of Western India Automobile Association v. Industrial Tribunal, Bombay, 1949 FCR 321 = (AIR 1949 FC 111) will be as much applicable to the one enactment as to the other, this Court pointed out in the Central Provinces Transport Services Ltds case, 1956 SCR 956 at pp. 961962 = (AIR 1957 SCcase was referred to and considered in Bannett Coleman and Co. (P) Ltd. v. Punya Priya Das Gupta, (1969) 2 Lab LJ 554 = (AIR 1970 SC 426 ). The case was under the Working Journalists (Conditions of Services and Miscellaneous Provisions) Act, 1955, where a newspaper employee was defined in a language similar to that used in defining an "employee" under the Act and the Central Act. This Court took note of the amendment in the Act and even so held that both the decisions in the Western India Automobile Associations case, 1949 FCR 321 = (AIR 1949 FC 111) and the Central Provinces Transport Services Ltds case, 1956 SCR 956 = (AIR 1957 SC 104 ) were authorities for the view that anwould, for the purposes of the controversy before them, be a working journalist. The contention that Dhrangadhra Chemical Works Ltd. v. State of Saurashtra, (1957) 1 Lab LJ 477 = (AIR 1957 SC 264 ) and Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate, (1958) 1 Lab LJ 500 = (AIR 1958 SC 353 ) took a contrary view was examined and distinguished. It was, however, observed that even assuming that there is such a conflict as contended, it was not necessary to resolve it for the purposes of the problem before the Court, because the Act which was being considered there and the Central Act,the Minimum Wages Act, 1948, the Central Provinces Act with which we are concerned disclose a similar scheme under which anis permitted to avail of the benefits of these provisions, the only requirmeent being that the claim in dispute must be one which has arisen or accrued whilst the claimant was in employment of the person against whom it is made. | 1 | 3,413 | 2,087 | ### 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:
what is meant by an "industrial dispute" in this definition can be ascertained by reference to Section 2 (12) under which any dispute or difference connected with an industrial matter arising between employer and employee or between employers or employees is an industrial dispute. No doubt it was contended in the Central Provinces Transport Services Ltds case, 1956 SCR 956 = (AIR 1957 SC 104 ) that where a person is dismissed, discharged or retrenched, the relationship of an employer and employee is terminated and there is no longer an industrial dispute. This very contention was negatived in that case for the obvious reason that the dispute or difference referred to in Section 2 (12) should be connected with an industrial matter arising between an employer and an employee, which industrial matter as defined in S.2(13) covers any matter relating to refusal to employ and includes questions pertaining to the dismissal or non-employment of any person. If so considered, since a question or reinstatement is an industrial dispute, the appellant would be an employee within the meaning of S.2(10) of the Act for the purposes of availing himself of the right under sub-s. (2) of S.16.Even under a restricted definition of the word "employee" under S.2(10) before the amendment, this Court in the Central Provinces Transport Services Ltd.s case, 1956 SCR 956 = (AIR 1957 SC 104 ) had held that a workman whose services had been terminated could have resort to sub-section (2) of Section 16 of the Act. The High Court thought that the decision is inapplicable as in that case an enquiry had been held before the employees services were terminated which amounted to an industrial dispute but in the instant case no such industrial dispute arose as it was a retrenchment simpliciter. We are unable to appreciate this distinction as in our view it is a distinction without a difference. The ratio in the Central Provinces Transport Services Ltds case, 1956 SCR 956 = (AIR 1957 SC 104 ) is clearly applicable notwithstanding the amendment of S.2 (10) and S.16 of the Act. After pointing out that S. 2(k) of the Central Act and Sections 2 (12) and 2 (13) of the Act are substantially in pari materia, the ratio of Western India Automobile Association v. Industrial Tribunal, Bombay, 1949 FCR 321 = (AIR 1949 FC 111) will be as much applicable to the one enactment as to the other, this Court pointed out in the Central Provinces Transport Services Ltds case, 1956 SCR 956 at pp. 961 - 962 = (AIR 1957 SC 104):"We are also unable to accede to the contention of the appellant that the inclusive clause in S.2(10) of the Act is an indication that the legislature did not intend to include within that definition those who had ceased to be in service. In our opinion, that clause was inserted ex abundanti cautela to repel a possible contention that employees discharged under Ss. 31 and 32 of the Act would not fall within S.2(10) and cannot be read as importing an intention generally to exclude dismissed employees from that definition. On the other hand, S.16 of the Act expressly provides for relief being granted to dismissed employees by way of reinstatement and compensation, and that provision must become useless and inoperative. If we are to adopt the construction which the appellant seeks to put on the definition of employee in Sec. 2 (10). We must accordingly hold agreeing with the decision in 1949 FCR 321 = (AIR 1949 FC 111) (supra), that the definition of "employee" in the Act would include one who has been dismissed and the respondent cannot be denied relief only by reason of the fact that he was not in employment on the date of the application."This case was referred to and considered in Bannett Coleman and Co. (P) Ltd. v. Punya Priya Das Gupta, (1969) 2 Lab LJ 554 = (AIR 1970 SC 426 ). The case was under the Working Journalists (Conditions of Services and Miscellaneous Provisions) Act, 1955, where a newspaper employee was defined in a language similar to that used in defining an "employee" under the Act and the Central Act. This Court took note of the amendment in the Act and even so held that both the decisions in the Western India Automobile Associations case, 1949 FCR 321 = (AIR 1949 FC 111) and the Central Provinces Transport Services Ltds case, 1956 SCR 956 = (AIR 1957 SC 104 ) were authorities for the view that an ex-employee would, for the purposes of the controversy before them, be a working journalist. The contention that Dhrangadhra Chemical Works Ltd. v. State of Saurashtra, (1957) 1 Lab LJ 477 = (AIR 1957 SC 264 ) and Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate, (1958) 1 Lab LJ 500 = (AIR 1958 SC 353 ) took a contrary view was examined and distinguished. It was, however, observed that even assuming that there is such a conflict as contended, it was not necessary to resolve it for the purposes of the problem before the Court, because the Act which was being considered there and the Central Act, the Minimum Wages Act, 1948, the Central Provinces Act with which we are concerned disclose a similar scheme under which an ex-employee is permitted to avail of the benefits of these provisions, the only requirmeent being that the claim in dispute must be one which has arisen or accrued whilst the claimant was in employment of the person against whom it is made.5. In view of what has been stated, we think the High Court was in error in holding that the application of the appellant could not be entertained by the Labour Commissioner. As this was the only question decided, we allow these appeals, set aside the judgment and decree of the High Court and remand the case to the High Court for disposal according to law. The appellant will have his costs in this Court, one
### Response:
1
### Explanation:
High Court, therefore, a plain reading of the definition of the term "employee" in S.2 (10) shows that the only category of persons who, though not in actual employment at the date of the application included within that term is of persons who areand were dismissed, discharged or removed on account of any industrial dispute of any industrial dispute which dispute must precede the dismissal, discharge or removal, and that their dismissal, discharge or removal must be the result of suchour view both these contentions are untenable. A combined reading of the definition of an "employee" in S. 2 (10) with S.2(12) and (13) would negative the submission that those who had cessed to be in service were not intended to be included within the definition of an "employee". When the Legislature is defining a word or term refers to certain matters as being included therein it does so because either that word or term does not generically include what is sought to be included or that it is anxious to dispel any doubt as to what is included therein is not so included and by abundanti cautela it is specifically shown as having been included in order to repel any such contention to the contra. Under Section 16 (2) an employee working in an industry to which a notification under(1) is applied can within six months of his dismissal, discharge, removal or suspension apply to the Labour Commissioner for reinstatement and payment of compensation for loss of wages. A person who applies within six months from the date of his dismissal, discharge, removal or suspension is certainly not employed on that date and yet if the argument of the respondents is accepted he is not an employee within the meaning of Section 2(10) and hence has no right to apply under(2) of Section 16.An employee dismissed, discharged or removed on account of any industrial dispute is certainly an employee under Section 2 (10). But what is meant by an "industrial dispute" in this definition can be ascertained by reference to Section 2 (12) under which any dispute or difference connected with an industrial matter arising between employer and employee or between employers or employees is an industrialvery contention was negatived in that case for the obvious reason that the dispute or difference referred to in Section 2 (12) should be connected with an industrial matter arising between an employer and an employee, which industrial matter as defined in S.2(13) covers any matter relating to refusal to employ and includes questions pertaining to the dismissal orof any person. If so considered, since a question or reinstatement is an industrial dispute, the appellant would be an employee within the meaning of S.2(10) of the Act for the purposes of availing himself of the right under(2) of S.16.Even under a restricted definition of the word "employee" under S.2(10) before the amendment, this Court in the Central Provinces Transport Services Ltd.s case, 1956 SCR 956 = (AIR 1957 SC 104 ) had held that a workman whose services had been terminated could have resort to(2) of Section 16 of the Act. The High Court thought that the decision is inapplicable as in that case an enquiry had been held before the employees services were terminated which amounted to an industrial dispute but in the instant case no such industrial dispute arose as it was a retrenchment simpliciter. We are unable to appreciate this distinction as in our view it is a distinction without a difference. The ratio in the Central Provinces Transport Services Ltds case, 1956 SCR 956 = (AIR 1957 SC 104 ) is clearly applicable notwithstanding the amendment of S.2 (10) and S.16 of the Act. After pointing out that S. 2(k) of the Central Act and Sections 2 (12) and 2 (13) of the Act are substantially in pari materia, the ratio of Western India Automobile Association v. Industrial Tribunal, Bombay, 1949 FCR 321 = (AIR 1949 FC 111) will be as much applicable to the one enactment as to the other, this Court pointed out in the Central Provinces Transport Services Ltds case, 1956 SCR 956 at pp. 961962 = (AIR 1957 SCcase was referred to and considered in Bannett Coleman and Co. (P) Ltd. v. Punya Priya Das Gupta, (1969) 2 Lab LJ 554 = (AIR 1970 SC 426 ). The case was under the Working Journalists (Conditions of Services and Miscellaneous Provisions) Act, 1955, where a newspaper employee was defined in a language similar to that used in defining an "employee" under the Act and the Central Act. This Court took note of the amendment in the Act and even so held that both the decisions in the Western India Automobile Associations case, 1949 FCR 321 = (AIR 1949 FC 111) and the Central Provinces Transport Services Ltds case, 1956 SCR 956 = (AIR 1957 SC 104 ) were authorities for the view that anwould, for the purposes of the controversy before them, be a working journalist. The contention that Dhrangadhra Chemical Works Ltd. v. State of Saurashtra, (1957) 1 Lab LJ 477 = (AIR 1957 SC 264 ) and Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate, (1958) 1 Lab LJ 500 = (AIR 1958 SC 353 ) took a contrary view was examined and distinguished. It was, however, observed that even assuming that there is such a conflict as contended, it was not necessary to resolve it for the purposes of the problem before the Court, because the Act which was being considered there and the Central Act,the Minimum Wages Act, 1948, the Central Provinces Act with which we are concerned disclose a similar scheme under which anis permitted to avail of the benefits of these provisions, the only requirmeent being that the claim in dispute must be one which has arisen or accrued whilst the claimant was in employment of the person against whom it is made.
|
Rambhau Vs. State Of Maharashtra | any manner of doubt that the prosecution has fully established the demand by Appellant No. 1 on 23rd January, 1989. As regards the demand and acceptance on 24th January, 1989, the High Court also negatived the finding of the learned Special Judge who reached a conclusion that the demand on 24th January, 1989 is completely untrustworthy. It is on this score, it was argued before the High Court that the factum of payment on 24th January as per the version of P.W.1 Sangamlal was not put to the accused persons in their examination under Section 313 of the Code of Criminal Procedure and as such circumstances cannot be used against the accused. It is on this count, the High Court conducted additional examination of both the accused persons in the High Court so as "to rectify the irregularity as cropped up and pointed out by the defence." 11. Before the High Court strenuous submissions (were) made pertaining to the effect of acceptance of uncorroborated testimony, and the High Court dealt with the issue in the manner following: "7. There cannot be any debate on a broad proposition. Judicial prudence ordinarily look for a corroboration from an independent witness, to the version of the complainant. Undisputedly the Panch does not render corroboration to the version of the complainant on the aspect of demand on 24.1.1989. However, as discussed the circumstances and the facts of the case are peculiar. In the instant case, the demand and acceptance did not take place then and there. After the demand, as claimed, the seizure, took place at a distance of 2 kilometers from the Police Station from PW6. Between demand and seizure, the peculiarity of the case is that there were intervening events. Moreover, the prosecution does not claim direct acceptance by the accused No. 1. We, therefore, propose to examine whether the circumstances which have been brought on record, render corroboration to the demand and acceptance. We may mention at this stage that the accused No. 2 only in his statement under Section 313 of the Code of Criminal Procedure tried to suggest that owning to his venture of kicking PW 1 Sangamlal, he lodged a false complaint. However, during the entire cross-examination no such allegation was made to PW 1 Sangamlal. The motive as tried to be attributed is imaginary and by way of an after-thought. 8............. 9. During the course of arguments or even otherwise in the cross-examination it is not explained as to how the PW 1 complainant Sangamlal approached the accused No. 2 for getting the notes changed. No suggestion was made to PW 1 Sangamlal in cross-examination on behalf of accused No. 2. There was not even formal inquiry as to why and what for the complainant needed the change of the notes. It was also not suggested that the complainant in any manner was in need of the notes of smaller denominations. As such the entire claim as put forth by the accused No. 2 is completely infirm. It goes to suggest that he took the mission of getting the notes changed as decided earlier. His defence that he happened to be in Shere Punjab Hotel and incidentally the complainant came there is patently false. Taking into account the evidence of PW 1 Sangamlal, PW 3 Manapure, PW 4 Dongre, PW 5 Hadke, PW 6 Wadekar and PW 7 Tijare it is fully established that it is the accused No. 2 who took the complainant for getting the notes exchanged. Even otherwise the defence has not seriously challenged the testimony of PW 4 Dongre, PW 5 Hadke and PW 6 Wedakar in this behalf. 12. Mr. Verma, the learned Senior Advocate very strongly contended that High Court had no authority or jurisdiction to examine the accused persons in the High Court to rectify the defect and the lacuna in the prosecution. The High Court records it to be a mere irregularity and on the complexities of issue, we do not see any reason as to why such a course ought not to be permitted to be taken recourse to, in the fact-situation of the matter under consideration. The omission cannot but be ascribed to be a mere irregularity. The High Court on the basis of relevant evidence on record held that the prosecution has fully established the demand by the accused No. 1 on 23rd January, 1989. It is the demand of 24th January which was said to have not been put to the accused but the factum of demand on an earlier day stands proved and concluded together with the seizure of the tainted notes on 24th January, completes the offence, as such omission to put to the accused, the demand on 24th cannot be said to be of such a nature which would go to the roof of the matter. It is not a defect incurable in nature but a mere irregularity which the High Court thought it fit to cure, as such we do not find any material objection to such a method as stands adopted by the High Court. The irregularity has been cured. The prosecution has clearly established that the Appellant No. 1 is a public servant and in discharge of his official duties made a demand of Rs. 1300/- from PW 1 Sangamlal as an illegal gratification and taking into account the evidence as is available on record, the accused No. 2 also has played a very significant role in negotiating on the figure of the amount and further having the notes exchanged at the dictate of the Appellant No. 1, it cannot thus but be said that the Appellant No. 2 substantially abetted the crime and thus we record our agreement in the finding of the High Court that the accused persons are guilty of the offence for which they were charged and question of recording a finding of acquittal in the matter cannot by any stretch be sustained. In that view of the matter, this Appeal fails and is dismissed. | 0[ds]12. Mr. Verma, the learned Senior Advocate very strongly contended that High Court had no authority or jurisdiction to examine the accused persons in the High Court to rectify the defect and the lacuna in the prosecution. The High Court records it to be a mere irregularity and on the complexities of issue, we do not see any reason as to why such a course ought not to be permitted to be taken recourse to, in the fact-situation of the matter under consideration. The omission cannot but be ascribed to be a mere irregularity. The High Court on the basis of relevant evidence on record held that the prosecution has fully established the demand by the accused No. 1 on 23rd January, 1989. It is the demand of 24th January which was said to have not been put to the accused but the factum of demand on an earlier day stands proved and concluded together with the seizure of the tainted notes on 24th January, completes the offence, as such omission to put to the accused, the demand on 24th cannot be said to be of such a nature which would go to the roof of the matter. It is not a defect incurable in nature but a mere irregularity which the High Court thought it fit to cure, as such we do not find any material objection to such a method as stands adopted by the High Court. The irregularity has been cured. The prosecution has clearly established that the Appellant No. 1 is a public servant and in discharge of his official duties made a demand of Rs. 1300/- from PW 1 Sangamlal as an illegal gratification and taking into account the evidence as is available on record, the accused No. 2 also has played a very significant role in negotiating on the figure of the amount and further having the notes exchanged at the dictate of the Appellant No. 1, it cannot thus but be said that the Appellant No. 2 substantially abetted the crime and thus we record our agreement in the finding of the High Court that the accused persons are guilty of the offence for which they were charged and question of recording a finding of acquittal in the matter cannot by any stretch be sustained. | 0 | 2,871 | 415 | ### 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:
any manner of doubt that the prosecution has fully established the demand by Appellant No. 1 on 23rd January, 1989. As regards the demand and acceptance on 24th January, 1989, the High Court also negatived the finding of the learned Special Judge who reached a conclusion that the demand on 24th January, 1989 is completely untrustworthy. It is on this score, it was argued before the High Court that the factum of payment on 24th January as per the version of P.W.1 Sangamlal was not put to the accused persons in their examination under Section 313 of the Code of Criminal Procedure and as such circumstances cannot be used against the accused. It is on this count, the High Court conducted additional examination of both the accused persons in the High Court so as "to rectify the irregularity as cropped up and pointed out by the defence." 11. Before the High Court strenuous submissions (were) made pertaining to the effect of acceptance of uncorroborated testimony, and the High Court dealt with the issue in the manner following: "7. There cannot be any debate on a broad proposition. Judicial prudence ordinarily look for a corroboration from an independent witness, to the version of the complainant. Undisputedly the Panch does not render corroboration to the version of the complainant on the aspect of demand on 24.1.1989. However, as discussed the circumstances and the facts of the case are peculiar. In the instant case, the demand and acceptance did not take place then and there. After the demand, as claimed, the seizure, took place at a distance of 2 kilometers from the Police Station from PW6. Between demand and seizure, the peculiarity of the case is that there were intervening events. Moreover, the prosecution does not claim direct acceptance by the accused No. 1. We, therefore, propose to examine whether the circumstances which have been brought on record, render corroboration to the demand and acceptance. We may mention at this stage that the accused No. 2 only in his statement under Section 313 of the Code of Criminal Procedure tried to suggest that owning to his venture of kicking PW 1 Sangamlal, he lodged a false complaint. However, during the entire cross-examination no such allegation was made to PW 1 Sangamlal. The motive as tried to be attributed is imaginary and by way of an after-thought. 8............. 9. During the course of arguments or even otherwise in the cross-examination it is not explained as to how the PW 1 complainant Sangamlal approached the accused No. 2 for getting the notes changed. No suggestion was made to PW 1 Sangamlal in cross-examination on behalf of accused No. 2. There was not even formal inquiry as to why and what for the complainant needed the change of the notes. It was also not suggested that the complainant in any manner was in need of the notes of smaller denominations. As such the entire claim as put forth by the accused No. 2 is completely infirm. It goes to suggest that he took the mission of getting the notes changed as decided earlier. His defence that he happened to be in Shere Punjab Hotel and incidentally the complainant came there is patently false. Taking into account the evidence of PW 1 Sangamlal, PW 3 Manapure, PW 4 Dongre, PW 5 Hadke, PW 6 Wadekar and PW 7 Tijare it is fully established that it is the accused No. 2 who took the complainant for getting the notes exchanged. Even otherwise the defence has not seriously challenged the testimony of PW 4 Dongre, PW 5 Hadke and PW 6 Wedakar in this behalf. 12. Mr. Verma, the learned Senior Advocate very strongly contended that High Court had no authority or jurisdiction to examine the accused persons in the High Court to rectify the defect and the lacuna in the prosecution. The High Court records it to be a mere irregularity and on the complexities of issue, we do not see any reason as to why such a course ought not to be permitted to be taken recourse to, in the fact-situation of the matter under consideration. The omission cannot but be ascribed to be a mere irregularity. The High Court on the basis of relevant evidence on record held that the prosecution has fully established the demand by the accused No. 1 on 23rd January, 1989. It is the demand of 24th January which was said to have not been put to the accused but the factum of demand on an earlier day stands proved and concluded together with the seizure of the tainted notes on 24th January, completes the offence, as such omission to put to the accused, the demand on 24th cannot be said to be of such a nature which would go to the roof of the matter. It is not a defect incurable in nature but a mere irregularity which the High Court thought it fit to cure, as such we do not find any material objection to such a method as stands adopted by the High Court. The irregularity has been cured. The prosecution has clearly established that the Appellant No. 1 is a public servant and in discharge of his official duties made a demand of Rs. 1300/- from PW 1 Sangamlal as an illegal gratification and taking into account the evidence as is available on record, the accused No. 2 also has played a very significant role in negotiating on the figure of the amount and further having the notes exchanged at the dictate of the Appellant No. 1, it cannot thus but be said that the Appellant No. 2 substantially abetted the crime and thus we record our agreement in the finding of the High Court that the accused persons are guilty of the offence for which they were charged and question of recording a finding of acquittal in the matter cannot by any stretch be sustained. In that view of the matter, this Appeal fails and is dismissed.
### Response:
0
### Explanation:
12. Mr. Verma, the learned Senior Advocate very strongly contended that High Court had no authority or jurisdiction to examine the accused persons in the High Court to rectify the defect and the lacuna in the prosecution. The High Court records it to be a mere irregularity and on the complexities of issue, we do not see any reason as to why such a course ought not to be permitted to be taken recourse to, in the fact-situation of the matter under consideration. The omission cannot but be ascribed to be a mere irregularity. The High Court on the basis of relevant evidence on record held that the prosecution has fully established the demand by the accused No. 1 on 23rd January, 1989. It is the demand of 24th January which was said to have not been put to the accused but the factum of demand on an earlier day stands proved and concluded together with the seizure of the tainted notes on 24th January, completes the offence, as such omission to put to the accused, the demand on 24th cannot be said to be of such a nature which would go to the roof of the matter. It is not a defect incurable in nature but a mere irregularity which the High Court thought it fit to cure, as such we do not find any material objection to such a method as stands adopted by the High Court. The irregularity has been cured. The prosecution has clearly established that the Appellant No. 1 is a public servant and in discharge of his official duties made a demand of Rs. 1300/- from PW 1 Sangamlal as an illegal gratification and taking into account the evidence as is available on record, the accused No. 2 also has played a very significant role in negotiating on the figure of the amount and further having the notes exchanged at the dictate of the Appellant No. 1, it cannot thus but be said that the Appellant No. 2 substantially abetted the crime and thus we record our agreement in the finding of the High Court that the accused persons are guilty of the offence for which they were charged and question of recording a finding of acquittal in the matter cannot by any stretch be sustained.
|
Lakshmamma Vs. The Commissioner, Bangalore Development Authority and Ors | Navin Sinha, J.1. The Appellant assails the orders of the Bangalore Development Authority (hereinafter called as the "Authority") dated 15.11.2006 and 17.09.2003, as affirmed by the High Court. The former declines to restore "khata" in the name of the Appellant, and the latter cancels the "khata" standing earlier in the name of the Appellants vendor.2. The Scheduled Caste (Harijan) House Building Co-operative Society Limited (hereinafter called as the "Society"), Respondent No. 2, was allotted 4 acres 23 guntas of land in Survey No. 32 of Marenahalli for development of residential layout for its members. Bye law No. 5(iii) restricted membership of the Society to Scheduled Caste persons only. The Society allotted and sold site No. 10 to the Appellants vendor on 24.12.1985. The Appellant purchased the same on 29.08.2005 by a registered sale deed. Subsequently, one P. Venugopal, who was the Secretary of the Society from 1983 to 1988, after expiry of his term, allotted and registered sites to persons who were not members of the Society in 1997, and which included one S. Vasanth Raj, and to whom the Appellants plot was resold.3. The allotments so made in 1997 came to be cancelled by the Assistant Registrar, Co-operative Societies on 25.03.1998. The appeal preferred by S. Vasanth Raj before the Karnataka Appellate Tribunal was dismissed as withdrawn on 03.08.2006.4. The Registrar of Co-operative Societies, by his order dated 02.01.1997, on a challenge by the Society, while holding that membership had to be restricted to persons belonging to the scheduled caste only, directed that the existing members of the Society irrespective of caste, and which included persons like the Appellant, shall continue to enjoy all rights and privileges available to the members of the Society. The High Court declined interference by order dated 10.02.2006 and inter alia directed that all cancellation deeds stood cancelled, with directions to the Sub-Registrar to delete the cancellation deeds from the register.5. The Appellant then represented to the Authority for restoration of the "khata" in her name. The impugned order dated 15.11.2006 declined her request on the ground that she did not belong to the scheduled caste, and therefore, her membership had been cancelled.6. The facts of the case, as noticed above, have not been disputed by the learned Counsel appearing for the Authority. If that be so, the allotments made by the Society to persons not belonging to scheduled caste stood saved by order of the Registrar of Co-operative Societies dated 02.01.1997 as affirmed by the High Court on 10.02.2006. It hardly needs further elucidation that the grounds mentioned in the impugned order are completely non est. The order therefore stands vitiated by complete non-application of mind. The allotments by the then Secretary P. Venugopal having been held to be illegal and without authority, the order dated 17.09.2003 is also unsustainable, additionally in view of the withdrawal of his appeal by Vasanth Raj on 03.08.2006. | 1[ds]6. The facts of the case, as noticed above, have not been disputed by the learned Counsel appearing for the Authority. If that be so, the allotments made by the Society to persons not belonging to scheduled caste stood saved by order of the Registrar of Co-operative Societies dated 02.01.1997 as affirmed by the High Court on 10.02.2006. It hardly needs further elucidation that the grounds mentioned in the impugned order are completely non est. The order therefore stands vitiated by complete non-application of mind. The allotments by the then Secretary P. Venugopal having been held to be illegal and without authority, the order dated 17.09.2003 is also unsustainable, additionally in view of the withdrawal of his appeal by Vasanth Raj on 03.08.2006. | 1 | 549 | 138 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
Navin Sinha, J.1. The Appellant assails the orders of the Bangalore Development Authority (hereinafter called as the "Authority") dated 15.11.2006 and 17.09.2003, as affirmed by the High Court. The former declines to restore "khata" in the name of the Appellant, and the latter cancels the "khata" standing earlier in the name of the Appellants vendor.2. The Scheduled Caste (Harijan) House Building Co-operative Society Limited (hereinafter called as the "Society"), Respondent No. 2, was allotted 4 acres 23 guntas of land in Survey No. 32 of Marenahalli for development of residential layout for its members. Bye law No. 5(iii) restricted membership of the Society to Scheduled Caste persons only. The Society allotted and sold site No. 10 to the Appellants vendor on 24.12.1985. The Appellant purchased the same on 29.08.2005 by a registered sale deed. Subsequently, one P. Venugopal, who was the Secretary of the Society from 1983 to 1988, after expiry of his term, allotted and registered sites to persons who were not members of the Society in 1997, and which included one S. Vasanth Raj, and to whom the Appellants plot was resold.3. The allotments so made in 1997 came to be cancelled by the Assistant Registrar, Co-operative Societies on 25.03.1998. The appeal preferred by S. Vasanth Raj before the Karnataka Appellate Tribunal was dismissed as withdrawn on 03.08.2006.4. The Registrar of Co-operative Societies, by his order dated 02.01.1997, on a challenge by the Society, while holding that membership had to be restricted to persons belonging to the scheduled caste only, directed that the existing members of the Society irrespective of caste, and which included persons like the Appellant, shall continue to enjoy all rights and privileges available to the members of the Society. The High Court declined interference by order dated 10.02.2006 and inter alia directed that all cancellation deeds stood cancelled, with directions to the Sub-Registrar to delete the cancellation deeds from the register.5. The Appellant then represented to the Authority for restoration of the "khata" in her name. The impugned order dated 15.11.2006 declined her request on the ground that she did not belong to the scheduled caste, and therefore, her membership had been cancelled.6. The facts of the case, as noticed above, have not been disputed by the learned Counsel appearing for the Authority. If that be so, the allotments made by the Society to persons not belonging to scheduled caste stood saved by order of the Registrar of Co-operative Societies dated 02.01.1997 as affirmed by the High Court on 10.02.2006. It hardly needs further elucidation that the grounds mentioned in the impugned order are completely non est. The order therefore stands vitiated by complete non-application of mind. The allotments by the then Secretary P. Venugopal having been held to be illegal and without authority, the order dated 17.09.2003 is also unsustainable, additionally in view of the withdrawal of his appeal by Vasanth Raj on 03.08.2006.
### Response:
1
### Explanation:
6. The facts of the case, as noticed above, have not been disputed by the learned Counsel appearing for the Authority. If that be so, the allotments made by the Society to persons not belonging to scheduled caste stood saved by order of the Registrar of Co-operative Societies dated 02.01.1997 as affirmed by the High Court on 10.02.2006. It hardly needs further elucidation that the grounds mentioned in the impugned order are completely non est. The order therefore stands vitiated by complete non-application of mind. The allotments by the then Secretary P. Venugopal having been held to be illegal and without authority, the order dated 17.09.2003 is also unsustainable, additionally in view of the withdrawal of his appeal by Vasanth Raj on 03.08.2006.
|
West Coast Paper Mills Limited Vs. West Coast Paper Mills Limited Employees' Union & Another | the merits of the dearness allowance scheme submitted by the Union, we consider that the proposed dearness allowance scheme as submitted by the Union was the most reasonable one and was most satisfactory. The said dearness allowance scheme at C.L.I. 1296 is as follows:"Basic Salary Fixed D.A. Variable D.A. Variable D.A.for every or every 10 points 10 pointsrise or fall rise or fall upto CLI 3300 aboveCLI 3301Rs. 1 to 100 160% (Plus) 5% (plus) 4% (plus)Rs. 101 to 200 80% (Plus) 2% (plus) 1.5% (plus)Rs. 201 and above 40% 0.75% 0.75%"On the basis of this, the Union prepared a detailed Chart showing the total wages that may be calculated. We have seen the said Chart at pages 242 to 249 in the paper book at Vol. IV. In fact, the said Chart shows that though at the initial stage at CLI 1296 in the case of certain categories of workmen the Company may have to pay a slightly higher amount than M/s. Hindustan Ferodo Ltd. But at later stage as the CLI increases from time to time, the Company pays much less than what M/s. Hindustan Ferodo Ltd. would pay to such workmen. One fails to understand as to why this cannot be accepted by the Company. This has the advantage of not interfering with the span of service and also the minimum and maximum payable with regard to basic wages in the case of each category of workmen.22. The respondent-Union had submitted that for the purpose of equating the two wages packets, it is necessary to take into account the fact that the workmen of the Appellant company work 19 hours per month more than the number of hours put in by the workmen of M/s. Hindustan Ferodo Ltd. Mr. Vaze rejected this submission on an erroneous ground that both the workmen are paid monthly rated wages and not hourly rates wages. Mr. Vaze ought to have known that there can be no wages packet without any relation to the working hours. In a year, the workmen of the Appellant-Company put in approximately 37 more than the number of days/hours put in by the workmen of M/s. Hindustan Ferodo Ltd. For the purpose of comparing the two wage structures, that was a very relevant component which could not have been ignored at all. It is not that such a factor is unknown to such a Tribunal in any fixation of wage structure. If this component is taken into account, on the scheme proposed by the Union as set out above, it is the workmen who suffer greater loss than the management. A look at the chart would clearly show that by and large the workmen would get less than the workmen in M/s. Hindustan Ferodo Ltd. would get throughout. But since the Union is prepared to accept this, we cannot appreciate why the management wants to reject unless their object is to defeat the legitimate claim of the workmen.23. Mr. Srikrishna pointed out that this proposed dearness allowance scheme does not take into account the personal pay, production bonus and medical reimbursement. His submission is that if those three items are taken into account, the total pay-packet would exceed than that of M/s. Hindustan Ferodo Ltd. in the case of each of the category of workmen. As against this, Mr. Menon pointed out that as far as personal pay was concerned, when the dispute was referred to the Industrial Tribunal initially, there was no personal pay as such. He submitted that it was payable only to those workmen who were on the pay-roll of the Company as on October 31, 1979, and the same was fixed at 16.5% of the then existing basic salary upto Rs. 750/- and for the basic salary of Rs. 751/- and above the percentage was 10.095. From January 1, 1980 the personal pay was constant at that rate and at that amount. Mr. Menon also pointed out as to how the statement filed by the Company in this behalf is misleading, as if all the categories of workmen get such personal pay, though, in fact, all the workmen appointed on or after November 1, 1979 are not eligible to get any personal pay. We are, therefore, not inclined to attach any importance to this item. Even otherwise, we are of the opinion that even if this item is included in the pay-packet it would not make any great difference, as far as the total pay-packet is concerned, inasmuch as under the proposed scheme the workers get much less than what their counterpart would get in M/s. Hindustan Ferodo Ltd. The personal pay would not even off-set the loss they are willing to bear.24. The second item relates to production bonus. Mr. Srikrishna pointed out that production bonus is being calculated on the basis of basis wages plus dearness allowance. Mr. Menon had made a categorical statement, and repeats now, that the workmen would not insist upon the production bonus being calculated on the basis of the basic wages plus dearness allowance. In other words, he stated that the workers would restrict their claim of production bonus at the rate of 6% only on the basic wages and personal pay. This would, in effect answer grievance of Mr. Srikrishna. Mr. Menon submitted that, in fact, production bonus is a fluctuating figure and it depends upon the agreements between the workmen and the Company, from time to time.25. The third objection relates to the medical reimbursement. In fact this is no allowance, forming part of the pay-packet of the workmen. It is not an amount uniformly paid as a part of the pay-packet month after month. It is a contingent payment. This is only a reimbursement of actual medical expenses incurred during the sickness and the same is paid against the medical certificates, bills etc. but subject to 4 per cent of the basic wages. We cannot understand as to how the Company says that this should be included in the basic wages as such. | 1[ds]9. The matter on the question of fixation of dearness allowance thus went back to the Tribunal presided over by Mr. S.V. Vaze. Mr. Vaze by his order dated January 9, 1989 made an award which in his own words was not a "valid proposition" but was only made as "unavoidable solution". What he did was something, as described by Mr. Menon, Advocate for thein the nature of an application of procrustean table. He confessed that he was unable to accept the challenge that was offered to him. Perhaps, he thought that he was required to perform mathematical jugglery whereby the total(consisting of basic pay, dearness allowance, production bonus and all allowances) of the workmen at every given point of time should be the same as the(consisting of basic pay, dearness allowance, production bonus and all allowances) of the workmen having put in the same number of years of service in M/s. Hindustan Ferodo Ltd. He ignored the fact that the span of service of each of the category of the workmen in the present Company was not comparable to that of M/s. Hindustan Ferodo Ltd. He also ignored the fact that in the present Company, the basic wages at the commencement were at the higher level than that of the workmen of M/s. Hindustan Ferodo Ltd. So also at the maximum level. He rejected the contention of the Union that the workmen in thehours more than Hindustan Ferodo workers per month. He rightly did not take into account superannuation contribution as also considerations pertaining to gratuity. But he included the personal pay and medical benefit of 4 per cent which were being paid since 1980.Here again, we find that the appellants have not assisted the Tribunal in any manner by suggesting a rational basis either for fixation of the slabs or for the fixation of dearness allowance on equitable basis. In fact, the Union had provided and furnished to the Tribunal with a formula which would have met the requirements of the reference. But, surprisingly the Tribunal did not even refer to it, nor did it care to consider the same. In our opinion, Mr. Vazes award is no award. In fact, to say the least, it discloses a total lack of perspective and rational approach in the matter. If the same is given effect to, it leads to a wholly perverse situation, if not disastrous to the interests of the workmen. The learned member misunderstood the reference when he thought that the sole object of the reference was to give the same basic wages and other terms and conditions as in the case of M/s. Hindustan Ferodo. That was not the case.It is true that the concerned workmen of the Appellant Company must get an equivalentwhich a similarly situated work men in M/s. Hindustan Ferodo Ltd. would get. What is the meaning of the words "similarly situated workmen" How would onea scale of dearness allowance in comparison to the scale of another concern which is accepted as the criteria applicable to the case. There cannot be a mathematical equation unless in both the concerns the basic wages and all other conditions of service are identical. Therefore, what was expected of Mr. Vaze was rationalisation and fixation of scale of dearness allowance on the basis of a similar scale as found in M/s. Hindustan Ferodo Ltd. In that he had to take into account the span of service of each category of workmen and the slab system, in both the concerns. How would one equate the dearness allowance at the minimum and at the maximum levels, the two extreme points, is the crucial point. Parity as to be achieved within these two limits and in that it should be more or less similar to one another. Mr. Vaze missed this approach altogether.Mr. Menon has demonstrated how this mathematical equation based on the common condition/rider has resulted in such apparent distortions is the wage packets between two employees both getting the same basic wages. It is elementary that workmen drawing the same basic wages should get the same dearness allowance. But if Mr. Vazes formula is accepted, in number of case where the basic wages is the same, the dearness allowance differs. For example in number of cases where the basic wage of the workmen is Rs. 1,155/per month, if Mr. Vazes formula is applied, the totaldiffer, varying to the extent of over Rs. 1,000/per month. For example, in the case of one G.L. Bang, whose basic salary is Rs.he is equated with a person drawing basic wages at Rs. 513/in M/s. Hindustan Ferodo Ltd. and if dearness allowance is calculated at that rate, his total emoluments come to Rs. 2,960.80. But in the case of another employee by name L.N. Daga, his basic wages again is Rs.but he is equated with a person drawing Rs. 160/in M/s. Hindustan Ferodo Ltd. and dearness allowance, if calculated on that rate, his total emoluments come to Rs. 1,778.50. Similarly, in the case of a person by name S. Raman, whose basic wages is Rs.he is equated with a person drawing Rs. 496/in M/s. Hindustan Ferodo Ltd. and the total emoluments of his come to Rs. 2,760.20. But in the case of another employee by name S. Ramalingam, whose basic wages is the same as that of S. Raman, he is equated with the person drawing a sum of Rs. 96/in M/s. Hindustan Ferodo Ltd. and on that basis hiswould come to Rs. 3,367.The Union has, in fact, cited the case of about 36 employees and how in the case of each of them who are drawing the same basic wages would get different dearness allowance if Mr. Vazes scheme is to be applied.14. Since the reference to Mr. Vaze was by virtue of a consent order dated July 29, 1988, we have made it clear to both the parties that it is not possible for them tothe earlier awards. Similarly it is also not open to the parties to contend that M/s. Hindustan Ferodo Ltd. was not a concern comparable to the appellants. In fact, both theand also theand thereafter the learned Single Judge, all had come to the conclusion that in 1976 M/s. Hindustan Ferodo Ltd. was a concern comparable to the appellants. Similarly, the Industrial Tribunal was required tothe scale of dearness allowance and in fixing the pay scale, the Industrial Tribunal was required to ensurethat the totalof the Appellants workmen (consisting of basic pay, D.A. plus production bonus plus all allowances should be more or) less similar to the total(consisting of basic pay + D.A. + Production Bonus + all other allowances) of workmen in the equivalent category of M/s. Hindustan Ferodo Ltd. from time to time. It envisages neither refixation of basic wages, nor did it envisage alteration of any of the service conditions of the workmen of the Appellant Company.When the Tambe Award was before the learned Single Judge, he had only set aside that part of the award which related to fixation of dearness allowance. Otherwise, all other findings recorded in the award passed by M/s. Tambe had been confirmed by the learned Judge and there is no appeal against the same. Thereafter when Mr. Rane accepted the broad approach of Mr. Tambe and fixed the dearness allowance, the learned Single Judge confirmed the said approach and dismissed the writ petition. But, it is significant to note if Mr. Rane could not think of any other solution than confirming theit as done mainly because the Company had failed to assist the Tribunal. That position continues even in the present case, and there has been no assistance from the Company as far as Mr. Vaze was concerned. Though, the appellants had filed a formal objection to Mr. Vazes award the same has not been pressed before us and Mr. Srikrishna has categorically stated that the appellant Company would accept Mr. Vazes recommendation whether it is satisfactory or not. On the other hand, the Union has rightly objected to this award as the same is wholly unsustainable.16. During the course of the hearing before the earlier Bench to which one of us (Suresh, J.) was a party, efforts were made to work out an amicable solution and in that process Mr. menon and Mr. Srikrishna sat together, tried their best to resolve the matter on an agreed formula. In fact, some of those formulas were handed over to the Court and by and large the reaction of the Bench was that the Union was more than charitable in its approach. But the appellant Company was not willing to accept any such solution. The continuance of the dispute was obviously more in the interests of the Company than that of the workmen. During all these fourteen years of litigation, the Company took shelter under various interim orders passed from time to time. They paid the basic wages and half the dearness allowance on anbasis. They could withhold contributions of provident fund and other superannuation benefits on the unpaid dearness allowance. They would not declare production bonus, all on the basic that the matter is pending in the Court. In fact, Mr. Srikrishna submitted that if Mr. Vazes award was not satisfactory, the matter again be remanded back, a submission which we will have no hesitation to reject. It is neither fair nor proper that this litigation should be allowed to continue any further. Mr. Menon points out that during all these years, the total number of workmen has come down from 75 to 20. Today there are 12 peons, one sweeper, 6 clerks and 1 tale operator. Some are dead and some are retrenched. The Companys insistence on not agreeing to any reasonable formula in patently unjust. Despite the fact that the Company had not genuinely assisted any of the Tribunals, in this behalf we are of the opinion that we can ourselves arrive at a reasonableargument is wholly untenable. This would at once exclude all dearness allowance paid by M/s. Hindustan Ferodo Ltd. over and above basic wages of Rs.paid at the end of the eight year for a cashier who has to wait for another fourteen years to get the maximum salary, while in thethat maximum is reached in the eight year itself. To deprive him to his maximum dearness allowance merely because in M/s. Hindustan Ferodo Ltd. at the eight year of service, a Cashier is paid much less, is highly irrational, if not patently unjust. So also in the case of all other categories of workmen. Thus, if Mr. Vazes award is to be accepted, it will materially alter the service conditions of the workmen of thefor which there can be no justification whatsoever.In this connection, it must be appreciated that the respondent Union, in fact, submitted a revised dearness allowance scheme which would retain the slab system and at the same time would make the total pay packet of a workman of thecomparable to the workman of M/s. Hindustan Ferodo Ltd. in equivalent categories as nearest as possible. The Industrial Tribunal unreasonably declined to take that into account. After hearing the advocates on either side and taking into account the merits of the dearness allowance scheme submitted by the Union, we consider that the proposed dearness allowance scheme as submitted by the Union was the most reasonable one and was most satisfactory. The said dearness allowance scheme at C.L.I. 1296 is as follows:"Basic Salary Fixed D.A. Variable D.A. Variable D.A.for every orpoints 10 pointsrise or fall rise or fall upto CLI 3300 aboveCLI 3301Rs. 1 to 100 160% (Plus) 5% (plus) 4% (plus)Rs. 101 to 200 80% (Plus) 2% (plus) 1.5% (plus)Rs. 201 and above 40% 0.75% 0.75%"On the basis of this, the Union prepared a detailed Chart showing the total wages that may be calculated. We have seen the said Chart at pages 242 to 249 in the paper book at Vol. IV. In fact, the said Chart shows that though at the initial stage at CLI 1296 in the case of certain categories of workmen the Company may have to pay a slightly higher amount than M/s. Hindustan Ferodo Ltd. But at later stage as the CLI increases from time to time, the Company pays much less than what M/s. Hindustan Ferodo Ltd. would pay to such workmen. One fails to understand as to why this cannot be accepted by the Company. This has the advantage of not interfering with the span of serviceand also theminimum and maximum payable with regard to basic wages in the case of each category of workmen.22. Thehad submitted that for the purpose of equating the two wages packets, it is necessary to take into account the fact that the workmen of the Appellant company workhours per month more than the number of hours put in by the workmen of M/s. Hindustan Ferodo Ltd. Mr. Vaze rejected this submission on an erroneous ground that both the workmen are paid monthly rated wages and not hourly rates wages. Mr. Vaze ought to have known that there can be no wages packet without any relation to the working hours. In a year, the workmen of theput in approximately 37 more than the number of days/hours put in by the workmen of M/s. Hindustan Ferodo Ltd. For the purpose of comparing the two wage structures, that was a very relevant component which could not have been ignored at all. It is not that such a factor is unknown to such a Tribunal in any fixation of wage structure. If this component is taken into account, on the scheme proposed by the Union as set out above, it is the workmen who suffer greater loss than the management. A look at the chart would clearly show that by and large the workmen would get less than the workmen in M/s. Hindustan Ferodo Ltd. would get throughout. But since the Union is prepared to accept this, we cannot appreciate why the management wants to reject unless their object is to defeat the legitimate claim of theare, therefore, not inclined to attach any importance to this item. Even otherwise, we are of the opinion that even if this item is included in theit would not make any great difference, as far as the totalis concerned, inasmuch as under the proposed scheme the workers get much less than what their counterpart would get in M/s. Hindustan Ferodo Ltd. The personal pay would not eventhe loss they are willing to bear.The third objection relates to the medical reimbursement. In fact this is no allowance, forming part of theof the workmen. It is not an amount uniformly paid as a part of themonth after month. It is a contingent payment. This is only a reimbursement of actual medical expenses incurred during the sickness and the same is paid against the medical certificates, bills etc. but subject to 4 per cent of the basic wages. We cannot understand as to how the Company says that this should be included in the basic wages as such. | 1 | 6,066 | 2,779 | ### 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:
the merits of the dearness allowance scheme submitted by the Union, we consider that the proposed dearness allowance scheme as submitted by the Union was the most reasonable one and was most satisfactory. The said dearness allowance scheme at C.L.I. 1296 is as follows:"Basic Salary Fixed D.A. Variable D.A. Variable D.A.for every or every 10 points 10 pointsrise or fall rise or fall upto CLI 3300 aboveCLI 3301Rs. 1 to 100 160% (Plus) 5% (plus) 4% (plus)Rs. 101 to 200 80% (Plus) 2% (plus) 1.5% (plus)Rs. 201 and above 40% 0.75% 0.75%"On the basis of this, the Union prepared a detailed Chart showing the total wages that may be calculated. We have seen the said Chart at pages 242 to 249 in the paper book at Vol. IV. In fact, the said Chart shows that though at the initial stage at CLI 1296 in the case of certain categories of workmen the Company may have to pay a slightly higher amount than M/s. Hindustan Ferodo Ltd. But at later stage as the CLI increases from time to time, the Company pays much less than what M/s. Hindustan Ferodo Ltd. would pay to such workmen. One fails to understand as to why this cannot be accepted by the Company. This has the advantage of not interfering with the span of service and also the minimum and maximum payable with regard to basic wages in the case of each category of workmen.22. The respondent-Union had submitted that for the purpose of equating the two wages packets, it is necessary to take into account the fact that the workmen of the Appellant company work 19 hours per month more than the number of hours put in by the workmen of M/s. Hindustan Ferodo Ltd. Mr. Vaze rejected this submission on an erroneous ground that both the workmen are paid monthly rated wages and not hourly rates wages. Mr. Vaze ought to have known that there can be no wages packet without any relation to the working hours. In a year, the workmen of the Appellant-Company put in approximately 37 more than the number of days/hours put in by the workmen of M/s. Hindustan Ferodo Ltd. For the purpose of comparing the two wage structures, that was a very relevant component which could not have been ignored at all. It is not that such a factor is unknown to such a Tribunal in any fixation of wage structure. If this component is taken into account, on the scheme proposed by the Union as set out above, it is the workmen who suffer greater loss than the management. A look at the chart would clearly show that by and large the workmen would get less than the workmen in M/s. Hindustan Ferodo Ltd. would get throughout. But since the Union is prepared to accept this, we cannot appreciate why the management wants to reject unless their object is to defeat the legitimate claim of the workmen.23. Mr. Srikrishna pointed out that this proposed dearness allowance scheme does not take into account the personal pay, production bonus and medical reimbursement. His submission is that if those three items are taken into account, the total pay-packet would exceed than that of M/s. Hindustan Ferodo Ltd. in the case of each of the category of workmen. As against this, Mr. Menon pointed out that as far as personal pay was concerned, when the dispute was referred to the Industrial Tribunal initially, there was no personal pay as such. He submitted that it was payable only to those workmen who were on the pay-roll of the Company as on October 31, 1979, and the same was fixed at 16.5% of the then existing basic salary upto Rs. 750/- and for the basic salary of Rs. 751/- and above the percentage was 10.095. From January 1, 1980 the personal pay was constant at that rate and at that amount. Mr. Menon also pointed out as to how the statement filed by the Company in this behalf is misleading, as if all the categories of workmen get such personal pay, though, in fact, all the workmen appointed on or after November 1, 1979 are not eligible to get any personal pay. We are, therefore, not inclined to attach any importance to this item. Even otherwise, we are of the opinion that even if this item is included in the pay-packet it would not make any great difference, as far as the total pay-packet is concerned, inasmuch as under the proposed scheme the workers get much less than what their counterpart would get in M/s. Hindustan Ferodo Ltd. The personal pay would not even off-set the loss they are willing to bear.24. The second item relates to production bonus. Mr. Srikrishna pointed out that production bonus is being calculated on the basis of basis wages plus dearness allowance. Mr. Menon had made a categorical statement, and repeats now, that the workmen would not insist upon the production bonus being calculated on the basis of the basic wages plus dearness allowance. In other words, he stated that the workers would restrict their claim of production bonus at the rate of 6% only on the basic wages and personal pay. This would, in effect answer grievance of Mr. Srikrishna. Mr. Menon submitted that, in fact, production bonus is a fluctuating figure and it depends upon the agreements between the workmen and the Company, from time to time.25. The third objection relates to the medical reimbursement. In fact this is no allowance, forming part of the pay-packet of the workmen. It is not an amount uniformly paid as a part of the pay-packet month after month. It is a contingent payment. This is only a reimbursement of actual medical expenses incurred during the sickness and the same is paid against the medical certificates, bills etc. but subject to 4 per cent of the basic wages. We cannot understand as to how the Company says that this should be included in the basic wages as such.
### Response:
1
### Explanation:
unpaid dearness allowance. They would not declare production bonus, all on the basic that the matter is pending in the Court. In fact, Mr. Srikrishna submitted that if Mr. Vazes award was not satisfactory, the matter again be remanded back, a submission which we will have no hesitation to reject. It is neither fair nor proper that this litigation should be allowed to continue any further. Mr. Menon points out that during all these years, the total number of workmen has come down from 75 to 20. Today there are 12 peons, one sweeper, 6 clerks and 1 tale operator. Some are dead and some are retrenched. The Companys insistence on not agreeing to any reasonable formula in patently unjust. Despite the fact that the Company had not genuinely assisted any of the Tribunals, in this behalf we are of the opinion that we can ourselves arrive at a reasonableargument is wholly untenable. This would at once exclude all dearness allowance paid by M/s. Hindustan Ferodo Ltd. over and above basic wages of Rs.paid at the end of the eight year for a cashier who has to wait for another fourteen years to get the maximum salary, while in thethat maximum is reached in the eight year itself. To deprive him to his maximum dearness allowance merely because in M/s. Hindustan Ferodo Ltd. at the eight year of service, a Cashier is paid much less, is highly irrational, if not patently unjust. So also in the case of all other categories of workmen. Thus, if Mr. Vazes award is to be accepted, it will materially alter the service conditions of the workmen of thefor which there can be no justification whatsoever.In this connection, it must be appreciated that the respondent Union, in fact, submitted a revised dearness allowance scheme which would retain the slab system and at the same time would make the total pay packet of a workman of thecomparable to the workman of M/s. Hindustan Ferodo Ltd. in equivalent categories as nearest as possible. The Industrial Tribunal unreasonably declined to take that into account. After hearing the advocates on either side and taking into account the merits of the dearness allowance scheme submitted by the Union, we consider that the proposed dearness allowance scheme as submitted by the Union was the most reasonable one and was most satisfactory. The said dearness allowance scheme at C.L.I. 1296 is as follows:"Basic Salary Fixed D.A. Variable D.A. Variable D.A.for every orpoints 10 pointsrise or fall rise or fall upto CLI 3300 aboveCLI 3301Rs. 1 to 100 160% (Plus) 5% (plus) 4% (plus)Rs. 101 to 200 80% (Plus) 2% (plus) 1.5% (plus)Rs. 201 and above 40% 0.75% 0.75%"On the basis of this, the Union prepared a detailed Chart showing the total wages that may be calculated. We have seen the said Chart at pages 242 to 249 in the paper book at Vol. IV. In fact, the said Chart shows that though at the initial stage at CLI 1296 in the case of certain categories of workmen the Company may have to pay a slightly higher amount than M/s. Hindustan Ferodo Ltd. But at later stage as the CLI increases from time to time, the Company pays much less than what M/s. Hindustan Ferodo Ltd. would pay to such workmen. One fails to understand as to why this cannot be accepted by the Company. This has the advantage of not interfering with the span of serviceand also theminimum and maximum payable with regard to basic wages in the case of each category of workmen.22. Thehad submitted that for the purpose of equating the two wages packets, it is necessary to take into account the fact that the workmen of the Appellant company workhours per month more than the number of hours put in by the workmen of M/s. Hindustan Ferodo Ltd. Mr. Vaze rejected this submission on an erroneous ground that both the workmen are paid monthly rated wages and not hourly rates wages. Mr. Vaze ought to have known that there can be no wages packet without any relation to the working hours. In a year, the workmen of theput in approximately 37 more than the number of days/hours put in by the workmen of M/s. Hindustan Ferodo Ltd. For the purpose of comparing the two wage structures, that was a very relevant component which could not have been ignored at all. It is not that such a factor is unknown to such a Tribunal in any fixation of wage structure. If this component is taken into account, on the scheme proposed by the Union as set out above, it is the workmen who suffer greater loss than the management. A look at the chart would clearly show that by and large the workmen would get less than the workmen in M/s. Hindustan Ferodo Ltd. would get throughout. But since the Union is prepared to accept this, we cannot appreciate why the management wants to reject unless their object is to defeat the legitimate claim of theare, therefore, not inclined to attach any importance to this item. Even otherwise, we are of the opinion that even if this item is included in theit would not make any great difference, as far as the totalis concerned, inasmuch as under the proposed scheme the workers get much less than what their counterpart would get in M/s. Hindustan Ferodo Ltd. The personal pay would not eventhe loss they are willing to bear.The third objection relates to the medical reimbursement. In fact this is no allowance, forming part of theof the workmen. It is not an amount uniformly paid as a part of themonth after month. It is a contingent payment. This is only a reimbursement of actual medical expenses incurred during the sickness and the same is paid against the medical certificates, bills etc. but subject to 4 per cent of the basic wages. We cannot understand as to how the Company says that this should be included in the basic wages as such.
|
Balbir Kaur Vs. Steel Authority Of India Ltd. | five years shall not be necessary where the termination of the employment of any employee is due to death or disablement :[Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority]......" 14. It is upon consideration of the above noted provisions of Section 4, it was contended that question of compulsory depositing of the gratuity amount does not and cannot arise. We shall come back to the deposit of the Provident Fund but as regards the Gratuity amount, be it noted that there is a mandate of the statute that Gratuity is to be paid to the employee on his retirement or to his dependants in the event of his early death - the introduction of Family Pension Scheme by which the employee is compelled to deposit the Gratuity amount, as a matter of fact runs counter to this beneficial piece of legislation (Act of 1972). The statutory mandate is unequivocal and unambiguous in nature and runs to the effect that the gratuity is payable to the heirs of the nominees of the concerned employees but by the introduction of the Family Pension Scheme, this mandate stands violated and as such the same cannot but be termed to be illegal in nature. We do find some substance in the contention as raised, a mandatory statutory obligation cannot be trifled with by adaptation of a method which runs counter to the statute. It does not take long to appreciate the purpose for which this particular Family Pension Scheme has been introduced by deposit of the provident fund and the gratuity amount and we are not expressing any opinion in regard thereto but the fact remains that statutory obligation cannot be left high and dry on the whims of the employer irrespective of the factum of the employer being an authority within the meaning of Article 12 or not. 15. Adverting to the Provident Fund, be it noted that the same is payable to an employee under the provisions of a statue and this statutory obligation cannot possibly by deferred in the event of an untimely death of a worker or an employee. As noticed above, the family needs the money in lump-sum and availability of this amount is the only insulating factor in such a grief stricken family. The amount is payable in one lump and as a matter of fact it acts as a buffer to the retirement of or on the death of an employee. Situations are not difficult to conceive when the family needs some lump-sum amount but in the event of deposit of the same with the employer, the heirs of the deceased employee could be put into the same problems of realities of life, even though, if this money would have been made available to them the situation could have been otherwise. 16. In any event as appears in the contextual facts, the NJCS Agreement being a Tripartite Agreement expressly preserves the 1982 circular to the effect that any benefit conferred by the earlier circular shall continue to be effective and on the wake of the same we do not see any reason to deny the petitioner the relief sought for in the writ petition. 17. On the wake of the aforesaid, we do feel it convenient to record that the option should have been made available either to have a compassionate appointment provided, however, the deceased employees representative is otherwise competent to hold the post or the adaptation of the family pension fund by way of deposit of provident fund and gratuity amounts. In fact, however, there was no option taken from the employees, at least no records have been produced therefor, neither any submissions made in that regard. Mr. Bhasme further pointed out that though the present appeals related to two individual cases but any interpretation contrary to the one canvassed by the respondent "is likely to open a Pandoras box" since in the huge "empire" of the respondent, several such cases would be existing which would have to be reconsidered. 18. Mr. Bhasme further contended that family members of large number of the employees have already availed of the Family Benefit Scheme and as such it would be taken to be otherwise more beneficial to the concerned employee. We are not called upon to assess the situation but the fact remains that having due regard to the constitutional philosophy to decry a compassionate employment opportunity would neither be fair nor reasonable. The concept of social justice is the yardstick to the justice administration system or the legal justice and as Rescopound pointed out that the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law Courts also to apply the law depending upon the situation since the law is made for the society and whichever is beneficial for the society, the endeavour of the law Court would be to administer justice having due regard in that direction. 19. The learned Advocate appearing in support of the appeal very strongly contended that as per appellants information the respondent-Steel Authority of India is in fact providing compassionate employment even now to one dependant of an employee dying in harness or permanently disabled. We are however not inclined to go into the issue on this score. 20. In that view of the matter these appeals succeed, the order of the High Court stands set aside. Steel Authority of India is directed to consider the cases of compassionate appointments in so far as the appellants are concerned. There shall be no order as to costs. 21. | 1[ds]Turning on to the factual aspects once again, it is not that compassionate appointments have never been effected. Steel Authority of India was in fact providing compassionate employment to one dependant of an employee dying in harness or permanently disabled. As a matter of fact on 22nd September, 1982 the respondent-Steel Authority, further issued the Circular pertaining to appointments on compassionate grounds. The Circular however for the first time introduced categorisation of compassionate employment as First Priority Cases; Second Priority Cases and Third Priority Cases.any event as appears in the contextual facts, the NJCS Agreement being a Tripartite Agreement expressly preserves the 1982 circular to the effect that any benefit conferred by the earlier circular shall continue to be effective and on the wake of the same we do not see any reason to deny the petitioner the relief sought for in the writthe wake of the aforesaid, we do feel it convenient to record that the option should have been made available either to have a compassionate appointment provided, however, the deceased employees representative is otherwise competent to hold the post or the adaptation of the family pension fund by way of deposit of provident fund and gratuity amounts. In fact, however, there was no option taken from the employees, at least no records have been produced therefor, neither any submissions made in that regard. Mr. Bhasme further pointed out that though the present appeals related to two individual cases but any interpretation contrary to the one canvassed by the respondent "is likely to open a Pandoras box" since in the huge "empire" of the respondent, several such cases would be existing which would have to be reconsidered. | 1 | 4,616 | 306 | ### 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:
five years shall not be necessary where the termination of the employment of any employee is due to death or disablement :[Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority]......" 14. It is upon consideration of the above noted provisions of Section 4, it was contended that question of compulsory depositing of the gratuity amount does not and cannot arise. We shall come back to the deposit of the Provident Fund but as regards the Gratuity amount, be it noted that there is a mandate of the statute that Gratuity is to be paid to the employee on his retirement or to his dependants in the event of his early death - the introduction of Family Pension Scheme by which the employee is compelled to deposit the Gratuity amount, as a matter of fact runs counter to this beneficial piece of legislation (Act of 1972). The statutory mandate is unequivocal and unambiguous in nature and runs to the effect that the gratuity is payable to the heirs of the nominees of the concerned employees but by the introduction of the Family Pension Scheme, this mandate stands violated and as such the same cannot but be termed to be illegal in nature. We do find some substance in the contention as raised, a mandatory statutory obligation cannot be trifled with by adaptation of a method which runs counter to the statute. It does not take long to appreciate the purpose for which this particular Family Pension Scheme has been introduced by deposit of the provident fund and the gratuity amount and we are not expressing any opinion in regard thereto but the fact remains that statutory obligation cannot be left high and dry on the whims of the employer irrespective of the factum of the employer being an authority within the meaning of Article 12 or not. 15. Adverting to the Provident Fund, be it noted that the same is payable to an employee under the provisions of a statue and this statutory obligation cannot possibly by deferred in the event of an untimely death of a worker or an employee. As noticed above, the family needs the money in lump-sum and availability of this amount is the only insulating factor in such a grief stricken family. The amount is payable in one lump and as a matter of fact it acts as a buffer to the retirement of or on the death of an employee. Situations are not difficult to conceive when the family needs some lump-sum amount but in the event of deposit of the same with the employer, the heirs of the deceased employee could be put into the same problems of realities of life, even though, if this money would have been made available to them the situation could have been otherwise. 16. In any event as appears in the contextual facts, the NJCS Agreement being a Tripartite Agreement expressly preserves the 1982 circular to the effect that any benefit conferred by the earlier circular shall continue to be effective and on the wake of the same we do not see any reason to deny the petitioner the relief sought for in the writ petition. 17. On the wake of the aforesaid, we do feel it convenient to record that the option should have been made available either to have a compassionate appointment provided, however, the deceased employees representative is otherwise competent to hold the post or the adaptation of the family pension fund by way of deposit of provident fund and gratuity amounts. In fact, however, there was no option taken from the employees, at least no records have been produced therefor, neither any submissions made in that regard. Mr. Bhasme further pointed out that though the present appeals related to two individual cases but any interpretation contrary to the one canvassed by the respondent "is likely to open a Pandoras box" since in the huge "empire" of the respondent, several such cases would be existing which would have to be reconsidered. 18. Mr. Bhasme further contended that family members of large number of the employees have already availed of the Family Benefit Scheme and as such it would be taken to be otherwise more beneficial to the concerned employee. We are not called upon to assess the situation but the fact remains that having due regard to the constitutional philosophy to decry a compassionate employment opportunity would neither be fair nor reasonable. The concept of social justice is the yardstick to the justice administration system or the legal justice and as Rescopound pointed out that the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law Courts also to apply the law depending upon the situation since the law is made for the society and whichever is beneficial for the society, the endeavour of the law Court would be to administer justice having due regard in that direction. 19. The learned Advocate appearing in support of the appeal very strongly contended that as per appellants information the respondent-Steel Authority of India is in fact providing compassionate employment even now to one dependant of an employee dying in harness or permanently disabled. We are however not inclined to go into the issue on this score. 20. In that view of the matter these appeals succeed, the order of the High Court stands set aside. Steel Authority of India is directed to consider the cases of compassionate appointments in so far as the appellants are concerned. There shall be no order as to costs. 21.
### Response:
1
### Explanation:
Turning on to the factual aspects once again, it is not that compassionate appointments have never been effected. Steel Authority of India was in fact providing compassionate employment to one dependant of an employee dying in harness or permanently disabled. As a matter of fact on 22nd September, 1982 the respondent-Steel Authority, further issued the Circular pertaining to appointments on compassionate grounds. The Circular however for the first time introduced categorisation of compassionate employment as First Priority Cases; Second Priority Cases and Third Priority Cases.any event as appears in the contextual facts, the NJCS Agreement being a Tripartite Agreement expressly preserves the 1982 circular to the effect that any benefit conferred by the earlier circular shall continue to be effective and on the wake of the same we do not see any reason to deny the petitioner the relief sought for in the writthe wake of the aforesaid, we do feel it convenient to record that the option should have been made available either to have a compassionate appointment provided, however, the deceased employees representative is otherwise competent to hold the post or the adaptation of the family pension fund by way of deposit of provident fund and gratuity amounts. In fact, however, there was no option taken from the employees, at least no records have been produced therefor, neither any submissions made in that regard. Mr. Bhasme further pointed out that though the present appeals related to two individual cases but any interpretation contrary to the one canvassed by the respondent "is likely to open a Pandoras box" since in the huge "empire" of the respondent, several such cases would be existing which would have to be reconsidered.
|
Raja Kamala Ranjan Roy Vs. Baijnath Bajoria | defendant obtaining the lessors consent and that he should not have been permitted to make this new case at the hearing. Both the trial Court and the appeal Court held that there was, strictly speaking, no element of surprise, particularly because the plaintiff relied upon facts admitted and proved by the defendant himself and that it was open to him to take this point. We may also add that this point was in a manner indicated in the plaint itself for in Para. 11 thereof it was pleaded that the plaintiff was a responsible and respectable person and that if consent to assign in his favour was withdrawn such withdrawal would be unreasonable and would not be valid and binding. In view of such pleading, we are unable to say that the point raised by the plaintiff at the trial was an entirely new point or that the defendant was taken by surprise.12. The next objection of the appellant was that this point should not have been allowed to be raised and no evidence should have been permitted to be adduced on the point in the absence of the lessor as a party to the suit. We do not think that there is any force in this objection. The Court had to decide whether it was a case where relief by way of specific performance should be given. The Court could not force the defendant to apply to the lessor for his consent nor could the Court force the lessor to give his consent and, if the matter only depended on the consent, the Court would not have ordinarily, in those circumstances, directed the agreement for assignment to be specifically enforced. The Court, therefore, had also to consider, for the purposes of this case, as to whether the circumstances were such as would indicate that the defendant had been relieved of the burden of his covenant by reason of the lessor having unreasonably withheld his consent. It is true that a decision on that question in this suit would not be binding on the lessor, but nevertheless the Court had to come to a decision on that question for the purposes of this suit as between the parties thereto in order to award the relief of specific performance to the plaintiff.13. The third objection is that the appeal Court should not have allowed the plaintiff to adduce further evidence. It will be recalled that the appeal Court directed the evidence of the Maharaja of Cossimbazar to be taken during the hearing of the appeal. The judgment of the appeal Court clearly indicates that it was the appeal Court that "required" the evidence "in order to clear up the matter and "for the purpose of enabling it to come to a proper decision on this point." The matter, therefore, is fully covered by O. 41, R. 27, Civil P. C. and no objection can be taken to the course adopted by the appeal Court on that ground. We do not think there is any reason to interfere in the exercise of the Courts discretion.14. The fourth objection is that the High Court was wrong in holding that the term in the agreement that the defendant must obtain the consent of the lessor before executing the assignment to the plaintiff was a term for the benefit of the plaintiff only. It will be recalled that that was a term which was introduced by the plaintiff in his offer that eventually ripened into an agreement. The term was not expressed in a manner indicating that it was inserted in the agreement for the protection of the defendant. In other words, the objection that the consent of the lessor had not been obtained was one which could be availed of by the plaintiff who could rescind the contract and claim damages for the breach thereof. We cannot see how, in view of the language used in the correspondence, the defendant could plead the absence of the lessors consent as relieving him from the obligation of performing his part of the agreement if the plaintiff waived the objection and insisted on his carrying out the agreement. The absence of consent may amount to a defect in the title of the defendant, but which the plaintiff was willing to accept.15. Finally it is said that by directing the specific performance of the agreement the Court has exposed the defendant to the risk of an action for damages for breach of covenant. If the assignment of the lease by the defendant to the plaintiff without the lessors consent amounted to a breach of covenant, the lessor could forfeit the lease and sue for possession. Such a course would affect only the plaintiff but not the defendant, for he had already parted with the lease for valuable consideration. It is said that the lessor could sue the defendant for damages for breach of that covenant and the Court should not, by decreeing specific performance, have put the defendant in that perilous position. There appear to us to be two answers to this argument, namely(1) that the defendant should have, by proper language, made his obligation to transfer dependent or conditional upon his being able to obtain the lessors consent which he did not do and (2) that the plaintiff being a respectable and responsible person of means, the measure of damages could only be a problematic conjecture. Indeed, it may have been precisely for this very consideration that the defendant had unconditionally agreed to obtain the consent of the lessor and to assign his interest in the lease. That the plaintiff was a respectable and responsible person cannot, on the evidence before the Court, be denied or disputed and, indeed, learned counsel for the appellant did not so contend. We find ourselves in agreement with the High Court that in the circumstances and on the evidence on record the lessor had unreasonably withheld his consent so as to enable the defendant to assign the lease without such consent. | 0[ds]It is quite clear that no agreement was concluded by these two letters for the defendants letter was not on unconditional acceptance of the plaintiffs offer but amounted in law to only a counter-offer. By cl. 3 the defendant offered to transfer the lease to the plaintiff as from 1-2-1945 so as to entitle the plaintiff to realize the rents from that date and to be liable to pay the rent to the lessor also from that date on two conditions, namely, that the plaintiffs acceptance was received within 30-1-1945 and the defendant was able to obtain the lessors consent within the first week of FebruaryThis clause did not make the offer itself contingent on the obtaining of the lessors consent but made one of the terms of the offer, namely, that the lease would be transferred as from 1-2-1945, conditional on the obtaining of the lessors consent within the first week of FebruaryLikewise, subject to the name of the assignee being clearly stated the defendant by cl. 4 offered to obtain the lessors consent to the assignment of the lease. Clause 4 of the defendants letter was not so expressed as to make the defendants offer contingent on his obtaining the lessors consent.On 2-2-1945 the plaintiff by his solicitors letter of that date unconditionally accepted this reservation and so a concluded agreement was arrived at between the parties. This agreement was not, for its coming into being, contingent or conditional on the obtaining of the lessors consent. The obligation to obtain the lessors consent was cast upon the defendant as a term of the agreement. In our judgment the Court below was right in holding that the agreement itself was not contingent as contended for by thelegal incidents of such a covenant are now well established by judicial decisions referred to in the judgment of the High Court and it is not necessary to refer to them in detail. Suffice it to say, that the words "such consent, however, not to be unreasonably withheld in the case of respectable or responsible person" contained in the covenant do not amount to a separate independent covenant by the lessor that he would not refuse consent except upon reasonable grounds in the case of respectable or responsible person, but that those words limit or qualify the lessees covenant not to assign the demised premises without the consent in writing of the lessor. In other words, those words have the effect of relieving the lessee from the burden of this covenant if the lessor withholds his consent unreasonably in case of proposed assignment to a respectable or responsible person. In this view of the matter, the plaintiff contended that he being a respectable and responsible person the lessor had unreasonably withheld his consent to the proposed assignment to him and had consequently relieved the defendant from the burden of his covenant so that the defendant could legally and validly assign the lease to him without such consent of thethe trial Court and the appeal Court held that there was, strictly speaking, no element of surprise, particularly because the plaintiff relied upon facts admitted and proved by the defendant himself and that it was open to him to take this point. We may also add that this point was in a manner indicated in the plaint itself for in Para. 11 thereof it was pleaded that the plaintiff was a responsible and respectable person and that if consent to assign in his favour was withdrawn such withdrawal would be unreasonable and would not be valid and binding. In view of such pleading, we are unable to say that the point raised by the plaintiff at the trial was an entirely new point or that the defendant was taken bydo not think that there is any force in this objection. The Court had to decide whether it was a case where relief by way of specific performance should be given. The Court could not force the defendant to apply to the lessor for his consent nor could the Court force the lessor to give his consent and, if the matter only depended on the consent, the Court would not have ordinarily, in those circumstances, directed the agreement for assignment to be specifically enforced. The Court, therefore, had also to consider, for the purposes of this case, as to whether the circumstances were such as would indicate that the defendant had been relieved of the burden of his covenant by reason of the lessor having unreasonably withheld his consent. It is true that a decision on that question in this suit would not be binding on the lessor, but nevertheless the Court had to come to a decision on that question for the purposes of this suit as between the parties thereto in order to award the relief of specific performance to thewill be recalled that the appeal Court directed the evidence of the Maharaja of Cossimbazar to be taken during the hearing of the appeal. The judgment of the appeal Court clearly indicates that it was the appeal Court that "required" the evidence "in order to clear up the matter and "for the purpose of enabling it to come to a proper decision on this point." The matter, therefore, is fully covered by O. 41, R. 27, Civil P. C. and no objection can be taken to the course adopted by the appeal Court on that ground. We do not think there is any reason to interfere in the exercise of the Courtswill be recalled that that was a term which was introduced by the plaintiff in his offer that eventually ripened into an agreement. The term was not expressed in a manner indicating that it was inserted in the agreement for the protection of the defendant. In other words, the objection that the consent of the lessor had not been obtained was one which could be availed of by the plaintiff who could rescind the contract and claim damages for the breach thereof. We cannot see how, in view of the language used in the correspondence, the defendant could plead the absence of the lessors consent as relieving him from the obligation of performing his part of the agreement if the plaintiff waived the objection and insisted on his carrying out the agreement. The absence of consent may amount to a defect in the title of the defendant, but which the plaintiff was willing tothe assignment of the lease by the defendant to the plaintiff without the lessors consent amounted to a breach of covenant, the lessor could forfeit the lease and sue for possession. Such a course would affect only the plaintiff but not the defendant, for he had already parted with the lease for valuable consideration. It is said that the lessor could sue the defendant for damages for breach of that covenant and the Court should not, by decreeing specific performance, have put the defendant in that perilous position. There appear to us to be two answers to this argument, namely(1) that the defendant should have, by proper language, made his obligation to transfer dependent or conditional upon his being able to obtain the lessors consent which he did not do and (2) that the plaintiff being a respectable and responsible person of means, the measure of damages could only be a problematic conjecture. Indeed, it may have been precisely for this very consideration that the defendant had unconditionally agreed to obtain the consent of the lessor and to assign his interest in the lease. That the plaintiff was a respectable and responsible person cannot, on the evidence before the Court, be denied or disputed and, indeed, learned counsel for the appellant did not so contend. We find ourselves in agreement with the High Court that in the circumstances and on the evidence on record the lessor had unreasonably withheld his consent so as to enable the defendant to assign the lease without such consent. | 0 | 3,614 | 1,422 | ### 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:
defendant obtaining the lessors consent and that he should not have been permitted to make this new case at the hearing. Both the trial Court and the appeal Court held that there was, strictly speaking, no element of surprise, particularly because the plaintiff relied upon facts admitted and proved by the defendant himself and that it was open to him to take this point. We may also add that this point was in a manner indicated in the plaint itself for in Para. 11 thereof it was pleaded that the plaintiff was a responsible and respectable person and that if consent to assign in his favour was withdrawn such withdrawal would be unreasonable and would not be valid and binding. In view of such pleading, we are unable to say that the point raised by the plaintiff at the trial was an entirely new point or that the defendant was taken by surprise.12. The next objection of the appellant was that this point should not have been allowed to be raised and no evidence should have been permitted to be adduced on the point in the absence of the lessor as a party to the suit. We do not think that there is any force in this objection. The Court had to decide whether it was a case where relief by way of specific performance should be given. The Court could not force the defendant to apply to the lessor for his consent nor could the Court force the lessor to give his consent and, if the matter only depended on the consent, the Court would not have ordinarily, in those circumstances, directed the agreement for assignment to be specifically enforced. The Court, therefore, had also to consider, for the purposes of this case, as to whether the circumstances were such as would indicate that the defendant had been relieved of the burden of his covenant by reason of the lessor having unreasonably withheld his consent. It is true that a decision on that question in this suit would not be binding on the lessor, but nevertheless the Court had to come to a decision on that question for the purposes of this suit as between the parties thereto in order to award the relief of specific performance to the plaintiff.13. The third objection is that the appeal Court should not have allowed the plaintiff to adduce further evidence. It will be recalled that the appeal Court directed the evidence of the Maharaja of Cossimbazar to be taken during the hearing of the appeal. The judgment of the appeal Court clearly indicates that it was the appeal Court that "required" the evidence "in order to clear up the matter and "for the purpose of enabling it to come to a proper decision on this point." The matter, therefore, is fully covered by O. 41, R. 27, Civil P. C. and no objection can be taken to the course adopted by the appeal Court on that ground. We do not think there is any reason to interfere in the exercise of the Courts discretion.14. The fourth objection is that the High Court was wrong in holding that the term in the agreement that the defendant must obtain the consent of the lessor before executing the assignment to the plaintiff was a term for the benefit of the plaintiff only. It will be recalled that that was a term which was introduced by the plaintiff in his offer that eventually ripened into an agreement. The term was not expressed in a manner indicating that it was inserted in the agreement for the protection of the defendant. In other words, the objection that the consent of the lessor had not been obtained was one which could be availed of by the plaintiff who could rescind the contract and claim damages for the breach thereof. We cannot see how, in view of the language used in the correspondence, the defendant could plead the absence of the lessors consent as relieving him from the obligation of performing his part of the agreement if the plaintiff waived the objection and insisted on his carrying out the agreement. The absence of consent may amount to a defect in the title of the defendant, but which the plaintiff was willing to accept.15. Finally it is said that by directing the specific performance of the agreement the Court has exposed the defendant to the risk of an action for damages for breach of covenant. If the assignment of the lease by the defendant to the plaintiff without the lessors consent amounted to a breach of covenant, the lessor could forfeit the lease and sue for possession. Such a course would affect only the plaintiff but not the defendant, for he had already parted with the lease for valuable consideration. It is said that the lessor could sue the defendant for damages for breach of that covenant and the Court should not, by decreeing specific performance, have put the defendant in that perilous position. There appear to us to be two answers to this argument, namely(1) that the defendant should have, by proper language, made his obligation to transfer dependent or conditional upon his being able to obtain the lessors consent which he did not do and (2) that the plaintiff being a respectable and responsible person of means, the measure of damages could only be a problematic conjecture. Indeed, it may have been precisely for this very consideration that the defendant had unconditionally agreed to obtain the consent of the lessor and to assign his interest in the lease. That the plaintiff was a respectable and responsible person cannot, on the evidence before the Court, be denied or disputed and, indeed, learned counsel for the appellant did not so contend. We find ourselves in agreement with the High Court that in the circumstances and on the evidence on record the lessor had unreasonably withheld his consent so as to enable the defendant to assign the lease without such consent.
### Response:
0
### Explanation:
that the words "such consent, however, not to be unreasonably withheld in the case of respectable or responsible person" contained in the covenant do not amount to a separate independent covenant by the lessor that he would not refuse consent except upon reasonable grounds in the case of respectable or responsible person, but that those words limit or qualify the lessees covenant not to assign the demised premises without the consent in writing of the lessor. In other words, those words have the effect of relieving the lessee from the burden of this covenant if the lessor withholds his consent unreasonably in case of proposed assignment to a respectable or responsible person. In this view of the matter, the plaintiff contended that he being a respectable and responsible person the lessor had unreasonably withheld his consent to the proposed assignment to him and had consequently relieved the defendant from the burden of his covenant so that the defendant could legally and validly assign the lease to him without such consent of thethe trial Court and the appeal Court held that there was, strictly speaking, no element of surprise, particularly because the plaintiff relied upon facts admitted and proved by the defendant himself and that it was open to him to take this point. We may also add that this point was in a manner indicated in the plaint itself for in Para. 11 thereof it was pleaded that the plaintiff was a responsible and respectable person and that if consent to assign in his favour was withdrawn such withdrawal would be unreasonable and would not be valid and binding. In view of such pleading, we are unable to say that the point raised by the plaintiff at the trial was an entirely new point or that the defendant was taken bydo not think that there is any force in this objection. The Court had to decide whether it was a case where relief by way of specific performance should be given. The Court could not force the defendant to apply to the lessor for his consent nor could the Court force the lessor to give his consent and, if the matter only depended on the consent, the Court would not have ordinarily, in those circumstances, directed the agreement for assignment to be specifically enforced. The Court, therefore, had also to consider, for the purposes of this case, as to whether the circumstances were such as would indicate that the defendant had been relieved of the burden of his covenant by reason of the lessor having unreasonably withheld his consent. It is true that a decision on that question in this suit would not be binding on the lessor, but nevertheless the Court had to come to a decision on that question for the purposes of this suit as between the parties thereto in order to award the relief of specific performance to thewill be recalled that the appeal Court directed the evidence of the Maharaja of Cossimbazar to be taken during the hearing of the appeal. The judgment of the appeal Court clearly indicates that it was the appeal Court that "required" the evidence "in order to clear up the matter and "for the purpose of enabling it to come to a proper decision on this point." The matter, therefore, is fully covered by O. 41, R. 27, Civil P. C. and no objection can be taken to the course adopted by the appeal Court on that ground. We do not think there is any reason to interfere in the exercise of the Courtswill be recalled that that was a term which was introduced by the plaintiff in his offer that eventually ripened into an agreement. The term was not expressed in a manner indicating that it was inserted in the agreement for the protection of the defendant. In other words, the objection that the consent of the lessor had not been obtained was one which could be availed of by the plaintiff who could rescind the contract and claim damages for the breach thereof. We cannot see how, in view of the language used in the correspondence, the defendant could plead the absence of the lessors consent as relieving him from the obligation of performing his part of the agreement if the plaintiff waived the objection and insisted on his carrying out the agreement. The absence of consent may amount to a defect in the title of the defendant, but which the plaintiff was willing tothe assignment of the lease by the defendant to the plaintiff without the lessors consent amounted to a breach of covenant, the lessor could forfeit the lease and sue for possession. Such a course would affect only the plaintiff but not the defendant, for he had already parted with the lease for valuable consideration. It is said that the lessor could sue the defendant for damages for breach of that covenant and the Court should not, by decreeing specific performance, have put the defendant in that perilous position. There appear to us to be two answers to this argument, namely(1) that the defendant should have, by proper language, made his obligation to transfer dependent or conditional upon his being able to obtain the lessors consent which he did not do and (2) that the plaintiff being a respectable and responsible person of means, the measure of damages could only be a problematic conjecture. Indeed, it may have been precisely for this very consideration that the defendant had unconditionally agreed to obtain the consent of the lessor and to assign his interest in the lease. That the plaintiff was a respectable and responsible person cannot, on the evidence before the Court, be denied or disputed and, indeed, learned counsel for the appellant did not so contend. We find ourselves in agreement with the High Court that in the circumstances and on the evidence on record the lessor had unreasonably withheld his consent so as to enable the defendant to assign the lease without such consent.
|
SRI UTTAM CHAND (D) TH LRS Vs. NATHU RAM (D) THR. LRS | second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading paragraph 11(a), it becomes evident that beyond stating that the Muslims have been in long exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence. xx xx xx 752. In Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274 , Justice R S Sarkaria, speaking for a three judge Bench of this Court noted that the concept of possession is polymorphous. embodying both a right (the right to enjoy) and a fact (the real intention). The learned judge held: 13. It is impossible to work out a completely logical and precise definition of possession uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of possession. Much of this difficulty and confusion is (as pointed out in Salmonds Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. Possession, implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.). These observations were made in the context of possession in Section 29(b) of the Arms Act 1959. In P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195 , Justice Jagannadhadas, speaking for a three judge Bench of this Court dwelt on the classical requirement of adverse possession: 4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78, 82] ). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.The court cited the following extract from U N MitrasT agore Law Lectures on the Law of Limitation and Prescription: 7…An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession.(6th Edition, Vol. I, Lecture VI, at page 159) This Court held: 7…Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.In Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779 , Justice S Rajendra Babu, speaking for a two judge Bench held that: 11…Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law. In Annakili v. A Vedanayagam, (2007) 14 SCC 308 , this Court emphasized that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act. 16. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer but also of the plaintiff. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November, 1963 till the filing of the suit will not ripe into title as the defendants never admitted the plaintiff-appellant to be owner or that the land ever vested with the Managing Officer. In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable. | 1[ds]16. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer but also of the plaintiff. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November, 1963 till the filing of the suit will not ripe into title as the defendants never admitted the plaintiff-appellant to be owner or that the land ever vested with the Managing Officer. In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable. | 1 | 4,593 | 175 | ### 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:
second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading paragraph 11(a), it becomes evident that beyond stating that the Muslims have been in long exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence. xx xx xx 752. In Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274 , Justice R S Sarkaria, speaking for a three judge Bench of this Court noted that the concept of possession is polymorphous. embodying both a right (the right to enjoy) and a fact (the real intention). The learned judge held: 13. It is impossible to work out a completely logical and precise definition of possession uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of possession. Much of this difficulty and confusion is (as pointed out in Salmonds Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. Possession, implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.). These observations were made in the context of possession in Section 29(b) of the Arms Act 1959. In P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195 , Justice Jagannadhadas, speaking for a three judge Bench of this Court dwelt on the classical requirement of adverse possession: 4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78, 82] ). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.The court cited the following extract from U N MitrasT agore Law Lectures on the Law of Limitation and Prescription: 7…An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession.(6th Edition, Vol. I, Lecture VI, at page 159) This Court held: 7…Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.In Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779 , Justice S Rajendra Babu, speaking for a two judge Bench held that: 11…Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law. In Annakili v. A Vedanayagam, (2007) 14 SCC 308 , this Court emphasized that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act. 16. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer but also of the plaintiff. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November, 1963 till the filing of the suit will not ripe into title as the defendants never admitted the plaintiff-appellant to be owner or that the land ever vested with the Managing Officer. In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable.
### Response:
1
### Explanation:
16. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer but also of the plaintiff. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November, 1963 till the filing of the suit will not ripe into title as the defendants never admitted the plaintiff-appellant to be owner or that the land ever vested with the Managing Officer. In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable.
|
Kantilal Manilal And Ors Vs. The Commissioner Of Income-Tax, Bombay | facts and circumstances of the case the distribution of the right to apply for the shares of the Bank of India by Navjivan Mills Ltd. in favour of the assessees amounted to a distribution of "dividend" within the meaning of S. 2(6A) of the Indian Income-tax Act."5. The High Court re-framed the question as follows:"Whether on the facts and circumstances of the case, the distribution of the right to apply for the shares of the Bank of India by Navjivan Mills Ltd., in favour of the assessees amounted to a distribution of "dividend"?, and answered it in the affirmative.6. The High court observed that the definition of "dividend" in S. 2(6A) was an inclusive and not an exhaustive definition, and even if the distribution of the right to the shares of the Bank of India could not be regarded as dividend within the extended meaning of that expression in S. 2(6A), it was still dividend within the ordinary meaning of that expression and was taxable as income in the hand of the appellants.7. Counsel for the appellants contended that the High Court was not justified, having regard to the form of the question which expressly related to the distribution of the right to the Bank of India shares being dividend within the meaning of the definition in S. 2(6A) of the Income-tax Act, in enlarging the scope of the question and in answering it in the light of its ordinary meaning. There is no substance in this contention. "Dividend" is defined in S. 2(6A) as inclusive of various items and exclusive of certain others which it is not necessary to set out for the purpose of this appeal."Dividend" in its ordinary meaning is a distributive share of the profits or income of a company given to its shareholders. When the Legislature by S. 2(6A) sought to define the expression "dividend" it added to the normal meaning of the expression several other categories of receipts which may not otherwise be included therein. By the definition in S, 2(6A), "dividend" means dividend as normally understood and includes in its connotation several other receipts set out in the definition. The Tribunal had referred the question whether the distribution of the right to apply for the Bank of India shares amounted to distribution of dividend within the meaning of S. 2(6A) and in answering that question, the High Court had to take into account both the normal and the extended meaning of that expression. In the question framed by the Tribunal, there is nothing to indicate that the High Court was called upon to advise on the question whether the receipts by the appellants amounted to dividend only within the extended definition of that expression in S. 2(6A).8. It was also urged that in nominating its shareholders to exercise the option to purchase the new issue of the Bank of India, the Mills did not distribute any dividend. The Mills were, it is true, not obliged to accept the offer made by the Bank of India, however, advantageous it might have been to the Mills to accept the offer: it was open to the Mills to renounce the offer. The Mills had three options, (1) to accept the shares, (2) to decline to accept the shares, or (3) to surrender them in favour of its nominee. It is undisputed that when the shares were offered by the Bank of India to its shareholders, the right to apply for the shares had a market value of Rs. 100/- per share. The face value of the new share was Rs. 50/- but the shareholders had to pay a premium of Rs. 50/-, thus making a total payment of Rs. 100/- for acquiring the new share. The new shares were quoted in the market at more than Rs. 200/-: and the difference between the amount payable for acquiring the shares under the right offered by the Bank of India and the market quotation of the shares was indisputably the value of the right. The Mills could not be compelled to obtain this benefit if it did not desire to do so: it could accept the shares or decline to accept those shares or exercise the option of surrendering them in favour of its nominees. This last option could be exercised by nominating the persons who were to take over the shares and that is what the Mills did. The Mills requested the Bank of India to allot the shares to its nominees, and the request for allotment to its nominees amounted to transfer of the right. By its resolution, the Mills in truth transferred a right of the value of Rs. 200/- for each share held by its shareholders. This was manifestly not distribution of the capital of the Mills. It was open to the Mills to sell the right to the shares of the Bank of India in the market, and to distribute the proceeds among the shareholders. Such a distribution would undoubtedly have been distribution of dividend. If instead of selling the right in the market and then distributing the proceeds, the Mills directly transferred the right, the benefit in the hands of the shareholders was still dividend.9. Dividend need not be distributed in money; it may be distributed by delivery of property or right having monetary value. The resolution, it is true, did not purport to distribute the right amongst the shareholders as dividend. It did not also take the form of a resolution for distribution of dividend; it took the form of distribution of a right which had a monetary value. But by the form of the resolution sanctioning the distribution, the true character of the resolution could not be altered. We are, therefore, of the view that the High Court was right in holding that the distribution of the right to apply for and obtain two shares of the Bank of India (at half their market value) for each share held by the shareholders of the Mills amounted to distribution of dividend. | 0[ds]8. It was also urged that in nominating its shareholders to exercise the option to purchase the new issue of the Bank of India, the Mills did not distribute any dividend. The Mills were, it is true, not obliged to accept the offer made by the Bank of India, however, advantageous it might have been to the Mills to accept the offer: it was open to the Mills to renounce the offer. The Mills had three options, (1) to accept the shares, (2) to decline to accept the shares, or (3) to surrender them in favour of its nominee. It is undisputed that when the shares were offered by the Bank of India to its shareholders, the right to apply for the shares had a market value of Rs. 100/- per share. The face value of the new share was Rs. 50/- but the shareholders had to pay a premium of Rs. 50/-, thus making a total payment of Rs. 100/- for acquiring the new share. The new shares were quoted in the market at more than Rs. 200/-: and the difference between the amount payable for acquiring the shares under the right offered by the Bank of India and the market quotation of the shares was indisputably the value of the right. The Mills could not be compelled to obtain this benefit if it did not desire to do so: it could accept the shares or decline to accept those shares or exercise the option of surrendering them in favour of its nominees. This last option could be exercised by nominating the persons who were to take over the shares and that is what the Mills did. The Mills requested the Bank of India to allot the shares to its nominees, and the request for allotment to its nominees amounted to transfer of the right. By its resolution, the Mills in truth transferred a right of the value of Rs. 200/- for each share held by its shareholders. This was manifestly not distribution of the capital of the Mills. It was open to the Mills to sell the right to the shares of the Bank of India in the market, and to distribute the proceeds among the shareholders. Such a distribution would undoubtedly have been distribution of dividend. If instead of selling the right in the market and then distributing the proceeds, the Mills directly transferred the right, the benefit in the hands of the shareholders was still dividend.9. Dividend need not be distributed in money; it may be distributed by delivery of property or right having monetary value. The resolution, it is true, did not purport to distribute the right amongst the shareholders as dividend. It did not also take the form of a resolution for distribution of dividend; it took the form of distribution of a right which had a monetary value. But by the form of the resolution sanctioning the distribution, the true character of the resolution could not be altered. We are, therefore, of the view that the High Court was right in holding that the distribution of the right to apply for and obtain two shares of the Bank of India (at half their market value) for each share held by the shareholders of the Mills amounted to distribution of dividend. | 0 | 1,835 | 610 | ### 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:
facts and circumstances of the case the distribution of the right to apply for the shares of the Bank of India by Navjivan Mills Ltd. in favour of the assessees amounted to a distribution of "dividend" within the meaning of S. 2(6A) of the Indian Income-tax Act."5. The High Court re-framed the question as follows:"Whether on the facts and circumstances of the case, the distribution of the right to apply for the shares of the Bank of India by Navjivan Mills Ltd., in favour of the assessees amounted to a distribution of "dividend"?, and answered it in the affirmative.6. The High court observed that the definition of "dividend" in S. 2(6A) was an inclusive and not an exhaustive definition, and even if the distribution of the right to the shares of the Bank of India could not be regarded as dividend within the extended meaning of that expression in S. 2(6A), it was still dividend within the ordinary meaning of that expression and was taxable as income in the hand of the appellants.7. Counsel for the appellants contended that the High Court was not justified, having regard to the form of the question which expressly related to the distribution of the right to the Bank of India shares being dividend within the meaning of the definition in S. 2(6A) of the Income-tax Act, in enlarging the scope of the question and in answering it in the light of its ordinary meaning. There is no substance in this contention. "Dividend" is defined in S. 2(6A) as inclusive of various items and exclusive of certain others which it is not necessary to set out for the purpose of this appeal."Dividend" in its ordinary meaning is a distributive share of the profits or income of a company given to its shareholders. When the Legislature by S. 2(6A) sought to define the expression "dividend" it added to the normal meaning of the expression several other categories of receipts which may not otherwise be included therein. By the definition in S, 2(6A), "dividend" means dividend as normally understood and includes in its connotation several other receipts set out in the definition. The Tribunal had referred the question whether the distribution of the right to apply for the Bank of India shares amounted to distribution of dividend within the meaning of S. 2(6A) and in answering that question, the High Court had to take into account both the normal and the extended meaning of that expression. In the question framed by the Tribunal, there is nothing to indicate that the High Court was called upon to advise on the question whether the receipts by the appellants amounted to dividend only within the extended definition of that expression in S. 2(6A).8. It was also urged that in nominating its shareholders to exercise the option to purchase the new issue of the Bank of India, the Mills did not distribute any dividend. The Mills were, it is true, not obliged to accept the offer made by the Bank of India, however, advantageous it might have been to the Mills to accept the offer: it was open to the Mills to renounce the offer. The Mills had three options, (1) to accept the shares, (2) to decline to accept the shares, or (3) to surrender them in favour of its nominee. It is undisputed that when the shares were offered by the Bank of India to its shareholders, the right to apply for the shares had a market value of Rs. 100/- per share. The face value of the new share was Rs. 50/- but the shareholders had to pay a premium of Rs. 50/-, thus making a total payment of Rs. 100/- for acquiring the new share. The new shares were quoted in the market at more than Rs. 200/-: and the difference between the amount payable for acquiring the shares under the right offered by the Bank of India and the market quotation of the shares was indisputably the value of the right. The Mills could not be compelled to obtain this benefit if it did not desire to do so: it could accept the shares or decline to accept those shares or exercise the option of surrendering them in favour of its nominees. This last option could be exercised by nominating the persons who were to take over the shares and that is what the Mills did. The Mills requested the Bank of India to allot the shares to its nominees, and the request for allotment to its nominees amounted to transfer of the right. By its resolution, the Mills in truth transferred a right of the value of Rs. 200/- for each share held by its shareholders. This was manifestly not distribution of the capital of the Mills. It was open to the Mills to sell the right to the shares of the Bank of India in the market, and to distribute the proceeds among the shareholders. Such a distribution would undoubtedly have been distribution of dividend. If instead of selling the right in the market and then distributing the proceeds, the Mills directly transferred the right, the benefit in the hands of the shareholders was still dividend.9. Dividend need not be distributed in money; it may be distributed by delivery of property or right having monetary value. The resolution, it is true, did not purport to distribute the right amongst the shareholders as dividend. It did not also take the form of a resolution for distribution of dividend; it took the form of distribution of a right which had a monetary value. But by the form of the resolution sanctioning the distribution, the true character of the resolution could not be altered. We are, therefore, of the view that the High Court was right in holding that the distribution of the right to apply for and obtain two shares of the Bank of India (at half their market value) for each share held by the shareholders of the Mills amounted to distribution of dividend.
### Response:
0
### Explanation:
8. It was also urged that in nominating its shareholders to exercise the option to purchase the new issue of the Bank of India, the Mills did not distribute any dividend. The Mills were, it is true, not obliged to accept the offer made by the Bank of India, however, advantageous it might have been to the Mills to accept the offer: it was open to the Mills to renounce the offer. The Mills had three options, (1) to accept the shares, (2) to decline to accept the shares, or (3) to surrender them in favour of its nominee. It is undisputed that when the shares were offered by the Bank of India to its shareholders, the right to apply for the shares had a market value of Rs. 100/- per share. The face value of the new share was Rs. 50/- but the shareholders had to pay a premium of Rs. 50/-, thus making a total payment of Rs. 100/- for acquiring the new share. The new shares were quoted in the market at more than Rs. 200/-: and the difference between the amount payable for acquiring the shares under the right offered by the Bank of India and the market quotation of the shares was indisputably the value of the right. The Mills could not be compelled to obtain this benefit if it did not desire to do so: it could accept the shares or decline to accept those shares or exercise the option of surrendering them in favour of its nominees. This last option could be exercised by nominating the persons who were to take over the shares and that is what the Mills did. The Mills requested the Bank of India to allot the shares to its nominees, and the request for allotment to its nominees amounted to transfer of the right. By its resolution, the Mills in truth transferred a right of the value of Rs. 200/- for each share held by its shareholders. This was manifestly not distribution of the capital of the Mills. It was open to the Mills to sell the right to the shares of the Bank of India in the market, and to distribute the proceeds among the shareholders. Such a distribution would undoubtedly have been distribution of dividend. If instead of selling the right in the market and then distributing the proceeds, the Mills directly transferred the right, the benefit in the hands of the shareholders was still dividend.9. Dividend need not be distributed in money; it may be distributed by delivery of property or right having monetary value. The resolution, it is true, did not purport to distribute the right amongst the shareholders as dividend. It did not also take the form of a resolution for distribution of dividend; it took the form of distribution of a right which had a monetary value. But by the form of the resolution sanctioning the distribution, the true character of the resolution could not be altered. We are, therefore, of the view that the High Court was right in holding that the distribution of the right to apply for and obtain two shares of the Bank of India (at half their market value) for each share held by the shareholders of the Mills amounted to distribution of dividend.
|
Indian Oil Corporation Vs. Consumer Protection Council, Kerala and Another | the 2nd respondent, Karthika Gas Agency has issued several unauthorised connections which would amount to a criminal breach of trust. No liability can be fastened on the appellant. 12. Clause 17 of the L.P.G. distributorship agreement clearly postulates the distributor to act as principal and not as an agent. In fact, the complainant was informed under letter dated 23rd of March, 1990 as to the correct position. In these circumstances, if there is no legal obligation to regularise the connection the complaint ought to have been thrown out. The authorities below erred in their approach. 13. In opposition to this, the learned counsel for the respondent would contend that the subscription voucher is not the sole evidence to establish the existence of an authorised connection. Possession of L.P.G. gas cylinder, pressure regulator and regular supply and refill of cylinders would constitute enough evidence to establish consumership since no other person can possess these items as they are monopoly items available with L.P.G. producing companies only. 14. The letter dated 8.12.89 establishes the fact that the appellant was aware of the unauthorised acts of dealer from 1989 onwards where for the unauthorised act of 2nd respondent his agency came to be terminated. There was no justification whatever to revive the same. Besides, how the appellant allowed the 2nd respondent to give continuous supply of gas cylinder is not explained. Therefore, the presumption is that the appellant had ratified the unauthorised acts of the respondent. 15. In order to decide this question it is necessary for us to look at clause 1(a) of Exb. R-2. That is the memorandum of agreement between Indian Oil Corporation and M/s. Karthika gas Agency. That establishes the relationship between Indian Oil Corporation, the appellant and Karthika Gas Agency as Distributor of the Corporation, on principal to principal basis. 16. Clause 17 of the agreement is as under : "In all contracts or engagements entered into by the Distributor with the customers for sale of LPG and/or the sale and/or installation and/or repairs of appliances and/or connections thereof with LPG Cylinders (filled or empty) and/or refills and/or pressure regulators and/or attached equipment the Distributor shall act and shall always be deemed to have acted as a principal and not as an agent or on account of the Corporation, and the Corporation shall not in any way be liable in any manner in respect of such contracts and/or engagements and/or in respect of any act or omission on the part of the Distributor, his servants, agents and workmen in regard to such installation, sale, distribution, connections, repairs or otherwise. The Distributor shall be bound to inform the customers in writing of this provision, through correspondence or at the time of enrolment, of the customer." * Thus, it is clear that the relationship is one of principal to principal basis. The reliance by the authorities below that the circumstances, documents and conduct of parties proved the relationship as of principal and agent is difficult to understand. This is a case in which the 2nd respondent Karthika Gas Agency has given an unauthorised connection. If it was a legal connection nothing would have been easier than to produce the subscription voucher. Such a voucher as rightly pointed out by the learned counsel for the appellant, is important and will bind the appellant-Corporation. The authorities below have not given due importance to the subscription voucher. Section 3(2) of the LPG Control Order reads as under : "No person shall possess or use liquified petroleum gas filled in cylinder or in bulk form unless he has received supply thereof from a distributor or from an Oil Company." 18. The possession of an L.P.G. gas cylinder by Dr. Kamalasanan in this case has not been proved to be authorised. Therefore, on the strength of obtaining possession by means of an unauthorised connection it is not open to the 1st respondent to foist a contract on the Corporation. 19. The letter dated 23rd of March, 1990 to Dr. Kamalasanan is as under : "Indian Oil Corporation Limited LPG : 104 23.3.90 Dr. P. Kamalasanan Consumer Protection Council of Kerala TC 5/96, Perurkada, Trivandrum 695 005. Dear Sir, Sub : LPG distribution at Karunagapally. We make reference to your letter dated 8.1.90 on the subject. On enquiry it is understood that M/s. Karthika Gas Agencies, Karunagapally, has released a number of cylinders and regulators unauthorisedly to various persons in Karunagapally. It is also understood that for such releases a receipt in the name of the Karthika Gas Enterprises has been issued and not in the name of Karthika Gas Agencies, who are our authorised distributors. This appears to be a clear unauthorised action entailing criminal breach of trust. However, in so far as we are not provided with a valid document such as receipt of subscription voucher issued by M/s. Karthika Gas Agencies who are our authorised distributors we may not be in a position to take any action in regularising the connection. In regard to the supply of refills we are taking up the matter suitably with our Manager, Trivandrum to further streamline the existing arrangement of supplies ex Haripad. Thanking you, Yours faithfully, for Indian Oil Corpn. Ltd. sd/- Area Manager" * 20. This puts the position beyond doubt. It should have made the consumer aware of his legal rights. Further, in this case for the unauthorised acts of 2nd respondent, it is distributorship came to be cancelled. The fact that it was revived is of no consequence if due regard is to be had to clause 17 of the agreement which has been extracted above. Section 2(1)(g) of the Consumer Protection Act states as follows :"(g) "deficiency " means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;" * | 1[ds]Thus, it is clear that the relationship is one of principal to principal basis. The reliance by the authorities below that the circumstances, documents and conduct of parties proved the relationship as of principal and agent is difficult to understand. This is a case in which the 2nd respondent Karthika Gas Agency has given an unauthorised connection. If it was a legal connection nothing would have been easier than to produce the subscription voucher. Such a voucher as rightly pointed out by the learned counsel for the appellant, is important and will bind the. The authorities below have not given due importance to the subscription voucher. Section 3(2) of the LPG Control Order reads as under :"No person shall possess or use liquified petroleum gas filled in cylinder or in bulk form unless he has received supply thereof from a distributor or from an Oil Company."18. The possession of an L.P.G. gas cylinder by Dr. Kamalasanan in this case has not been proved to be authorised. Therefore, on the strength of obtaining possession by means of an unauthorised connection it is not open to the 1st respondent to foist a contract on the Corporation19. The letter dated 23rd of March, 1990 to Dr. Kamalasanan is as under :"Indian Oil Corporation Limited LPG : 104 23.3.90Dr. P. Kamalasanan Consumer Protection Council of Kerala TC 5/96, Perurkada, Trivandrum 695 005Sub : LPG distribution at KarunagapallyWe make reference to your letter dated 8.1.90 on the subject. On enquiry it is understood that M/s. Karthika Gas Agencies, Karunagapally, has released a number of cylinders and regulators unauthorisedly to various persons in Karunagapally. It is also understood that for such releases a receipt in the name of the Karthika Gas Enterprises has been issued and not in the name of Karthika Gas Agencies, who are our authorised distributors. This appears to be a clear unauthorised action entailing criminal breach of trust. However, in so far as we are not provided with a valid document such as receipt of subscription voucher issued by M/s. Karthika Gas Agencies who are our authorised distributors we may not be in a position to take any action in regularising the connectionIn regard to the supply of refills we are taking up the matter suitably with our Manager, Trivandrum to further streamline the existing arrangement of supplies ex HaripadYours faithfully, for Indian Oil Corpn. LtdArea Manager" *20. This puts the position beyond doubt. It should have made the consumer aware of his legal rights. Further, in this case for the unauthorised acts of 2nd respondent, it is distributorship came to be cancelled. The fact that it was revived is of no consequence if due regard is to be had to clause 17 of the agreement which has been extracted above. Section 2(1)(g) of the Consumer Protection Act states as follows :"(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;" * | 1 | 1,964 | 595 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the 2nd respondent, Karthika Gas Agency has issued several unauthorised connections which would amount to a criminal breach of trust. No liability can be fastened on the appellant. 12. Clause 17 of the L.P.G. distributorship agreement clearly postulates the distributor to act as principal and not as an agent. In fact, the complainant was informed under letter dated 23rd of March, 1990 as to the correct position. In these circumstances, if there is no legal obligation to regularise the connection the complaint ought to have been thrown out. The authorities below erred in their approach. 13. In opposition to this, the learned counsel for the respondent would contend that the subscription voucher is not the sole evidence to establish the existence of an authorised connection. Possession of L.P.G. gas cylinder, pressure regulator and regular supply and refill of cylinders would constitute enough evidence to establish consumership since no other person can possess these items as they are monopoly items available with L.P.G. producing companies only. 14. The letter dated 8.12.89 establishes the fact that the appellant was aware of the unauthorised acts of dealer from 1989 onwards where for the unauthorised act of 2nd respondent his agency came to be terminated. There was no justification whatever to revive the same. Besides, how the appellant allowed the 2nd respondent to give continuous supply of gas cylinder is not explained. Therefore, the presumption is that the appellant had ratified the unauthorised acts of the respondent. 15. In order to decide this question it is necessary for us to look at clause 1(a) of Exb. R-2. That is the memorandum of agreement between Indian Oil Corporation and M/s. Karthika gas Agency. That establishes the relationship between Indian Oil Corporation, the appellant and Karthika Gas Agency as Distributor of the Corporation, on principal to principal basis. 16. Clause 17 of the agreement is as under : "In all contracts or engagements entered into by the Distributor with the customers for sale of LPG and/or the sale and/or installation and/or repairs of appliances and/or connections thereof with LPG Cylinders (filled or empty) and/or refills and/or pressure regulators and/or attached equipment the Distributor shall act and shall always be deemed to have acted as a principal and not as an agent or on account of the Corporation, and the Corporation shall not in any way be liable in any manner in respect of such contracts and/or engagements and/or in respect of any act or omission on the part of the Distributor, his servants, agents and workmen in regard to such installation, sale, distribution, connections, repairs or otherwise. The Distributor shall be bound to inform the customers in writing of this provision, through correspondence or at the time of enrolment, of the customer." * Thus, it is clear that the relationship is one of principal to principal basis. The reliance by the authorities below that the circumstances, documents and conduct of parties proved the relationship as of principal and agent is difficult to understand. This is a case in which the 2nd respondent Karthika Gas Agency has given an unauthorised connection. If it was a legal connection nothing would have been easier than to produce the subscription voucher. Such a voucher as rightly pointed out by the learned counsel for the appellant, is important and will bind the appellant-Corporation. The authorities below have not given due importance to the subscription voucher. Section 3(2) of the LPG Control Order reads as under : "No person shall possess or use liquified petroleum gas filled in cylinder or in bulk form unless he has received supply thereof from a distributor or from an Oil Company." 18. The possession of an L.P.G. gas cylinder by Dr. Kamalasanan in this case has not been proved to be authorised. Therefore, on the strength of obtaining possession by means of an unauthorised connection it is not open to the 1st respondent to foist a contract on the Corporation. 19. The letter dated 23rd of March, 1990 to Dr. Kamalasanan is as under : "Indian Oil Corporation Limited LPG : 104 23.3.90 Dr. P. Kamalasanan Consumer Protection Council of Kerala TC 5/96, Perurkada, Trivandrum 695 005. Dear Sir, Sub : LPG distribution at Karunagapally. We make reference to your letter dated 8.1.90 on the subject. On enquiry it is understood that M/s. Karthika Gas Agencies, Karunagapally, has released a number of cylinders and regulators unauthorisedly to various persons in Karunagapally. It is also understood that for such releases a receipt in the name of the Karthika Gas Enterprises has been issued and not in the name of Karthika Gas Agencies, who are our authorised distributors. This appears to be a clear unauthorised action entailing criminal breach of trust. However, in so far as we are not provided with a valid document such as receipt of subscription voucher issued by M/s. Karthika Gas Agencies who are our authorised distributors we may not be in a position to take any action in regularising the connection. In regard to the supply of refills we are taking up the matter suitably with our Manager, Trivandrum to further streamline the existing arrangement of supplies ex Haripad. Thanking you, Yours faithfully, for Indian Oil Corpn. Ltd. sd/- Area Manager" * 20. This puts the position beyond doubt. It should have made the consumer aware of his legal rights. Further, in this case for the unauthorised acts of 2nd respondent, it is distributorship came to be cancelled. The fact that it was revived is of no consequence if due regard is to be had to clause 17 of the agreement which has been extracted above. Section 2(1)(g) of the Consumer Protection Act states as follows :"(g) "deficiency " means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;" *
### Response:
1
### Explanation:
Thus, it is clear that the relationship is one of principal to principal basis. The reliance by the authorities below that the circumstances, documents and conduct of parties proved the relationship as of principal and agent is difficult to understand. This is a case in which the 2nd respondent Karthika Gas Agency has given an unauthorised connection. If it was a legal connection nothing would have been easier than to produce the subscription voucher. Such a voucher as rightly pointed out by the learned counsel for the appellant, is important and will bind the. The authorities below have not given due importance to the subscription voucher. Section 3(2) of the LPG Control Order reads as under :"No person shall possess or use liquified petroleum gas filled in cylinder or in bulk form unless he has received supply thereof from a distributor or from an Oil Company."18. The possession of an L.P.G. gas cylinder by Dr. Kamalasanan in this case has not been proved to be authorised. Therefore, on the strength of obtaining possession by means of an unauthorised connection it is not open to the 1st respondent to foist a contract on the Corporation19. The letter dated 23rd of March, 1990 to Dr. Kamalasanan is as under :"Indian Oil Corporation Limited LPG : 104 23.3.90Dr. P. Kamalasanan Consumer Protection Council of Kerala TC 5/96, Perurkada, Trivandrum 695 005Sub : LPG distribution at KarunagapallyWe make reference to your letter dated 8.1.90 on the subject. On enquiry it is understood that M/s. Karthika Gas Agencies, Karunagapally, has released a number of cylinders and regulators unauthorisedly to various persons in Karunagapally. It is also understood that for such releases a receipt in the name of the Karthika Gas Enterprises has been issued and not in the name of Karthika Gas Agencies, who are our authorised distributors. This appears to be a clear unauthorised action entailing criminal breach of trust. However, in so far as we are not provided with a valid document such as receipt of subscription voucher issued by M/s. Karthika Gas Agencies who are our authorised distributors we may not be in a position to take any action in regularising the connectionIn regard to the supply of refills we are taking up the matter suitably with our Manager, Trivandrum to further streamline the existing arrangement of supplies ex HaripadYours faithfully, for Indian Oil Corpn. LtdArea Manager" *20. This puts the position beyond doubt. It should have made the consumer aware of his legal rights. Further, in this case for the unauthorised acts of 2nd respondent, it is distributorship came to be cancelled. The fact that it was revived is of no consequence if due regard is to be had to clause 17 of the agreement which has been extracted above. Section 2(1)(g) of the Consumer Protection Act states as follows :"(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;" *
|
Rhone-Poulenc (I) Ltd Vs. State Of U.P. | transfer order had been issued by an incompetent authority and, therefore, the non-compliance thereof cannot be treated as misconduct was accepted. It was noticed in the award that the appellant didnt produce any material to prove that the Regional Sales Manager was competent to pass an order of transfer or that the powers to transfer the Medical Representatives had been delegated to the Regional Sales Manager. It was admitted that the Corporate Manager had the power to pass order of transfer of Medical Representatives. 3. Two writ petitions filed by the appellant, one challenging the order dated 22nd September, 1993 and the other the award dated 18th December, 1995, were dismissed by the High Court by a common judgment which is under challenge in these appeals. 4. Mr. V.R. Reddy, learned counsel for the appellant, contends that the Labour Court had no jurisdiction to deal with the matter since respondent No. 3, a Medical Representative, could not be held to be a `deemed workman within the meaning of the U.P. Industrial Disputes Act by virtue of Section 6(2) of the Sales Promotion Employees (Conditions of Service) Act, 1976. The said section reads as under : "6(2). The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of the Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute." 5. The contention of the learned counsel is that assuming the aforesaid provision is applicable, it still doesnt extend the deeming fiction to any State enactment including the U.P. Industrial Disputes Act as it is apparent on reading of the Section that Sales Promotion Employees, within the meaning of Central enactment of the Industrial Disputes Act, 1947 (14 of 1947) have been treated as `workman. Reliance has been placed by the learned counsel on a Constitution Bench decision of this Court in H.R. Adyanthaya and others v. Sandoz (India) Ltd. and others, 1994(5) SCC 737 : 1995(1) SCT 278(SC)(FB). The Bench has held that since the Medical representatives are not workmen within the meaning of the Maharashtra Act, the complaint made to the Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 was not maintainable. The acceptance of the contention of Mr. Reddy that respondent No. 3 in view of Sandoz case is not a `workman within the meaning of the U.P. Industrial Disputes Act, however, doesnt help the appellant in substance as in the present case we propose to adopt the same course as was adopted in Sandoz case by treating the complaint to be an industrial dispute under the Industrial Disputes Act, 1947 in exercise of the powers of this Court under Article 142 of the Constitution. More than 12 years have passed since the reference was made to the Industrial Court and in the facts and circumstances of the case, we think it appropriate to adopt the course as was adopted in Sandoz case. Thus, we treat the reference in question to be one under Section 10(1)(d) of the Industrial Disputes Act, 1947. 6. The appellant did not place any material before the Labour Court to prove the authority and competence of the Regional Sales Manager to order the transfer of respondent No. 3. The appellant has been unable to make out any case for disturbing the finding recorded by the Labour Court as affirmed by the High Court that the transfer order of respondent No. 3 had not been issued by a competent authority. The mere fact that after the order of transfer had been issued and when respondent No. 3 had failed to report for duty, he was also asked by the Corporate Manager, who was competent to order his transfer, to join the duties at Kanpur will not validate the order of transfer issued by an authority not competent to do so. 7. The High Court has also held that respondent No. 3 is entitled to the same amount of salary/arrears of salary after he was reinstated by the award of the Labour Court which his counterparts (Medical Representatives) in the appellant company were receiving under the settlement dated 25th June, 1988 and has further held that the said settlement is applicable to the case of respondent No. 3 as well and the appellant is estopped from taking the plea of its non-applicability in case of respondent No. 3. Mr. Reddy contends that the aforesaid finding of the High Court deserves to be set aside. We agree. The question whether respondent No. 3 is entitled or not to the benefit of settlement dated 25th June, 1988 was not the subject matter of the award which directed the reinstatement of workman in service along with consequential benefits. What consequential benefits respondent No. 3 would be entitled to was not the subject matter of the writ petitions before the High Court. According to the appellant, respondent No. 3 is not entitled to the benefits under the settlement whereas respondent No. 3 claims such benefits. This question may have to be adjudicated by a competent authority at an appropriate stage when the question of grant of consequential relief is raised or it is contended that full consequential reliefs in terms of the award have been denied to respondent No. 3. The stage of implementation of the award had not come when the matter was pending before the High Court. The only question before the High Court was with regard to the legality of the award and the order dated 22nd September, 1993 whereby the two preliminary issues were decided by the Labour Court. | 1[ds]however, doesnt help the appellant in substance as in the present case we propose to adopt the same course as was adopted in Sandoz case by treating the complaint to be an industrial dispute under the Industrial Disputes Act, 1947 in exercise of the powers of this Court under Article 142 of the Constitution. More than 12 years have passed since the reference was made to the Industrial Court and in the facts and circumstances of the case, we think it appropriate to adopt the course as was adopted in Sandoz case. Thus, we treat the reference in question to be one under Section 10(1)(d) of the Industrial Disputes Act, 1947.The High Court has also held that respondent No. 3 is entitled to the same amount of salary/arrears of salary after he was reinstated by the award of the Labour Court which his counterparts (Medical Representatives) in the appellant company were receiving under the settlement dated 25th June, 1988 and has further held that the said settlement is applicable to the case of respondent No. 3 as well and the appellant is estopped from taking the plea of itsin case of respondent No. 3. Mr. Reddy contends that the aforesaid finding of the High Court deserves to be set aside. We agree. The question whether respondent No. 3 is entitled or not to the benefit of settlement dated 25th June, 1988 was not the subject matter of the award which directed the reinstatement of workman in service along with consequential benefits. What consequential benefits respondent No. 3 would be entitled to was not the subject matter of the writ petitions before the High Court. According to the appellant, respondent No. 3 is not entitled to the benefits under the settlement whereas respondent No. 3 claims such benefits. This question may have to be adjudicated by a competent authority at an appropriate stage when the question of grant of consequential relief is raised or it is contended that full consequential reliefs in terms of the award have been denied to respondent No. 3. The stage of implementation of the award had not come when the matter was pending before the High Court. The only question before the High Court was with regard to the legality of the award and the order dated 22nd September, 1993 whereby the two preliminary issues were decided by the Labour Court. | 1 | 1,472 | 435 | ### 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:
transfer order had been issued by an incompetent authority and, therefore, the non-compliance thereof cannot be treated as misconduct was accepted. It was noticed in the award that the appellant didnt produce any material to prove that the Regional Sales Manager was competent to pass an order of transfer or that the powers to transfer the Medical Representatives had been delegated to the Regional Sales Manager. It was admitted that the Corporate Manager had the power to pass order of transfer of Medical Representatives. 3. Two writ petitions filed by the appellant, one challenging the order dated 22nd September, 1993 and the other the award dated 18th December, 1995, were dismissed by the High Court by a common judgment which is under challenge in these appeals. 4. Mr. V.R. Reddy, learned counsel for the appellant, contends that the Labour Court had no jurisdiction to deal with the matter since respondent No. 3, a Medical Representative, could not be held to be a `deemed workman within the meaning of the U.P. Industrial Disputes Act by virtue of Section 6(2) of the Sales Promotion Employees (Conditions of Service) Act, 1976. The said section reads as under : "6(2). The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of the Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute." 5. The contention of the learned counsel is that assuming the aforesaid provision is applicable, it still doesnt extend the deeming fiction to any State enactment including the U.P. Industrial Disputes Act as it is apparent on reading of the Section that Sales Promotion Employees, within the meaning of Central enactment of the Industrial Disputes Act, 1947 (14 of 1947) have been treated as `workman. Reliance has been placed by the learned counsel on a Constitution Bench decision of this Court in H.R. Adyanthaya and others v. Sandoz (India) Ltd. and others, 1994(5) SCC 737 : 1995(1) SCT 278(SC)(FB). The Bench has held that since the Medical representatives are not workmen within the meaning of the Maharashtra Act, the complaint made to the Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 was not maintainable. The acceptance of the contention of Mr. Reddy that respondent No. 3 in view of Sandoz case is not a `workman within the meaning of the U.P. Industrial Disputes Act, however, doesnt help the appellant in substance as in the present case we propose to adopt the same course as was adopted in Sandoz case by treating the complaint to be an industrial dispute under the Industrial Disputes Act, 1947 in exercise of the powers of this Court under Article 142 of the Constitution. More than 12 years have passed since the reference was made to the Industrial Court and in the facts and circumstances of the case, we think it appropriate to adopt the course as was adopted in Sandoz case. Thus, we treat the reference in question to be one under Section 10(1)(d) of the Industrial Disputes Act, 1947. 6. The appellant did not place any material before the Labour Court to prove the authority and competence of the Regional Sales Manager to order the transfer of respondent No. 3. The appellant has been unable to make out any case for disturbing the finding recorded by the Labour Court as affirmed by the High Court that the transfer order of respondent No. 3 had not been issued by a competent authority. The mere fact that after the order of transfer had been issued and when respondent No. 3 had failed to report for duty, he was also asked by the Corporate Manager, who was competent to order his transfer, to join the duties at Kanpur will not validate the order of transfer issued by an authority not competent to do so. 7. The High Court has also held that respondent No. 3 is entitled to the same amount of salary/arrears of salary after he was reinstated by the award of the Labour Court which his counterparts (Medical Representatives) in the appellant company were receiving under the settlement dated 25th June, 1988 and has further held that the said settlement is applicable to the case of respondent No. 3 as well and the appellant is estopped from taking the plea of its non-applicability in case of respondent No. 3. Mr. Reddy contends that the aforesaid finding of the High Court deserves to be set aside. We agree. The question whether respondent No. 3 is entitled or not to the benefit of settlement dated 25th June, 1988 was not the subject matter of the award which directed the reinstatement of workman in service along with consequential benefits. What consequential benefits respondent No. 3 would be entitled to was not the subject matter of the writ petitions before the High Court. According to the appellant, respondent No. 3 is not entitled to the benefits under the settlement whereas respondent No. 3 claims such benefits. This question may have to be adjudicated by a competent authority at an appropriate stage when the question of grant of consequential relief is raised or it is contended that full consequential reliefs in terms of the award have been denied to respondent No. 3. The stage of implementation of the award had not come when the matter was pending before the High Court. The only question before the High Court was with regard to the legality of the award and the order dated 22nd September, 1993 whereby the two preliminary issues were decided by the Labour Court.
### Response:
1
### Explanation:
however, doesnt help the appellant in substance as in the present case we propose to adopt the same course as was adopted in Sandoz case by treating the complaint to be an industrial dispute under the Industrial Disputes Act, 1947 in exercise of the powers of this Court under Article 142 of the Constitution. More than 12 years have passed since the reference was made to the Industrial Court and in the facts and circumstances of the case, we think it appropriate to adopt the course as was adopted in Sandoz case. Thus, we treat the reference in question to be one under Section 10(1)(d) of the Industrial Disputes Act, 1947.The High Court has also held that respondent No. 3 is entitled to the same amount of salary/arrears of salary after he was reinstated by the award of the Labour Court which his counterparts (Medical Representatives) in the appellant company were receiving under the settlement dated 25th June, 1988 and has further held that the said settlement is applicable to the case of respondent No. 3 as well and the appellant is estopped from taking the plea of itsin case of respondent No. 3. Mr. Reddy contends that the aforesaid finding of the High Court deserves to be set aside. We agree. The question whether respondent No. 3 is entitled or not to the benefit of settlement dated 25th June, 1988 was not the subject matter of the award which directed the reinstatement of workman in service along with consequential benefits. What consequential benefits respondent No. 3 would be entitled to was not the subject matter of the writ petitions before the High Court. According to the appellant, respondent No. 3 is not entitled to the benefits under the settlement whereas respondent No. 3 claims such benefits. This question may have to be adjudicated by a competent authority at an appropriate stage when the question of grant of consequential relief is raised or it is contended that full consequential reliefs in terms of the award have been denied to respondent No. 3. The stage of implementation of the award had not come when the matter was pending before the High Court. The only question before the High Court was with regard to the legality of the award and the order dated 22nd September, 1993 whereby the two preliminary issues were decided by the Labour Court.
|
Ashok Kumar Lingala Vs. State Of Karnataka | respective areas instead of straying into the adjacent area. 18. We may at this stage advert to another submission made by Mr. Dave that the Director (Mines) could not have stopped the mining operations of the appellant on the basis of what was according to Mr. Dave a frivolous complaint filed by SMIORE that alleged overlapping of the lease areas. He contended that a valid lease having been granted to the appellant after following the requisite formalities and the procedure prescribed under the relevant rules and after proper demarcation of the privately held area that was available for mining, the Director should not have on a sketchy report from the Drawing Section of the Department stopped the mining activities. It was further contented by Mr. Dave that since the mining activity had been stopped under the orders of the Director (Mines), the High Court was in error in not only upholding the said direction but extending their efficacy till such time the dispute between the parties was resolved by the Civil Court.19. The mere pendency of a suit in a Civil Court could not be an impediment for the appellant to start or continue his mining activity, unless there was an injunction restraining - him from doing so. No such injunction has been issued by the Civil Court. That does not, however, mean that the Government or the Director (Mines) for that matter could not in the event of any dispute between the appellant and SIMORE regarding the identity and demarcation of the area leased to both of them direct the appellant to refrain from carrying on the mining activity as an interim measure till such time the issue was sorted out. But once such an interim direction was issued, the authority doing so had to take steps to resolve the dispute. It could not let the dispute fester and result in a stalemate. So also the restraint order could not be continued by the High Court till the dispute was adjudicated upon by the Civil Court. Doing so would amount to one authority making an interim order pending a final order to be made by another. The power to make an interim order is, except where it is specifically taken away by the statute, implicit in the power to make a final order. It is exercised by the authority who has to make the final order or an authority exercising appellate or revisional jurisdiction, against an order granting or refusing an interim order. The exercise of the power implies that - the authority seized of the proceedings in which such an order is made will eventually pass a final order; the interim order serving only as a step in aid of such final order. The law, in our view, does not permit the making of an interim order by one authority or Court pending adjudication of the dispute by another except in the situation mentioned above. Ms. Shenoy was, therefore, right in her submission that the order of restraining mining operation was meant to be a temporary and interim arrangement meant to remain in force only till such time the Director (Mines) examined the issue regarding the alleged overlapping of the area and passed a final order on the subject.20. Ms. Shenoy was, however, unable to justify the restraint order passed by the Director (Mines) in the absence of the report of the Drawing Section which was the sole basis for the order passed by the Director (Mines). If the Drawing Section had indeed undertaken an exercise the same ought to have been disclosed to the High Court and to this Court so that the validity of any such exercise could be examined. Absence of the report said to have been - made by the Drawing Section and non-production of any material indicating the process by which the Drawing Section came to the conclusion that there was overlapping of the two areas, one privately owned and the other belonging to the State, lend support to the submission made by Mr. Dave that the order of restraint passed by the Director was made in haste. We do not, however, propose to dwell any further on this aspect nor do we propose to vacate the interim restraint order issued by the Director on the ground that it was based on material that was tenuous and remained un-substantiated before us. In our opinion the real problem lies in the demarcation of the two areas leased to the appellant on the one hand and SIMORE on the other. As observed earlier the ownership of the areas claimed by both the lessees vests in different owners. So long as the areas leased to them are identifiable on spot by different survey numbers and boundaries, there is no question of any overlapping. The confusion regarding boundaries in turn is a matter the answer to which lies only in a proper demarcation of the areas.21. It was submitted by Mr. Dave that dispute between the appellant and SIMORE has considerably delayed the mining activity of the appellant, and that a direction ought to be issued to the authorities to expedite the process of demarcation. He urged that keeping in view the bad blood generated between the parties it would be more appropriate to entrust the entire process of demarcation and identification of the leased areas to the Geological Survey of India. We, however, see no reason to issue any such direction at this stage. While the appellant may have some apprehensions about the fairness of the officers of the concerned department we do not consider them to be sufficient for us to mistrust the State functionaries in the absence of any material to suggest that there is any real likelihood of bias. That does not mean that the process of identification and demarcation of the area leased to the appellant should not be undertaken by senior level officers of the State Government to ensure that there is no scope for any mischief or miscarriage of justice. | 1[ds]18. We may at this stage advert to another submission made by Mr. Dave that the Director (Mines) could not have stopped the mining operations of the appellant on the basis of what was according to Mr. Dave a frivolous complaint filed by SMIORE that alleged overlapping of the lease areas. He contended that a valid lease having been granted to the appellant after following the requisite formalities and the procedure prescribed under the relevant rules and after proper demarcation of the privately held area that was available for mining, the Director should not have on a sketchy report from the Drawing Section of the Department stopped the mining activities. It was further contented by Mr. Dave that since the mining activity had been stopped under the orders of the Director (Mines), the High Court was in error in not only upholding the said direction but extending their efficacy till such time the dispute between the parties was resolved by the Civil Court.19. The mere pendency of a suit in a Civil Court could not be an impediment for the appellant to start or continue his mining activity, unless there was an injunction restraining - him from doing so. No such injunction has been issued by the Civil Court. That does not, however, mean that the Government or the Director (Mines) for that matter could not in the event of any dispute between the appellant and SIMORE regarding the identity and demarcation of the area leased to both of them direct the appellant to refrain from carrying on the mining activity as an interim measure till such time the issue was sorted out. But once such an interim direction was issued, the authority doing so had to take steps to resolve the dispute. It could not let the dispute fester and result in a stalemate. So also the restraint order could not be continued by the High Court till the dispute was adjudicated upon by the Civil Court. Doing so would amount to one authority making an interim order pending a final order to be made by another. The power to make an interim order is, except where it is specifically taken away by the statute, implicit in the power to make a final order. It is exercised by the authority who has to make the final order or an authority exercising appellate or revisional jurisdiction, against an order granting or refusing an interim order. The exercise of the power implies that - the authority seized of the proceedings in which such an order is made will eventually pass a final order; the interim order serving only as a step in aid of such final order. The law, in our view, does not permit the making of an interim order by one authority or Court pending adjudication of the dispute by another except in the situation mentioned above. Ms. Shenoy was, therefore, right in her submission that the order of restraining mining operation was meant to be a temporary and interim arrangement meant to remain in force only till such time the Director (Mines) examined the issue regarding the alleged overlapping of the area and passed a final order on the subject.20. Ms. Shenoy was, however, unable to justify the restraint order passed by the Director (Mines) in the absence of the report of the Drawing Section which was the sole basis for the order passed by the Director (Mines). If the Drawing Section had indeed undertaken an exercise the same ought to have been disclosed to the High Court and to this Court so that the validity of any such exercise could be examined. Absence of the report said to have been - made by the Drawing Section and non-production of any material indicating the process by which the Drawing Section came to the conclusion that there was overlapping of the two areas, one privately owned and the other belonging to the State, lend support to the submission made by Mr. Dave that the order of restraint passed by the Director was made in haste. We do not, however, propose to dwell any further on this aspect nor do we propose to vacate the interim restraint order issued by the Director on the ground that it was based on material that was tenuous and remained un-substantiated before us. In our opinion the real problem lies in the demarcation of the two areas leased to the appellant on the one hand and SIMORE on the other. As observed earlier the ownership of the areas claimed by both the lessees vests in different owners. So long as the areas leased to them are identifiable on spot by different survey numbers and boundaries, there is no question of any overlapping. The confusion regarding boundaries in turn is a matter the answer to which lies only in a proper demarcation of the areas.21. It was submitted by Mr. Dave that dispute between the appellant and SIMORE has considerably delayed the mining activity of the appellant, and that a direction ought to be issued to the authorities to expedite the process of demarcation. He urged that keeping in view the bad blood generated between the parties it would be more appropriate to entrust the entire process of demarcation and identification of the leased areas to the Geological Survey of India. We, however, see no reason to issue any such direction at this stage. While the appellant may have some apprehensions about the fairness of the officers of the concerned department we do not consider them to be sufficient for us to mistrust the State functionaries in the absence of any material to suggest that there is any real likelihood of bias. That does not mean that the process of identification and demarcation of the area leased to the appellant should not be undertaken by senior level officers of the State Government to ensure that there is no scope for any mischief or miscarriage of justice. | 1 | 4,997 | 1,060 | ### 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:
respective areas instead of straying into the adjacent area. 18. We may at this stage advert to another submission made by Mr. Dave that the Director (Mines) could not have stopped the mining operations of the appellant on the basis of what was according to Mr. Dave a frivolous complaint filed by SMIORE that alleged overlapping of the lease areas. He contended that a valid lease having been granted to the appellant after following the requisite formalities and the procedure prescribed under the relevant rules and after proper demarcation of the privately held area that was available for mining, the Director should not have on a sketchy report from the Drawing Section of the Department stopped the mining activities. It was further contented by Mr. Dave that since the mining activity had been stopped under the orders of the Director (Mines), the High Court was in error in not only upholding the said direction but extending their efficacy till such time the dispute between the parties was resolved by the Civil Court.19. The mere pendency of a suit in a Civil Court could not be an impediment for the appellant to start or continue his mining activity, unless there was an injunction restraining - him from doing so. No such injunction has been issued by the Civil Court. That does not, however, mean that the Government or the Director (Mines) for that matter could not in the event of any dispute between the appellant and SIMORE regarding the identity and demarcation of the area leased to both of them direct the appellant to refrain from carrying on the mining activity as an interim measure till such time the issue was sorted out. But once such an interim direction was issued, the authority doing so had to take steps to resolve the dispute. It could not let the dispute fester and result in a stalemate. So also the restraint order could not be continued by the High Court till the dispute was adjudicated upon by the Civil Court. Doing so would amount to one authority making an interim order pending a final order to be made by another. The power to make an interim order is, except where it is specifically taken away by the statute, implicit in the power to make a final order. It is exercised by the authority who has to make the final order or an authority exercising appellate or revisional jurisdiction, against an order granting or refusing an interim order. The exercise of the power implies that - the authority seized of the proceedings in which such an order is made will eventually pass a final order; the interim order serving only as a step in aid of such final order. The law, in our view, does not permit the making of an interim order by one authority or Court pending adjudication of the dispute by another except in the situation mentioned above. Ms. Shenoy was, therefore, right in her submission that the order of restraining mining operation was meant to be a temporary and interim arrangement meant to remain in force only till such time the Director (Mines) examined the issue regarding the alleged overlapping of the area and passed a final order on the subject.20. Ms. Shenoy was, however, unable to justify the restraint order passed by the Director (Mines) in the absence of the report of the Drawing Section which was the sole basis for the order passed by the Director (Mines). If the Drawing Section had indeed undertaken an exercise the same ought to have been disclosed to the High Court and to this Court so that the validity of any such exercise could be examined. Absence of the report said to have been - made by the Drawing Section and non-production of any material indicating the process by which the Drawing Section came to the conclusion that there was overlapping of the two areas, one privately owned and the other belonging to the State, lend support to the submission made by Mr. Dave that the order of restraint passed by the Director was made in haste. We do not, however, propose to dwell any further on this aspect nor do we propose to vacate the interim restraint order issued by the Director on the ground that it was based on material that was tenuous and remained un-substantiated before us. In our opinion the real problem lies in the demarcation of the two areas leased to the appellant on the one hand and SIMORE on the other. As observed earlier the ownership of the areas claimed by both the lessees vests in different owners. So long as the areas leased to them are identifiable on spot by different survey numbers and boundaries, there is no question of any overlapping. The confusion regarding boundaries in turn is a matter the answer to which lies only in a proper demarcation of the areas.21. It was submitted by Mr. Dave that dispute between the appellant and SIMORE has considerably delayed the mining activity of the appellant, and that a direction ought to be issued to the authorities to expedite the process of demarcation. He urged that keeping in view the bad blood generated between the parties it would be more appropriate to entrust the entire process of demarcation and identification of the leased areas to the Geological Survey of India. We, however, see no reason to issue any such direction at this stage. While the appellant may have some apprehensions about the fairness of the officers of the concerned department we do not consider them to be sufficient for us to mistrust the State functionaries in the absence of any material to suggest that there is any real likelihood of bias. That does not mean that the process of identification and demarcation of the area leased to the appellant should not be undertaken by senior level officers of the State Government to ensure that there is no scope for any mischief or miscarriage of justice.
### Response:
1
### Explanation:
18. We may at this stage advert to another submission made by Mr. Dave that the Director (Mines) could not have stopped the mining operations of the appellant on the basis of what was according to Mr. Dave a frivolous complaint filed by SMIORE that alleged overlapping of the lease areas. He contended that a valid lease having been granted to the appellant after following the requisite formalities and the procedure prescribed under the relevant rules and after proper demarcation of the privately held area that was available for mining, the Director should not have on a sketchy report from the Drawing Section of the Department stopped the mining activities. It was further contented by Mr. Dave that since the mining activity had been stopped under the orders of the Director (Mines), the High Court was in error in not only upholding the said direction but extending their efficacy till such time the dispute between the parties was resolved by the Civil Court.19. The mere pendency of a suit in a Civil Court could not be an impediment for the appellant to start or continue his mining activity, unless there was an injunction restraining - him from doing so. No such injunction has been issued by the Civil Court. That does not, however, mean that the Government or the Director (Mines) for that matter could not in the event of any dispute between the appellant and SIMORE regarding the identity and demarcation of the area leased to both of them direct the appellant to refrain from carrying on the mining activity as an interim measure till such time the issue was sorted out. But once such an interim direction was issued, the authority doing so had to take steps to resolve the dispute. It could not let the dispute fester and result in a stalemate. So also the restraint order could not be continued by the High Court till the dispute was adjudicated upon by the Civil Court. Doing so would amount to one authority making an interim order pending a final order to be made by another. The power to make an interim order is, except where it is specifically taken away by the statute, implicit in the power to make a final order. It is exercised by the authority who has to make the final order or an authority exercising appellate or revisional jurisdiction, against an order granting or refusing an interim order. The exercise of the power implies that - the authority seized of the proceedings in which such an order is made will eventually pass a final order; the interim order serving only as a step in aid of such final order. The law, in our view, does not permit the making of an interim order by one authority or Court pending adjudication of the dispute by another except in the situation mentioned above. Ms. Shenoy was, therefore, right in her submission that the order of restraining mining operation was meant to be a temporary and interim arrangement meant to remain in force only till such time the Director (Mines) examined the issue regarding the alleged overlapping of the area and passed a final order on the subject.20. Ms. Shenoy was, however, unable to justify the restraint order passed by the Director (Mines) in the absence of the report of the Drawing Section which was the sole basis for the order passed by the Director (Mines). If the Drawing Section had indeed undertaken an exercise the same ought to have been disclosed to the High Court and to this Court so that the validity of any such exercise could be examined. Absence of the report said to have been - made by the Drawing Section and non-production of any material indicating the process by which the Drawing Section came to the conclusion that there was overlapping of the two areas, one privately owned and the other belonging to the State, lend support to the submission made by Mr. Dave that the order of restraint passed by the Director was made in haste. We do not, however, propose to dwell any further on this aspect nor do we propose to vacate the interim restraint order issued by the Director on the ground that it was based on material that was tenuous and remained un-substantiated before us. In our opinion the real problem lies in the demarcation of the two areas leased to the appellant on the one hand and SIMORE on the other. As observed earlier the ownership of the areas claimed by both the lessees vests in different owners. So long as the areas leased to them are identifiable on spot by different survey numbers and boundaries, there is no question of any overlapping. The confusion regarding boundaries in turn is a matter the answer to which lies only in a proper demarcation of the areas.21. It was submitted by Mr. Dave that dispute between the appellant and SIMORE has considerably delayed the mining activity of the appellant, and that a direction ought to be issued to the authorities to expedite the process of demarcation. He urged that keeping in view the bad blood generated between the parties it would be more appropriate to entrust the entire process of demarcation and identification of the leased areas to the Geological Survey of India. We, however, see no reason to issue any such direction at this stage. While the appellant may have some apprehensions about the fairness of the officers of the concerned department we do not consider them to be sufficient for us to mistrust the State functionaries in the absence of any material to suggest that there is any real likelihood of bias. That does not mean that the process of identification and demarcation of the area leased to the appellant should not be undertaken by senior level officers of the State Government to ensure that there is no scope for any mischief or miscarriage of justice.
|
Balmukand Vs. Kamla Wati & Ors | the learned Chief Justice observed:"In exceptional circumstances, however, the court will uphold the alienation of a part of the joint family property by a karta for the acquisition of new property as, for example, where all the adult members of the joint family with the knowledge available to them and possessing all the necessary information about the means and requirement of the family are convinced that the proposed purchase of the new property is for the benefit of the estate."These observations make it clear that where adult members are in existence the judgment is to be not that of the Manager of the family alone but that of all the adult members of the family, including the manager. In the case before us all the brothers of Pindidas were adults when the contract was entered into. There is no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction. Even, therefore, if we hold that the view expressed by the learned Chief Justice is right it does not help the plaintiff because the facts here are different from those contemplated by the learned Chief Justice. The other Judge who was a party to that decision Manohar Lal J., took more or less the same view.8. The third case relied on is In the matter of A. T. Vasudevan, AIR 1949 Mad 260. There a single Judge of he High Court held that the manager of Joint Hindu family is competent to alienate joint family property if it is clearly beneficial to the estate even though there is no legal necessity justifying the transaction. This view was expressed while dealing with an application under cl. 17 of Letters Patent by one Thiruvengada Mudaliar for being appointed guardian of the joint family property belonging to, inter alia his five minor sons and for sanction of the sale of that property as being beneficial to the interests of the minor sons. The petitioner who was karta of the family had, besides the five minor sons, two adult sons, his wife and unmarried daughter who had rights of maintenance. It was thus in connection with his application that the learned Judge considered the matter and from that point of view the decision is distinguishable. However, it is a fact that the learned Judge has clearly expressed the opinion that the Manager has power to sell joint family property if he is satisfied that the transaction would be for the benefit of the family. In coming to this conclusion he has based himself mainly upon the view taken by Venkata Subba Rao, J., in Selleppa v. Suppan , AIR 1937 Mad 496 . That was a case in which the question which arose for consideration was whether borrowing money on the mortgage of joint family property for the purchase of a house could be held to be binding on the family because the transaction was of benefit to the family. While holding that a transaction to be for the benefit of the family need not be of a defensive character the learned Judges upon the evidence before them, held that this particular transaction was not established by evidence to be one for the benefit of the family.9. Thus, as we have already stated, that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each the court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into. We have pointed out that there is not even an allegation in the plaint that the transaction was such as was regarded as beneficial to the family when it was entered into by Pindidas. Apart from that we have the fact that here the adult members of the family have stoutly resisted the plaintiffs claim for specific performance and we have no doubt that they would not have done so if they were satisfied that the transaction was of benefit to the family. It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the plaintiffs claim. Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the Manager on the ground of alleged benefit to the family without consulting them. Here, as already stated, there is no allegation of any such consultation.10. In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance. We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance.11. No doubt Pindidas himself was bound by the contract which he has entered into and the plaintiff would have been entitled to the benefit of S. 15 of the Specific Relief Act which runs thus:"Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant." | 0[ds]We have no doubt that for a transaction to be regarded as one which is of benefit to the family it need not necessarily be only of a defensive character. But what transaction would be for the benefit of the family must necessarily depend upon the facts of such case. In the case before the Full Bench the two managers of family found it difficult to manage the property at all with the result, apparently, that the family was incurring losses. To sell such property, and that too on advantageous terms, and to invest the sale proceeds in a profitable way could certainly be regarded as beneficial to the family. In the present case there is unfortunately nothing in the plaint to suggest that Pindidas agreed to sell the property because he found it difficult to manage it or because he found that the family was incurring loss by retaining the property. Nor again is there anything to suggest that the idea was to invest the sale proceeds in some profitable manner. Indeed there are no allegations in the plaint to the effect that the sale was being contemplated by any considerations of prudence. All that is said is that the fraction of the familys share of the land owned by the family bore a very small proportion to the land which the plaintiff held at the date of the transaction. But that was indeed the case even before the purchase by the plaintiff of the 23/120th share from Devisahai. There is nothing to indicate that the position of the family vis-a-vis their share in the land had in any way been altered by reason of the circumstance that the remaining 17/20th interest in the land came to be owned by the plaintiff alone. Therefore, even upon the view taken in the Allahabad case the plaintiff cannot hope to succeed in thisobservations make it clear that where adult members are in existence the judgment is to be not that of the Manager of the family alone but that of all the adult members of the family, including the manager. In the case before us all the brothers of Pindidas were adults when the contract was entered into. There is no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction. Even, therefore, if we hold that the view expressed by the learned Chief Justice is right it does not help the plaintiff because the facts here are different from those contemplated by the learned Chief Justice. The other Judge who was a party to that decision Manohar Lal J., took more or less the same view.Thus, as we have already stated, that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each the court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into. We have pointed out that there is not even an allegation in the plaint that the transaction was such as was regarded as beneficial to the family when it was entered into by Pindidas. Apart from that we have the fact that here the adult members of the family have stoutly resisted the plaintiffs claim for specific performance and we have no doubt that they would not have done so if they were satisfied that the transaction was of benefit to the family. It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the plaintiffs claim. Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the Manager on the ground of alleged benefit to the family without consulting them. Here, as already stated, there is no allegation of any such consultation.10. In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance. We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance. | 0 | 2,932 | 794 | ### 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 learned Chief Justice observed:"In exceptional circumstances, however, the court will uphold the alienation of a part of the joint family property by a karta for the acquisition of new property as, for example, where all the adult members of the joint family with the knowledge available to them and possessing all the necessary information about the means and requirement of the family are convinced that the proposed purchase of the new property is for the benefit of the estate."These observations make it clear that where adult members are in existence the judgment is to be not that of the Manager of the family alone but that of all the adult members of the family, including the manager. In the case before us all the brothers of Pindidas were adults when the contract was entered into. There is no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction. Even, therefore, if we hold that the view expressed by the learned Chief Justice is right it does not help the plaintiff because the facts here are different from those contemplated by the learned Chief Justice. The other Judge who was a party to that decision Manohar Lal J., took more or less the same view.8. The third case relied on is In the matter of A. T. Vasudevan, AIR 1949 Mad 260. There a single Judge of he High Court held that the manager of Joint Hindu family is competent to alienate joint family property if it is clearly beneficial to the estate even though there is no legal necessity justifying the transaction. This view was expressed while dealing with an application under cl. 17 of Letters Patent by one Thiruvengada Mudaliar for being appointed guardian of the joint family property belonging to, inter alia his five minor sons and for sanction of the sale of that property as being beneficial to the interests of the minor sons. The petitioner who was karta of the family had, besides the five minor sons, two adult sons, his wife and unmarried daughter who had rights of maintenance. It was thus in connection with his application that the learned Judge considered the matter and from that point of view the decision is distinguishable. However, it is a fact that the learned Judge has clearly expressed the opinion that the Manager has power to sell joint family property if he is satisfied that the transaction would be for the benefit of the family. In coming to this conclusion he has based himself mainly upon the view taken by Venkata Subba Rao, J., in Selleppa v. Suppan , AIR 1937 Mad 496 . That was a case in which the question which arose for consideration was whether borrowing money on the mortgage of joint family property for the purchase of a house could be held to be binding on the family because the transaction was of benefit to the family. While holding that a transaction to be for the benefit of the family need not be of a defensive character the learned Judges upon the evidence before them, held that this particular transaction was not established by evidence to be one for the benefit of the family.9. Thus, as we have already stated, that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each the court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into. We have pointed out that there is not even an allegation in the plaint that the transaction was such as was regarded as beneficial to the family when it was entered into by Pindidas. Apart from that we have the fact that here the adult members of the family have stoutly resisted the plaintiffs claim for specific performance and we have no doubt that they would not have done so if they were satisfied that the transaction was of benefit to the family. It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the plaintiffs claim. Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the Manager on the ground of alleged benefit to the family without consulting them. Here, as already stated, there is no allegation of any such consultation.10. In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance. We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance.11. No doubt Pindidas himself was bound by the contract which he has entered into and the plaintiff would have been entitled to the benefit of S. 15 of the Specific Relief Act which runs thus:"Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant."
### Response:
0
### Explanation:
We have no doubt that for a transaction to be regarded as one which is of benefit to the family it need not necessarily be only of a defensive character. But what transaction would be for the benefit of the family must necessarily depend upon the facts of such case. In the case before the Full Bench the two managers of family found it difficult to manage the property at all with the result, apparently, that the family was incurring losses. To sell such property, and that too on advantageous terms, and to invest the sale proceeds in a profitable way could certainly be regarded as beneficial to the family. In the present case there is unfortunately nothing in the plaint to suggest that Pindidas agreed to sell the property because he found it difficult to manage it or because he found that the family was incurring loss by retaining the property. Nor again is there anything to suggest that the idea was to invest the sale proceeds in some profitable manner. Indeed there are no allegations in the plaint to the effect that the sale was being contemplated by any considerations of prudence. All that is said is that the fraction of the familys share of the land owned by the family bore a very small proportion to the land which the plaintiff held at the date of the transaction. But that was indeed the case even before the purchase by the plaintiff of the 23/120th share from Devisahai. There is nothing to indicate that the position of the family vis-a-vis their share in the land had in any way been altered by reason of the circumstance that the remaining 17/20th interest in the land came to be owned by the plaintiff alone. Therefore, even upon the view taken in the Allahabad case the plaintiff cannot hope to succeed in thisobservations make it clear that where adult members are in existence the judgment is to be not that of the Manager of the family alone but that of all the adult members of the family, including the manager. In the case before us all the brothers of Pindidas were adults when the contract was entered into. There is no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction. Even, therefore, if we hold that the view expressed by the learned Chief Justice is right it does not help the plaintiff because the facts here are different from those contemplated by the learned Chief Justice. The other Judge who was a party to that decision Manohar Lal J., took more or less the same view.Thus, as we have already stated, that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each the court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into. We have pointed out that there is not even an allegation in the plaint that the transaction was such as was regarded as beneficial to the family when it was entered into by Pindidas. Apart from that we have the fact that here the adult members of the family have stoutly resisted the plaintiffs claim for specific performance and we have no doubt that they would not have done so if they were satisfied that the transaction was of benefit to the family. It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the plaintiffs claim. Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the Manager on the ground of alleged benefit to the family without consulting them. Here, as already stated, there is no allegation of any such consultation.10. In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance. We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance.
|
Steeman Ltd Vs. State Of Himahcal Pradesh | to do so vitiates the award.11. Secondly, the arbitrator has made a non-speaking award and, therefore, it is not possible to find out whether he has applied his mind to that part of the claim amounting to rupees two lakhs eighteen thousand which represented the good sized after rescinding the contract.12. Thirdly, the arbitrator has no given reasonable opportunity of meeting the case of the respondents and also in establishing the petitioners case. In support of this contention he placed reliance on Suresh Ragho Desai and Another vs. Smt. Vijaya Vinayak Ghag (1988) 4 SCC 591 ) and Rajpur Development Authority & Others vs. M/s Chokhamal Contractors & Others (1989) 2 SCC 721 ).13. And the last point is that the interest awarded was at too low a rate as the claim was for 18% and the award was at 6%. 14. So far as the first point is concerned. we do not think that the said question arises out of the present arbitration proceedings inasmuch as this Court appointed the present arbitrator to go into the disputes between the parties and the parties were directed to place before the arbitrator their respective disputes. As a matter of fact by consent of both the parties, the arbitrator framed issues for adjudication and it does not appear from the issues that the question of law not being raised was one of the issues, further the so called question of law loses its relevance, after the appointment of the new arbitrator by this Court, as indeed no act of rescinding the contract took place after this court appointed the Arbitrator. Therefore, there is no substance in the first point. 15. Regarding the second point, the facts are like this. The petitioner companys demand in the original claim under clauses I & II read as follows :- 16. The above claims were modified before the present Arbitrator which read as follows :- 17. The Arbitrator has passed the award on the basis of the amended claim as follows :- 18. The Arbitrator was in out opinion quite justified in not awarding any amount under a separate head for the property of the Company forcibly taken possession in he light of the amended claims presented before him. There is thus no substance in the argument that the claim as originally put forward regarding company property allegedly taken possession of by respondent illegally and forcibly, was not separately considered by the Arbitrator. Answer is obvious viz. no. such separate claim was made by the petitioner in the amended claim. Hence we have no hesitation to reject the second point also.19. So far as the third point is concerned, namely that the petitioner was not given reasonable opportunity to substantiate the case, we do not think that we can accept that contention after perusing the detailed minutes of the Arbitrator drawn at the sittings which extended to 10 in number. As a matter of fact, we find that the Arbitrator had called upon the petitioner Company time and again to furnish document to support the claims. But. The petitioner has only partly complied with the directions of the Arbitrator. The Arbitrator had given full and reasonable opportunity to both parties to put forward their respective claims. At the last sitting dated 5.4.85. the Arbitrator observed as follows :- "As far as oral hearing is concerned, it is closed but in case any clarifications are needed by the court after receipt of final reply from both the parties within the dates stipulated above. The parties may be summoned at short notice to seek such clarifications needed by the court." 20. Pursuant to the above, it appears the Arbitrator sent letters to both parties seeking certain clarifications. Taking advantage of that, learned counsel for the petitioner argued that the arbitrator has not given reasonable time to the petitioner to clarify the doubts. The learned counsel also invited our attention to a post-script found at the concluding part of the proceeding dated 30.5.85. The post- script reads as follows :- "That during course of hearing, petitioner requested of and interval to see the documents and give clarifications. Accordingly. The court adjourned for half an hour during the course of the proceedings. 21. According to the learned counsel, the time given by Arbitrator was totally inadequate toe clarify the doubt and therefore, there was no reasonable opportunity. As pointed out earlier, after going through the minutes of the Arbitrator drawn during in the argument. Further neither of the counsel was in a position to explain as to who made the post-script and when was it entered in the proceedings of the Arbitrator. The decisions cited by the learned counsel for the petitioner in support of his argument that want or reasonable opportunity would vitiate the award by not come to his aid as we are satisfied on the facts of the case from the record including the minutes drawn meticulously, that the Arbitrator had given full and reasonable opportunity to both parties. Accordingly we find no force in this point as well.22. As regards the last point concerning the interest, we are informed that there is no clause in the agreement regarding interest. Before the arbitrator both parties appear to have agreed on the rate of interest at 18%. However, the Arbitrator i the facts and circumstances of the case awarded interest at 6%. The agreement between the parties does not mean that the Arbitrator was bogged down to that rate irrespective of other facts and circumstances of the case on hand. We have no good reason to think that the Arbitrator has awarded interest at 6% as against 18% claim without taking into account the relevant facts and circumstances of the case. Further the jurisdiction of the Court to interfere with the award is confined to matters enumerated in Section 30 of the Arbitrator Act. We do not think that the last point resided before us would fall within the ambit of Section 30 to interfere with the award. | 0[ds]14. So far as the first point is concerned. we do not think that the said question arises out of the present arbitration proceedings inasmuch as this Court appointed the present arbitrator to go into the disputes between the parties and the parties were directed to place before the arbitrator their respective disputes. As a matter of fact by consent of both the parties, the arbitrator framed issues for adjudication and it does not appear from the issues that the question of law not being raised was one of the issues, further the so called question of law loses its relevance, after the appointment of the new arbitrator by this Court, as indeed no act of rescinding the contract took place after this court appointed the Arbitrator. Therefore, there is no substance in the first point.The Arbitrator was in out opinion quite justified in not awarding any amount under a separate head for the property of the Company forcibly taken possession in he light of the amended claims presented before him. There is thus no substance in the argument that the claim as originally put forward regarding company property allegedly taken possession of by respondent illegally and forcibly, was not separately considered by the Arbitrator. Answer is obvious viz. no. such separate claim was made by the petitioner in the amended claim. Hence we have no hesitation to reject the second point also.19. So far as the third point is concerned, namely that the petitioner was not given reasonable opportunity to substantiate the case, we do not think that we can accept that contention after perusing the detailed minutes of the Arbitrator drawn at the sittings which extended to 10 in number. As a matter of fact, we find that the Arbitrator had called upon the petitioner Company time and again to furnish document to support the claims. But. The petitioner has only partly complied with the directions of the Arbitrator. The Arbitrator had given full and reasonable opportunity to both parties to put forward their respectivepointed out earlier, after going through the minutes of the Arbitrator drawn during in the argument. Further neither of the counsel was in a position to explain as to who made the post-script and when was it entered in the proceedings of the Arbitrator. The decisions cited by the learned counsel for the petitioner in support of his argument that want or reasonable opportunity would vitiate the award by not come to his aid as we are satisfied on the facts of the case from the record including the minutes drawn meticulously, that the Arbitrator had given full and reasonable opportunity to both parties. Accordingly we find no force in this point as well.22. As regards the last point concerning the interest, we are informed that there is no clause in the agreement regarding interest. Before the arbitrator both parties appear to have agreed on the rate of interest at 18%. However, the Arbitrator i the facts and circumstances of the case awarded interest at 6%. The agreement between the parties does not mean that the Arbitrator was bogged down to that rate irrespective of other facts and circumstances of the case on hand. We have no good reason to think that the Arbitrator has awarded interest at 6% as against 18% claim without taking into account the relevant facts and circumstances of the case. Further the jurisdiction of the Court to interfere with the award is confined to matters enumerated in Section 30 of the Arbitrator Act. We do not think that the last point resided before us would fall within the ambit of Section 30 to interfere with the award. | 0 | 1,835 | 654 | ### 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:
to do so vitiates the award.11. Secondly, the arbitrator has made a non-speaking award and, therefore, it is not possible to find out whether he has applied his mind to that part of the claim amounting to rupees two lakhs eighteen thousand which represented the good sized after rescinding the contract.12. Thirdly, the arbitrator has no given reasonable opportunity of meeting the case of the respondents and also in establishing the petitioners case. In support of this contention he placed reliance on Suresh Ragho Desai and Another vs. Smt. Vijaya Vinayak Ghag (1988) 4 SCC 591 ) and Rajpur Development Authority & Others vs. M/s Chokhamal Contractors & Others (1989) 2 SCC 721 ).13. And the last point is that the interest awarded was at too low a rate as the claim was for 18% and the award was at 6%. 14. So far as the first point is concerned. we do not think that the said question arises out of the present arbitration proceedings inasmuch as this Court appointed the present arbitrator to go into the disputes between the parties and the parties were directed to place before the arbitrator their respective disputes. As a matter of fact by consent of both the parties, the arbitrator framed issues for adjudication and it does not appear from the issues that the question of law not being raised was one of the issues, further the so called question of law loses its relevance, after the appointment of the new arbitrator by this Court, as indeed no act of rescinding the contract took place after this court appointed the Arbitrator. Therefore, there is no substance in the first point. 15. Regarding the second point, the facts are like this. The petitioner companys demand in the original claim under clauses I & II read as follows :- 16. The above claims were modified before the present Arbitrator which read as follows :- 17. The Arbitrator has passed the award on the basis of the amended claim as follows :- 18. The Arbitrator was in out opinion quite justified in not awarding any amount under a separate head for the property of the Company forcibly taken possession in he light of the amended claims presented before him. There is thus no substance in the argument that the claim as originally put forward regarding company property allegedly taken possession of by respondent illegally and forcibly, was not separately considered by the Arbitrator. Answer is obvious viz. no. such separate claim was made by the petitioner in the amended claim. Hence we have no hesitation to reject the second point also.19. So far as the third point is concerned, namely that the petitioner was not given reasonable opportunity to substantiate the case, we do not think that we can accept that contention after perusing the detailed minutes of the Arbitrator drawn at the sittings which extended to 10 in number. As a matter of fact, we find that the Arbitrator had called upon the petitioner Company time and again to furnish document to support the claims. But. The petitioner has only partly complied with the directions of the Arbitrator. The Arbitrator had given full and reasonable opportunity to both parties to put forward their respective claims. At the last sitting dated 5.4.85. the Arbitrator observed as follows :- "As far as oral hearing is concerned, it is closed but in case any clarifications are needed by the court after receipt of final reply from both the parties within the dates stipulated above. The parties may be summoned at short notice to seek such clarifications needed by the court." 20. Pursuant to the above, it appears the Arbitrator sent letters to both parties seeking certain clarifications. Taking advantage of that, learned counsel for the petitioner argued that the arbitrator has not given reasonable time to the petitioner to clarify the doubts. The learned counsel also invited our attention to a post-script found at the concluding part of the proceeding dated 30.5.85. The post- script reads as follows :- "That during course of hearing, petitioner requested of and interval to see the documents and give clarifications. Accordingly. The court adjourned for half an hour during the course of the proceedings. 21. According to the learned counsel, the time given by Arbitrator was totally inadequate toe clarify the doubt and therefore, there was no reasonable opportunity. As pointed out earlier, after going through the minutes of the Arbitrator drawn during in the argument. Further neither of the counsel was in a position to explain as to who made the post-script and when was it entered in the proceedings of the Arbitrator. The decisions cited by the learned counsel for the petitioner in support of his argument that want or reasonable opportunity would vitiate the award by not come to his aid as we are satisfied on the facts of the case from the record including the minutes drawn meticulously, that the Arbitrator had given full and reasonable opportunity to both parties. Accordingly we find no force in this point as well.22. As regards the last point concerning the interest, we are informed that there is no clause in the agreement regarding interest. Before the arbitrator both parties appear to have agreed on the rate of interest at 18%. However, the Arbitrator i the facts and circumstances of the case awarded interest at 6%. The agreement between the parties does not mean that the Arbitrator was bogged down to that rate irrespective of other facts and circumstances of the case on hand. We have no good reason to think that the Arbitrator has awarded interest at 6% as against 18% claim without taking into account the relevant facts and circumstances of the case. Further the jurisdiction of the Court to interfere with the award is confined to matters enumerated in Section 30 of the Arbitrator Act. We do not think that the last point resided before us would fall within the ambit of Section 30 to interfere with the award.
### Response:
0
### Explanation:
14. So far as the first point is concerned. we do not think that the said question arises out of the present arbitration proceedings inasmuch as this Court appointed the present arbitrator to go into the disputes between the parties and the parties were directed to place before the arbitrator their respective disputes. As a matter of fact by consent of both the parties, the arbitrator framed issues for adjudication and it does not appear from the issues that the question of law not being raised was one of the issues, further the so called question of law loses its relevance, after the appointment of the new arbitrator by this Court, as indeed no act of rescinding the contract took place after this court appointed the Arbitrator. Therefore, there is no substance in the first point.The Arbitrator was in out opinion quite justified in not awarding any amount under a separate head for the property of the Company forcibly taken possession in he light of the amended claims presented before him. There is thus no substance in the argument that the claim as originally put forward regarding company property allegedly taken possession of by respondent illegally and forcibly, was not separately considered by the Arbitrator. Answer is obvious viz. no. such separate claim was made by the petitioner in the amended claim. Hence we have no hesitation to reject the second point also.19. So far as the third point is concerned, namely that the petitioner was not given reasonable opportunity to substantiate the case, we do not think that we can accept that contention after perusing the detailed minutes of the Arbitrator drawn at the sittings which extended to 10 in number. As a matter of fact, we find that the Arbitrator had called upon the petitioner Company time and again to furnish document to support the claims. But. The petitioner has only partly complied with the directions of the Arbitrator. The Arbitrator had given full and reasonable opportunity to both parties to put forward their respectivepointed out earlier, after going through the minutes of the Arbitrator drawn during in the argument. Further neither of the counsel was in a position to explain as to who made the post-script and when was it entered in the proceedings of the Arbitrator. The decisions cited by the learned counsel for the petitioner in support of his argument that want or reasonable opportunity would vitiate the award by not come to his aid as we are satisfied on the facts of the case from the record including the minutes drawn meticulously, that the Arbitrator had given full and reasonable opportunity to both parties. Accordingly we find no force in this point as well.22. As regards the last point concerning the interest, we are informed that there is no clause in the agreement regarding interest. Before the arbitrator both parties appear to have agreed on the rate of interest at 18%. However, the Arbitrator i the facts and circumstances of the case awarded interest at 6%. The agreement between the parties does not mean that the Arbitrator was bogged down to that rate irrespective of other facts and circumstances of the case on hand. We have no good reason to think that the Arbitrator has awarded interest at 6% as against 18% claim without taking into account the relevant facts and circumstances of the case. Further the jurisdiction of the Court to interfere with the award is confined to matters enumerated in Section 30 of the Arbitrator Act. We do not think that the last point resided before us would fall within the ambit of Section 30 to interfere with the award.
|
Thakur Brij Raj Singh And Another Vs. Thakur Laxman Singh And Another | according to the customs of the family of the deceased. The substantive part is followed by three provisos; we are concerned only with the third proviso, which says that no adoption made by a widow shall be deemed valid until confirmed by the Central Government. Such an order of confirmation was made in the present case. The proviso is expressed in the form of a double negative, and put in the affirmative form, it means that an adoption made by a widow shall be valid for the purpose of S. 23, when it is confirmed by the Central Government. From one point of view, it is an additional condition and from another point of view, it embraces within itself a determination of the power to adopt and the factum of adoption; for obvious reasons, there cannot be an order of confirmation in vacuo.There must be an adoption before it can be confirmed. In my opinion, the third proviso must be read with and in the context of the substantive provisions of S. 23 in order to appreciate the true meaning and content of the confirmation order. In confirming the adoption the Central Government (previously the Governor General) must consider the two preliminary facts, (1) whether the widow has power to adopt and (2) whether she has in fact adopted a son to the late istimrardar. The confirmation referred to in the third proviso necessarily involves a determination of these two facts. Divorced from these two facts the confirmation has no meaning and no intelligible content.The facts of this case also clearly show that on a notice under S. 24 several claimants put forward their claims : the widow then adopted appellant No. 1 and an application was made for confirmation. This application was opposed and after an enquiry made, the President was pleased to confirm the adoption. Respondent No. 1 moved the President for a reconsideration of the order confirming the adoption and was then informed that the President saw no reasons to revise the order of confirmation. 20. If I am right in my view that the order of confirmation takes in the two preliminary facts, then S. 119 makes it quite clear that no suit lies to obtain a decision contrary to the order of confirmation. Under cl. (a) of S. 119 the order of confirmation involving as it does in my view, the determination of the two preliminary facts shall be deemed to have been legally and rightly done; and under cl. (b) no suit shall lie to challenge that determination. The words "legally" and "rightly" are important. The word legally means that the order is made validly under law; rightly means that it is factually correct and proper. Therefore, the critical question is - what does the order of confirmation referred to in the third proviso to S. 23 involve or embrace? Does it involve a determination of the two facts - (1) power to adopt and (2) the factum of adoption? If it does and I think it does, then S. 119 bars the present suit. 21. It seems to me, and I say this with great respect, that any other view will make the third proviso to S. 23 completely pointless. Sections 23 and 24 cover the entire field of succession to an istimrari estate. Under S. 24 any question, as to the right to succeed to an istimrari estate arising in a case not provided for by S. 23, shall be decided by the Central Government subject to the proviso thereto. The power of the Central Government under S. 24 is unfettered. If in spite of an order of confirmation of the adoption by a widow made under the third proviso to S. 23 a suit lies to challenge the adoption, what happens when the civil Court holds the adoption to be invalid? It is conceded that the confirmation as such cannot be challenged - that order must remain. Does the case then come under S. 23 or S. 24? If it comes under S. 24, the Central Government again has to decide the question of succession. If the Central Government does not ignore its own order of confirmation, the result, will be a stalemate. Reading Ss. 23 and 24 together, I do not think that it was intended that in spite of the order of confirmation of an adoption by the widow a suit will lie to challenge the adoption the result of which may be to nullify the effect of the confirmation order. 22. Nor do I think that Ss. 33 and 34 relating to Bhum lands are in point. Section 33 has no proviso like the third proviso to S. 23, which confirms the adoption by a widow. The whole matter is left at large under S. 33, and S. 119 creates no bar with reference to that section. 23. There was some argument before us as to whether the suit related to properties not part of the istimrari estate. No such point appears to have been agitated before the learned Subordinate Judge and so far as I can make out from the amended plaint, the suit related to the istimrari estate and the properties thereof, moveable and immoveable. 24. There was also an application to urge a constitutional point to the effect that if S. 119 is so construed as to bar a suit like the one in the present case, then it is violative of Art. 14 of the Constitution. This point was not pressed before us; therefore, it is unnecessary to explain the nature and incidents of these istimrari estates and the reasons for the classification made. The argument before us proceeded on a pure question of construction, and I have addressed myself to that question only. 25. For the reasons already given, I hold that on a proper construction of Ss. 23 and 119 of the Regulation, the present suit is barred. I would accordingly, allow the appeal and dismiss the suit with costs. ORDER 26. | 0[ds]Section 34, which corresponds to S. 24, is ipsissima verba, except that "Bhum" replaces an "Istimrari estate". If Ss. 33 and 34 are read together it cannot be questioned that a matter which falls within S. 33 is excepted from the operation of S. 34, and that a suit is not affected by reason of the opening words of the latter section. Now, S. 23 may be contrasted with S. 333. In our opinion, therefore the suit in respect of the first relief is within the jurisdiction of the Civil Court. The second relief attracts prima facie S. 24, and must comply with its conditions. The suit has thus to go on. The order of the Judicial Commissioner, in the circumstances of the case, was correct, and we see no reason to differ from it. | 0 | 5,669 | 162 | ### 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:
according to the customs of the family of the deceased. The substantive part is followed by three provisos; we are concerned only with the third proviso, which says that no adoption made by a widow shall be deemed valid until confirmed by the Central Government. Such an order of confirmation was made in the present case. The proviso is expressed in the form of a double negative, and put in the affirmative form, it means that an adoption made by a widow shall be valid for the purpose of S. 23, when it is confirmed by the Central Government. From one point of view, it is an additional condition and from another point of view, it embraces within itself a determination of the power to adopt and the factum of adoption; for obvious reasons, there cannot be an order of confirmation in vacuo.There must be an adoption before it can be confirmed. In my opinion, the third proviso must be read with and in the context of the substantive provisions of S. 23 in order to appreciate the true meaning and content of the confirmation order. In confirming the adoption the Central Government (previously the Governor General) must consider the two preliminary facts, (1) whether the widow has power to adopt and (2) whether she has in fact adopted a son to the late istimrardar. The confirmation referred to in the third proviso necessarily involves a determination of these two facts. Divorced from these two facts the confirmation has no meaning and no intelligible content.The facts of this case also clearly show that on a notice under S. 24 several claimants put forward their claims : the widow then adopted appellant No. 1 and an application was made for confirmation. This application was opposed and after an enquiry made, the President was pleased to confirm the adoption. Respondent No. 1 moved the President for a reconsideration of the order confirming the adoption and was then informed that the President saw no reasons to revise the order of confirmation. 20. If I am right in my view that the order of confirmation takes in the two preliminary facts, then S. 119 makes it quite clear that no suit lies to obtain a decision contrary to the order of confirmation. Under cl. (a) of S. 119 the order of confirmation involving as it does in my view, the determination of the two preliminary facts shall be deemed to have been legally and rightly done; and under cl. (b) no suit shall lie to challenge that determination. The words "legally" and "rightly" are important. The word legally means that the order is made validly under law; rightly means that it is factually correct and proper. Therefore, the critical question is - what does the order of confirmation referred to in the third proviso to S. 23 involve or embrace? Does it involve a determination of the two facts - (1) power to adopt and (2) the factum of adoption? If it does and I think it does, then S. 119 bars the present suit. 21. It seems to me, and I say this with great respect, that any other view will make the third proviso to S. 23 completely pointless. Sections 23 and 24 cover the entire field of succession to an istimrari estate. Under S. 24 any question, as to the right to succeed to an istimrari estate arising in a case not provided for by S. 23, shall be decided by the Central Government subject to the proviso thereto. The power of the Central Government under S. 24 is unfettered. If in spite of an order of confirmation of the adoption by a widow made under the third proviso to S. 23 a suit lies to challenge the adoption, what happens when the civil Court holds the adoption to be invalid? It is conceded that the confirmation as such cannot be challenged - that order must remain. Does the case then come under S. 23 or S. 24? If it comes under S. 24, the Central Government again has to decide the question of succession. If the Central Government does not ignore its own order of confirmation, the result, will be a stalemate. Reading Ss. 23 and 24 together, I do not think that it was intended that in spite of the order of confirmation of an adoption by the widow a suit will lie to challenge the adoption the result of which may be to nullify the effect of the confirmation order. 22. Nor do I think that Ss. 33 and 34 relating to Bhum lands are in point. Section 33 has no proviso like the third proviso to S. 23, which confirms the adoption by a widow. The whole matter is left at large under S. 33, and S. 119 creates no bar with reference to that section. 23. There was some argument before us as to whether the suit related to properties not part of the istimrari estate. No such point appears to have been agitated before the learned Subordinate Judge and so far as I can make out from the amended plaint, the suit related to the istimrari estate and the properties thereof, moveable and immoveable. 24. There was also an application to urge a constitutional point to the effect that if S. 119 is so construed as to bar a suit like the one in the present case, then it is violative of Art. 14 of the Constitution. This point was not pressed before us; therefore, it is unnecessary to explain the nature and incidents of these istimrari estates and the reasons for the classification made. The argument before us proceeded on a pure question of construction, and I have addressed myself to that question only. 25. For the reasons already given, I hold that on a proper construction of Ss. 23 and 119 of the Regulation, the present suit is barred. I would accordingly, allow the appeal and dismiss the suit with costs. ORDER 26.
### Response:
0
### Explanation:
Section 34, which corresponds to S. 24, is ipsissima verba, except that "Bhum" replaces an "Istimrari estate". If Ss. 33 and 34 are read together it cannot be questioned that a matter which falls within S. 33 is excepted from the operation of S. 34, and that a suit is not affected by reason of the opening words of the latter section. Now, S. 23 may be contrasted with S. 333. In our opinion, therefore the suit in respect of the first relief is within the jurisdiction of the Civil Court. The second relief attracts prima facie S. 24, and must comply with its conditions. The suit has thus to go on. The order of the Judicial Commissioner, in the circumstances of the case, was correct, and we see no reason to differ from it.
|
Sudhir Chandra Sarkar Vs. Tata Iron & Steel Co. Ltd. And Others | stark albeit unpalatable outcome. It is, therefore, necessary to take a leaf out of history bearing on the question of retiral benefits like pension to which gratuity is equated : Burhanpur Tapti Mills Ltd. v. Burhanpur Tapti Mills Mazdoor Sangh, [1965 - I LLJ 453 at 455], wherein this Court observed that :"A scheme of gratuity and a scheme of pension have much in common. Gratuity is a lump sum payment while pension is a periodic payment of a stated sum." Undoubtedly both have to be earned by long and continuous service. 16. For centuries the courts swung in favour of the view that pension is either a bounty or a gratuitous payment for loyal service rendered depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through court. This view held the field and suit to recover pension was held not maintainable. With the modern notions of social justice and social security, concept of pension underwent a radical change and it is now well settled that pension is a right and payment of it does not depend upon the discretion of the employer, nor can it be denied at the sweet will or fancy of the employer : Deokinandan Prasad v. State of Bihar, [1971 - I LLJ, 557], State of Punjab v. Iqbal Singh [1976 - II LLJ 377] and D. S. Nakara v. Union of India [1983 - I LLJ 104]. If pension which is the retiral benefit as a measure of social security can be recovered through a civil suit, we see no justification in treating gratuity on a different footing. Pension and gratuity in the matter of retiral benefits and for recovering the same must be put on par. 17. The question then is : can the court ignore Rule 10 ? If gratuity is a retiral benefit and can be earned as a matter of right on fulfilling the conditions subject to which it is earned, any rule conferring absolute discretion not testable on reason, justice or fair play must be treated as utterly arbitrary and unreasonable and discarded. If rules for payment to gratuity became incorporated in the Standing Orders and thereby acquired the status of statutory condition of service, an arbitrary denial referable to whim, fancy or sweet will of the employer must be rejected as arbitrary. Section4 of the 1946 Act, which confers power on the certifying officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions, would enable this Court to reject that part of Rule 10 conferring absolute discretion on the employer to pay or not to pay the gratuity even if it is earned as utterly unreasonable and unfair. It must be treated as ineffective and unenforceable. It is well-settled that if the Certifying Officer and the appellate authority under the 1946 Act while certifying the Standing Orders has power to adjudicate upon the fairness or reasonableness of the provisions of any Standing Orders, this Court in appeal under Art. 136 shall have the power to do the same things when especially it is called upon to enforce the unreasonable and unfair part of the Standing Order. It, therefore, follows that the part of Rule 10 which confers absolute discretion on the employer to pay gratuity even if it is earned, at its absolute discretion is ineffective and unenforceable. This approach does not require any precedent but if one is needed the decision of this Court in Western India Match Company Ltd.s case (supra) clearly rules to that effect. In that case, the company relied on a special agreement which was to some extent in derogation of the provisions of the certified Standing Order. The court observed that to uphold such special agreement would mean giving a go-by to the principle of three-party participation in the settlement of the terms of employment, as represented by the certified Standing Orders and, therefore, the inconsistent part of the special agreement is ineffective and unenforceable. The claim to absolute discretion not to pay gratuity even when it is earned is a hangover of the laissez fair days and utterly inconsistent with the modern nations of fair industrial relations and, therefore, it must be rejected as ineffective and hence unenforceable. 18. Viewed from a slightly different angle, our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the antithesis of the rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is, therefore, violative of Art. 14. Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co-exist. Therefore, also the conterment of absolute discretion by Rule 10 of the Gratuity Rules to give or deny the be rejected as unenforceable. 19. The High Court reversed the decree of the trial court on the sole ground that Rule 10 confers an absolute discretion on the respondent company to pay or not to pay gratuity at its sweet will. Once Rule 10 is out of the way, the judgment of the High Court has to be reversed. Accordingly, this appeal succeeds and will have to be allowed. 20. The trial court decreed the plaintiffs suit with costs and with interest at 6% per annum. Interest at 6% per annum has become utterly irrelevant in these days with devolution of the rupee. Further, in our opinion, the company declined to meet its obligation on an utterly unreasonable stand and denied to the plaintiff for a period of a quarter of a century what the plaintiff was legitimately entitled without the slightest shadow of doubt. Therefore, while allowing the appeal in order to compensate the loss suffered by the plaintiff who died before enjoying the fruits of his decree, we direct that the interest shall be paid at 15% per annum and full costs throughout. | 1[ds]If gratuity is a retiral benefit and can be earned as a matter of right on fulfilling the conditions subject to which it is earned, any rule conferring absolute discretion not testable on reason, justice or fair play must be treated as utterly arbitrary and unreasonable and discarded. If rules for payment to gratuity became incorporated in the Standing Orders and thereby acquired the status of statutory condition of service, an arbitrary denial referable to whim, fancy or sweet will of the employer must be rejected as arbitrary. Section4 of the 1946 Act, which confers power on the certifying officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions, would enable this Court to reject that part of Rule 10 conferring absolute discretion on the employer to pay or not to pay the gratuity even if it is earned as utterly unreasonable and unfair. It must be treated as ineffective and unenforceable. It is well-settled that if the Certifying Officer and the appellate authority under the 1946 Act while certifying the Standing Orders has power to adjudicate upon the fairness or reasonableness of the provisions of any Standing Orders, this Court in appeal under Art. 136 shall have the power to do the same things when especially it is called upon to enforce the unreasonable and unfair part of the Standing Order. It, therefore, follows that the part of Rule 10 which confers absolute discretion on the employer to pay gratuity even if it is earned, at its absolute discretion is ineffective and unenforceable. This approach does not require any precedent but if one is needed the decision of this Court in Western India Match Company Ltd.s case (supra) clearly rules to that effect. In that case, the company relied on a special agreement which was to some extent in derogation of the provisions of the certified Standing Order. The court observed that to uphold such special agreement would mean giving a go-by to the principle of three-party participation in the settlement of the terms of employment, as represented by the certified Standing Orders and, therefore, the inconsistent part of the special agreement is ineffective and unenforceable. The claim to absolute discretion not to pay gratuity even when it is earned is a hangover of the laissez fair days and utterly inconsistent with the modern nations of fair industrial relations and, therefore, it must be rejected as ineffective and hence unenforceable18. Viewed from a slightly different angle, our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the antithesis of the rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is, therefore, violative of Art. 14. Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co-exist. Therefore, also the conterment of absolute discretion by Rule 10 of the Gratuity Rules to give or deny the be rejected as unenforceable19. The High Court reversed the decree of the trial court on the sole ground that Rule 10 confers an absolute discretion on the respondent company to pay or not to pay gratuity at its sweet will. Once Rule 10 is out of the way, the judgment of the High Court has to be reversed. Accordingly, this appeal succeeds and will have to be allowed20. The trial court decreed the plaintiffs suit with costs and with interest at 6% per annum. Interest at 6% per annum has become utterly irrelevant in these days with devolution of the rupee. Further, in our opinion, the company declined to meet its obligation on an utterly unreasonable stand and denied to the plaintiff for a period of a quarter of a century what the plaintiff was legitimately entitled without the slightest shadow of doubt. Therefore, while allowing the appeal in order to compensate the loss suffered by the plaintiff who died before enjoying the fruits of his decree, we direct that the interest shall be paid at 15% per annum and full costs throughout. | 1 | 6,077 | 746 | ### 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:
stark albeit unpalatable outcome. It is, therefore, necessary to take a leaf out of history bearing on the question of retiral benefits like pension to which gratuity is equated : Burhanpur Tapti Mills Ltd. v. Burhanpur Tapti Mills Mazdoor Sangh, [1965 - I LLJ 453 at 455], wherein this Court observed that :"A scheme of gratuity and a scheme of pension have much in common. Gratuity is a lump sum payment while pension is a periodic payment of a stated sum." Undoubtedly both have to be earned by long and continuous service. 16. For centuries the courts swung in favour of the view that pension is either a bounty or a gratuitous payment for loyal service rendered depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through court. This view held the field and suit to recover pension was held not maintainable. With the modern notions of social justice and social security, concept of pension underwent a radical change and it is now well settled that pension is a right and payment of it does not depend upon the discretion of the employer, nor can it be denied at the sweet will or fancy of the employer : Deokinandan Prasad v. State of Bihar, [1971 - I LLJ, 557], State of Punjab v. Iqbal Singh [1976 - II LLJ 377] and D. S. Nakara v. Union of India [1983 - I LLJ 104]. If pension which is the retiral benefit as a measure of social security can be recovered through a civil suit, we see no justification in treating gratuity on a different footing. Pension and gratuity in the matter of retiral benefits and for recovering the same must be put on par. 17. The question then is : can the court ignore Rule 10 ? If gratuity is a retiral benefit and can be earned as a matter of right on fulfilling the conditions subject to which it is earned, any rule conferring absolute discretion not testable on reason, justice or fair play must be treated as utterly arbitrary and unreasonable and discarded. If rules for payment to gratuity became incorporated in the Standing Orders and thereby acquired the status of statutory condition of service, an arbitrary denial referable to whim, fancy or sweet will of the employer must be rejected as arbitrary. Section4 of the 1946 Act, which confers power on the certifying officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions, would enable this Court to reject that part of Rule 10 conferring absolute discretion on the employer to pay or not to pay the gratuity even if it is earned as utterly unreasonable and unfair. It must be treated as ineffective and unenforceable. It is well-settled that if the Certifying Officer and the appellate authority under the 1946 Act while certifying the Standing Orders has power to adjudicate upon the fairness or reasonableness of the provisions of any Standing Orders, this Court in appeal under Art. 136 shall have the power to do the same things when especially it is called upon to enforce the unreasonable and unfair part of the Standing Order. It, therefore, follows that the part of Rule 10 which confers absolute discretion on the employer to pay gratuity even if it is earned, at its absolute discretion is ineffective and unenforceable. This approach does not require any precedent but if one is needed the decision of this Court in Western India Match Company Ltd.s case (supra) clearly rules to that effect. In that case, the company relied on a special agreement which was to some extent in derogation of the provisions of the certified Standing Order. The court observed that to uphold such special agreement would mean giving a go-by to the principle of three-party participation in the settlement of the terms of employment, as represented by the certified Standing Orders and, therefore, the inconsistent part of the special agreement is ineffective and unenforceable. The claim to absolute discretion not to pay gratuity even when it is earned is a hangover of the laissez fair days and utterly inconsistent with the modern nations of fair industrial relations and, therefore, it must be rejected as ineffective and hence unenforceable. 18. Viewed from a slightly different angle, our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the antithesis of the rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is, therefore, violative of Art. 14. Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co-exist. Therefore, also the conterment of absolute discretion by Rule 10 of the Gratuity Rules to give or deny the be rejected as unenforceable. 19. The High Court reversed the decree of the trial court on the sole ground that Rule 10 confers an absolute discretion on the respondent company to pay or not to pay gratuity at its sweet will. Once Rule 10 is out of the way, the judgment of the High Court has to be reversed. Accordingly, this appeal succeeds and will have to be allowed. 20. The trial court decreed the plaintiffs suit with costs and with interest at 6% per annum. Interest at 6% per annum has become utterly irrelevant in these days with devolution of the rupee. Further, in our opinion, the company declined to meet its obligation on an utterly unreasonable stand and denied to the plaintiff for a period of a quarter of a century what the plaintiff was legitimately entitled without the slightest shadow of doubt. Therefore, while allowing the appeal in order to compensate the loss suffered by the plaintiff who died before enjoying the fruits of his decree, we direct that the interest shall be paid at 15% per annum and full costs throughout.
### Response:
1
### Explanation:
If gratuity is a retiral benefit and can be earned as a matter of right on fulfilling the conditions subject to which it is earned, any rule conferring absolute discretion not testable on reason, justice or fair play must be treated as utterly arbitrary and unreasonable and discarded. If rules for payment to gratuity became incorporated in the Standing Orders and thereby acquired the status of statutory condition of service, an arbitrary denial referable to whim, fancy or sweet will of the employer must be rejected as arbitrary. Section4 of the 1946 Act, which confers power on the certifying officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions, would enable this Court to reject that part of Rule 10 conferring absolute discretion on the employer to pay or not to pay the gratuity even if it is earned as utterly unreasonable and unfair. It must be treated as ineffective and unenforceable. It is well-settled that if the Certifying Officer and the appellate authority under the 1946 Act while certifying the Standing Orders has power to adjudicate upon the fairness or reasonableness of the provisions of any Standing Orders, this Court in appeal under Art. 136 shall have the power to do the same things when especially it is called upon to enforce the unreasonable and unfair part of the Standing Order. It, therefore, follows that the part of Rule 10 which confers absolute discretion on the employer to pay gratuity even if it is earned, at its absolute discretion is ineffective and unenforceable. This approach does not require any precedent but if one is needed the decision of this Court in Western India Match Company Ltd.s case (supra) clearly rules to that effect. In that case, the company relied on a special agreement which was to some extent in derogation of the provisions of the certified Standing Order. The court observed that to uphold such special agreement would mean giving a go-by to the principle of three-party participation in the settlement of the terms of employment, as represented by the certified Standing Orders and, therefore, the inconsistent part of the special agreement is ineffective and unenforceable. The claim to absolute discretion not to pay gratuity even when it is earned is a hangover of the laissez fair days and utterly inconsistent with the modern nations of fair industrial relations and, therefore, it must be rejected as ineffective and hence unenforceable18. Viewed from a slightly different angle, our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the antithesis of the rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is, therefore, violative of Art. 14. Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co-exist. Therefore, also the conterment of absolute discretion by Rule 10 of the Gratuity Rules to give or deny the be rejected as unenforceable19. The High Court reversed the decree of the trial court on the sole ground that Rule 10 confers an absolute discretion on the respondent company to pay or not to pay gratuity at its sweet will. Once Rule 10 is out of the way, the judgment of the High Court has to be reversed. Accordingly, this appeal succeeds and will have to be allowed20. The trial court decreed the plaintiffs suit with costs and with interest at 6% per annum. Interest at 6% per annum has become utterly irrelevant in these days with devolution of the rupee. Further, in our opinion, the company declined to meet its obligation on an utterly unreasonable stand and denied to the plaintiff for a period of a quarter of a century what the plaintiff was legitimately entitled without the slightest shadow of doubt. Therefore, while allowing the appeal in order to compensate the loss suffered by the plaintiff who died before enjoying the fruits of his decree, we direct that the interest shall be paid at 15% per annum and full costs throughout.
|
DINESH SINGH THAKUR Vs. SONAL THAKUR | to be taken into consideration by any court while granting an anti-suit injunction. These principles are as under:- The defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court. If the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated and; The principle of comity-respect for the court in which the commencement or continuation of action/proceeding is sought to be restrained-must be borne in mind. 14. In Modi Entertainment Networks (supra), this Court has reiterated this position by holding that the courts in India like Court in England are courts of law and equity. The principles governing the grant of anti-suit injunction being essentially an equitable relief; the courts in India have the powers to issue anti-suit injunction to a party over whom it has personal jurisdiction in an appropriate case; this is because the courts of equity exercise jurisdiction in personam; this power has to be exercised sparingly where such an injunction is sought and if not granted, it would amount to the defeat of ends of justice and injustice would be perpetuated. 15. In Vivek Rai Gupta vs. Niyati Gupta, Civil Appeal No. 1123 of 2006, decided on February 10, 2016, this Court has held as under:- If the execution proceedings are filed by the respondent-wife for executing the aforesaid decree dated 18.09.2012 passed by the Court of Common Pleas, Cuyahoga Country, Ohio, USA against any other movable/immovable property in India it would be open to the appellant-husband to resist the said execution petition on any grounds available to him in law taking the position that such a decree is not executable. 16. Further, in Harmeeta Singh vs. Rajat Taneja 2003 (67) DRJ 58 , the Delhi High Court considering the fact that the parties have lived together for a very short time in the United States of America had granted anti suit injunction. 17. Y. Narasimha Rao & Others vs. Y. Venkata Lakshmi and Another (1991) 3 SCC 451 , this Court has held as under:- 20. From the aforesaid discussion the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. 18. Further, during the course of hearing, various documents such as pan card, Aadhar card of the respondent-wife, lease deed which was executed by her in 2015 etc., which are also placed on record, are sufficient to show that respondent-wife is ordinarily living in India. Further, as it appears from the proceedings recorded before the US court that the respondent herself has admitted that the Family Court Gurgaon has jurisdiction in the given case. The evidence placed on record is sufficient enough to show that the respondent is amenable to the personal jurisdiction of Gurugram Family Court. Though the respondent-wife is amenable to the jurisdiction of Family Court, Gurgaon, there is nothing on record to hold that the other party will suffer grave injustice if the injunction is not granted. There is no dispute to the fact that both the parties are permanent citizens of U.S. Undisputedly, the Circuit Court, Florida, USA is also having the concurrent jurisdiction in the given case. The contention that the appellant-husband will suffer grave injustice if the proceedings are allowed to be continued in the Circuit Court, Florida USA doesnt stand to the ground as the appellant himself has been residing there after 2007 and the proceedings for grant of anti-suit injunction were initiated by him in India through another person by empowering him through a power of attorney to file and pursue the disputed litigation on his behalf. Further, there is nothing brought on record to show how the appellant-husband would suffer grave injustice if the injunction restraining the respondent-wife from pursuing the divorce petition in Florida, is not granted. Still further, even if the injunction is declined, it cannot be said that the ends of justice will be defeated and injustice will be perpetuated. 19. The contention that the respondent-wife has filed the petition for divorce in the court at USA on the ground of irretrievable breakdown of marriage which is not the ground provided for divorce under the Act requires consideration. The mere fact that the respondent-wife has filed the case on the ground which is not available to her under the Act, doesnt means that there are likelihood of her being succeeding in getting a decree for divorce. Specifically, in view of the fact that the appellant has raised this contention before the Circuit Court, Florida and both the parties will produce evidence with regard to the question whether their marriage is governed by the Act or any other law. 20. Foreign court cannot be presumed to be exercising its jurisdiction wrongly even after the appellant being able to prove that the parties in the present case are continued to be governed by the law governing Hindus in India in the matter of dispute between them. 21. In view of above discussion and after having regard to the nature of case and other peculiar facts, we do not deem it appropriate to interfere with the decision rendered by the High Court. | 0[ds]Further, during the course of hearing, various documents such as pan card, Aadhar card of the, lease deed which was executed by her in 2015 etc., which are also placed on record, are sufficient to show thate is ordinarily living in India. Further, as it appears from the proceedings recorded before the US court that the respondent herself has admitted that the Family Court Gurgaon has jurisdiction in the given case. The evidence placed on record is sufficient enough to show that the respondent is amenable to the personal jurisdiction of Gurugram Family Court. Though thee is amenable to the jurisdiction of Family Court, Gurgaon, there is nothing on record to hold that the other party will suffer grave injustice if the injunction is not granted. There is no dispute to the fact that both the parties are permanent citizens of U.S. Undisputedly, the Circuit Court, Florida, USA is also having the concurrent jurisdiction in the given case. The contention that thed will suffer grave injustice if the proceedings are allowed to be continued in the Circuit Court, Florida USA doesnt stand to the ground as the appellant himself has been residing there after 2007 and the proceedings for grant oft injunction were initiated by him in India through another person by empowering him through a power of attorney to file and pursue the disputed litigation on his behalf. Further, there is nothing brought on record to show how thed would suffer grave injustice if the injunction restraining thee from pursuing the divorce petition in Florida, is not granted. Still further, even if the injunction is declined, it cannot be said that the ends of justice will be defeated and injustice will be perpetuatedThe contention that thee has filed the petition for divorce in the court at USA on the ground of irretrievable breakdown of marriage which is not the ground provided for divorce under the Act requires consideration. The mere fact that thee has filed the case on the ground which is not available to her under the Act, doesnt means that there are likelihood of her being succeeding in getting a decree for divorce. Specifically, in view of the fact that the appellant has raised this contention before the Circuit Court, Florida and both the parties will produce evidence with regard to the question whether their marriage is governed by the Act or any other lawForeign court cannot be presumed to be exercising its jurisdiction wrongly even after the appellant being able to prove that the parties in the present case are continued to be governed by the law governing Hindus in India in the matter of dispute between themIn view of above discussion and after having regard to the nature of case and other peculiar facts, we do not deem it appropriate to interfere with the decision rendered by the High Court. | 0 | 2,741 | 512 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
to be taken into consideration by any court while granting an anti-suit injunction. These principles are as under:- The defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court. If the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated and; The principle of comity-respect for the court in which the commencement or continuation of action/proceeding is sought to be restrained-must be borne in mind. 14. In Modi Entertainment Networks (supra), this Court has reiterated this position by holding that the courts in India like Court in England are courts of law and equity. The principles governing the grant of anti-suit injunction being essentially an equitable relief; the courts in India have the powers to issue anti-suit injunction to a party over whom it has personal jurisdiction in an appropriate case; this is because the courts of equity exercise jurisdiction in personam; this power has to be exercised sparingly where such an injunction is sought and if not granted, it would amount to the defeat of ends of justice and injustice would be perpetuated. 15. In Vivek Rai Gupta vs. Niyati Gupta, Civil Appeal No. 1123 of 2006, decided on February 10, 2016, this Court has held as under:- If the execution proceedings are filed by the respondent-wife for executing the aforesaid decree dated 18.09.2012 passed by the Court of Common Pleas, Cuyahoga Country, Ohio, USA against any other movable/immovable property in India it would be open to the appellant-husband to resist the said execution petition on any grounds available to him in law taking the position that such a decree is not executable. 16. Further, in Harmeeta Singh vs. Rajat Taneja 2003 (67) DRJ 58 , the Delhi High Court considering the fact that the parties have lived together for a very short time in the United States of America had granted anti suit injunction. 17. Y. Narasimha Rao & Others vs. Y. Venkata Lakshmi and Another (1991) 3 SCC 451 , this Court has held as under:- 20. From the aforesaid discussion the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. 18. Further, during the course of hearing, various documents such as pan card, Aadhar card of the respondent-wife, lease deed which was executed by her in 2015 etc., which are also placed on record, are sufficient to show that respondent-wife is ordinarily living in India. Further, as it appears from the proceedings recorded before the US court that the respondent herself has admitted that the Family Court Gurgaon has jurisdiction in the given case. The evidence placed on record is sufficient enough to show that the respondent is amenable to the personal jurisdiction of Gurugram Family Court. Though the respondent-wife is amenable to the jurisdiction of Family Court, Gurgaon, there is nothing on record to hold that the other party will suffer grave injustice if the injunction is not granted. There is no dispute to the fact that both the parties are permanent citizens of U.S. Undisputedly, the Circuit Court, Florida, USA is also having the concurrent jurisdiction in the given case. The contention that the appellant-husband will suffer grave injustice if the proceedings are allowed to be continued in the Circuit Court, Florida USA doesnt stand to the ground as the appellant himself has been residing there after 2007 and the proceedings for grant of anti-suit injunction were initiated by him in India through another person by empowering him through a power of attorney to file and pursue the disputed litigation on his behalf. Further, there is nothing brought on record to show how the appellant-husband would suffer grave injustice if the injunction restraining the respondent-wife from pursuing the divorce petition in Florida, is not granted. Still further, even if the injunction is declined, it cannot be said that the ends of justice will be defeated and injustice will be perpetuated. 19. The contention that the respondent-wife has filed the petition for divorce in the court at USA on the ground of irretrievable breakdown of marriage which is not the ground provided for divorce under the Act requires consideration. The mere fact that the respondent-wife has filed the case on the ground which is not available to her under the Act, doesnt means that there are likelihood of her being succeeding in getting a decree for divorce. Specifically, in view of the fact that the appellant has raised this contention before the Circuit Court, Florida and both the parties will produce evidence with regard to the question whether their marriage is governed by the Act or any other law. 20. Foreign court cannot be presumed to be exercising its jurisdiction wrongly even after the appellant being able to prove that the parties in the present case are continued to be governed by the law governing Hindus in India in the matter of dispute between them. 21. In view of above discussion and after having regard to the nature of case and other peculiar facts, we do not deem it appropriate to interfere with the decision rendered by the High Court.
### Response:
0
### Explanation:
Further, during the course of hearing, various documents such as pan card, Aadhar card of the, lease deed which was executed by her in 2015 etc., which are also placed on record, are sufficient to show thate is ordinarily living in India. Further, as it appears from the proceedings recorded before the US court that the respondent herself has admitted that the Family Court Gurgaon has jurisdiction in the given case. The evidence placed on record is sufficient enough to show that the respondent is amenable to the personal jurisdiction of Gurugram Family Court. Though thee is amenable to the jurisdiction of Family Court, Gurgaon, there is nothing on record to hold that the other party will suffer grave injustice if the injunction is not granted. There is no dispute to the fact that both the parties are permanent citizens of U.S. Undisputedly, the Circuit Court, Florida, USA is also having the concurrent jurisdiction in the given case. The contention that thed will suffer grave injustice if the proceedings are allowed to be continued in the Circuit Court, Florida USA doesnt stand to the ground as the appellant himself has been residing there after 2007 and the proceedings for grant oft injunction were initiated by him in India through another person by empowering him through a power of attorney to file and pursue the disputed litigation on his behalf. Further, there is nothing brought on record to show how thed would suffer grave injustice if the injunction restraining thee from pursuing the divorce petition in Florida, is not granted. Still further, even if the injunction is declined, it cannot be said that the ends of justice will be defeated and injustice will be perpetuatedThe contention that thee has filed the petition for divorce in the court at USA on the ground of irretrievable breakdown of marriage which is not the ground provided for divorce under the Act requires consideration. The mere fact that thee has filed the case on the ground which is not available to her under the Act, doesnt means that there are likelihood of her being succeeding in getting a decree for divorce. Specifically, in view of the fact that the appellant has raised this contention before the Circuit Court, Florida and both the parties will produce evidence with regard to the question whether their marriage is governed by the Act or any other lawForeign court cannot be presumed to be exercising its jurisdiction wrongly even after the appellant being able to prove that the parties in the present case are continued to be governed by the law governing Hindus in India in the matter of dispute between themIn view of above discussion and after having regard to the nature of case and other peculiar facts, we do not deem it appropriate to interfere with the decision rendered by the High Court.
|
J.G. Glass Limited Vs. Indian Bank & Another | to you, the Indo Commercial Bank Limited the repayment of all money, which shall at any time be due to you from the said Modern Hindustan Food Products Ltd., on the general balance of their accounts with you or on any account whatever such balances to include all interest, charges, commission and other expenses which you may charge as banker and also the due payment at maturity of any promissory note or other negotiable instrument on the security or in respect of which any credit or advance shall be made. And we hereby declare that this guarantee shall be a continuing guarantee to the extent at any one time for Rupees 10,00,000/- (Rupees Ten Lakhs only) and shall not be considered wholly or partially satisfied by the payment at any one time or at different times of any sums of money due on such general balance of account but shall extend and cover and be a security for every and all further sums at any time due to you thereon. And we further declare that you may grant to the Modern Hindustan Food Products Ltd., any indulgence without discharging our liability." The guarantee is seen to be a continuing guarantee and the undertaking by the defendant is to pay any amount that may be due by the company at the foot of the general balance of its account or any other account whatever. In the case of such a continuing guarantee, so long as the account is a live account in the sense that it is not settled and there is no refusal on the part of the guarantor to carry out the obligation, we do not see how the period of limitation could be said to have commenced running. Limitation would only run from the date of breach under Art. 115 of the schedule to the Limitation Act, 1908. When the Bombay High Court considered the matter in the first instance and held that the suit was not barred by limitation, J.C. Shah, J. speaking for the Court said: "On the plain words of the letters of guarantee it is clear that the defendant undertook to pay any amount which may be due by the Company at the foot of the general balance of its account or any other account whatever we are not concerned in this case with the period of limitation for the amount repayable by the Company to the bank. We are concerned with the period of limitation of enforcing the liability of the defendant under the surety bond ............. we hold that the suit to enforce the liability is governed by Art. 115 and the cause of action arises when the contract of continuing guarantee is broken, and in the present case we are of the view that so long as the account remained live account. and there was no refusal on the part of defendant to carry out her obligation, the period of limitation did not commence to run."We agree with the view expressed by Shah J. The intention and effect of a continuing guarantee such as the one with which we are concerned in this case was considered by the Judicial Committee of the Privy Council in Wright v. New Zealand Farmers Co-operative Association of Canterbury Ltd. 1939 A.C. 439. The second clause of the guarantee bond in that case was in the following terms: "This guarantee shall be a continuing guarantee and shall apply to the balance that is now or may at any time hereafter be owing to you by the William Nosworthy and Robert Nosworthy on their current account with you for goods supplied and advances made by you as aforesaid and interest and other charges as aforesaid." A contention was raised in that case that the liability of the guarantor was barred in respect of each advance made to the Nosworthys on the expiration of six years from the date of advance. The Judicial Committee of the Privy Council expressed the opinion that the matter had to be determined by the true construction of the guarantee. Proceeding to do so, the Judicial Committee observed (at p. 449): "It is no doubt a guarantee that the Association will be repaid by the Nosworthys advance made and to be made to them by the Association, together with interest and charges; but it specifies in col. 2 how that guarantee will operate namely, that it will apply to (i.e. the guarantor guarantees repayment OX the balance which at any time thereafter is owing by the Nosworthys to the Association. It is difficult to see how effect can be given to this provision except by holding that the repayment of every debit balance is guaranteed as it is constituted from time to time, during the continuance of the guarantee, by the excess of the total debits over the total credits. It that be the true construction of this document, as their Lordships think it is, the number of years which have expired since any individual debit was incurred is immaterial. The question of limitation could only arise in regard to the time which had elapsed since the balance guaranteed and sued for had been constituted.That document, in their opinion, clearly guarantees the repayment of each debit balance as constituted from time to time, during the continuance of the guarantee, by the surplus of the total debit over the total credits, and accordingly at the date of the counterclaim the Associations claim against the plaintiff for payment of the unpaid balance due from the Nosworthys, with interest, was not statute-barred." 10.In the instant case also the account was alive, not settled and there was no refusal on the part of the guarantor to carry out its obligation and the continuing guarantee was subsisting. Therefore, the Appellant was very much liable. 11.Under the aforesaid facts and circumstances, we do not find any substance in the contention of Mr. Mhamane, the learned Counsel for the Appellant that the suit claim is barred by law of limitation. | 0[ds]Over and above, the Appellant had also executed a promissory note on 24th September, 1975 and the reference of the same is made in the covering letter dated 4th September, 1978 while executing another promissory note on that very day. Therefore, it is not that after 1974 upto 1978 no document was executed as contended. The published balance sheets of Appellant upto 1981, show clearly the liability of the Appellant. For the aforesaid reasons, the contention that the claim is barred by law of limitation, has no merit whatsoever.8.We have also perused the reasoning of the Trial Court. We do not find anything erroneous or illegal in the reasoning and findings of the trialthe instant case also the account was alive, not settled and there was no refusal on the part of the guarantor to carry out its obligation and the continuing guarantee was subsisting. Therefore, the Appellant was very much liable. 11.Under the aforesaid facts and circumstances, we do not find any substance in the contention of Mr. Mhamane, the learned Counsel for the Appellant that the suit claim is barred by law of limitation. | 0 | 2,437 | 208 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
to you, the Indo Commercial Bank Limited the repayment of all money, which shall at any time be due to you from the said Modern Hindustan Food Products Ltd., on the general balance of their accounts with you or on any account whatever such balances to include all interest, charges, commission and other expenses which you may charge as banker and also the due payment at maturity of any promissory note or other negotiable instrument on the security or in respect of which any credit or advance shall be made. And we hereby declare that this guarantee shall be a continuing guarantee to the extent at any one time for Rupees 10,00,000/- (Rupees Ten Lakhs only) and shall not be considered wholly or partially satisfied by the payment at any one time or at different times of any sums of money due on such general balance of account but shall extend and cover and be a security for every and all further sums at any time due to you thereon. And we further declare that you may grant to the Modern Hindustan Food Products Ltd., any indulgence without discharging our liability." The guarantee is seen to be a continuing guarantee and the undertaking by the defendant is to pay any amount that may be due by the company at the foot of the general balance of its account or any other account whatever. In the case of such a continuing guarantee, so long as the account is a live account in the sense that it is not settled and there is no refusal on the part of the guarantor to carry out the obligation, we do not see how the period of limitation could be said to have commenced running. Limitation would only run from the date of breach under Art. 115 of the schedule to the Limitation Act, 1908. When the Bombay High Court considered the matter in the first instance and held that the suit was not barred by limitation, J.C. Shah, J. speaking for the Court said: "On the plain words of the letters of guarantee it is clear that the defendant undertook to pay any amount which may be due by the Company at the foot of the general balance of its account or any other account whatever we are not concerned in this case with the period of limitation for the amount repayable by the Company to the bank. We are concerned with the period of limitation of enforcing the liability of the defendant under the surety bond ............. we hold that the suit to enforce the liability is governed by Art. 115 and the cause of action arises when the contract of continuing guarantee is broken, and in the present case we are of the view that so long as the account remained live account. and there was no refusal on the part of defendant to carry out her obligation, the period of limitation did not commence to run."We agree with the view expressed by Shah J. The intention and effect of a continuing guarantee such as the one with which we are concerned in this case was considered by the Judicial Committee of the Privy Council in Wright v. New Zealand Farmers Co-operative Association of Canterbury Ltd. 1939 A.C. 439. The second clause of the guarantee bond in that case was in the following terms: "This guarantee shall be a continuing guarantee and shall apply to the balance that is now or may at any time hereafter be owing to you by the William Nosworthy and Robert Nosworthy on their current account with you for goods supplied and advances made by you as aforesaid and interest and other charges as aforesaid." A contention was raised in that case that the liability of the guarantor was barred in respect of each advance made to the Nosworthys on the expiration of six years from the date of advance. The Judicial Committee of the Privy Council expressed the opinion that the matter had to be determined by the true construction of the guarantee. Proceeding to do so, the Judicial Committee observed (at p. 449): "It is no doubt a guarantee that the Association will be repaid by the Nosworthys advance made and to be made to them by the Association, together with interest and charges; but it specifies in col. 2 how that guarantee will operate namely, that it will apply to (i.e. the guarantor guarantees repayment OX the balance which at any time thereafter is owing by the Nosworthys to the Association. It is difficult to see how effect can be given to this provision except by holding that the repayment of every debit balance is guaranteed as it is constituted from time to time, during the continuance of the guarantee, by the excess of the total debits over the total credits. It that be the true construction of this document, as their Lordships think it is, the number of years which have expired since any individual debit was incurred is immaterial. The question of limitation could only arise in regard to the time which had elapsed since the balance guaranteed and sued for had been constituted.That document, in their opinion, clearly guarantees the repayment of each debit balance as constituted from time to time, during the continuance of the guarantee, by the surplus of the total debit over the total credits, and accordingly at the date of the counterclaim the Associations claim against the plaintiff for payment of the unpaid balance due from the Nosworthys, with interest, was not statute-barred." 10.In the instant case also the account was alive, not settled and there was no refusal on the part of the guarantor to carry out its obligation and the continuing guarantee was subsisting. Therefore, the Appellant was very much liable. 11.Under the aforesaid facts and circumstances, we do not find any substance in the contention of Mr. Mhamane, the learned Counsel for the Appellant that the suit claim is barred by law of limitation.
### Response:
0
### Explanation:
Over and above, the Appellant had also executed a promissory note on 24th September, 1975 and the reference of the same is made in the covering letter dated 4th September, 1978 while executing another promissory note on that very day. Therefore, it is not that after 1974 upto 1978 no document was executed as contended. The published balance sheets of Appellant upto 1981, show clearly the liability of the Appellant. For the aforesaid reasons, the contention that the claim is barred by law of limitation, has no merit whatsoever.8.We have also perused the reasoning of the Trial Court. We do not find anything erroneous or illegal in the reasoning and findings of the trialthe instant case also the account was alive, not settled and there was no refusal on the part of the guarantor to carry out its obligation and the continuing guarantee was subsisting. Therefore, the Appellant was very much liable. 11.Under the aforesaid facts and circumstances, we do not find any substance in the contention of Mr. Mhamane, the learned Counsel for the Appellant that the suit claim is barred by law of limitation.
|
Shri Ambica Mills Co., Ltd Vs. Shri S. B. Bhatt And Another | connected with the problem of wages as defined under S. 2 (vi) that it would be unreasonable to exclude the decision of such a question from the jurisdiction of the authority under S. 15. If a contract of employment is admitted and there is a dispute about the construction of its terms, that obviously falls within S. 15 of the Act. If that is so, what is the difference in principle where a contract is admitted, its terms are not in dispute, and the only point in dispute is which of the two subsisting contracts applies to the particular employee in question. If the appellants argument were to prevail it would lead to this anomalous position that if a general contract of employment provides for payment of wages to different categories of employee and describes the said categories by reference to the duties discharged by them, none of the employees can ever avail himself of the speedy remedy provided by S. 15 of the Act. In such a case every time a dispute may arise about the duties assigned to a particular employee before his wages are determined. In our opinion, to place such an artificial limitation on the limits of the jurisdiction conferred on the authority by S. 15 is wholly unreasonable. That is the view taken by the High Court in the present case and we see no reason to differ from it.14. The question about the nature and scope of the limited jurisdiction conferred on the authority under S. 15 has been considered by this Court in the case of A. V. DCosta v. B. C. Patel, 1955-1 SCR 1353 : ((S) AIR 1955 SC 412 ). In that case the scheme of the Act has been examined by Sinha, J., as he then was, who spoke for the majority view, and it has been held that "if an employee were to say that his wages were Rs. 100/- per month which he actually received as and when they fell due but that he would be entitled to higher wages if his claims to be placed on the higher wages scheme had been recognised and given effect to, that would not be a matter within the ambit of the authoritys jurisdiction. The authority has the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages; but the authority has no jurisdiction to determine the question of potential wages". The Court took the view that the employees complaint in that case fell within the latter illustration. It would thus be seen that according to this decision the authority has jurisdiction to determine what the terms of contract between the parties are, and if the terms of the contract are admitted and the only dispute is whether or not a particular employee falls within one category or another, that would be incidental to the decision of the main question as to what the terms of the contract are, and that precisely is the nature of the dispute between the parties in the present case.15. The learned Attorney-General has relied very strongly on the decision of the Bombay High Court in Anthony Sabastin Almeda v. R. M. T. Taylor, 58 Bom LR 899 : (AIR 1956 Bom 737 ). In that case the employer and the employee went before the Court on the basis of different contracts and the Court held that it was not within the jurisdiction of the authority to decide which of the two contracts held the field, which of them was subsisting and under which of them of the employer was liable to pay wages. It would be clear from the facts in that case that two rival contracts were pleaded by the parties, according to whom only one contract was subsisting and not the other, and so the question for decision was which contract was really subsisting. We do not propose to express any opinion on the correctness of the view taken by the Bombay High Court on this question. All we are concerned to point out is that in the present appeal the dispute is substantially different. Both contracts admittedly are subsisting. The only point of dispute is : do the three workmen fall within the category of cut-looker or do they not ? If they do then Cl. 5 applies; if they do not the Award will come into operation. That being so, we do not see how the decision in Almedas case, 58 Bom LR 899 : (AIR 1956 Bom 737 ) can really assist the appellant.16. In this connection we may point out that it is common ground that in Ahmedabad textile mills do not have a class of employees called cut-lookers as in Bombay. The work of cut-looking along with other kind of work is done by bleach-folders and other folders. That was the finding made by the authority on an earlier occasion when Punamchand and Vishnuprasad had moved the authority under S. 15 of the Act. The learned Attorney-General has strenuously contended that it is unfair to give the same pay to the three workmen who are doing the work of cut-lookers only for a part of the time and were substantially doing the work of bleach-folders; that however, has no relevance in determining the present dispute. The only point which calls for decision is whether or not the work done by the three respondents takes them within the category of cut-lookers specified under Cl. 5, and as we have already pointed out, on an earlier occasion the authority has found in favour or two of the three respondents when it held that they were folders doing cut-looking. If the said finding amounts to res judicata it is in favour of the two respondents and not in favour of the appellant; that is why the learned Attorney-General did not seriously dispute the correctness of the decision of the High Court on the question of res judicata. | 0[ds]in our opinion, the error committed by the appellate authority was of such a manifest character that the High Court was justified in correcting the said error by the issue of a writ of certiorari. The question involved in the decision of the dispute is not so much of construction of the document as of giving effect to the plain terms of the document. If Cl. 5 expressly provides for employees not falling under Cl. 2, and if that intention is clarified by the list of designations which fall under Cl. 5 and yet the appellate authority reads that clause as subject to Cl. 2, that must be regarded as an error patent on the face of the record. It is not a case where two alternative conclusions are possible; it is a case of plain misreading of the two provisions ignoring altogether the very object with which the two separate provisions were made. In or opinion, therefore, the contention raised by the learned Attorney-General that by issuing the writ the High Court has exceeded its jurisdiction is not well founded.10. That takes us to the second, and in fact the principal contention which has been seriously argued before us by the learned Attorney-General. He urged that the applications made by the respondents Union on behalf of the three employees were incompetent under S. 15 of the Act and the authority exceeded its jurisdiction in entertaining them. It is true that this point was not specifically urged before the authority, but it appears to have been argued before the appellate authority and the High Court and it is this contention which raises the problem of construing S. 15 of the Act. The case for the appellant is that the jurisdiction conferred on the authority under S. 15 is a limited jurisdiction and it would be unreasonable to extend it on any inferential ground or by implication.11. The scheme of the Act is clear. The Act was intended to regulate the payment of wages to certain classes of persons employed in industry, and its object is to provide for a speedy and effective remedy to the employees in respect of their claims arising out of illegal deductions or unjustified delay made in paying wages to them. With that object S. 2 (vi) of the Act has defined wages. Section 4 fixes the wage period. Section 5 prescribes the time of payment of wages; and S. 7 allows certain specified deductions to be made. Section 15 confers jurisdiction on the authority appointed under the said section to hear and decide for any specified area claims arising out of deductions from wages, or delay in payment of wages, of persons employed or paid in that area. It is thus clear that the only claims which can be entertained by the authority area claims arising out of deductions or delay made in payment of wages. The jurisdiction thus conferred on the authority to deal with these two categories of claims is exclusive, for S. 22 of the Act provides that matters which lie within the jurisdiction of the authority are excluded from the jurisdiction of ordinary civil courts. Thus in one sense the jurisdiction conferred on the authority is limited by S. 15, and in another sense it is exclusive as prescribed by S. 22.12. In dealing with claims arising out of deductions or delay made in payment of wages the authority inevitably would have to consider questions incidental to the said matters. In determining the scope of these incidental questions care must be taken to see that under the guise of deciding incidental matters the limited jurisdictions is not unreasonably or unduly extended. Care must also be taken to see that the scope of these incidental questions is not unduly limited so as to affect or impair the limited jurisdiction conferred on the authority. While considering the question as to what could be reasonably regarded as incidental questions let us revert to the definition of wages prescribed by S. 2 (vi). Section 2(vi), as it then stood provided, inter alia, that wages means all remuneration capable of being expressed in terms of money which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and it includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment. It also provided that the word "wages" did not include five kinds of payments specified in clauses (a) to (e). Now, if a claim is made by an employee on the ground of alleged illegal deduction or alleged delay in payment of wages several relevant facts would fall to be considered. Is the applicant an employee of the opponent ?; and that refers to the subsistence of the relation between the employer and the employee. If the said fact is admitted, then the next question would be : what are the terms of employment ? Is there any contract of employment in writing or is the contract oral ? If that is not a point of dispute between the parties then it would be necessary to enquire what are the terms of the admitted contract. In some cases a question may arise whether the contract which was subsisting at one time had ceased to subsist and the relationship of employer and employee had come to an end at the relevant period. In regard to an illegal deduction a question may arise whether the lockout declared by the employer is legal or illegal. In regard to contract of service sometimes parties may be at variance and may set up rival contracts, and in such a case it may be necessary to enquire which contract was in existence at the relevant time. Some of these question have in fact been the subject-matter of judicial decisions. (Vide : A. R. Sarin v. B. C. Patil, 53 Bom LR 674 : (AIR 1951 Bom 423 ); Vishwanath Tukaram v. General Manager, Central Railway, 59 Bom LR 892 : (AIR 1958 Bom 111 ) (FB) and Sri Umaid Mills Ltd. v. Collector of Pali, 1960-2 Lab LJ 364 (Raj); but we do not propose to consider these possible questions in the present appeal, because, in our opinion, it would be inexpedient to lay down any hard and fast or general rule which would afford a determining test to demarcate the field of incidental facts which can be legitimately considered by the authority and those which cannot be so considered. We propose to confine our decision to the facts in the present case.13. What are the facts in the present case ? The relationship of employer and employee is not in dispute. It is admitted that the three workmen are employed by the appellant, and do the work of bleach-folders. These folders are classified into Uttarnars and Chadhavnars. Indeed, the items of work assigned to these categories of folders are admitted. The appellant contends that the employment of the three workmen is governed by the Award which is in operation, whereas the respondent Union contends that they are governed by Cl. 5 of the subsequent agreement. It is common ground that both the Award and the agreement are in operation in respect of the persons governed respectively by them, so that it is not disputed by the appellant that the persons who are specified by their designation under Cl. 5 would be entitled to the benefit of the said clause and would not be governed by the Award. If an employee is called a cut-looker by any mill he would naturally fall under Cl. 5; in other words, all the specified categories of employees named by designation in that clause would not be governed by the Award though at one stage they were treated as operatives but they would be governed by Cl. 5 of the agreement; and if a person bearing that designation applied under S. 15 of the Act his application would be competent. The appellants argument, however, is that when the last part of Cl. 5 refers to other employees "who have not been included above but who can properly fall under the above category" no designation is attached to that class, and in such a case it would be necessary to enquire whether a particular employee can properly fall under the said category, and that, it is urged, means that such an employee cannot apply under S. 15 but must go to the industrial court under the ordinary industrial law. Thus the controversy between the parties lies within a very narrow compass. An employee designated as a cut-looker can apply under S. 15 and obtain relief from the authority; an employee not so designated but falling under the said category by virtue of the work assigned to him, it is said, cannot apply under S. 15 because the authority cannot deal with the question as to whether the said employee properly falls under the said category or not. In our opinion, on these facts, the question as to whether a particular employee is an operative falling under the Award or one who is above an operative and below the clerk falling under Cl. 5 is a question which is so intimately and integrally connected with the problem of wages as defined under S. 2 (vi) that it would be unreasonable to exclude the decision of such a question from the jurisdiction of the authority under S.If a contract of employment is admitted and there is a dispute about the construction of its terms, that obviously falls within S. 15 of the Act. If that is so, what is the difference in principle where a contract is admitted, its terms are not in dispute, and the only point in dispute is which of the two subsisting contracts applies to the particular employee in question. If the appellants argument were to prevail it would lead to this anomalous position that if a general contract of employment provides for payment of wages to different categories of employee and describes the said categories by reference to the duties discharged by them, none of the employees can ever avail himself of the speedy remedy provided by S. 15 of the Act. In such a case every time a dispute may arise about the duties assigned to a particular employee before his wages are determined. In our opinion, to place such an artificial limitation on the limits of the jurisdiction conferred on the authority by S. 15 is wholly unreasonable. That is the view taken by the High Court in the present case and we see no reason to differ from it.14. The question about the nature and scope of the limited jurisdiction conferred on the authority under S. 15 has been considered by this Court in the case of A. V. DCosta v. B. C. Patel, 1955-1 SCR 1353 : ((S) AIR 1955 SC 412 ). In that case the scheme of the Act has been examined by Sinha, J., as he then was, who spoke for the majority view, and it has been held that "if an employee were to say that his wages were Rs. 100/- per month which he actually received as and when they fell due but that he would be entitled to higher wages if his claims to be placed on the higher wages scheme had been recognised and given effect to, that would not be a matter within the ambit of the authoritys jurisdiction. The authority has the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages; but the authority has no jurisdiction to determine the question of potential wages". The Court took the view that the employees complaint in that case fell within the latter illustration. It would thus be seen that according to this decision the authority has jurisdiction to determine what the terms of contract between the parties are, and if the terms of the contract are admitted and the only dispute is whether or not a particular employee falls within one category or another, that would be incidental to the decision of the main question as to what the terms of the contract are, and that precisely is the nature of the dispute between the parties in the present case.15. The learned Attorney-General has relied very strongly on the decision of the Bombay High Court in Anthony Sabastin Almeda v. R. M. T. Taylor, 58 Bom LR 899 : (AIR 1956 Bom 737 ). In that case the employer and the employee went before the Court on the basis of different contracts and the Court held that it was not within the jurisdiction of the authority to decide which of the two contracts held the field, which of them was subsisting and under which of them of the employer was liable to pay wages. It would be clear from the facts in that case that two rival contracts were pleaded by the parties, according to whom only one contract was subsisting and not the other, and so the question for decision was which contract was really subsisting. We do not propose to express any opinion on the correctness of the view taken by the Bombay High Court on this question. All we are concerned to point out is that in the present appeal the dispute is substantially different. Both contracts admittedly are subsisting. The only point of dispute is : do the three workmen fall within the category of cut-looker or do they not ? If they do then Cl. 5 applies; if they do not the Award will come into operation. That being so, we do not see how the decision in Almedas case, 58 Bom LR 899 : (AIR 1956 Bom 737 ) can really assist the appellant.16. In this connection we may point out that it is common ground that in Ahmedabad textile mills do not have a class of employees called cut-lookers as in Bombay. The work of cut-looking along with other kind of work is done by bleach-folders and other folders. That was the finding made by the authority on an earlier occasion when Punamchand and Vishnuprasad had moved the authority under S. 15 of the Act. The learned Attorney-General has strenuously contended that it is unfair to give the same pay to the three workmen who are doing the work of cut-lookers only for a part of the time and were substantially doing the work of bleach-folders; that however, has no relevance in determining the present dispute. The only point which calls for decision is whether or not the work done by the three respondents takes them within the category of cut-lookers specified under Cl. 5, and as we have already pointed out, on an earlier occasion the authority has found in favour or two of the three respondents when it held that they were folders doing cut-looking. If the said finding amounts to res judicata it is in favour of the two respondents and not in favour of the appellant; that is why the learned Attorney-General did not seriously dispute the correctness of the decision of the High Court on the question of res judicata. | 0 | 5,595 | 2,768 | ### 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:
connected with the problem of wages as defined under S. 2 (vi) that it would be unreasonable to exclude the decision of such a question from the jurisdiction of the authority under S. 15. If a contract of employment is admitted and there is a dispute about the construction of its terms, that obviously falls within S. 15 of the Act. If that is so, what is the difference in principle where a contract is admitted, its terms are not in dispute, and the only point in dispute is which of the two subsisting contracts applies to the particular employee in question. If the appellants argument were to prevail it would lead to this anomalous position that if a general contract of employment provides for payment of wages to different categories of employee and describes the said categories by reference to the duties discharged by them, none of the employees can ever avail himself of the speedy remedy provided by S. 15 of the Act. In such a case every time a dispute may arise about the duties assigned to a particular employee before his wages are determined. In our opinion, to place such an artificial limitation on the limits of the jurisdiction conferred on the authority by S. 15 is wholly unreasonable. That is the view taken by the High Court in the present case and we see no reason to differ from it.14. The question about the nature and scope of the limited jurisdiction conferred on the authority under S. 15 has been considered by this Court in the case of A. V. DCosta v. B. C. Patel, 1955-1 SCR 1353 : ((S) AIR 1955 SC 412 ). In that case the scheme of the Act has been examined by Sinha, J., as he then was, who spoke for the majority view, and it has been held that "if an employee were to say that his wages were Rs. 100/- per month which he actually received as and when they fell due but that he would be entitled to higher wages if his claims to be placed on the higher wages scheme had been recognised and given effect to, that would not be a matter within the ambit of the authoritys jurisdiction. The authority has the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages; but the authority has no jurisdiction to determine the question of potential wages". The Court took the view that the employees complaint in that case fell within the latter illustration. It would thus be seen that according to this decision the authority has jurisdiction to determine what the terms of contract between the parties are, and if the terms of the contract are admitted and the only dispute is whether or not a particular employee falls within one category or another, that would be incidental to the decision of the main question as to what the terms of the contract are, and that precisely is the nature of the dispute between the parties in the present case.15. The learned Attorney-General has relied very strongly on the decision of the Bombay High Court in Anthony Sabastin Almeda v. R. M. T. Taylor, 58 Bom LR 899 : (AIR 1956 Bom 737 ). In that case the employer and the employee went before the Court on the basis of different contracts and the Court held that it was not within the jurisdiction of the authority to decide which of the two contracts held the field, which of them was subsisting and under which of them of the employer was liable to pay wages. It would be clear from the facts in that case that two rival contracts were pleaded by the parties, according to whom only one contract was subsisting and not the other, and so the question for decision was which contract was really subsisting. We do not propose to express any opinion on the correctness of the view taken by the Bombay High Court on this question. All we are concerned to point out is that in the present appeal the dispute is substantially different. Both contracts admittedly are subsisting. The only point of dispute is : do the three workmen fall within the category of cut-looker or do they not ? If they do then Cl. 5 applies; if they do not the Award will come into operation. That being so, we do not see how the decision in Almedas case, 58 Bom LR 899 : (AIR 1956 Bom 737 ) can really assist the appellant.16. In this connection we may point out that it is common ground that in Ahmedabad textile mills do not have a class of employees called cut-lookers as in Bombay. The work of cut-looking along with other kind of work is done by bleach-folders and other folders. That was the finding made by the authority on an earlier occasion when Punamchand and Vishnuprasad had moved the authority under S. 15 of the Act. The learned Attorney-General has strenuously contended that it is unfair to give the same pay to the three workmen who are doing the work of cut-lookers only for a part of the time and were substantially doing the work of bleach-folders; that however, has no relevance in determining the present dispute. The only point which calls for decision is whether or not the work done by the three respondents takes them within the category of cut-lookers specified under Cl. 5, and as we have already pointed out, on an earlier occasion the authority has found in favour or two of the three respondents when it held that they were folders doing cut-looking. If the said finding amounts to res judicata it is in favour of the two respondents and not in favour of the appellant; that is why the learned Attorney-General did not seriously dispute the correctness of the decision of the High Court on the question of res judicata.
### Response:
0
### Explanation:
problem of wages as defined under S. 2 (vi) that it would be unreasonable to exclude the decision of such a question from the jurisdiction of the authority under S.If a contract of employment is admitted and there is a dispute about the construction of its terms, that obviously falls within S. 15 of the Act. If that is so, what is the difference in principle where a contract is admitted, its terms are not in dispute, and the only point in dispute is which of the two subsisting contracts applies to the particular employee in question. If the appellants argument were to prevail it would lead to this anomalous position that if a general contract of employment provides for payment of wages to different categories of employee and describes the said categories by reference to the duties discharged by them, none of the employees can ever avail himself of the speedy remedy provided by S. 15 of the Act. In such a case every time a dispute may arise about the duties assigned to a particular employee before his wages are determined. In our opinion, to place such an artificial limitation on the limits of the jurisdiction conferred on the authority by S. 15 is wholly unreasonable. That is the view taken by the High Court in the present case and we see no reason to differ from it.14. The question about the nature and scope of the limited jurisdiction conferred on the authority under S. 15 has been considered by this Court in the case of A. V. DCosta v. B. C. Patel, 1955-1 SCR 1353 : ((S) AIR 1955 SC 412 ). In that case the scheme of the Act has been examined by Sinha, J., as he then was, who spoke for the majority view, and it has been held that "if an employee were to say that his wages were Rs. 100/- per month which he actually received as and when they fell due but that he would be entitled to higher wages if his claims to be placed on the higher wages scheme had been recognised and given effect to, that would not be a matter within the ambit of the authoritys jurisdiction. The authority has the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages; but the authority has no jurisdiction to determine the question of potential wages". The Court took the view that the employees complaint in that case fell within the latter illustration. It would thus be seen that according to this decision the authority has jurisdiction to determine what the terms of contract between the parties are, and if the terms of the contract are admitted and the only dispute is whether or not a particular employee falls within one category or another, that would be incidental to the decision of the main question as to what the terms of the contract are, and that precisely is the nature of the dispute between the parties in the present case.15. The learned Attorney-General has relied very strongly on the decision of the Bombay High Court in Anthony Sabastin Almeda v. R. M. T. Taylor, 58 Bom LR 899 : (AIR 1956 Bom 737 ). In that case the employer and the employee went before the Court on the basis of different contracts and the Court held that it was not within the jurisdiction of the authority to decide which of the two contracts held the field, which of them was subsisting and under which of them of the employer was liable to pay wages. It would be clear from the facts in that case that two rival contracts were pleaded by the parties, according to whom only one contract was subsisting and not the other, and so the question for decision was which contract was really subsisting. We do not propose to express any opinion on the correctness of the view taken by the Bombay High Court on this question. All we are concerned to point out is that in the present appeal the dispute is substantially different. Both contracts admittedly are subsisting. The only point of dispute is : do the three workmen fall within the category of cut-looker or do they not ? If they do then Cl. 5 applies; if they do not the Award will come into operation. That being so, we do not see how the decision in Almedas case, 58 Bom LR 899 : (AIR 1956 Bom 737 ) can really assist the appellant.16. In this connection we may point out that it is common ground that in Ahmedabad textile mills do not have a class of employees called cut-lookers as in Bombay. The work of cut-looking along with other kind of work is done by bleach-folders and other folders. That was the finding made by the authority on an earlier occasion when Punamchand and Vishnuprasad had moved the authority under S. 15 of the Act. The learned Attorney-General has strenuously contended that it is unfair to give the same pay to the three workmen who are doing the work of cut-lookers only for a part of the time and were substantially doing the work of bleach-folders; that however, has no relevance in determining the present dispute. The only point which calls for decision is whether or not the work done by the three respondents takes them within the category of cut-lookers specified under Cl. 5, and as we have already pointed out, on an earlier occasion the authority has found in favour or two of the three respondents when it held that they were folders doing cut-looking. If the said finding amounts to res judicata it is in favour of the two respondents and not in favour of the appellant; that is why the learned Attorney-General did not seriously dispute the correctness of the decision of the High Court on the question of res judicata.
|
ICICI Ltd Vs. Board of Trustees, Port of Calcutta | unless it was with the express or implied consent of the Dock Authorities. The Bombay High Court held that the Port Trust was bound not to get into a conflict with the Sheriff but to surrender the said vessel to the Sheriff as representative of the Court and to allow him to sell the vessel under the Courts directions. It was held that it was then the duty of the Court to protect the interests of the Port Trust and to put the Port Trust in the same position as if they had sold the vessel under the powers given to them under the Act. It was held that by permitting the sale of the said vessel the Port Trust did not forgo its lien on the vessel or its right to have the sale proceeds applied towards the satisfaction of its dues in priority to all other claims. It was held that the Port Trust, in allowing the sale, had followed a well established admiralty practice which was of immense advantage to all who had claims upon a vessel for it ensured a sale thereof at a fair price, by and under the directions of the Court. 13. The decision of the Bombay High Court was approved by this Court in the case of Board of Trustees, Port of Mumbai v. Indian Oil Corpn. (1998 (4) SCC 302 ) In this case the question was whether by virtue of the statutory rights, under S.64 of the Major Port Trusts Act, the Port Trust had a priority over secured creditors. This Court considered a large number of authorities including the authority of the Bombay High Court (AIR 1988 Bom 329 ) and held as follows: "8. The port authorities have a paramount right to arrest a vessel and detain the same until the amounts due to it in respect of extending the port facilities and services to the vessel are paid. Under sub-s.(2), in case any part of the said rates, charges, penalties or the cost of the distress or arrest or of the keeping of the same remain unpaid for a space of five days next after any such distress or arrest has been made, the Board may cause the vessel so distrained or arrested to be sold. The proceeds of such sale shall satisfy such rates or penalties and costs including the costs of sale remaining unpaid. The surplus, if any, is to be rendered to the master of such vessel on demand.9. The statutory right under S.64 embodies this overriding right of the harbour authority over the vessel for the recovery of its dues. This right stands above the rights of secured and unsecured creditors of a company in winding up -- in the present case, the shipping company which owns the vessel. The harbour authorities allow ships -- national or foreign to anchor and avail of the services provided by them. For payment they look to the vessel. The owner may be foreign or even unknown to the harbour authority. The latters right to recover its dues is not affected by any pending proceedings against the owner in any court -- whether in winding up or otherwise. The harbour authority can arrest the vessel while it is anchored in the harbour and recover its dues in respect of that vessel by sale of the vessel if the dues are not paid. This lien of the harbour authority over the vessel is paramount. The lien cannot be extinguished or the vessel sold by any other authority under the directions of the court or otherwise, unless the harbour authority consents to such sale. Thus, in the case of Ashoke Arya v. M.V. "Kapitan Mitsos" (AIR 1988 Bom 329 ) the Bombay High Court relied upon the decision in Emilie Millon, The (1905 (2) KB 817 : 75 LJKB 31 : 93 LT 692) and held that the lien given by statute to a dock or harbour authority cannot be extinguished by the court unless it be done with the authoritys express or implied consent." 14. The Calcutta High Court has based the impugned judgment on this authority. We are in agreement with the view that by virtue of this authority the Port Trust would have priority over the appellants. 15. It was, however, submitted that both, in the case before the Bombay High Court as well as in the abovementioned authority, the right of the Port Trust was upheld because they had already arrested the ship. It was submitted that if the ship had not been arrested and/or if the Port Trust allows the ship to be sold then on the principle laid down in Charger case (1966 (3) All ER 117) the Port Trust would have lost its remedy and rights under S.64. 16. We are unable to accept this submission. On facts of this case it cannot be said that the Port Trust had given up their right under S.64. As has been pointed out hereinabove, the Port Trust had intervened in the admiralty suit in Calcutta and had sought leave to exercise their rights under S.64(2) of the Major Port Trusts Act. This showed that the Port Trust had not given up their rights and were insisting on their rights. They had merely permitted sale and delivery of vessel in pursuance of the established admiralty practice. Merely because they did not enter into a conflict with the Court and surrendered the vessel to the representative of the Court did not mean that they lost their right. It then becomes duty of the Court to protect the interest of the Port Trust and to put it in the same position as if they had sold the vehicle themselves under their powers. 17. We are unable to accept submission that the provisions of the Shipping Development Fund Committee (Abolition) Act, 1986 and/or that S.51 and 52 of the Merchant Shipping Act, 1958 give the claims of the appellant a priority over the claims of the Port Trust. | 0[ds]14. The Calcutta High Court has based the impugned judgment on this authority. We are in agreement with the view that by virtue of this authority the Port Trust would have priority over thethe present case, the shipping company which owns the vessel. The harbour authorities allow ships -- national or foreign to anchor and avail of the services provided by them. For payment they look to the vessel. The owner may be foreign or even unknown to the harbour authority. The latters right to recover its dues is not affected by any pending proceedings against the owner in any court -- whether in winding up or otherwise. The harbour authority can arrest the vessel while it is anchored in the harbour and recover its dues in respect of that vessel by sale of the vessel if the dues are not paid. This lien of the harbour authority over the vessel is paramount. The lien cannot be extinguished or the vessel sold by any other authority under the directions of the court or otherwise, unless the harbour authority consents to such sale.We are unable to accept this submission. On facts of this case it cannot be said that the Port Trust had given up their right under S.64.We are unable to accept submission that the provisions of the Shipping Development Fund Committee (Abolition) Act, 1986 and/or that S.51 and 52 of the Merchant Shipping Act, 1958 give the claims of the appellant a priority over the claims of the Port Trust. | 0 | 2,274 | 274 | ### 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:
unless it was with the express or implied consent of the Dock Authorities. The Bombay High Court held that the Port Trust was bound not to get into a conflict with the Sheriff but to surrender the said vessel to the Sheriff as representative of the Court and to allow him to sell the vessel under the Courts directions. It was held that it was then the duty of the Court to protect the interests of the Port Trust and to put the Port Trust in the same position as if they had sold the vessel under the powers given to them under the Act. It was held that by permitting the sale of the said vessel the Port Trust did not forgo its lien on the vessel or its right to have the sale proceeds applied towards the satisfaction of its dues in priority to all other claims. It was held that the Port Trust, in allowing the sale, had followed a well established admiralty practice which was of immense advantage to all who had claims upon a vessel for it ensured a sale thereof at a fair price, by and under the directions of the Court. 13. The decision of the Bombay High Court was approved by this Court in the case of Board of Trustees, Port of Mumbai v. Indian Oil Corpn. (1998 (4) SCC 302 ) In this case the question was whether by virtue of the statutory rights, under S.64 of the Major Port Trusts Act, the Port Trust had a priority over secured creditors. This Court considered a large number of authorities including the authority of the Bombay High Court (AIR 1988 Bom 329 ) and held as follows: "8. The port authorities have a paramount right to arrest a vessel and detain the same until the amounts due to it in respect of extending the port facilities and services to the vessel are paid. Under sub-s.(2), in case any part of the said rates, charges, penalties or the cost of the distress or arrest or of the keeping of the same remain unpaid for a space of five days next after any such distress or arrest has been made, the Board may cause the vessel so distrained or arrested to be sold. The proceeds of such sale shall satisfy such rates or penalties and costs including the costs of sale remaining unpaid. The surplus, if any, is to be rendered to the master of such vessel on demand.9. The statutory right under S.64 embodies this overriding right of the harbour authority over the vessel for the recovery of its dues. This right stands above the rights of secured and unsecured creditors of a company in winding up -- in the present case, the shipping company which owns the vessel. The harbour authorities allow ships -- national or foreign to anchor and avail of the services provided by them. For payment they look to the vessel. The owner may be foreign or even unknown to the harbour authority. The latters right to recover its dues is not affected by any pending proceedings against the owner in any court -- whether in winding up or otherwise. The harbour authority can arrest the vessel while it is anchored in the harbour and recover its dues in respect of that vessel by sale of the vessel if the dues are not paid. This lien of the harbour authority over the vessel is paramount. The lien cannot be extinguished or the vessel sold by any other authority under the directions of the court or otherwise, unless the harbour authority consents to such sale. Thus, in the case of Ashoke Arya v. M.V. "Kapitan Mitsos" (AIR 1988 Bom 329 ) the Bombay High Court relied upon the decision in Emilie Millon, The (1905 (2) KB 817 : 75 LJKB 31 : 93 LT 692) and held that the lien given by statute to a dock or harbour authority cannot be extinguished by the court unless it be done with the authoritys express or implied consent." 14. The Calcutta High Court has based the impugned judgment on this authority. We are in agreement with the view that by virtue of this authority the Port Trust would have priority over the appellants. 15. It was, however, submitted that both, in the case before the Bombay High Court as well as in the abovementioned authority, the right of the Port Trust was upheld because they had already arrested the ship. It was submitted that if the ship had not been arrested and/or if the Port Trust allows the ship to be sold then on the principle laid down in Charger case (1966 (3) All ER 117) the Port Trust would have lost its remedy and rights under S.64. 16. We are unable to accept this submission. On facts of this case it cannot be said that the Port Trust had given up their right under S.64. As has been pointed out hereinabove, the Port Trust had intervened in the admiralty suit in Calcutta and had sought leave to exercise their rights under S.64(2) of the Major Port Trusts Act. This showed that the Port Trust had not given up their rights and were insisting on their rights. They had merely permitted sale and delivery of vessel in pursuance of the established admiralty practice. Merely because they did not enter into a conflict with the Court and surrendered the vessel to the representative of the Court did not mean that they lost their right. It then becomes duty of the Court to protect the interest of the Port Trust and to put it in the same position as if they had sold the vehicle themselves under their powers. 17. We are unable to accept submission that the provisions of the Shipping Development Fund Committee (Abolition) Act, 1986 and/or that S.51 and 52 of the Merchant Shipping Act, 1958 give the claims of the appellant a priority over the claims of the Port Trust.
### Response:
0
### Explanation:
14. The Calcutta High Court has based the impugned judgment on this authority. We are in agreement with the view that by virtue of this authority the Port Trust would have priority over thethe present case, the shipping company which owns the vessel. The harbour authorities allow ships -- national or foreign to anchor and avail of the services provided by them. For payment they look to the vessel. The owner may be foreign or even unknown to the harbour authority. The latters right to recover its dues is not affected by any pending proceedings against the owner in any court -- whether in winding up or otherwise. The harbour authority can arrest the vessel while it is anchored in the harbour and recover its dues in respect of that vessel by sale of the vessel if the dues are not paid. This lien of the harbour authority over the vessel is paramount. The lien cannot be extinguished or the vessel sold by any other authority under the directions of the court or otherwise, unless the harbour authority consents to such sale.We are unable to accept this submission. On facts of this case it cannot be said that the Port Trust had given up their right under S.64.We are unable to accept submission that the provisions of the Shipping Development Fund Committee (Abolition) Act, 1986 and/or that S.51 and 52 of the Merchant Shipping Act, 1958 give the claims of the appellant a priority over the claims of the Port Trust.
|
Chennuru Gavararaju Chetty Vs. Chennuru Silaramamurty Chetty And Others | occupying a fiduciary position, apart from the fact that they were partners. 15. As already indicated, the partnership stood automatically terminated at the end of the year 1942. The actual grant of the lease in question was made in April 1943, and the permanent licence to manufacture and sell salt, was granted only in 1945. Hence, strictly speaking, when the suit was instituted in January, 1943, legally, there was no lease in existence, nor could the business of manufacture and sale of salt be effectively carried on until the grant of the permanent licence. The plaintiffs could have a cause of action in respect of the renewed lease if their substantive case of continuing partnership had been established. But that case having failed, it is little difficult to appreciate how they could claim any interest in the renewed lease as an asset of the partnership business. The fiduciary character as between the partners had ceased on the termination of the original lease and of the partnership business. On such a termination, there was no interest of the partners, which the contesting defendants were bound to protect. For the same reasons, the defendants character as partners had ceased, and they could not, therefore, be said to have availed themselves of their character as partners in obtaining the fresh lease. For all these reasons, it must be held that the plaintiffs have failed to bring the case strictly within the terms of S. 88 of the Indian Trusts Act. A passing reference was made by the learned counsel for the respondents to the terms of S. 90 of the Trusts Act.But it will be noticed that whereas S. 88, quoted above, makes a specific reference to partners and agents, etc., S. 90, in terms, applies to a tenant for life, a co-owner, a mortgagee, or any other qualified owner of any property. Section 90, therefore, in terms, could not apply to the case.Even if it did, it does not carry the case any further in favour of the plaintiff- respondents. 16. It was further argued on behalf of the respondents that even though the provisions of the Trusts Act, did not, in terms, apply to the case, the general principles of law as applied in the English courts, support the plaintiffs case. In this connection, reliance was placed upon the cases of Featherstonhaugh v. Fenwick, (1810) 34 ER 115; Clegg v. Fishwick, (1849) 41 ER 1278; Clements v. Hall. (1858) 44 ER 954; Clegg v. Edmondson, (1857) 44 ER 593; In re Biss; Biss v. Hiss, (1903) 2 Ch 40; Griffith v. Owen, 1907-1 Ch 195. The law in England has been summarized in Halsburys Laws of England, 2nd Ed., Vol. 24 (Lord Hailshams Edition) in Art. 863 at p. 450, as follows:"The renewal of a lease of the partnership property by one or more of the partners without the privity of the others enures for the benefit of all. The rule is the same when the intention to renew is communicated to the others if the latter are prompt to assert their rights; and it is immaterial whether the term of the partnership is definite or indefinite, or whether the lessors would have refused to renew to the partners who are not privy to the renewal. The representatives of a deceased partner may have a right to share in the profits derived from a renewal of the lease by the surviving partner." Most of the cases relied upon on behalf of the respondents, form the basis of the statement of the law in England, quoted above. 17.On a close examination of the English precedents aforesaid, it will be found that there is no absolute rule of law or equity that a renewal of a lease by one partner, must necessarily enure for the benefit of all the partners.There is a presumption of fact, as distinguished from a presumption of law, that there is an equity in favour of the renewal of the lease enuring for the benefit of all the partners.But such a presumption being one of fact, is rebuttable, and must, therefore, depend upon the facts and circumstances of each case. The Indian Legislature has substantially adopted the English law quoted above, while enacting the rules laid down in the Indian Trusts Act, particularly, Ss. 88 and 90 of the Trusts Act. In the instant case, the facts that the parties deliberately, chose to fix the term of the partnership as conterminous with the term of the lease and licence ending with the year 1942; that they did not, in express terms, or by necessary implication, make any provision for extending the period of the partnership or for obtaining renewal of the lease and the necessary licence; that there was no averment or proof of any clandestine acts on the part of the contesting defendants in the matter of obtaining the renewal of the lease that the plaintiffs themselves made attempts though unsuccessful, to get themselves included in the category of grantees at the time of the renewal of the lease; that the special nature of the business required personal efficiency and good conduct on the part of the actual managing agents; that no funds of the expiring partnership or any goodwill of the partnership was utilized for obtaining the fresh lease; that the fresh lease and licence were granted to the contesting defendants in consideration of their personal qualities of good management and good conduct; that the parties were not on the best of terms during the last few years of the partnership, and finally, that the lease and the permanent licence were actually granted after the partnership stood automatically dissolved at the end of 1942, are all facts and circumstances which point to only one conclusion, namely, that the renewal of the lease was not intended to be for the benefit of all the quondam partners. Those facts and circumstances amply rebut any presumption of fact that the lease should enure to the benefit of all the parties. | 1[ds]14. We shall now examine the position whether the plaintiffs have made out a case in terms of the second part of the section. In order to do so, it had to be shown that the contesting defendants while obtaining renewal of the lease, had placed themselves in such a position as to render their interests adverse to those of the other partners, and had thereby obtained a pecuniary advantage, which they must hold for the benefit of the other partners as well. In this connection; illustrations (d) and (e) under the section, are instructive. If the plaintiffs had succeeded in proving, as they had attempted to do, that any funds or any goodwill of the alleged firm name, had been utilised for obtaining the renewal of the lease, the case would have directly come under illustration (d). Illustration (e), on the face of it, does not apply, because on the findings, the defendants were not negotiating for the renewal of the lease on behalf of the entire body of partners, nor is there any allegation that they had clandestinely stipulated for themselves a benefit to the detriment of the partnership business or funds. In this connection, it as to be noted that the suit was instituted months before the renewed lease was actually granted, and years before a permanent licence for the manufacture and sale of salt, was issued to the contesting defendants. It has also to be noted that the grant of the lease by itself does (not?) confer on the grantee the right to manufacture and sell salt. The lease has to be followed by a permanent licence in order to enable the grantee to carry on the business of manufacturing, storing and selling salt. Hence, the lease by itself has no value unless it is followed by a licence to manufacture and sell salt, which was granted only on April 17, 1945, about two years and four months after the expiry of the previous lease and licence, which, as already indicated, were conterminous with the term of the partnership. That is the reason why the High Court granted the decree in favour of the plaintiffs in terms which are rather amorphous and which do not easily lend themselves to conversion in terms of money. This is a business in which the personal factor of the persons in charge of managing the business, is more important than anything else. Another important matter which has a bearing on the case, has also to be adverted to. Between the years 1939 and 1942, that is to say, during the last three years of the term of the partnership, the partners were not on cordial terms, and there does not appear to have been much of confidence between them. They had already started quarrelling and attributing unworthy motives. There is, therefore, hardly any room for importing the idea of such confidence amongst partners as would render the contesting defendants occupying a fiduciary position, apart from the fact that they were partners15. As already indicated, the partnership stood automatically terminated at the end of the year 1942. The actual grant of the lease in question was made in April 1943, and the permanent licence to manufacture and sell salt, was granted only in 1945. Hence, strictly speaking, when the suit was instituted in January, 1943, legally, there was no lease in existence, nor could the business of manufacture and sale of salt be effectively carried on until the grant of the permanent licence. The plaintiffs could have a cause of action in respect of the renewed lease if their substantive case of continuing partnership had been established. But that case having failed, it is little difficult to appreciate how they could claim any interest in the renewed lease as an asset of the partnership business. The fiduciary character as between the partners had ceased on the termination of the original lease and of the partnership business. On such a termination, there was no interest of the partners, which the contesting defendants were bound to protect. For the same reasons, the defendants character as partners had ceased, and they could not, therefore, be said to have availed themselves of their character as partners in obtaining the fresh lease. For all these reasons, it must be held that the plaintiffs have failed to bring the case strictly within the terms of S. 88 of the Indian Trusts Act. A passing reference was made by the learned counsel for the respondents to the terms of S. 90 of the Trusts Act.But it will be noticed that whereas S. 88, quoted above, makes a specific reference to partners and agents, etc., S. 90, in terms, applies to a tenant for life, a co-owner, a mortgagee, or any other qualified owner of any property. Section 90, therefore, in terms, could not apply to the case.Even if it did, it does not carry the case any further in favour of the plaintiff- respondents16. It was further argued on behalf of the respondents that even though the provisions of the Trusts Act, did not, in terms, apply to the case, the general principles of law as applied in the English courts, support the plaintiffs case. In this connection, reliance was placed upon the cases of Featherstonhaugh v. Fenwick, (1810) 34 ER 115; Clegg v. Fishwick, (1849) 41 ER 1278; Clements v. Hall. (1858) 44 ER 954; Clegg v. Edmondson, (1857) 44 ER 593; In re Biss; Biss v. Hiss, (1903) 2 Ch 40; Griffith v. Owen, 1907-1 Ch 195. The law in England has been summarized in Halsburys Laws of England, 2nd Ed., Vol. 24 (Lord Hailshams Edition) in Art. 863 at p. 450, as follows:"The renewal of a lease of the partnership property by one or more of the partners without the privity of the others enures for the benefit of all. The rule is the same when the intention to renew is communicated to the others if the latter are prompt to assert their rights; and it is immaterial whether the term of the partnership is definite or indefinite, or whether the lessors would have refused to renew to the partners who are not privy to the renewal. The representatives of a deceased partner may have a right to share in the profits derived from a renewal of the lease by the surviving partner."Most of the cases relied upon on behalf of the respondents, form the basis of the statement of the law in England, quoted above17.On a close examination of the English precedents aforesaid, it will be found that there is no absolute rule of law or equity that a renewal of a lease by one partner, must necessarily enure for the benefit of all the partners.There is a presumption of fact, as distinguished from a presumption of law, that there is an equity in favour of the renewal of the lease enuring for the benefit of all the partners.But such a presumption being one of fact, is rebuttable, and must, therefore, depend upon the facts and circumstances of each case. The Indian Legislature has substantially adopted the English law quoted above, while enacting the rules laid down in the Indian Trusts Act, particularly, Ss. 88 and 90 of the Trusts Act. In the instant case, the facts that the parties deliberately, chose to fix the term of the partnership as conterminous with the term of the lease and licence ending with the year 1942; that they did not, in express terms, or by necessary implication, make any provision for extending the period of the partnership or for obtaining renewal of the lease and the necessary licence; that there was no averment or proof of any clandestine acts on the part of the contesting defendants in the matter of obtaining the renewal of the lease that the plaintiffs themselves made attempts though unsuccessful, to get themselves included in the category of grantees at the time of the renewal of the lease; that the special nature of the business required personal efficiency and good conduct on the part of the actual managing agents; that no funds of the expiring partnership or any goodwill of the partnership was utilized for obtaining the fresh lease; that the fresh lease and licence were granted to the contesting defendants in consideration of their personal qualities of good management and good conduct; that the parties were not on the best of terms during the last few years of the partnership, and finally, that the lease and the permanent licence were actually granted after the partnership stood automatically dissolved at the end of 1942, are all facts and circumstances which point to only one conclusion, namely, that the renewal of the lease was not intended to be for the benefit of all the quondam partners. Those facts and circumstances amply rebut any presumption of fact that the lease should enure to the benefit of all the parties. | 1 | 6,907 | 1,674 | ### 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:
occupying a fiduciary position, apart from the fact that they were partners. 15. As already indicated, the partnership stood automatically terminated at the end of the year 1942. The actual grant of the lease in question was made in April 1943, and the permanent licence to manufacture and sell salt, was granted only in 1945. Hence, strictly speaking, when the suit was instituted in January, 1943, legally, there was no lease in existence, nor could the business of manufacture and sale of salt be effectively carried on until the grant of the permanent licence. The plaintiffs could have a cause of action in respect of the renewed lease if their substantive case of continuing partnership had been established. But that case having failed, it is little difficult to appreciate how they could claim any interest in the renewed lease as an asset of the partnership business. The fiduciary character as between the partners had ceased on the termination of the original lease and of the partnership business. On such a termination, there was no interest of the partners, which the contesting defendants were bound to protect. For the same reasons, the defendants character as partners had ceased, and they could not, therefore, be said to have availed themselves of their character as partners in obtaining the fresh lease. For all these reasons, it must be held that the plaintiffs have failed to bring the case strictly within the terms of S. 88 of the Indian Trusts Act. A passing reference was made by the learned counsel for the respondents to the terms of S. 90 of the Trusts Act.But it will be noticed that whereas S. 88, quoted above, makes a specific reference to partners and agents, etc., S. 90, in terms, applies to a tenant for life, a co-owner, a mortgagee, or any other qualified owner of any property. Section 90, therefore, in terms, could not apply to the case.Even if it did, it does not carry the case any further in favour of the plaintiff- respondents. 16. It was further argued on behalf of the respondents that even though the provisions of the Trusts Act, did not, in terms, apply to the case, the general principles of law as applied in the English courts, support the plaintiffs case. In this connection, reliance was placed upon the cases of Featherstonhaugh v. Fenwick, (1810) 34 ER 115; Clegg v. Fishwick, (1849) 41 ER 1278; Clements v. Hall. (1858) 44 ER 954; Clegg v. Edmondson, (1857) 44 ER 593; In re Biss; Biss v. Hiss, (1903) 2 Ch 40; Griffith v. Owen, 1907-1 Ch 195. The law in England has been summarized in Halsburys Laws of England, 2nd Ed., Vol. 24 (Lord Hailshams Edition) in Art. 863 at p. 450, as follows:"The renewal of a lease of the partnership property by one or more of the partners without the privity of the others enures for the benefit of all. The rule is the same when the intention to renew is communicated to the others if the latter are prompt to assert their rights; and it is immaterial whether the term of the partnership is definite or indefinite, or whether the lessors would have refused to renew to the partners who are not privy to the renewal. The representatives of a deceased partner may have a right to share in the profits derived from a renewal of the lease by the surviving partner." Most of the cases relied upon on behalf of the respondents, form the basis of the statement of the law in England, quoted above. 17.On a close examination of the English precedents aforesaid, it will be found that there is no absolute rule of law or equity that a renewal of a lease by one partner, must necessarily enure for the benefit of all the partners.There is a presumption of fact, as distinguished from a presumption of law, that there is an equity in favour of the renewal of the lease enuring for the benefit of all the partners.But such a presumption being one of fact, is rebuttable, and must, therefore, depend upon the facts and circumstances of each case. The Indian Legislature has substantially adopted the English law quoted above, while enacting the rules laid down in the Indian Trusts Act, particularly, Ss. 88 and 90 of the Trusts Act. In the instant case, the facts that the parties deliberately, chose to fix the term of the partnership as conterminous with the term of the lease and licence ending with the year 1942; that they did not, in express terms, or by necessary implication, make any provision for extending the period of the partnership or for obtaining renewal of the lease and the necessary licence; that there was no averment or proof of any clandestine acts on the part of the contesting defendants in the matter of obtaining the renewal of the lease that the plaintiffs themselves made attempts though unsuccessful, to get themselves included in the category of grantees at the time of the renewal of the lease; that the special nature of the business required personal efficiency and good conduct on the part of the actual managing agents; that no funds of the expiring partnership or any goodwill of the partnership was utilized for obtaining the fresh lease; that the fresh lease and licence were granted to the contesting defendants in consideration of their personal qualities of good management and good conduct; that the parties were not on the best of terms during the last few years of the partnership, and finally, that the lease and the permanent licence were actually granted after the partnership stood automatically dissolved at the end of 1942, are all facts and circumstances which point to only one conclusion, namely, that the renewal of the lease was not intended to be for the benefit of all the quondam partners. Those facts and circumstances amply rebut any presumption of fact that the lease should enure to the benefit of all the parties.
### Response:
1
### Explanation:
render the contesting defendants occupying a fiduciary position, apart from the fact that they were partners15. As already indicated, the partnership stood automatically terminated at the end of the year 1942. The actual grant of the lease in question was made in April 1943, and the permanent licence to manufacture and sell salt, was granted only in 1945. Hence, strictly speaking, when the suit was instituted in January, 1943, legally, there was no lease in existence, nor could the business of manufacture and sale of salt be effectively carried on until the grant of the permanent licence. The plaintiffs could have a cause of action in respect of the renewed lease if their substantive case of continuing partnership had been established. But that case having failed, it is little difficult to appreciate how they could claim any interest in the renewed lease as an asset of the partnership business. The fiduciary character as between the partners had ceased on the termination of the original lease and of the partnership business. On such a termination, there was no interest of the partners, which the contesting defendants were bound to protect. For the same reasons, the defendants character as partners had ceased, and they could not, therefore, be said to have availed themselves of their character as partners in obtaining the fresh lease. For all these reasons, it must be held that the plaintiffs have failed to bring the case strictly within the terms of S. 88 of the Indian Trusts Act. A passing reference was made by the learned counsel for the respondents to the terms of S. 90 of the Trusts Act.But it will be noticed that whereas S. 88, quoted above, makes a specific reference to partners and agents, etc., S. 90, in terms, applies to a tenant for life, a co-owner, a mortgagee, or any other qualified owner of any property. Section 90, therefore, in terms, could not apply to the case.Even if it did, it does not carry the case any further in favour of the plaintiff- respondents16. It was further argued on behalf of the respondents that even though the provisions of the Trusts Act, did not, in terms, apply to the case, the general principles of law as applied in the English courts, support the plaintiffs case. In this connection, reliance was placed upon the cases of Featherstonhaugh v. Fenwick, (1810) 34 ER 115; Clegg v. Fishwick, (1849) 41 ER 1278; Clements v. Hall. (1858) 44 ER 954; Clegg v. Edmondson, (1857) 44 ER 593; In re Biss; Biss v. Hiss, (1903) 2 Ch 40; Griffith v. Owen, 1907-1 Ch 195. The law in England has been summarized in Halsburys Laws of England, 2nd Ed., Vol. 24 (Lord Hailshams Edition) in Art. 863 at p. 450, as follows:"The renewal of a lease of the partnership property by one or more of the partners without the privity of the others enures for the benefit of all. The rule is the same when the intention to renew is communicated to the others if the latter are prompt to assert their rights; and it is immaterial whether the term of the partnership is definite or indefinite, or whether the lessors would have refused to renew to the partners who are not privy to the renewal. The representatives of a deceased partner may have a right to share in the profits derived from a renewal of the lease by the surviving partner."Most of the cases relied upon on behalf of the respondents, form the basis of the statement of the law in England, quoted above17.On a close examination of the English precedents aforesaid, it will be found that there is no absolute rule of law or equity that a renewal of a lease by one partner, must necessarily enure for the benefit of all the partners.There is a presumption of fact, as distinguished from a presumption of law, that there is an equity in favour of the renewal of the lease enuring for the benefit of all the partners.But such a presumption being one of fact, is rebuttable, and must, therefore, depend upon the facts and circumstances of each case. The Indian Legislature has substantially adopted the English law quoted above, while enacting the rules laid down in the Indian Trusts Act, particularly, Ss. 88 and 90 of the Trusts Act. In the instant case, the facts that the parties deliberately, chose to fix the term of the partnership as conterminous with the term of the lease and licence ending with the year 1942; that they did not, in express terms, or by necessary implication, make any provision for extending the period of the partnership or for obtaining renewal of the lease and the necessary licence; that there was no averment or proof of any clandestine acts on the part of the contesting defendants in the matter of obtaining the renewal of the lease that the plaintiffs themselves made attempts though unsuccessful, to get themselves included in the category of grantees at the time of the renewal of the lease; that the special nature of the business required personal efficiency and good conduct on the part of the actual managing agents; that no funds of the expiring partnership or any goodwill of the partnership was utilized for obtaining the fresh lease; that the fresh lease and licence were granted to the contesting defendants in consideration of their personal qualities of good management and good conduct; that the parties were not on the best of terms during the last few years of the partnership, and finally, that the lease and the permanent licence were actually granted after the partnership stood automatically dissolved at the end of 1942, are all facts and circumstances which point to only one conclusion, namely, that the renewal of the lease was not intended to be for the benefit of all the quondam partners. Those facts and circumstances amply rebut any presumption of fact that the lease should enure to the benefit of all the parties.
|
The Commissioner Of Income-Tax, Madras Vs. M. V. Murugappan & Ors | Rs. 98,093 as tax, leaving a balance of Rs. 81,611 which formed part of the amount distributed. The Income-tax Officer brought the value of the shares received by the shareholders to tax, on the footing that it represented accumulated profits In appeal the Appellate Assistant Commissioner held that under the law as it then stood, the amount of Rs. 81,611 was not accumulated profits and when distributed, it was capital in the hands of the shareholders. This order was confirmed by the Tribunal. The High Court agreed with the view of the Tribunal that under the definition of the expression dividend in Section 2 (6A) (c) in force in the year of assessment 1955-56, distribution of the current profits in the year in which the company was ordered to be wound up was not dividend and was on that account not liable to be taxed as dividend. 3. Under the Indian Companies Act, 1913, no dividend could be paid otherwise than out of profits of the year or undistributed profits of the previous years. A company as a going concern may distribute by way of dividend to the shareholders profits of the year or accumulated profits of the previous years. But a share in the assets of the company distributed in the course of winding up is of the nature of capital and not of dividend, and it cannot be apportioned into capital and accumulated profits. 4. In Birch v. Cropper, (1889) 14 AC 525, Lord Macnaughten observed : I think it rather leads to confusion to speak of the assets which are the subject of this application as surplus assets as if they were an accretion or addition to the capital of the company capable of being distinguished from it and open to different considerations. They are part and parcel of the property of the company-part and parcel of the joint stock or common fund-which at the date of the winding up represented the capital of the company. This view was affirmed in a later judgment in Commissioner of Inland Revenue v. George Burrell, 1924-2 KB 52, where Pollock, M.R., observed : ......it is a misapprehension, after the liquidator has assumed his duties to continue the distinction between surplus profits and capital. This decision was recently affirmed by the House of Lords in Staffordshire Coal and Iron Co. Ltd. v. Brogan (Inspector of Taxes), 1964-54 ITR 555. The House of Lords held that there was no ground for making an exception to the general rule that the surplus assets of a company, after providing for all liabilities, were divisible among its members as capital. Accordingly, the receipt by a constituent company of its appropriate proportions of the distributed surplus was a receipt of a capital nature. Lord Evershed observed at p. 565 : It cannot now be in doubt that surplus assets in the hands of the liquidator of a limited liability company- whether limited by share capital or by guarantee - are in his hands capital. Such a conclusion was laid down by the Court of Appeal in 1924-2 KB 52 (see especially per Atkin L. J.), and it has never since been questioned. 5. The Indian Income-tax Act, 1922, when originally enacted, contained no definition of dividend : the expression dividend had, therefore, the same meaning as it had in the Indian Companies Act, 1913, and the amount distributed among the shareholders by the liquidator out of the assets of the company after meeting the liabilities was regarded as a capital receipt in the hands of the share-holders. In 1939 the Indian Legislature incorporated by Section 2 of the Indian Income-tax (Amendment) Act 7 of 1939 an inclusive definition of the expression dividend. Clause (c) of that definition read : ......any distribution made to the shareholders of a company out of accumulated profits of the company on the liquidation of the company : Provided that only the accumulated profits so distributed which arose during the six previous years of the company preceding the date of liquidation shall be so included : But the profits of the year in the course of which the company was ordered to be wound up not being accumulated profits were not part of the dividend : Appavu Chettiar v. Commr. of Income-tax, Madras, 1956-29 ITR 768 = (AIR 1956 Mad 474 ); Girdhardas and Co. Ltd. v. Commr. of Income-tax, Ahmedabad, 1957-31 ITR 82 = (AIR 1957 Bom 4 ); and also the observations of this Court in First Income-tax Officer, Salem v. Short Brothers (P.) Ltd., 1966-60 ITR 83 at pp. 88 and 89 = (AIR 1967 SC 81 at pp. 84 and 85). 6. Clause (c) of Section 2 (6A) was amended by the Finance Act of 1955 and the proviso to cl. (c) was deleted. They only effect of deleting the proviso was to remove the limitation providing that distribution of profits of the six previous years preceding the date of liquidation only was dividend. 7. By the Finance Act of 1956, cl. (c) was replaced by the following clause :- Any distribution made to the shareholders of a company on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation, whether capitalised or not; This amendment came into operation as from April 1, 1956. 8. We are in this case concerned with the distribution of Rs. 100 by allotment of a share in the Carborundum Universal Ltd. made on March 10, 1955. The question whether the distribution was dividend had to be determined in the light of the Income-tax Act as amended by the Finance Act of 1955.The amount of Rs. 81,611 distributed by the liquidator on March 10, 1955, represented the current profits and not profits earned before January 1, 1954.The amount distributed as dividend out of the current profits could not, in the state of the law in force in the year of assessment 1955-56, be deemed dividend in the hands of the shareholders. | 0[ds]8. We are in this case concerned with the distribution of Rs. 100 by allotment of a share in the Carborundum Universal Ltd. made on March 10, 1955. The question whether the distribution was dividend had to be determined in the light of the Income-tax Act as amended by the Finance Act of 1955.The amount of Rs. 81,611 distributed by the liquidator on March 10, 1955, represented the current profits and not profits earned before January 1, 1954.The amount distributed as dividend out of the current profits could not, in the state of the law in force in the year of assessment 1955-56, be deemed dividend in the hands of the shareholders. | 0 | 1,427 | 127 | ### 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:
Rs. 98,093 as tax, leaving a balance of Rs. 81,611 which formed part of the amount distributed. The Income-tax Officer brought the value of the shares received by the shareholders to tax, on the footing that it represented accumulated profits In appeal the Appellate Assistant Commissioner held that under the law as it then stood, the amount of Rs. 81,611 was not accumulated profits and when distributed, it was capital in the hands of the shareholders. This order was confirmed by the Tribunal. The High Court agreed with the view of the Tribunal that under the definition of the expression dividend in Section 2 (6A) (c) in force in the year of assessment 1955-56, distribution of the current profits in the year in which the company was ordered to be wound up was not dividend and was on that account not liable to be taxed as dividend. 3. Under the Indian Companies Act, 1913, no dividend could be paid otherwise than out of profits of the year or undistributed profits of the previous years. A company as a going concern may distribute by way of dividend to the shareholders profits of the year or accumulated profits of the previous years. But a share in the assets of the company distributed in the course of winding up is of the nature of capital and not of dividend, and it cannot be apportioned into capital and accumulated profits. 4. In Birch v. Cropper, (1889) 14 AC 525, Lord Macnaughten observed : I think it rather leads to confusion to speak of the assets which are the subject of this application as surplus assets as if they were an accretion or addition to the capital of the company capable of being distinguished from it and open to different considerations. They are part and parcel of the property of the company-part and parcel of the joint stock or common fund-which at the date of the winding up represented the capital of the company. This view was affirmed in a later judgment in Commissioner of Inland Revenue v. George Burrell, 1924-2 KB 52, where Pollock, M.R., observed : ......it is a misapprehension, after the liquidator has assumed his duties to continue the distinction between surplus profits and capital. This decision was recently affirmed by the House of Lords in Staffordshire Coal and Iron Co. Ltd. v. Brogan (Inspector of Taxes), 1964-54 ITR 555. The House of Lords held that there was no ground for making an exception to the general rule that the surplus assets of a company, after providing for all liabilities, were divisible among its members as capital. Accordingly, the receipt by a constituent company of its appropriate proportions of the distributed surplus was a receipt of a capital nature. Lord Evershed observed at p. 565 : It cannot now be in doubt that surplus assets in the hands of the liquidator of a limited liability company- whether limited by share capital or by guarantee - are in his hands capital. Such a conclusion was laid down by the Court of Appeal in 1924-2 KB 52 (see especially per Atkin L. J.), and it has never since been questioned. 5. The Indian Income-tax Act, 1922, when originally enacted, contained no definition of dividend : the expression dividend had, therefore, the same meaning as it had in the Indian Companies Act, 1913, and the amount distributed among the shareholders by the liquidator out of the assets of the company after meeting the liabilities was regarded as a capital receipt in the hands of the share-holders. In 1939 the Indian Legislature incorporated by Section 2 of the Indian Income-tax (Amendment) Act 7 of 1939 an inclusive definition of the expression dividend. Clause (c) of that definition read : ......any distribution made to the shareholders of a company out of accumulated profits of the company on the liquidation of the company : Provided that only the accumulated profits so distributed which arose during the six previous years of the company preceding the date of liquidation shall be so included : But the profits of the year in the course of which the company was ordered to be wound up not being accumulated profits were not part of the dividend : Appavu Chettiar v. Commr. of Income-tax, Madras, 1956-29 ITR 768 = (AIR 1956 Mad 474 ); Girdhardas and Co. Ltd. v. Commr. of Income-tax, Ahmedabad, 1957-31 ITR 82 = (AIR 1957 Bom 4 ); and also the observations of this Court in First Income-tax Officer, Salem v. Short Brothers (P.) Ltd., 1966-60 ITR 83 at pp. 88 and 89 = (AIR 1967 SC 81 at pp. 84 and 85). 6. Clause (c) of Section 2 (6A) was amended by the Finance Act of 1955 and the proviso to cl. (c) was deleted. They only effect of deleting the proviso was to remove the limitation providing that distribution of profits of the six previous years preceding the date of liquidation only was dividend. 7. By the Finance Act of 1956, cl. (c) was replaced by the following clause :- Any distribution made to the shareholders of a company on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation, whether capitalised or not; This amendment came into operation as from April 1, 1956. 8. We are in this case concerned with the distribution of Rs. 100 by allotment of a share in the Carborundum Universal Ltd. made on March 10, 1955. The question whether the distribution was dividend had to be determined in the light of the Income-tax Act as amended by the Finance Act of 1955.The amount of Rs. 81,611 distributed by the liquidator on March 10, 1955, represented the current profits and not profits earned before January 1, 1954.The amount distributed as dividend out of the current profits could not, in the state of the law in force in the year of assessment 1955-56, be deemed dividend in the hands of the shareholders.
### Response:
0
### Explanation:
8. We are in this case concerned with the distribution of Rs. 100 by allotment of a share in the Carborundum Universal Ltd. made on March 10, 1955. The question whether the distribution was dividend had to be determined in the light of the Income-tax Act as amended by the Finance Act of 1955.The amount of Rs. 81,611 distributed by the liquidator on March 10, 1955, represented the current profits and not profits earned before January 1, 1954.The amount distributed as dividend out of the current profits could not, in the state of the law in force in the year of assessment 1955-56, be deemed dividend in the hands of the shareholders.
|
The State Of Tamil Nadu Rep. By Sec.&Ors Vs. K. Balu | service lane alongside. 1 April 2017 is fixed as the date for phasing out existing licences. The directions are set out below:"(i) All states and union territories shall forthwith cease and desist from granting licences for the sale of liquor along national and state highways; (ii) The prohibition contained in (i) above shall extend to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority; (iii) The existing licences which have already been renewed prior to the date of this order shall continue until the term of the licence expires but no later than 1 April 2017; (iv) All signages and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both on national and state highways; (v) No shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway. (vi) All States and Union territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken. (vii) These directions issue under Article 142 of the Constitution. ?2. This clutch of applications, nearly 68 of them, have been filed basically for (i) extension of time for compliance, in certain cases; or (ii) modification or, as the case may be, recalling the judgment delivered by this Court. 3. We may at the outset indicate that having regard to the nature and importance of the issue which finds reflection in the judgment delivered by this Court and the significant element of public interest that is involved in dealing with road accidents caused due to drunken driving on the highways of the nation, we have heard arguments extensively on 29 and 30 March, 2017 so that the matter can be addressed before the deadline of 1 April 2017. Some States and private parties who were not before the Court in the course of the original proceedings urged that their submissions in regard to the directions issued by this Court should be taken into account. Hence, we were of the view that in the interest of fairness it would be appropriate to enable a dispassionate consideration of their perspectives in order to determine whether any modification is required and if so, the nature of the modification that may be warranted in the final judgment of this Court. We have, therefore, not been trammelled by the technicality of whether these ‘Interlocutory Applications? would be maintainable in a proceeding which has been disposed of. Having regard to the importance of the issues which have been addressed in the judgment and order, we were of the considered view that this Court should have the benefit of the assistance rendered by States who have moved this Court and of parties with diverse perspectives so as to facilitate an outcome which is both just and is arrived at after a fair hearing. We have accordingly proceeded to follow that line of action and have been assisted over the previous two dates of hearing by learned counsel who have brought to bear on their task a considerable degree of industry on the subject. 4. For convenience of reference, we may indicate that eight States (besides the Union Territory of Pondicherry) have moved this Court in the present proceedings. The States which are before the Court are :1. Andhra Pradesh 2. Himachal Pradesh 3. Karnataka 4. Kerala 5. Sikkim 6. Telangana 7. Meghalaya 8. Tamil Nadu5. We may indicate that the following States have not filed any applications :1. Arunachal Pradesh 2. Assam 3. Bihar 4. Chhattisgarh 5. Goa 6. Gujarat 7. Haryana 8. Madhya Pradesh 9. Maharashtra 10. Manipur 11. Mizoram 12. Nagaland 13. Odisha 14. Punjab 15. Rajasthan 16. Tripura 17. Uttar Pradesh 18. West Bengal6. During the course of the proceedings, an affidavit has been filed by the Chief Secretary of the Government of Madhya Pradesh stating that the judgment rendered by this Court has been accepted by the State Government, following a resolution by the Council of Ministers on 16 January 2017. The Chief Secretary informs the Court that :?In compliance of the order of 15 December, 2016 passed by the Hon?ble Supreme Court of India, New Delhi, in Civil Appeal No.12164-12166/2016, the Council of Ministers of Madhya Pradesh, in its meeting at 16th January has ensured to comply in the Excise Policy Year 2017-18 that there shall be no Liquor Shop situated within a distance of 500 Metre from the service lane of the National/State Highways. No Liquor Shop shall be visible or accessible directly from the National/State Highways. Any signage or Board or advertisement depicting the availability of the liquor in any form shall be prohibited. The Government of Madhya Pradesh, Commercial Tax Department, has issued order of aforesaid intent regarding to the location of Liquor Shops at National/State Highways in point No.4 of its order No.F.B.-01-01/2017/2/Five, dated 17th January 2017. (Copy of the order is attached) For general information of the said provisions to the Public instructions of aforesaid intent have been issued in respect to disposal of retail sale shops of country/foreign liquor, Arrangements year 2017-18, which have been published in Madhya Pradesh Gazette (Extra Ordinary) No.27 dated 18 January 2017?.7. On behalf of the Delhi Tourism Development Corporation it has been stated that out of the 547 vends for liquor, 14 are in breach of the 500 metre norm. A Committee was constituted for the shifting of these liquor vends, and the process has begun. An extension of six months has been sought. | 1[ds]14. In dealing with these submissions, we must at the outset notice that this Court while exercising its jurisdiction has neither formulated policy nor (as we shall indicate) has it assumed a legislative function. The basis and foundation of the judgment delivered on 15 December 2016 is (i) the policy of the Union Government, formulated by the Union Ministry of Road Transport and Highways (MoRTH); (ii) the decision of the National Road Safety Council (NRSC), which is an apex body for road safety established under Section 215 of the Motor Vehicles Act, 1988; (iii) advisories issued by the Union Government to the states over a period of one decade; and (iv) the Parliamentary mandate of zero tolerance for driving under the influence of alcohol, evident in Section 185 of the Motor Vehicles Act, 1988. The judgment of this Court extensively reproduced the statistics on road accidents from official data released by MoRTH in its Transport Research Wing, the decisions of NRSC and the advisories issued over the previous decade by the Union Government. The judgment of this Court has inter alia adverted to the decision taken in a meeting held thirteen years ago by NRSC to the effect that licences for liquor shops should not be given along the national highways. Besides this, the Court has also relied upon advisories issued by MoRTH to the States and Union Territories on 26 October 2007, 1 December 2011, 18 March 2013 and 21 May 2014. Section 185 of the Motor Vehicles Act is indicative of a Parliamentary intent to penalise driving under the influence ofsaid this the Court observed that there is no logical basis to distinguish between national and state highways. The menace of drunken driving and the resultant fatalities or injuries are not confined only to national highways. Hence, the judgment of this Court is neither an exercise of the court having formulated a policy or of having embarked upon a legislative exercise.The submission of the Attorney General (representing the State of Tamil Nadu) and of other learned senior counsel who adopted the same line of argument, which is based on the state excise rules is lacking in substance. The state excise rules contain enabling provisions. They provide for a discretion for the grant of liquor licences. No individual has a vested right to obtain a licence. There is no fundamental right to carry on business in liquor since as a matter of constitutional doctrine, Article 19(1)(g) does not extend to trade in liquor which is consistently regarded as res extra commercium. Where an excise rule which has been formulated by a state government provides for the maintenance of a specified distance from an institution or amenity, what this postulates is that no licence can be granted at all by the State Government within that distance. The state has a discretion on whether a licence should be granted under its enabling powers. No individual can assert a right to the grant of a licence : trading in liquor is a privilege conferred by the state. The directions which have been issued by this Court do not breach any norm in the nature of a prohibition nor do they operate to lift a prohibition imposed by law. The effect and purport of the directions is that in the interest of public safety and public health, the distance from the outer edge of national or state highways or a service lane along the highway is to be maintained of 500 metres. This does not amount to the assumption of a legislative function by the Court. In fact the requirement of maintaining a distance from the highway (which even according to the submission of counsel is adopted in a large number of states) ensures that the prohibition on the grant of licences along the highway is not defeated by the presence of outlets in close proximity to the highway. The maintenance of an adequate buffer is a necessary incident of the principle, which is to prevent ready availability of liquor to users of a highway. In any event, no private individual can be heard to make a grievance of the prescription of 500 metres which is manifestly in public interest.In the teeth of the statistics on road accidents which are made available to the court by MoRTH, we are not inclined to accept the submission of Shri K.K.Venugopal, learned senior counsel, that drunken driving is not the most important cause of road accidentsaccording to learned counsel being the main cause).can also occur due to the driver being under influence offrom the questionable authenticity of a privateon the internet, we have considered it more appropriate to place reliance on official data of MoRTH. It is also necessary to emphasise that there is a tendency todrunken driving as a cause of accidents with a view not to prejudice the claims of victims or their heirs to compensation. In fact even the data relied upon by Shri Venugopal states that in 2011, the highest prevalence of accidents due to drunken driving was in Uttar Pradesh, Madhya Pradesh, Maharashtra, Andhra Pradesh and Tamil Nadu. We therefore do not find any substance in thefind no merit in the submission. The recommendation of the Committee cannot be placed on a higher footing than what it purports to be namely, a recommendation. The opinion of the Expert Committee was duly cited before this Court during the course of the proceedings leading upto the judgment dated 15 December 2016. We are of the view that a distance of 100 metres with reference to the highway is not adequate to ensure that users of the highway do not seek access to the sale of liquor in close proximity to the highway. A distance of merely 100 metres will not serve the purpose which is sought to be achieved. Hence, we have not accepted that part of the recommendation of the Committee but have considered it appropriate to enhance the minimum distance.After considering the submissions which have been urged before this Court, we are of the view that there are three areas where the rigors of the directions which have been issued by this Court may require to be suitably modulated without affecting the basic principle underlying the judgment. . The first is in relation to limits of local bodies with a population of less than 20,000find some substance in the submission. We must emphatically clarify that even in such areas falling under local bodies with a population of less than 20,000, no licence for the sale of liquor should be issued along either a national or state highway or a service lane along the highway. Similarly, the sale of liquor should be from a point which is neither visible from a national or state highway or which is directly accessible from a national or state highway. However, in such a situation, the prohibited distance should in our view be restricted to 220 metres from the outer edge of the national or state highway or of a service lane along the highway.In the State of Tamil Nadu, liquor vends are operated by TASMAC which is a state owned entity. In the judgment of this Court, time until 1 April, 2017 was granted on the request of the State. | 1 | 1,375 | 1,309 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
service lane alongside. 1 April 2017 is fixed as the date for phasing out existing licences. The directions are set out below:"(i) All states and union territories shall forthwith cease and desist from granting licences for the sale of liquor along national and state highways; (ii) The prohibition contained in (i) above shall extend to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority; (iii) The existing licences which have already been renewed prior to the date of this order shall continue until the term of the licence expires but no later than 1 April 2017; (iv) All signages and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both on national and state highways; (v) No shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway. (vi) All States and Union territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken. (vii) These directions issue under Article 142 of the Constitution. ?2. This clutch of applications, nearly 68 of them, have been filed basically for (i) extension of time for compliance, in certain cases; or (ii) modification or, as the case may be, recalling the judgment delivered by this Court. 3. We may at the outset indicate that having regard to the nature and importance of the issue which finds reflection in the judgment delivered by this Court and the significant element of public interest that is involved in dealing with road accidents caused due to drunken driving on the highways of the nation, we have heard arguments extensively on 29 and 30 March, 2017 so that the matter can be addressed before the deadline of 1 April 2017. Some States and private parties who were not before the Court in the course of the original proceedings urged that their submissions in regard to the directions issued by this Court should be taken into account. Hence, we were of the view that in the interest of fairness it would be appropriate to enable a dispassionate consideration of their perspectives in order to determine whether any modification is required and if so, the nature of the modification that may be warranted in the final judgment of this Court. We have, therefore, not been trammelled by the technicality of whether these ‘Interlocutory Applications? would be maintainable in a proceeding which has been disposed of. Having regard to the importance of the issues which have been addressed in the judgment and order, we were of the considered view that this Court should have the benefit of the assistance rendered by States who have moved this Court and of parties with diverse perspectives so as to facilitate an outcome which is both just and is arrived at after a fair hearing. We have accordingly proceeded to follow that line of action and have been assisted over the previous two dates of hearing by learned counsel who have brought to bear on their task a considerable degree of industry on the subject. 4. For convenience of reference, we may indicate that eight States (besides the Union Territory of Pondicherry) have moved this Court in the present proceedings. The States which are before the Court are :1. Andhra Pradesh 2. Himachal Pradesh 3. Karnataka 4. Kerala 5. Sikkim 6. Telangana 7. Meghalaya 8. Tamil Nadu5. We may indicate that the following States have not filed any applications :1. Arunachal Pradesh 2. Assam 3. Bihar 4. Chhattisgarh 5. Goa 6. Gujarat 7. Haryana 8. Madhya Pradesh 9. Maharashtra 10. Manipur 11. Mizoram 12. Nagaland 13. Odisha 14. Punjab 15. Rajasthan 16. Tripura 17. Uttar Pradesh 18. West Bengal6. During the course of the proceedings, an affidavit has been filed by the Chief Secretary of the Government of Madhya Pradesh stating that the judgment rendered by this Court has been accepted by the State Government, following a resolution by the Council of Ministers on 16 January 2017. The Chief Secretary informs the Court that :?In compliance of the order of 15 December, 2016 passed by the Hon?ble Supreme Court of India, New Delhi, in Civil Appeal No.12164-12166/2016, the Council of Ministers of Madhya Pradesh, in its meeting at 16th January has ensured to comply in the Excise Policy Year 2017-18 that there shall be no Liquor Shop situated within a distance of 500 Metre from the service lane of the National/State Highways. No Liquor Shop shall be visible or accessible directly from the National/State Highways. Any signage or Board or advertisement depicting the availability of the liquor in any form shall be prohibited. The Government of Madhya Pradesh, Commercial Tax Department, has issued order of aforesaid intent regarding to the location of Liquor Shops at National/State Highways in point No.4 of its order No.F.B.-01-01/2017/2/Five, dated 17th January 2017. (Copy of the order is attached) For general information of the said provisions to the Public instructions of aforesaid intent have been issued in respect to disposal of retail sale shops of country/foreign liquor, Arrangements year 2017-18, which have been published in Madhya Pradesh Gazette (Extra Ordinary) No.27 dated 18 January 2017?.7. On behalf of the Delhi Tourism Development Corporation it has been stated that out of the 547 vends for liquor, 14 are in breach of the 500 metre norm. A Committee was constituted for the shifting of these liquor vends, and the process has begun. An extension of six months has been sought.
### Response:
1
### Explanation:
be given along the national highways. Besides this, the Court has also relied upon advisories issued by MoRTH to the States and Union Territories on 26 October 2007, 1 December 2011, 18 March 2013 and 21 May 2014. Section 185 of the Motor Vehicles Act is indicative of a Parliamentary intent to penalise driving under the influence ofsaid this the Court observed that there is no logical basis to distinguish between national and state highways. The menace of drunken driving and the resultant fatalities or injuries are not confined only to national highways. Hence, the judgment of this Court is neither an exercise of the court having formulated a policy or of having embarked upon a legislative exercise.The submission of the Attorney General (representing the State of Tamil Nadu) and of other learned senior counsel who adopted the same line of argument, which is based on the state excise rules is lacking in substance. The state excise rules contain enabling provisions. They provide for a discretion for the grant of liquor licences. No individual has a vested right to obtain a licence. There is no fundamental right to carry on business in liquor since as a matter of constitutional doctrine, Article 19(1)(g) does not extend to trade in liquor which is consistently regarded as res extra commercium. Where an excise rule which has been formulated by a state government provides for the maintenance of a specified distance from an institution or amenity, what this postulates is that no licence can be granted at all by the State Government within that distance. The state has a discretion on whether a licence should be granted under its enabling powers. No individual can assert a right to the grant of a licence : trading in liquor is a privilege conferred by the state. The directions which have been issued by this Court do not breach any norm in the nature of a prohibition nor do they operate to lift a prohibition imposed by law. The effect and purport of the directions is that in the interest of public safety and public health, the distance from the outer edge of national or state highways or a service lane along the highway is to be maintained of 500 metres. This does not amount to the assumption of a legislative function by the Court. In fact the requirement of maintaining a distance from the highway (which even according to the submission of counsel is adopted in a large number of states) ensures that the prohibition on the grant of licences along the highway is not defeated by the presence of outlets in close proximity to the highway. The maintenance of an adequate buffer is a necessary incident of the principle, which is to prevent ready availability of liquor to users of a highway. In any event, no private individual can be heard to make a grievance of the prescription of 500 metres which is manifestly in public interest.In the teeth of the statistics on road accidents which are made available to the court by MoRTH, we are not inclined to accept the submission of Shri K.K.Venugopal, learned senior counsel, that drunken driving is not the most important cause of road accidentsaccording to learned counsel being the main cause).can also occur due to the driver being under influence offrom the questionable authenticity of a privateon the internet, we have considered it more appropriate to place reliance on official data of MoRTH. It is also necessary to emphasise that there is a tendency todrunken driving as a cause of accidents with a view not to prejudice the claims of victims or their heirs to compensation. In fact even the data relied upon by Shri Venugopal states that in 2011, the highest prevalence of accidents due to drunken driving was in Uttar Pradesh, Madhya Pradesh, Maharashtra, Andhra Pradesh and Tamil Nadu. We therefore do not find any substance in thefind no merit in the submission. The recommendation of the Committee cannot be placed on a higher footing than what it purports to be namely, a recommendation. The opinion of the Expert Committee was duly cited before this Court during the course of the proceedings leading upto the judgment dated 15 December 2016. We are of the view that a distance of 100 metres with reference to the highway is not adequate to ensure that users of the highway do not seek access to the sale of liquor in close proximity to the highway. A distance of merely 100 metres will not serve the purpose which is sought to be achieved. Hence, we have not accepted that part of the recommendation of the Committee but have considered it appropriate to enhance the minimum distance.After considering the submissions which have been urged before this Court, we are of the view that there are three areas where the rigors of the directions which have been issued by this Court may require to be suitably modulated without affecting the basic principle underlying the judgment. . The first is in relation to limits of local bodies with a population of less than 20,000find some substance in the submission. We must emphatically clarify that even in such areas falling under local bodies with a population of less than 20,000, no licence for the sale of liquor should be issued along either a national or state highway or a service lane along the highway. Similarly, the sale of liquor should be from a point which is neither visible from a national or state highway or which is directly accessible from a national or state highway. However, in such a situation, the prohibited distance should in our view be restricted to 220 metres from the outer edge of the national or state highway or of a service lane along the highway.In the State of Tamil Nadu, liquor vends are operated by TASMAC which is a state owned entity. In the judgment of this Court, time until 1 April, 2017 was granted on the request of the State.
|
C. Venkata Swamy Vs. H.N. Shivanna(D) by L.R. & Others | entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation…..”(Emphasis supplied)14. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal.15. We consider it apposite to refer to some of the decisions.16. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179 , this Court held (at pages 188-189) as under:“.……..the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court……while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it…………”17. The above view was followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756 , wherein it was reiterated that sitting as a Court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.18. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at p. 244) stated as under: (SCC para 3)“3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.”19. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303 , while considering the scope of Section 96 of the Code, this Court (at pp. 303-04) observed as follows:“2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion……...”20. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words:“3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:(a) the points for determination;(b) the decision thereon;(c) the reasons for the decision; and(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.”21. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174 and Union of India vs. K.V. Lakshman & Ors. (2016) 13 SCC 124. | 1[ds]9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned judgment and remand the case to the High Court for deciding both the first appeals afresh on merits in accordance with law.It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first Appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first Appellate Court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference.12. Similarly, the powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue.This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal.The above view was followed by aBench decision of this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756 , wherein it was reiterated that sitting as a Court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. | 1 | 2,039 | 304 | ### 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:
entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation…..”(Emphasis supplied)14. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal.15. We consider it apposite to refer to some of the decisions.16. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179 , this Court held (at pages 188-189) as under:“.……..the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court……while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it…………”17. The above view was followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756 , wherein it was reiterated that sitting as a Court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.18. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at p. 244) stated as under: (SCC para 3)“3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.”19. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303 , while considering the scope of Section 96 of the Code, this Court (at pp. 303-04) observed as follows:“2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion……...”20. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words:“3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:(a) the points for determination;(b) the decision thereon;(c) the reasons for the decision; and(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.”21. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174 and Union of India vs. K.V. Lakshman & Ors. (2016) 13 SCC 124.
### Response:
1
### Explanation:
9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned judgment and remand the case to the High Court for deciding both the first appeals afresh on merits in accordance with law.It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first Appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first Appellate Court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference.12. Similarly, the powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue.This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal.The above view was followed by aBench decision of this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756 , wherein it was reiterated that sitting as a Court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
|
Sudhir S.Mehta Vs. Custodian | the part of the Custodian must be accepted. It has already been shown in the earlier part of the judgment that all these contentions were only raised before the Special Court, particularly, when the objections were raised. We do find some traces of these objections in the petition, but it is obvious that these questions were never pressed into service before the Special Court, perhaps because the appellants knew the futility thereof. We, therefore, leave the matters at that, in view of the final order that we propose to pass.46. This is apart from the fact that before us also, not even a distant reference was made to these affidavits dated 1.3.2006 and 22.3.2006. A bald statement was made that there was no compliance of this Courts order in Ashwin Mehtas Case. We are certain that if these arguments had been addressed before the Special Court, the Special Court would have taken note thereof. The Special Court chose to go-by the judgment of this Court confirming the earlier judgment regarding the sale of shares passed by the Special Court [Hon. Kapadia, J. (as he then was)] and in our opinion, that was a right approach since the controversy involved, related to the sale of shares and securities. At this juncture, we cannot ignore the fact that in 2005 itself, in pursuance of the judgment dated 17.8.2000 and the confirming judgment of this Court, the majority of the shares have already been sold. It is only in respect of the Reliance Shares that the present sale was contemplated. It is really surprising that when the major shares were sold way back in 2005, the appellants did not think it proper either to challenge the same or to raise this argument of the individual liabilities viz. a viz., the group liabilities or the second argument that unless the denotification applications were decided upon, there should be no sale of shares. We have already pointed out the hollowness of the argument regarding the denotification applications, which were claimed to be pending before the Special Court, which claim is also baseless. Therefore, on both these counts, there would be no question of finding fault with the impugned order of the Special Court. 47. This takes us to another contention raised more particularly, in point number 2, 4 and 5. Apart from the fact that the contentions were never raised before the Special Court, it is pointed out that as in the earlier case of the sale of shares in 2005, the Disposal Committee which was formulated under the orders of the Special Court as also this Court, had found that it was opportune time for the sale of Reliance Shares. The Custodian argues that the instant sale of Reliance Shares was being carried out strictly in compliance with the procedure laid down by the Special Court and this Court in the earlier referred judgments. It is pointed out by the Custodian that between 12.12.2000 to 1.11.2007, 12.12 crores shares valued at Rs.1792.77 crores were sold. Out of these, the shares worth Rs.1463.96 crores belonged to the various entities of Harshad Mehta Group including the appellants. The learned counsel very surprisingly did not refer to these facts during his arguments, instead, it was suggested that there was a loss of 6500 crores of rupees because of the sale. Such figure apart from being imaginary, has no basis. We cannot ignore that the Special Court is dealing with the scam which shook the whole financial world of India. We again cannot ignore the fact that the decision to sell the shares in 2005 was taken by the Disposal Committee, which consisted of the experts of the financial world who were well-experienced in the sale of shares and securities and who had a thorough study of the share markets. No mala fides were ever alleged against the Disposal Committee. Under the circumstances, we find no reason to accept the argument that the earlier sale caused huge loss and, therefore, the shares should not be sold. In our opinion, the Special Court was right in confirming the advice and accepting the report filed before him on behalf of the Custodian justifying the sale of shares. However, all that exercise, we are afraid, would have to be repeated again, particularly, because more than six months have elapsed after that decision and the sale has yet not taken place. The Special Court has referred back the matter and has passed the directions for obtaining the legal and expert advice to deal with the taxes. We are told at the Bar that such exercise had already been completed. It would, therefore, be proper for the Disposal Committee to again decide as to whether the shares should be sold at all and when. That would depend upon the market conditions and so many other factors which are certain to be considered by the Disposal Committee. The Custodian has referred all the happenings during the pendency of this appeal and has relied on the report dated 27.11.2007. We need not go into the question, since, it would be for the Disposal Committee to decide upon the proper time and the manner in which the sale is to be executed, and it would be for the Special Court to further decide on the matter.48. In view of what we have stated above, we are convinced that the appeals have no merits. However, one thing is certain that the sale, as well as the decision to make the sale at a particular time, stand frustrated because of the lapse of time. The whole procedure for sale of shares will have to be repeated now, meaning thereby, that the Disposal Committee would have to take a fresh decision in the light of the directions given by the Special Court, which are the correct directions. That shall be done at the opportune time. If the appellants so feel, they would be at liberty to put their objections subject to what has already been said in this judgment. | 0[ds]We have extensively quoted the directions given by the learned Judge, on the basis of the four formulated objections. In order to comply with the directions given by the learned Judge, it was necessary to put the auction proceedings on hold. However, the LIC of India was not prepared to keep its offer open and, therefore, the learned Judge had relieved the LIC of India of its obligations on the basis of itsregards the opportune time, the learned Judge, however, held that the shares were being sold at the proper time. Lastly, as regards the tax liability also, the learned Judge had directed the Custodian to seek legal and professional advice, and for that purpose, practically wiped out the effect of the auction by directing the compliance of his directions. Thus, for all the practical purposes, one thing was certain that the shares were not to be sold unless all the directions were complied with. However, the appellants did not wait and rush to this Court even before the Disposal Committee had given its opinion on the various issues and even before the Custodian was able to get the legal and professional opinions regarding the tax liability.34. It is obvious that the Disposal Committee would now have to again take a decision whether at this point of time, the shares should be sold or not. The Disposal Committee consists of the experts who would know best, whether the shares should at all be sold at this point of time. However, the appellants have come before this Court insisting that the shares should not be sold at all, which stand was conspicuously absent when the matters were argued firstly before the Special Court or even before the this Court, as we do not find any trace of the said contentions in the arguments before the Special Court. The old theory of not selling the shares at all unless individual liabilities were fixed one way or the other was wreaked up in this appeal and very surprisingly, though the order of the learned Special Judge was completely confirmed by this Court which also meant that the shares were bound to be sold. Completely giving ato the judgment of this Court dated 23.8.2001, by which the judgment of the Special Court was confirmed, the appellants are now saying that the shares cannot be sold. This would be impermissibleit is that permission was given to withdraw their applications with a liberty to file fresh petitions after the criminal trials, if any, are over but no application has been filed. Thus, the main stay of the arguments on the part of the appellants is knocked out on the basis of this fact, and it is not open to the appellants to say that since there are chances of their denotification, the shares belonging to them should not beis obvious that on the day when Ashwin Mehtas Judgment was delivered, there were no applications pending consideration before the Special Court nor are any such applications pending today also. Hence, an objection to the sale, on that ground, must be rejected. This answers contention no.our opinion, there would be no necessity to consider the individual liability of any such appellant being a notified person. Unless any appellant is denotified, there would be no question of raising of these defences regarding individual liability. It is obvious, that the notification covers all the properties including the shares and securities of the notified persons and, therefore, comes into the hands of the Custodian. There would, therefore, be no question of raising the issues that the individual liability of such a notified person should be arrived at first. We say this, particularly, because the claim of the notified persons that their assets exceeds the liability, is also not correct. That is a clear cut finding given by Hon. Kapadia, J. in his judgment dated 17.8.2000, which is later on confirmed by this Court. The Custodian argues before us and not without any reasons that the tables prepared by the Custodian shows that the liability of the notified persons does exceed assets, we shall not go into that aspect at this juncture. However, the fact remains that there would be no question of any individual liability being arrived at before the shares are sold. The judgment of the learned Special Judge for selling the shares having been confirmed by this Court, whereby, the decision to sell the shares has been confirmed by the three Judge Bench of this Court concluding the issue. The same is binding. Therefore, it cannot be said at this juncture at least, that on that account, the sale of the shares should be postponed, till such time, as the question of individual liability viz. a viz. Harshad Mehta is decided upon.It was, therefore, obvious that at that juncture, when the question was as to whether the shares should be sold or not, the move was objected to by the appellants formulating themselves as Harshad Mehta Group. No such objection to form and treat the relatives as a group was raised before the Special Court in the year 2000 when the question of sale of shares fell for consideration for the first time. At any rate, unless it is shown as to what prejudice would be caused by treating them to be a group, this contention has no basis. We, therefore, do not think that the argument in this behalf has any basis.46. This is apart from the fact that before us also, not even a distant reference was made to these affidavits dated 1.3.2006 and 22.3.2006. A bald statement was made that there was no compliance of this Courts order in Ashwin Mehtas Case. We are certain that if these arguments had been addressed before the Special Court, the Special Court would have taken note thereof. The Special Court chose tothe judgment of this Court confirming the earlier judgment regarding the sale of shares passed by the Special Court [Hon. Kapadia, J. (as he then was)] and in our opinion, that was a right approach since the controversy involved, related to the sale of shares and securities. At this juncture, we cannot ignore the fact that in 2005 itself, in pursuance of the judgment dated 17.8.2000 and the confirming judgment of this Court, the majority of the shares have already been sold. It is only in respect of the Reliance Shares that the present sale was contemplated. It is really surprising that when the major shares were sold way back in 2005, the appellants did not think it proper either to challenge the same or to raise this argument of the individual liabilities viz. a viz., the group liabilities or the second argument that unless the denotification applications were decided upon, there should be no sale of shares. We have already pointed out the hollowness of the argument regarding the denotification applications, which were claimed to be pending before the Special Court, which claim is also baseless. Therefore, on both these counts, there would be no question of finding fault with the impugned order of the Specialmala fides were ever alleged against the Disposal Committee. Under the circumstances, we find no reason to accept the argument that the earlier sale caused huge loss and, therefore, the shares should not be sold. In our opinion, the Special Court was right in confirming the advice and accepting the report filed before him on behalf of the Custodian justifying the sale of shares. However, all that exercise, we are afraid, would have to be repeated again, particularly, because more than six months have elapsed after that decision and the sale has yet not taken place. The Special Court has referred back the matter and has passed the directions for obtaining the legal and expert advice to deal with the taxes. We are told at the Bar that such exercise had already been completed. It would, therefore, be proper for the Disposal Committee to again decide as to whether the shares should be sold at all and when. That would depend upon the market conditions and so many other factors which are certain to be considered by the Disposal Committee. The Custodian has referred all the happenings during the pendency of this appeal and has relied on the report dated 27.11.2007. We need not go into the question, since, it would be for the Disposal Committee to decide upon the proper time and the manner in which the sale is to be executed, and it would be for the Special Court to further decide on the matter.48. In view of what we have stated above, we are convinced that the appeals have no merits. However, one thing is certain that the sale, as well as the decision to make the sale at a particular time, stand frustrated because of the lapse of time. The whole procedure for sale of shares will have to be repeated now, meaning thereby, that the Disposal Committee would have to take a fresh decision in the light of the directions given by the Special Court, which are the correct directions. That shall be done at the opportune time. If the appellants so feel, they would be at liberty to put their objections subject to what has already been said in this judgment. | 0 | 14,031 | 1,711 | ### 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 part of the Custodian must be accepted. It has already been shown in the earlier part of the judgment that all these contentions were only raised before the Special Court, particularly, when the objections were raised. We do find some traces of these objections in the petition, but it is obvious that these questions were never pressed into service before the Special Court, perhaps because the appellants knew the futility thereof. We, therefore, leave the matters at that, in view of the final order that we propose to pass.46. This is apart from the fact that before us also, not even a distant reference was made to these affidavits dated 1.3.2006 and 22.3.2006. A bald statement was made that there was no compliance of this Courts order in Ashwin Mehtas Case. We are certain that if these arguments had been addressed before the Special Court, the Special Court would have taken note thereof. The Special Court chose to go-by the judgment of this Court confirming the earlier judgment regarding the sale of shares passed by the Special Court [Hon. Kapadia, J. (as he then was)] and in our opinion, that was a right approach since the controversy involved, related to the sale of shares and securities. At this juncture, we cannot ignore the fact that in 2005 itself, in pursuance of the judgment dated 17.8.2000 and the confirming judgment of this Court, the majority of the shares have already been sold. It is only in respect of the Reliance Shares that the present sale was contemplated. It is really surprising that when the major shares were sold way back in 2005, the appellants did not think it proper either to challenge the same or to raise this argument of the individual liabilities viz. a viz., the group liabilities or the second argument that unless the denotification applications were decided upon, there should be no sale of shares. We have already pointed out the hollowness of the argument regarding the denotification applications, which were claimed to be pending before the Special Court, which claim is also baseless. Therefore, on both these counts, there would be no question of finding fault with the impugned order of the Special Court. 47. This takes us to another contention raised more particularly, in point number 2, 4 and 5. Apart from the fact that the contentions were never raised before the Special Court, it is pointed out that as in the earlier case of the sale of shares in 2005, the Disposal Committee which was formulated under the orders of the Special Court as also this Court, had found that it was opportune time for the sale of Reliance Shares. The Custodian argues that the instant sale of Reliance Shares was being carried out strictly in compliance with the procedure laid down by the Special Court and this Court in the earlier referred judgments. It is pointed out by the Custodian that between 12.12.2000 to 1.11.2007, 12.12 crores shares valued at Rs.1792.77 crores were sold. Out of these, the shares worth Rs.1463.96 crores belonged to the various entities of Harshad Mehta Group including the appellants. The learned counsel very surprisingly did not refer to these facts during his arguments, instead, it was suggested that there was a loss of 6500 crores of rupees because of the sale. Such figure apart from being imaginary, has no basis. We cannot ignore that the Special Court is dealing with the scam which shook the whole financial world of India. We again cannot ignore the fact that the decision to sell the shares in 2005 was taken by the Disposal Committee, which consisted of the experts of the financial world who were well-experienced in the sale of shares and securities and who had a thorough study of the share markets. No mala fides were ever alleged against the Disposal Committee. Under the circumstances, we find no reason to accept the argument that the earlier sale caused huge loss and, therefore, the shares should not be sold. In our opinion, the Special Court was right in confirming the advice and accepting the report filed before him on behalf of the Custodian justifying the sale of shares. However, all that exercise, we are afraid, would have to be repeated again, particularly, because more than six months have elapsed after that decision and the sale has yet not taken place. The Special Court has referred back the matter and has passed the directions for obtaining the legal and expert advice to deal with the taxes. We are told at the Bar that such exercise had already been completed. It would, therefore, be proper for the Disposal Committee to again decide as to whether the shares should be sold at all and when. That would depend upon the market conditions and so many other factors which are certain to be considered by the Disposal Committee. The Custodian has referred all the happenings during the pendency of this appeal and has relied on the report dated 27.11.2007. We need not go into the question, since, it would be for the Disposal Committee to decide upon the proper time and the manner in which the sale is to be executed, and it would be for the Special Court to further decide on the matter.48. In view of what we have stated above, we are convinced that the appeals have no merits. However, one thing is certain that the sale, as well as the decision to make the sale at a particular time, stand frustrated because of the lapse of time. The whole procedure for sale of shares will have to be repeated now, meaning thereby, that the Disposal Committee would have to take a fresh decision in the light of the directions given by the Special Court, which are the correct directions. That shall be done at the opportune time. If the appellants so feel, they would be at liberty to put their objections subject to what has already been said in this judgment.
### Response:
0
### Explanation:
no question of raising of these defences regarding individual liability. It is obvious, that the notification covers all the properties including the shares and securities of the notified persons and, therefore, comes into the hands of the Custodian. There would, therefore, be no question of raising the issues that the individual liability of such a notified person should be arrived at first. We say this, particularly, because the claim of the notified persons that their assets exceeds the liability, is also not correct. That is a clear cut finding given by Hon. Kapadia, J. in his judgment dated 17.8.2000, which is later on confirmed by this Court. The Custodian argues before us and not without any reasons that the tables prepared by the Custodian shows that the liability of the notified persons does exceed assets, we shall not go into that aspect at this juncture. However, the fact remains that there would be no question of any individual liability being arrived at before the shares are sold. The judgment of the learned Special Judge for selling the shares having been confirmed by this Court, whereby, the decision to sell the shares has been confirmed by the three Judge Bench of this Court concluding the issue. The same is binding. Therefore, it cannot be said at this juncture at least, that on that account, the sale of the shares should be postponed, till such time, as the question of individual liability viz. a viz. Harshad Mehta is decided upon.It was, therefore, obvious that at that juncture, when the question was as to whether the shares should be sold or not, the move was objected to by the appellants formulating themselves as Harshad Mehta Group. No such objection to form and treat the relatives as a group was raised before the Special Court in the year 2000 when the question of sale of shares fell for consideration for the first time. At any rate, unless it is shown as to what prejudice would be caused by treating them to be a group, this contention has no basis. We, therefore, do not think that the argument in this behalf has any basis.46. This is apart from the fact that before us also, not even a distant reference was made to these affidavits dated 1.3.2006 and 22.3.2006. A bald statement was made that there was no compliance of this Courts order in Ashwin Mehtas Case. We are certain that if these arguments had been addressed before the Special Court, the Special Court would have taken note thereof. The Special Court chose tothe judgment of this Court confirming the earlier judgment regarding the sale of shares passed by the Special Court [Hon. Kapadia, J. (as he then was)] and in our opinion, that was a right approach since the controversy involved, related to the sale of shares and securities. At this juncture, we cannot ignore the fact that in 2005 itself, in pursuance of the judgment dated 17.8.2000 and the confirming judgment of this Court, the majority of the shares have already been sold. It is only in respect of the Reliance Shares that the present sale was contemplated. It is really surprising that when the major shares were sold way back in 2005, the appellants did not think it proper either to challenge the same or to raise this argument of the individual liabilities viz. a viz., the group liabilities or the second argument that unless the denotification applications were decided upon, there should be no sale of shares. We have already pointed out the hollowness of the argument regarding the denotification applications, which were claimed to be pending before the Special Court, which claim is also baseless. Therefore, on both these counts, there would be no question of finding fault with the impugned order of the Specialmala fides were ever alleged against the Disposal Committee. Under the circumstances, we find no reason to accept the argument that the earlier sale caused huge loss and, therefore, the shares should not be sold. In our opinion, the Special Court was right in confirming the advice and accepting the report filed before him on behalf of the Custodian justifying the sale of shares. However, all that exercise, we are afraid, would have to be repeated again, particularly, because more than six months have elapsed after that decision and the sale has yet not taken place. The Special Court has referred back the matter and has passed the directions for obtaining the legal and expert advice to deal with the taxes. We are told at the Bar that such exercise had already been completed. It would, therefore, be proper for the Disposal Committee to again decide as to whether the shares should be sold at all and when. That would depend upon the market conditions and so many other factors which are certain to be considered by the Disposal Committee. The Custodian has referred all the happenings during the pendency of this appeal and has relied on the report dated 27.11.2007. We need not go into the question, since, it would be for the Disposal Committee to decide upon the proper time and the manner in which the sale is to be executed, and it would be for the Special Court to further decide on the matter.48. In view of what we have stated above, we are convinced that the appeals have no merits. However, one thing is certain that the sale, as well as the decision to make the sale at a particular time, stand frustrated because of the lapse of time. The whole procedure for sale of shares will have to be repeated now, meaning thereby, that the Disposal Committee would have to take a fresh decision in the light of the directions given by the Special Court, which are the correct directions. That shall be done at the opportune time. If the appellants so feel, they would be at liberty to put their objections subject to what has already been said in this judgment.
|
Malayala Manorama Co Ltd Vs. Commr.Of Income Tax, Trivandrum | 115J was introduced into the 1961 Act, which replaced section 80VV of the Act. Section 115J provided that where the total income of a company as computed under the Income Tax Act in respect of any accounting year was less than 30% of its book profit, as defined in the explanation, the total income of the company, chargeable to tax, shall be deemed to be an amount equal to 30% of such book profit. The whole purpose of this section was to tax a company, which has no taxable income, merely because it shows book profit. Book profit as explained in this section meant the net profit as shown in the profit and loss account for the relevant previous year prepared under sub section (1A) of section 115J as increased by the amounts referred to in clauses (a) to (ha) of the Act. It should be noted that the words “prepared under sub-section (1A)” were introduced by the Finance Act, 1989, with effect from 01.4.1989. 24. Sub-section (1A) to section 115J reads as follows: “Every assessee, being a company, shall, for the purposes of this section, prepare its profit and loss account for the relevant previous year, in accordance with the provisions of Part II, and III of Schedule VI to the Companies Act, 1956 (1 of 1956).” 25. This sub-section (1A) to section 115J of the 1961 Act would have application for the A.Y. 1989-90, which is the subject matter of ITR Nos.289 and 293 of 1999. But would have no application to the A.Y. 1988-89, which is the subject matter of ITR Nos.245 and 259 of 1999. Explanation (ha) (iv) to section 115J, which would be relevant to both assessment years 1988-89, as well as 1989-90 and introduced w.e.f. 01.4.1989 reads as follows: “(ha). The amount deemed to be the profits under sub-section (3) of section 33AC:if any amount referred to in clauses (a) to (f) is debited or, as the case may be, the amount referred to in clauses (g) and (h) is not credited to the profits and loss account, as as reduced by. -(i) xxx xxx xxx(ii) xxx xxx xxx(iii) xxx xxx xxx(iv) the amount of the loss or the amount of depreciation which would be required to be set off against the profit of the relevant previous year as if the provisions of clause (b) of the first proviso to sub-section (1) of section 205 of the Companies Act, 1956 (1 of 1956) are applicable.” 26. Mr. Gulati further submitted that before the High Court, it was argued by counsel for the revenue that section 205 of the Companies Act, 1956 has been legislatively incorporated into the Income Tax Act for the purposes of section 115J and since this is a legislation by incorporation, the said provision of the Companies Act, 1956 has to be applied as indicated by that provision in the Companies Act. It was also pointed out that in section 205 of the Companies Act, it has been provided that for the purposes of calculating depreciation under section 205(1), the same could be provided to the extent specified under section 350 of the Companies Act. A reference to section 350 of the Companies Act would show that the amount of depreciation to be deducted shall be the amount, calculated with reference to the written down value of the assets, as shown by the books of the company at the end of the financial year expiring at the commencement of the Act or immediately thereafter and at the end of each subsequent financial year and the rates specified in Schedule XIV to the Companies Act. Therefore, according to the revenue, the calculation of depreciation in terms of the Companies Act and Schedule XIV thereof becomes a must, while assessing an assessee under section 115J of the Income Tax Act.27. Mr. Gulati further submitted that the question raised in the case of Sona Woolen Mills Pvt. Ltd. (supra) shows that the assessee was trying to claim depreciation as per Income Tax Rules on the ground that the same was based on the views expressed by the then chairman of the CBDT in a departmental publication. It is clear that the views expressed by the Chairman of the CBDT cannot override the Act and have clearly to be rejected in case they are not consistent with the Act. He submitted that the Kerala High Court in Commissioner of Income Tax v. Dynamic Orthopaedics Pvt. Ltd. (2002) 257 ITR 446 as well as Malayala Manorama (supra) and the M.P. High Court in the case of Commissioner of Income Tax v. Vandana Rolling Mills Ltd. (1998) 234 ITR 693 have all held that for the purposes of section 115J of the Act, depreciation could not be calculated as per provisions of the Income Tax Rules. Only the Gujarat High Court in the case of Deputy Commissioner of Income Tax v. Vardhman Fabrics (P) Ltd. (2002) 254 ITR 431 has upheld the view that the circular of the Company Law Board laid down only minimum depreciation for the purposes of distribution of the dividend and the company could decide to give a higher depreciation. Mr. Gulati also contended that the Punjab & Haryana High Court has preferred to follow the minority view and has ignored the majority view taken by two High Courts, namely the Kerala High Court as well as the M.P. High Court. Mr. Gulati also relied upon the case of J.K. Industries Ltd. v. Union of India (2008) 297 ITR 176 (SC) . On proper analysis of the said case, we find that this case also does not help the Revenue.28. We have heard the learned counsel for the parties at length and carefully perused the written submissions filed by them. In our considered opinion, the controversy involved in this case is no longer res integra. A three Judge Bench of this Court in Apollo Tyres (supra) has clearly interpreted section 115J of the 1961 Act. There is no scope for any further discussion. | 1[ds]9. This makes it clear that Schedule VI to the 1956 Act does not create any obligation on a company to provide for any depreciation much less provides for depreciation as per Schedule XIV to thethese judgments have been decided on the basis of the ratio of the decision of this Court in Apollo Tyres (supra).proper analysis of the said case, we find that this case also does not help the Revenue.28. We have heard the learned counsel for the parties at length and carefully perused the written submissions filed by them. In our considered opinion, the controversy involved in this case is no longer res integra. A three Judge Bench of this Court in Apollo Tyres (supra) has clearly interpreted section 115J of the 1961 Act. There is no scope for any further discussion. | 1 | 5,796 | 152 | ### 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:
115J was introduced into the 1961 Act, which replaced section 80VV of the Act. Section 115J provided that where the total income of a company as computed under the Income Tax Act in respect of any accounting year was less than 30% of its book profit, as defined in the explanation, the total income of the company, chargeable to tax, shall be deemed to be an amount equal to 30% of such book profit. The whole purpose of this section was to tax a company, which has no taxable income, merely because it shows book profit. Book profit as explained in this section meant the net profit as shown in the profit and loss account for the relevant previous year prepared under sub section (1A) of section 115J as increased by the amounts referred to in clauses (a) to (ha) of the Act. It should be noted that the words “prepared under sub-section (1A)” were introduced by the Finance Act, 1989, with effect from 01.4.1989. 24. Sub-section (1A) to section 115J reads as follows: “Every assessee, being a company, shall, for the purposes of this section, prepare its profit and loss account for the relevant previous year, in accordance with the provisions of Part II, and III of Schedule VI to the Companies Act, 1956 (1 of 1956).” 25. This sub-section (1A) to section 115J of the 1961 Act would have application for the A.Y. 1989-90, which is the subject matter of ITR Nos.289 and 293 of 1999. But would have no application to the A.Y. 1988-89, which is the subject matter of ITR Nos.245 and 259 of 1999. Explanation (ha) (iv) to section 115J, which would be relevant to both assessment years 1988-89, as well as 1989-90 and introduced w.e.f. 01.4.1989 reads as follows: “(ha). The amount deemed to be the profits under sub-section (3) of section 33AC:if any amount referred to in clauses (a) to (f) is debited or, as the case may be, the amount referred to in clauses (g) and (h) is not credited to the profits and loss account, as as reduced by. -(i) xxx xxx xxx(ii) xxx xxx xxx(iii) xxx xxx xxx(iv) the amount of the loss or the amount of depreciation which would be required to be set off against the profit of the relevant previous year as if the provisions of clause (b) of the first proviso to sub-section (1) of section 205 of the Companies Act, 1956 (1 of 1956) are applicable.” 26. Mr. Gulati further submitted that before the High Court, it was argued by counsel for the revenue that section 205 of the Companies Act, 1956 has been legislatively incorporated into the Income Tax Act for the purposes of section 115J and since this is a legislation by incorporation, the said provision of the Companies Act, 1956 has to be applied as indicated by that provision in the Companies Act. It was also pointed out that in section 205 of the Companies Act, it has been provided that for the purposes of calculating depreciation under section 205(1), the same could be provided to the extent specified under section 350 of the Companies Act. A reference to section 350 of the Companies Act would show that the amount of depreciation to be deducted shall be the amount, calculated with reference to the written down value of the assets, as shown by the books of the company at the end of the financial year expiring at the commencement of the Act or immediately thereafter and at the end of each subsequent financial year and the rates specified in Schedule XIV to the Companies Act. Therefore, according to the revenue, the calculation of depreciation in terms of the Companies Act and Schedule XIV thereof becomes a must, while assessing an assessee under section 115J of the Income Tax Act.27. Mr. Gulati further submitted that the question raised in the case of Sona Woolen Mills Pvt. Ltd. (supra) shows that the assessee was trying to claim depreciation as per Income Tax Rules on the ground that the same was based on the views expressed by the then chairman of the CBDT in a departmental publication. It is clear that the views expressed by the Chairman of the CBDT cannot override the Act and have clearly to be rejected in case they are not consistent with the Act. He submitted that the Kerala High Court in Commissioner of Income Tax v. Dynamic Orthopaedics Pvt. Ltd. (2002) 257 ITR 446 as well as Malayala Manorama (supra) and the M.P. High Court in the case of Commissioner of Income Tax v. Vandana Rolling Mills Ltd. (1998) 234 ITR 693 have all held that for the purposes of section 115J of the Act, depreciation could not be calculated as per provisions of the Income Tax Rules. Only the Gujarat High Court in the case of Deputy Commissioner of Income Tax v. Vardhman Fabrics (P) Ltd. (2002) 254 ITR 431 has upheld the view that the circular of the Company Law Board laid down only minimum depreciation for the purposes of distribution of the dividend and the company could decide to give a higher depreciation. Mr. Gulati also contended that the Punjab & Haryana High Court has preferred to follow the minority view and has ignored the majority view taken by two High Courts, namely the Kerala High Court as well as the M.P. High Court. Mr. Gulati also relied upon the case of J.K. Industries Ltd. v. Union of India (2008) 297 ITR 176 (SC) . On proper analysis of the said case, we find that this case also does not help the Revenue.28. We have heard the learned counsel for the parties at length and carefully perused the written submissions filed by them. In our considered opinion, the controversy involved in this case is no longer res integra. A three Judge Bench of this Court in Apollo Tyres (supra) has clearly interpreted section 115J of the 1961 Act. There is no scope for any further discussion.
### Response:
1
### Explanation:
9. This makes it clear that Schedule VI to the 1956 Act does not create any obligation on a company to provide for any depreciation much less provides for depreciation as per Schedule XIV to thethese judgments have been decided on the basis of the ratio of the decision of this Court in Apollo Tyres (supra).proper analysis of the said case, we find that this case also does not help the Revenue.28. We have heard the learned counsel for the parties at length and carefully perused the written submissions filed by them. In our considered opinion, the controversy involved in this case is no longer res integra. A three Judge Bench of this Court in Apollo Tyres (supra) has clearly interpreted section 115J of the 1961 Act. There is no scope for any further discussion.
|
Ai Champday Industries Ltd Vs. Official Liquidator | mentioned in the rules next following, or such of them as are applicable to the property sold:-(1) The seller is bound –(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing." 19. In terms of the aforementioned provisions, therefore, the seller is bound to pay all public charges due in respect of the property upto the date of sale, when a property is sold in auction. Section 55 refers to a contract only. Unless there is a contract to the contrary, the rights and obligations of the parties to a sale would be as indicated in Section 55. Such a contract to the contrary must be express and not implied, as a result whereof the meaning of term encumbrance would be expanded.The advertisement did not specify that all public charges have to be paid.Municipal Corporation indisputably is not a preferential creditor. Companies Act in relation to winding up of proceeding is otherwise a special law. While distributing the assets between the creditors and unsecured creditors, the provisions of Sections 529 and 530 must be complied with. 20. All claims against the companies were required to be filed before the liquidator until the property was sold as provided for under Section 457 of the Companies Act. In terms of Section 456 thereof once an order for winding up is made the liquidator has to take into custody the properties, effects and actionable claims to which the company is or appears to be entitled. Section 528 provides that all debts payable on a contingency and all claims against the company, present or future are admissible to proof against the company. Section 529 provides for the same rule as in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent. Section 530 provides for certain priorities to secured creditors and other unsecured creditors.Once the property is sold, the assets of the company are required to be distributed to the creditors in order of preference. As the respondent- Municipality was not a secured creditor, the impugned Judgment cannot be sustained. 21. Almost a similar question in regard to the dues of the electrical charges came up for consideration before this Court in Isha Marbles Vs. Bihar State Electricity Board and Anr. [1995 (2) SCC 648 ]. In that case sale of the assets of industrial undertaking took place in terms of the provisions of the State Financial Corporation Act, 1951. Having regard to the provisions of the Indian Electricity Act, 1910 a three Judge Bench of this Court held that a liability on the purchaser cannot be imposed which was not incurred by them stating : "63. We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, benignly protects public property and behoves everyone to respect public property. Hence, the courts must be zealous in this regard. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction-purchaser who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lakhs and lakhs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest. No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness." 22. Dues of the Municipality would also not even otherwise come within the purview of the crown debt. Even a crown debt could be discharged only after the secured creditors stand discharged. 23. In Union of India & Ors. Vs. Sicom Ltd. & Anr. [2009 (1) SCALE 10 ], it is stated : "11. Generally, the rights of the crown to recover the debt would prevail over the right of a subject. Crown debt means the debts due to the State or the king; debts which a prerogative entitles the Crown to claim priority for before all other creditors. [See Advanced Law Lexicon by P. Ramanatha Aiyear (3rd Edn.) p. 1147]. Such creditors, however, must be held to mean unsecured creditors. Principle of Crown debt as such pertains to the common law principle. A common law which is a law within the meaning of Article 13 of the Constitution is saved in terms of Article 372 thereof. Those principles of common law, thus, which were existing at the time of coming into force of the Constitution of India are saved by reason of the aforementioned provision. A debt which is secured or which by reason of the provisions of a statute becomes the first charge over the property having regard to the plain meaning of Article 372 of the Constitution of India must be held to prevail over the Crown debt which is an unsecured one. It is trite that when a Parliament or State Legislature makes an enactment, the same would prevail over the common law.12. Thus, the common law principle which was existing on the date of coming into force of the Constitution of India must yield to a statutory provision.13. To achieve the same purpose, the Parliament as also the State Legislatures inserted provisions in various statutes, some of which have been referred to hereinbefore providing that the statutory dues shall be the first charge over the properties of the tax-payer. This aspect of the matter has been considered by this Court in a series of judgments." | 1[ds]12. The terms and conditions of the sale must be read as a whole. It must be given a purposive meaning.Encumbrance, therefore, must be capable of being found out either on inspection of the land or the office of Registrar or a statutory authority. A charge, burden or any other thing which impairs the use of the land or depreciates in its value may be a mortgage or a deed of trust or a lien or an easement. Encumbrance thus must be a charge on the property. It must run with the property. If by a reason of the statute no such burden on the title which diminishes the value of the land is created, it shall not constitute any encumbrance.14. If the property tax was merely a statutory dues without creating any encumbrance on the property which had cast a duty upon all the auction purchasers to make an investigation, it would mean that he must try to find out all the liabilities of the company in liquidation in their entirety. Respondent-Municipality was an unsecured creditor. In that capacity it cannot stand on a higher footing than an ordinary unsecured creditor who is required to stand in queue with all others similarly situated for the purpose of realization of their dues from the sale proceeds.15. Companies Act or any other law does not impose any additional obligation upon the purchaser to make an enquiry with regard to the liabilities of the companies other than those which would impede itsmay notice that Section 141 of the Bombay Provincial Municipal Corporation Act provides that the property taxes to be a first charge on the premise for which they are assessed.There cannot, thus, be any doubt or dispute that a provision of law must expressly provide for an enforcement of a charge against the property in the hands of the transferee for value without notice to the charge and not merely create a charge.In terms of the aforementioned provisions, therefore, the seller is bound to pay all public charges due in respect of the property upto the date of sale, when a property is sold in auction. Section 55 refers to a contract only. Unless there is a contract to the contrary, the rights and obligations of the parties to a sale would be as indicated in Section 55. Such a contract to the contrary must be express and not implied, as a result whereof the meaning of term encumbrance would beadvertisement did not specify that all public charges have to beCorporation indisputably is not a preferential creditor. Companies Act in relation to winding up of proceeding is otherwise a special law. While distributing the assets between the creditors and unsecured creditors, the provisions of Sections 529 and 530 must be complied with.Dues of the Municipality would also not even otherwise come within the purview of the crown debt. Even a crown debt could be discharged only after the secured creditors stand discharged | 1 | 3,719 | 526 | ### 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:
mentioned in the rules next following, or such of them as are applicable to the property sold:-(1) The seller is bound –(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing." 19. In terms of the aforementioned provisions, therefore, the seller is bound to pay all public charges due in respect of the property upto the date of sale, when a property is sold in auction. Section 55 refers to a contract only. Unless there is a contract to the contrary, the rights and obligations of the parties to a sale would be as indicated in Section 55. Such a contract to the contrary must be express and not implied, as a result whereof the meaning of term encumbrance would be expanded.The advertisement did not specify that all public charges have to be paid.Municipal Corporation indisputably is not a preferential creditor. Companies Act in relation to winding up of proceeding is otherwise a special law. While distributing the assets between the creditors and unsecured creditors, the provisions of Sections 529 and 530 must be complied with. 20. All claims against the companies were required to be filed before the liquidator until the property was sold as provided for under Section 457 of the Companies Act. In terms of Section 456 thereof once an order for winding up is made the liquidator has to take into custody the properties, effects and actionable claims to which the company is or appears to be entitled. Section 528 provides that all debts payable on a contingency and all claims against the company, present or future are admissible to proof against the company. Section 529 provides for the same rule as in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent. Section 530 provides for certain priorities to secured creditors and other unsecured creditors.Once the property is sold, the assets of the company are required to be distributed to the creditors in order of preference. As the respondent- Municipality was not a secured creditor, the impugned Judgment cannot be sustained. 21. Almost a similar question in regard to the dues of the electrical charges came up for consideration before this Court in Isha Marbles Vs. Bihar State Electricity Board and Anr. [1995 (2) SCC 648 ]. In that case sale of the assets of industrial undertaking took place in terms of the provisions of the State Financial Corporation Act, 1951. Having regard to the provisions of the Indian Electricity Act, 1910 a three Judge Bench of this Court held that a liability on the purchaser cannot be imposed which was not incurred by them stating : "63. We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, benignly protects public property and behoves everyone to respect public property. Hence, the courts must be zealous in this regard. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction-purchaser who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lakhs and lakhs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest. No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness." 22. Dues of the Municipality would also not even otherwise come within the purview of the crown debt. Even a crown debt could be discharged only after the secured creditors stand discharged. 23. In Union of India & Ors. Vs. Sicom Ltd. & Anr. [2009 (1) SCALE 10 ], it is stated : "11. Generally, the rights of the crown to recover the debt would prevail over the right of a subject. Crown debt means the debts due to the State or the king; debts which a prerogative entitles the Crown to claim priority for before all other creditors. [See Advanced Law Lexicon by P. Ramanatha Aiyear (3rd Edn.) p. 1147]. Such creditors, however, must be held to mean unsecured creditors. Principle of Crown debt as such pertains to the common law principle. A common law which is a law within the meaning of Article 13 of the Constitution is saved in terms of Article 372 thereof. Those principles of common law, thus, which were existing at the time of coming into force of the Constitution of India are saved by reason of the aforementioned provision. A debt which is secured or which by reason of the provisions of a statute becomes the first charge over the property having regard to the plain meaning of Article 372 of the Constitution of India must be held to prevail over the Crown debt which is an unsecured one. It is trite that when a Parliament or State Legislature makes an enactment, the same would prevail over the common law.12. Thus, the common law principle which was existing on the date of coming into force of the Constitution of India must yield to a statutory provision.13. To achieve the same purpose, the Parliament as also the State Legislatures inserted provisions in various statutes, some of which have been referred to hereinbefore providing that the statutory dues shall be the first charge over the properties of the tax-payer. This aspect of the matter has been considered by this Court in a series of judgments."
### Response:
1
### Explanation:
12. The terms and conditions of the sale must be read as a whole. It must be given a purposive meaning.Encumbrance, therefore, must be capable of being found out either on inspection of the land or the office of Registrar or a statutory authority. A charge, burden or any other thing which impairs the use of the land or depreciates in its value may be a mortgage or a deed of trust or a lien or an easement. Encumbrance thus must be a charge on the property. It must run with the property. If by a reason of the statute no such burden on the title which diminishes the value of the land is created, it shall not constitute any encumbrance.14. If the property tax was merely a statutory dues without creating any encumbrance on the property which had cast a duty upon all the auction purchasers to make an investigation, it would mean that he must try to find out all the liabilities of the company in liquidation in their entirety. Respondent-Municipality was an unsecured creditor. In that capacity it cannot stand on a higher footing than an ordinary unsecured creditor who is required to stand in queue with all others similarly situated for the purpose of realization of their dues from the sale proceeds.15. Companies Act or any other law does not impose any additional obligation upon the purchaser to make an enquiry with regard to the liabilities of the companies other than those which would impede itsmay notice that Section 141 of the Bombay Provincial Municipal Corporation Act provides that the property taxes to be a first charge on the premise for which they are assessed.There cannot, thus, be any doubt or dispute that a provision of law must expressly provide for an enforcement of a charge against the property in the hands of the transferee for value without notice to the charge and not merely create a charge.In terms of the aforementioned provisions, therefore, the seller is bound to pay all public charges due in respect of the property upto the date of sale, when a property is sold in auction. Section 55 refers to a contract only. Unless there is a contract to the contrary, the rights and obligations of the parties to a sale would be as indicated in Section 55. Such a contract to the contrary must be express and not implied, as a result whereof the meaning of term encumbrance would beadvertisement did not specify that all public charges have to beCorporation indisputably is not a preferential creditor. Companies Act in relation to winding up of proceeding is otherwise a special law. While distributing the assets between the creditors and unsecured creditors, the provisions of Sections 529 and 530 must be complied with.Dues of the Municipality would also not even otherwise come within the purview of the crown debt. Even a crown debt could be discharged only after the secured creditors stand discharged
|
Union of India Vs. Kaira District Co operative Milk Producers Limited | S.N. VARIAVA(1) This appeal is against the judgment dated 18.10.1985 by which writ petition filed by the respondent has been allowed. Briefly stated the facts are as follows:- The respondent is a co-operative society under the Gujarat Co-operative Societies Act, 1961. It is engaged inter alia, in the manufacture of milk and cocoa products and for that purpose has two units, one at Anand and the other at Mogar, both in Kaira district. The respondent receives milk, from milk producers who are all members of the respondent unit. After the product is received and some manufacturing process is undertaken by the respondent, the product is then sent to a federation known as Gujarat Co-operative Milk Marketing Federation Limited. That Federation is also registered under the Gujarat Co-operative Societies Act, 1961.(2). The respondent submitted a price list to the superintendent of central excise, Anand. In the price list they claimed a deduction of the commission charged by the federation from the union for the purposes of marketing the products of the respondent. The commissioner rejected the price list on the ground that the respondent-union and the federation were "related persons" within the meaning of section 4 (4) (c) of the Central Excise Act, 1944.(3). The respondent, thus, filed a writ petition challenging the rejection of its price list. The High Court has, by the impugned judgment, allowed the writ petition and held that the union and the federation cannot be said to be related persons. The High Court has so held on the basis of a decision of this Court in the case of Union of India and Ors. v. ATIC Industries Ltd. In this case, it has been held that in order to attract the definition of a "related person" in section 4 (4) (c), the assessee and the person alleged to be related, must have interest, direct or indirect, in the business of each other. It has been held that if there is a shareholder, then the shareholder may have an interest in the assessee company, but merely because some products are being sold by the assessee to the shareholder, it cannot be said that the assessee has any interest in the business of the shareholder. The ratio laid down in this case would fully cover the present case. In this case also, the union, being a member of the federation, may have an interest in the federation. However, the question would be whether the federation has any interest in the business of the union. Merely because the federation purchases milk from the union would not be sufficient for the purpose of(4). Reliance was placed on bye-laws 23.21, 23.15 and 5.2.18 of the federation. It was submitted under these bye-laws, the federation could decide the pricing policy of the union; fix the rate of service charges for manufacturing, processing or marketing and render financial, technical, administrative or other necessary assistance to the members and enter into corroboration agreements. It was submitted that these clauses clearly indicate that the federation could exercise control over the union. It was submitted that this was sufficient for the purposes of making the federation a related person of the union. We are unable to accept this submission. In our view, the High Court is right in holding that this is not sufficient for the purpose of making the federation a related person of the union. | 0[ds](3). The respondent, thus, filed a writ petition challenging the rejection of its price list. The High Court has, by the impugned judgment, allowed the writ petition and held that the union and the federation cannot be said to be related persons. The High Court has so held on the basis of a decision of this Court in the case of Union of India and Ors. v. ATIC Industries Ltd. In this case, it has been held that in order to attract the definition of a "related person" in section 4 (4) (c), the assessee and the person alleged to be related, must have interest, direct or indirect, in the business of eachother. It has been held that if there is a shareholder, then the shareholder may have an interest in the assessee company, but merely because some products are being sold by the assessee to the shareholder, it cannot be said that the assessee has any interest in the business of the shareholder. The ratio laid down in this case would fully cover the present case. In this case also, the union, being a member of the federation, may have an interest in the federation. However, the question would be whether the federation has any interest in the business of the union. Merely because the federation purchases milk from the union would not be sufficient for the purpose of(4). Reliance was placed on23.21, 23.15 and 5.2.18 of the federation. It was submitted under thesethe federation could decide the pricing policy of the union; fix the rate of service charges for manufacturing, processing or marketing and render financial, technical, administrative or other necessary assistance to the members and enter into corroboration agreements. It was submitted that these clauses clearly indicate that the federation could exercise control over the union. It was submitted that this was sufficient for the purposes of making the federation a related person of the union. We are unable to accept this submission. In our view, the High Court is right in holding that this is not sufficient for the purpose of making the federation a related person of the union. | 0 | 647 | 410 | ### 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:
S.N. VARIAVA(1) This appeal is against the judgment dated 18.10.1985 by which writ petition filed by the respondent has been allowed. Briefly stated the facts are as follows:- The respondent is a co-operative society under the Gujarat Co-operative Societies Act, 1961. It is engaged inter alia, in the manufacture of milk and cocoa products and for that purpose has two units, one at Anand and the other at Mogar, both in Kaira district. The respondent receives milk, from milk producers who are all members of the respondent unit. After the product is received and some manufacturing process is undertaken by the respondent, the product is then sent to a federation known as Gujarat Co-operative Milk Marketing Federation Limited. That Federation is also registered under the Gujarat Co-operative Societies Act, 1961.(2). The respondent submitted a price list to the superintendent of central excise, Anand. In the price list they claimed a deduction of the commission charged by the federation from the union for the purposes of marketing the products of the respondent. The commissioner rejected the price list on the ground that the respondent-union and the federation were "related persons" within the meaning of section 4 (4) (c) of the Central Excise Act, 1944.(3). The respondent, thus, filed a writ petition challenging the rejection of its price list. The High Court has, by the impugned judgment, allowed the writ petition and held that the union and the federation cannot be said to be related persons. The High Court has so held on the basis of a decision of this Court in the case of Union of India and Ors. v. ATIC Industries Ltd. In this case, it has been held that in order to attract the definition of a "related person" in section 4 (4) (c), the assessee and the person alleged to be related, must have interest, direct or indirect, in the business of each other. It has been held that if there is a shareholder, then the shareholder may have an interest in the assessee company, but merely because some products are being sold by the assessee to the shareholder, it cannot be said that the assessee has any interest in the business of the shareholder. The ratio laid down in this case would fully cover the present case. In this case also, the union, being a member of the federation, may have an interest in the federation. However, the question would be whether the federation has any interest in the business of the union. Merely because the federation purchases milk from the union would not be sufficient for the purpose of(4). Reliance was placed on bye-laws 23.21, 23.15 and 5.2.18 of the federation. It was submitted under these bye-laws, the federation could decide the pricing policy of the union; fix the rate of service charges for manufacturing, processing or marketing and render financial, technical, administrative or other necessary assistance to the members and enter into corroboration agreements. It was submitted that these clauses clearly indicate that the federation could exercise control over the union. It was submitted that this was sufficient for the purposes of making the federation a related person of the union. We are unable to accept this submission. In our view, the High Court is right in holding that this is not sufficient for the purpose of making the federation a related person of the union.
### Response:
0
### Explanation:
(3). The respondent, thus, filed a writ petition challenging the rejection of its price list. The High Court has, by the impugned judgment, allowed the writ petition and held that the union and the federation cannot be said to be related persons. The High Court has so held on the basis of a decision of this Court in the case of Union of India and Ors. v. ATIC Industries Ltd. In this case, it has been held that in order to attract the definition of a "related person" in section 4 (4) (c), the assessee and the person alleged to be related, must have interest, direct or indirect, in the business of eachother. It has been held that if there is a shareholder, then the shareholder may have an interest in the assessee company, but merely because some products are being sold by the assessee to the shareholder, it cannot be said that the assessee has any interest in the business of the shareholder. The ratio laid down in this case would fully cover the present case. In this case also, the union, being a member of the federation, may have an interest in the federation. However, the question would be whether the federation has any interest in the business of the union. Merely because the federation purchases milk from the union would not be sufficient for the purpose of(4). Reliance was placed on23.21, 23.15 and 5.2.18 of the federation. It was submitted under thesethe federation could decide the pricing policy of the union; fix the rate of service charges for manufacturing, processing or marketing and render financial, technical, administrative or other necessary assistance to the members and enter into corroboration agreements. It was submitted that these clauses clearly indicate that the federation could exercise control over the union. It was submitted that this was sufficient for the purposes of making the federation a related person of the union. We are unable to accept this submission. In our view, the High Court is right in holding that this is not sufficient for the purpose of making the federation a related person of the union.
|
G Sridharamurthi Vs. Hindustan Petroleum Corporation Ltd.&Anr | Esso Company was merged into respondent-Corporation on March 14, 1974. The appellant filed eviction petition under Section 21(1)(f) of the Karnataka Rent Control Act (for short, `the Act) for ejectment on the ground of sub-letting, impleading Esso Company and thereafter, the respondent-Corporation. The Esso (Acquisition of Undertakings in India) Act, 1974 (for short `the Esso Act) came into force w.e.f. March 13, 1974. The courts below dismissed the application on the ground that the Esso Company had not sublet the demised premises but by virtue of statutory operation under the Esso Act, the respondent-Corporation stood transposed as a tenant which is an involuntary act pursuant to Section 7 of the Act; and notwithstanding the specific embargo created under Section 21(1)(f) of the Act, it cannot be construed to be a sub-letting. The High Court also reached the same conclusion on 25/26th June, 1990 in CRP No. 3628/82. Thus this appeal by special leave.3. Shri Kulkarni, the learned Counsel appearing for the appellant, contended that Section 21(1)(f) of the Act clearly prohibits assignment or transfer ``in any manner of the interest of the tenant deeming it to be a sub-letting. Therefore, in view of the non-obstante clause contained in sub-section (1) of Section 23 of the Act, the continuance of the respondent-Corporation in the premises must be deemed to be due to sub-letting within the meaning of Section 21(1)(f) of the Act. In support of his contention, he placed strong reliance on a ratio laid down by this by this Court in M/s. Parasram Harnam Rao v. Shanti Prasad Narinder Kumar Jain and another, 1980(2) RCR 520. 4. To appreciate, it is necessary to look at the provisions of the Esso Act. Section 5 of that Act envisages : "5. (1) Where any property is held in India by Esso under any lease or under any right of tenancy, the Central Government shall, on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of such property as if the lease or tenancy in relation to such property had been granted to the Central Government, and thereupon all the rights under such lease or tenancy be deemed to have been transferred to and vested in the Central Government. Sub-sections (1) and (2) of Section 7 of the Esso Act state: "7. (1) Notwithstanding anything contained in Sections 3, 4 and 5, the Central Government may, if it is satisfied that a Government company is willing to comply, or has complied, with such terms and conditions as that Government may think fit to impose, direct, by notification, that the right, title and interest and the liabilities of Esso in relation to any undertaking in India shall, instead of continuing to vest in the Central Government, vest in the Government company either on the date of the notification or on such earlier or later date (not being a date earlier than the appointed day) as may be specified in the notification.(2) Where the right, title and interest and the liabilities of Esso in relation to its undertakings in India vest in a Government company under sub-section (1), the Government company shall, on and from the date of such vesting, be deemed to have become the owner, tenant or lessee, as the case may be, in relation to such undertakings, and all the rights and liabilities shall, on and from the date of such vesting, be deemed to have become the rights and liabilities, respectively, of the Government company. 5. It would be clear from above provisions that by statutory operation, the pre-existing tenancy rights held by Esso Company with the appellant initially stood transferred and vested the Central Government, and thereafter, by operation of Section 7 of the Esso Act, the said rights in turn stood transposed and vested in the Government company as if the Government company statutorily became the tenant of the appellant-landlord. It is true that sub-section (1) of Section 23 of the Act employing non-obstante clause excluded operation of any other enactment. But it must be remembered that there is no specific provision in List II of the Seventh Schedule to the Constitution covering the Act. On the other hand, by virtue of what has been stated in Entry 6 in List III of the Seventh Schedule, the legislature of the State and also Parliament can enact law in relation to immovable property. Since the Esso Act is a Central enactment, and latter too, the non- obstante clause is Section 7 of Esso Act excludes the operation of Section 23 of the Act. Both the Act and the Esso Act occupy same field and both cannot exist harmoniously. so to the extent of inconsistency, the Act becomes void by operation of Article 254 of the Constitution. On the Esso Act coming into force, by operation of Sections 5 and 7 of that Act, the respondent-Corporation became statutory tenant and thereby it cannot be construed to be an assignment of tenancy rights, which the appellant-landlord had entered into the Esso Company, by the Central Government in favour of the Government company.6. The ratio of M/s Parasram Harnand Raos case (supra) is inapplicable to the facts in this case. Therein, one Laxmi Bank which was a tenant with the appellant was in liquidation. The Official Liquidator had sold the tenancy rights in favour of the respondent. Thereby, the respondents became tenant of the demised premises. The landlord initiated proceedings under Section 14(1)(b) of the Delhi Rent (Control) Act contending that it amounted to sub- letting. This Court accepting the contention held that in view of the wide language employed in Section 14(1)(b), though the same was made in favour of the respondent through Court, it amounted to transfer of an interest inter se. The ratio therein does not get attracted to the facts in this case in view of the statutory operation of Sections 5 and 7 Esso Act which is not voluntary act of assignment of interests intra vivos. | 0[ds]5. It would be clear from above provisions that by statutory operation, the pre-existing tenancy rights held by Esso Company with the appellant initially stood transferred and vested the Central Government, and thereafter, by operation of Section 7 of the Esso Act, the said rights in turn stood transposed and vested in the Government company as if the Government company statutorily became the tenant of the appellant-landlord. It is true that sub-section (1) of Section 23 of the Act employing non-obstante clause excluded operation of any other enactment. But it must be remembered that there is no specific provision in List II of the Seventh Schedule to the Constitution covering the Act. On the other hand, by virtue of what has been stated in Entry 6 in List III of the Seventh Schedule, the legislature of the State and also Parliament can enact law in relation to immovable property. Since the Esso Act is a Central enactment, and latter too, the non- obstante clause is Section 7 of Esso Act excludes the operation of Section 23 of the Act. Both the Act and the Esso Act occupy same field and both cannot exist harmoniously. so to the extent of inconsistency, the Act becomes void by operation of Article 254 of the Constitution. On the Esso Act coming into force, by operation of Sections 5 and 7 of that Act, the respondent-Corporation became statutory tenant and thereby it cannot be construed to be an assignment of tenancy rights, which the appellant-landlord had entered into the Esso Company, by the Central Government in favour of the Government company.6. The ratio of M/s Parasram Harnand Raos case (supra) is inapplicable to the facts in this case. Therein, one Laxmi Bank which was a tenant with the appellant was in liquidation. The Official Liquidator had sold the tenancy rights in favour of the respondent. Thereby, the respondents became tenant of the demised premises. The landlord initiated proceedings under Section 14(1)(b) of the Delhi Rent (Control) Act contending that it amounted to sub- letting. This Court accepting the contention held that in view of the wide language employed in Section 14(1)(b), though the same was made in favour of the respondent through Court, it amounted to transfer of an interest inter se. The ratio therein does not get attracted to the facts in this case in view of the statutory operation of Sections 5 and 7 Esso Act which is not voluntary act of assignment of interests intra vivos. | 0 | 1,256 | 471 | ### 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:
Esso Company was merged into respondent-Corporation on March 14, 1974. The appellant filed eviction petition under Section 21(1)(f) of the Karnataka Rent Control Act (for short, `the Act) for ejectment on the ground of sub-letting, impleading Esso Company and thereafter, the respondent-Corporation. The Esso (Acquisition of Undertakings in India) Act, 1974 (for short `the Esso Act) came into force w.e.f. March 13, 1974. The courts below dismissed the application on the ground that the Esso Company had not sublet the demised premises but by virtue of statutory operation under the Esso Act, the respondent-Corporation stood transposed as a tenant which is an involuntary act pursuant to Section 7 of the Act; and notwithstanding the specific embargo created under Section 21(1)(f) of the Act, it cannot be construed to be a sub-letting. The High Court also reached the same conclusion on 25/26th June, 1990 in CRP No. 3628/82. Thus this appeal by special leave.3. Shri Kulkarni, the learned Counsel appearing for the appellant, contended that Section 21(1)(f) of the Act clearly prohibits assignment or transfer ``in any manner of the interest of the tenant deeming it to be a sub-letting. Therefore, in view of the non-obstante clause contained in sub-section (1) of Section 23 of the Act, the continuance of the respondent-Corporation in the premises must be deemed to be due to sub-letting within the meaning of Section 21(1)(f) of the Act. In support of his contention, he placed strong reliance on a ratio laid down by this by this Court in M/s. Parasram Harnam Rao v. Shanti Prasad Narinder Kumar Jain and another, 1980(2) RCR 520. 4. To appreciate, it is necessary to look at the provisions of the Esso Act. Section 5 of that Act envisages : "5. (1) Where any property is held in India by Esso under any lease or under any right of tenancy, the Central Government shall, on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of such property as if the lease or tenancy in relation to such property had been granted to the Central Government, and thereupon all the rights under such lease or tenancy be deemed to have been transferred to and vested in the Central Government. Sub-sections (1) and (2) of Section 7 of the Esso Act state: "7. (1) Notwithstanding anything contained in Sections 3, 4 and 5, the Central Government may, if it is satisfied that a Government company is willing to comply, or has complied, with such terms and conditions as that Government may think fit to impose, direct, by notification, that the right, title and interest and the liabilities of Esso in relation to any undertaking in India shall, instead of continuing to vest in the Central Government, vest in the Government company either on the date of the notification or on such earlier or later date (not being a date earlier than the appointed day) as may be specified in the notification.(2) Where the right, title and interest and the liabilities of Esso in relation to its undertakings in India vest in a Government company under sub-section (1), the Government company shall, on and from the date of such vesting, be deemed to have become the owner, tenant or lessee, as the case may be, in relation to such undertakings, and all the rights and liabilities shall, on and from the date of such vesting, be deemed to have become the rights and liabilities, respectively, of the Government company. 5. It would be clear from above provisions that by statutory operation, the pre-existing tenancy rights held by Esso Company with the appellant initially stood transferred and vested the Central Government, and thereafter, by operation of Section 7 of the Esso Act, the said rights in turn stood transposed and vested in the Government company as if the Government company statutorily became the tenant of the appellant-landlord. It is true that sub-section (1) of Section 23 of the Act employing non-obstante clause excluded operation of any other enactment. But it must be remembered that there is no specific provision in List II of the Seventh Schedule to the Constitution covering the Act. On the other hand, by virtue of what has been stated in Entry 6 in List III of the Seventh Schedule, the legislature of the State and also Parliament can enact law in relation to immovable property. Since the Esso Act is a Central enactment, and latter too, the non- obstante clause is Section 7 of Esso Act excludes the operation of Section 23 of the Act. Both the Act and the Esso Act occupy same field and both cannot exist harmoniously. so to the extent of inconsistency, the Act becomes void by operation of Article 254 of the Constitution. On the Esso Act coming into force, by operation of Sections 5 and 7 of that Act, the respondent-Corporation became statutory tenant and thereby it cannot be construed to be an assignment of tenancy rights, which the appellant-landlord had entered into the Esso Company, by the Central Government in favour of the Government company.6. The ratio of M/s Parasram Harnand Raos case (supra) is inapplicable to the facts in this case. Therein, one Laxmi Bank which was a tenant with the appellant was in liquidation. The Official Liquidator had sold the tenancy rights in favour of the respondent. Thereby, the respondents became tenant of the demised premises. The landlord initiated proceedings under Section 14(1)(b) of the Delhi Rent (Control) Act contending that it amounted to sub- letting. This Court accepting the contention held that in view of the wide language employed in Section 14(1)(b), though the same was made in favour of the respondent through Court, it amounted to transfer of an interest inter se. The ratio therein does not get attracted to the facts in this case in view of the statutory operation of Sections 5 and 7 Esso Act which is not voluntary act of assignment of interests intra vivos.
### Response:
0
### Explanation:
5. It would be clear from above provisions that by statutory operation, the pre-existing tenancy rights held by Esso Company with the appellant initially stood transferred and vested the Central Government, and thereafter, by operation of Section 7 of the Esso Act, the said rights in turn stood transposed and vested in the Government company as if the Government company statutorily became the tenant of the appellant-landlord. It is true that sub-section (1) of Section 23 of the Act employing non-obstante clause excluded operation of any other enactment. But it must be remembered that there is no specific provision in List II of the Seventh Schedule to the Constitution covering the Act. On the other hand, by virtue of what has been stated in Entry 6 in List III of the Seventh Schedule, the legislature of the State and also Parliament can enact law in relation to immovable property. Since the Esso Act is a Central enactment, and latter too, the non- obstante clause is Section 7 of Esso Act excludes the operation of Section 23 of the Act. Both the Act and the Esso Act occupy same field and both cannot exist harmoniously. so to the extent of inconsistency, the Act becomes void by operation of Article 254 of the Constitution. On the Esso Act coming into force, by operation of Sections 5 and 7 of that Act, the respondent-Corporation became statutory tenant and thereby it cannot be construed to be an assignment of tenancy rights, which the appellant-landlord had entered into the Esso Company, by the Central Government in favour of the Government company.6. The ratio of M/s Parasram Harnand Raos case (supra) is inapplicable to the facts in this case. Therein, one Laxmi Bank which was a tenant with the appellant was in liquidation. The Official Liquidator had sold the tenancy rights in favour of the respondent. Thereby, the respondents became tenant of the demised premises. The landlord initiated proceedings under Section 14(1)(b) of the Delhi Rent (Control) Act contending that it amounted to sub- letting. This Court accepting the contention held that in view of the wide language employed in Section 14(1)(b), though the same was made in favour of the respondent through Court, it amounted to transfer of an interest inter se. The ratio therein does not get attracted to the facts in this case in view of the statutory operation of Sections 5 and 7 Esso Act which is not voluntary act of assignment of interests intra vivos.
|
R. L. Arora Vs. State Of Uttar Pradesh And Others | invoked to resolve that ambiguity. It was not suggested that the words do not, as they stand, make sense. They do, only the sense which they convey makes the clause unconstitutional. No doubt, the meaning of a word may vary with the setting or context, but that is not the position here. One asks in vain "which is the word which is said to bear a different meaning from the natural normal, dictionary sense, because of the context or setting"?28. It was, however, urged that it could not have been the intention of Parliament to have intended the clause to mean what appears to be meaning which I have said the words bore. But this argument ignores the basic principle underlying all rules of statutory construction that the intention of the legislature has to be gathered only from the meaning of the words used, for they are the only means by which the intention of the law-maker could be gathered. It is only where there is an ambiguity and the words are capable of more than one construction that any extrinsic aid in the shape of the purpose of the legislature, or the object of the legislation come in for consideration. "Where the language of an Act is clear and explicit," said Tindal, C. J. in Warburton v. Loveland, (1832) 2 Dow and Cl (HL) 480 at p. 489."we must give effect to it whatever be the consequences, for in that case the words of the statute speak the intention of the legislature".29. Authority is not needed for the proposition that the intention of the legislature is not a matter to be speculated upon. Interpretation or construction cannot mean that a Court first reaches a conclusion as to what in its opinion the legislature intended, even though this involves attributing a meaning divorced from the words used, and then adjust the meaning to the conclusion it has reached. As was observed by Lord Watson in an oft quoted passage in Salomon v. A. Salomon and Co., (1897) AC 22 at p. 38 :-"Intention of the legislature is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication."30. It was the same principle that was explained by Lord Herschell in Cox v. Hakes, (1890) 15 AC 506 at p. 528 when he said :". . . . . . It must be admitted that if the language of the legislature interpreted according to the recognised canons of construction involves this result, your Lordships must frankly yield to it, even if you should be satisfied that it was not in the contemplation of the legislature."31. The only way in which I am able to read the clause is to relate the words "public purpose" to the nature of the industry carried on by the company and by no rule of construction with or without extrinsic aids or with reference to the context, not to speak of rules of grammar, can the reference to public purpose be related to the building or work for which the acquisition is permitted to be made.32. The learned Attorney-General submitted that the provision could and ought to be read down and confined in its operation to acquisition for public purposes as properly understood; in other words, to sever the constitutional from the unconstitutional portions and uphold the former. I do not find it possible to adopt this approach in a clause worded like the one before us. On the construction of the clause which I hold is the only possible one to adopt, it means the State is empowered to compulsorily acquire land for companies which satisfy the description of being engaged in an industry which is essential for the life of the community whether or not the purpose for which the company proposes to use the land acquired is a public purpose. Where the purpose for which the acquisition could be made is indicated by the enactment and that purpose, is one which is primarily constitutionally permissible but the words employed for indicating the purposes might possibly include some outside the power of the legislature, an argument about reading down would require consideration. But in the clause now impugned there is no purpose indicated at all except that it is needed for a company which falls within a particular category. For such a situation I consider that there is no scope at all for invoking the principle of reading down.33. Again, where the provision gives a carte blanche to Government to acquire land for any purpose it is not possible to sustain the validity of such a law and strike down merely the particular acquisition where land is acquired for a purpose which is not a public purpose, for here the vice is in the law itself and not merely in the application.34. I am therefore, clearly of the opinion that cl. (aa) introduced by the Amending Act XXXI of 1962 is unconstitutional as violative of Art. 31(2).35. In this view it is unnecessary for me to consider the proper construction of S. 7 of the Amending Act. Under the terms of S. 7 of the Act, all acquisition of land made prior to June 20, 1962, even accepting construction which Mr. Setalvad pressed upon us, are deemed to have been made for a purpose falling within cl. (aa). If, as I have held, cl. (aa) is unconstitutional and void, it was not contended that S. 7 would be of any assistance to the respondents to sustain the acquisition of the petitioners land. I would, therefore, allow the petition and grant the reliefs prayed for therein.ORDER36. | 0[ds]We are therefore of opinion that the literal and mechanical construction for which the petitioner contends is neither the only nor the true construction of cl. (aa) and that when cl. (aa) provides for acquisition of land needed for construction of some building or work it implieitly intends that the building or work which is to be constructed must be such as to subserve the public purpose of the industry or work in which the company is engaged or is about to be engaged. In short. the words "building or work used in cl. (aa) take their colour from the adjectival clause which governs the company for which the building or work is being constructed and acquisition under this clause can only be made where the company is engaged or is taking steps to engage itself in any industry or work which is for a public purpose, and the building or work which the company is intending to construct is of the same nature namely, that it is a building or work which is meant to subserve the public purpose of the industry or work for which it is being constructed. It is, only in these cases where the company is engaged in an industry or work of that kind and where the building or work is also constructed for a purpose of that kind, which is a public purpose, that acquisition can be made under cl. (aa). As we read the clause we are of opinion that the public purpose of the company for which acquisition is to be made cannot be divorced from the purpose of the building or work and it is not open for such a company to acquire land under cl. (aa) for a building or work which will not subserve the public purpose of the company. We are therefore of opinion that in the setting in which cl. (aa) appears and in the circumstances in which it came to be enacted, a literal and mechanical construction for which the petitioner contends is not the only construction of this clause and that there is another construction which in our opinion is a better construction, and which is that the public purpose of the company is also implicit in the purpose of the building or work which is to be constructed for the company and it is only for such work or building which subserves, the public purpose of the company that acquisition under cl. (aa) can be made. Thus there are two possible constructions of this clause, one a mere mechanical and literal construction based on rules of grammar and the other which emerged from the setting in which the clause appears and the circumstances in which it came to be enacted and also from the words used therein, namely, acquisition being for a company which has a public purpose behind it, and therefore the building or work which is to be constructed and for which land is required must also have the same public purpose behind it, that animates the company making the construction. We are therefore clearly of opinion that two constructions are possible of this clause of which the second construction which is other than literal is the better one. It is well settled that if certain provisions of law construed in one way will be consistent with the Constitution, and if another interpretation would render them unconstitutional, the Court would lean in favour of the former construction: (see Kedar Nath Singh v. State of Bihar, (1962) Sup 2 SCR 769 : (AIR 1962 SC 955 )). We are therefore of opinion that cl. (aa) does not permit acquisition of land for construction of some building or work for a company engaged or to be engaged in an industry or work, which is for a public purpose unless the building or work for which the land is acquired also subserves the public purpose of the industry or work in which the company is engaged. This is in our opinion the better construction of cl. (aa) taking into account the setting in which it appears and the circumstances in which it came to be enacted and the words used therein. If that is the true construction of cl. (aa) it cannot be said to contravene Art. 31(2), for the public purpose required therein is present where land is required for the construction of a building or work which must subserve the public purpose of the industry or work in which a company is engaged or is about to be engaged. Nor can it be said that the provision is hit by Art. 19 (1) (f), for it would in our opinion be a reasonable restriction on the right to hold property. We hold therefore that the clause so interpreted is not unconstitutional. We have already said that the amendments in S. 41 are only consequential to the insertion of cl. (aa) in S. 40 (1) and would therefore be equally valid andattack on it on the basis of Art. 31 (2) is that it makes an irrebuttable presumption that the acquisition was for a public purpose, though it may not be actually so and therefore contravenes Art. 31 (2) inasmuch as the result of this irrebuttable presumption is that acquisition which may not have been for a public purpose, is validated. We do not think that there is any force in this contention in view of the interpretation we have given to cl. (aa) introduced in S. 40 (1). The first fiction in S. 7 is that it shall be presumed that acquisitions before July 20, 1962, if they do not fall within cl. (a) or cl. (b) of S. 40 (1) shall be deemed to fall within cl. (aa). That means that building or work for which acquisition was made was required for a public purpose of the kind indicated in cl. (aa). It does not however follow from this that if the purpose was not of the kind indicated in cl. (aa) it will still be presumed that the acquisition was for the purpose mentioned in cl. (aa). All that the first deeming provision lays down is that where the public purpose does not come within cl. (a) or cl. (b) it should be deemed to come within cl. (aa), provided it is of a kind which can come within this clause. The intention behind this deeming provision clearly is to make the purpose of an acquisition made before July 20, 1962 which does not fall within cl. (a) or cl. (b) of S. 40(1) to be judged in accordance with the provisions contained in cl. (aa). On a reasonable interpretation, this deeming provision therefore only provides that where the purpose does not fall within cls. (a) and (b), it shall be deemed to fall under cl. (aa) and to be judged in accordance therewith. If in fact the purpose of any acquisition made before July 20, 1962, is such as does not fall within cl. (aa), the deeming provision would be of no avail. Thus the first of the two fictions introduced by S. 7 of the Amendment Act merely lays down that where a notification under S. 6 of the Act cannot be justified under cl. (a) and cl. (b) of the S. 40 (1), it will be judged in accordance with the provision contained in cl. (aa) and if it satisfies those provisions, the acquisition will be deemed for the purpose of that clause, as if that clause existed at the relevant time, though in actual fact it did not. The first fiction therefore in our opinion goes no further than this and does not provide that even though the purpose of acquisition does not fall within cl. (aa), it will still be deemed to be a public purpose. In this view of the matter, we are of opinion that the attack on S. 7 on the basis of Art. 31 (2) must fail.We may in this connection refer to the words "as valid as if" appearing in S. 7 of the Amendment Act, because they are in our opinion the key words for the purpose of interpreting the extent of the validity conferred on acquisitions before July 20, 1962. What the second fiction provides is that an acquisition made before that date shall be as valid as if the provisions of Ss. 40 and 41 of the Act as amended by the Amendment Act were in force at all material times. The force of the words "as valid as if" clearly is that the validity of acquisitions made before July 20, 1962 has to be judged on the basis that cl. (aa) was in force at the material time and in accordance therewith. The validity therefore is not absolute; it is conditioned by the fact that it will be as valid as if cl. (aa) was in force; so that if it could not be valid even if cl. (aa) was in force and could not be justified under the terms of that clause, the validity conferred by S.7 of the Amendment Act will not attach to it. This in our opinion is the force of the words "as valid as if" and the validity it has conferred is not absolute as contended on behalf of the petitioner and will not apply to those acquisitions which would not be valid if they could not be justified on the basis of cl. (aa) assuming it to be in force at the material time. In this view the attack under Art. 14 as well as Art. 31 (2) fails, for in neither case can acquisition be valid whether made before July 20, 1962 or thereafter, unless the conditions of cl. (aa) aresee no force in this contention. Section 7 opens with the words "notwithstanding any judgment, decree or order of any court" and the validity conferred by it on acquisitions made before July 20, 1962 is thus notwithstanding any judgment, decree or order of any court. These are the usual words to be found in validating legislation where the intention is to validate some action which would otherwise be invalid and which may have been declared invalid by any court. The purpose of such words in a validating legislation is to declare valid what has been held invalid by courts and once the legislature declares such action valid all steps taken in connection therewith are validated to the extent of validation. The result of the validation is that notifications or other steps taken which may otherwise have been invalid become valid. Further an acquisition also even though it may have been struck down by a court would be validated if it has been made in the sense that property in the land to be acquired has vested in Government either under S. 16 or S. 17(1) of the Act. It is not in dispute in this case that the property has vested in Government under Section 17(1) of the Act. It is also not in dispute that the purpose of the company was a public purpose, namely, manufacture of textile machinery parts and that the acquisition was also for the construction of works for that purpose. In the circumstances we fail to see how it can be said that rights of the petitioner have not been affected at all by the validating provision in S. 7 of the Act. The contention under this head alsohave not been able to understand exactly what is meant by this. As we have already said, it is not in dispute that the purpose of the company is a public purpose, namely, production of textile machinery parts and the land is acquired for construction of works for that purpose. The agreement shows that the land is required for the construction of a work, namely, a factory for the manufacture of textile machinery and parts and that such work is likely to prove useful to the public. One term of the agreement is that the company, its successors and assignees will use the said land for the aforesaid purpose and for no other purpose without the previous sanction in writing of the State Government. Another term provides that if the said land or any part or parts thereof shall no longer be required by the company, then the company will forthwith relinquish and restore the same after removing all buildings and structure to the Governor at a price equal to the amount paid by it under the Act. It is clear therefore that the land cannot be used for any other purpose and it will have to be restored to the Government if it is not used for the purpose for which it was acquired. In this connection reference may be made to S. 44-A introduced by the Amendment Act which lays down that "no company for which any land is acquired under this Part shall be entitled to transfer the said land or any part thereof by sale, mortgage gift, lease or otherwise except with the previous sanction of the appropriate Government". This provision also provides a safeguard that the land will only be used for the public purpose for which it is acquired and not otherwise. The aforesaid terms in the agreement in our opinion satisfy the condition that the land will be used for the public purpose for which it was being acquired and for no other. Therefore the acquisition is for a public purpose as provided in cl. (aa).We do not think it is the purpose of the Act that the agreement should provide for regulation or control of the products of a company, which probably means that Government should control the quantum of production and distribution or the price of the produced articles. This in our opinion is foreign to the purpose of the Act. All that the Act requires is that before land is transferred to the company by the Government, the agreement, should provide that land would be used for the purpose for which it was acquired and for no other. The Act has nothing to do with the control or regulation of the products of the company and gives no power to Government in that behalf. Nor do we think it was necessary in order that the public purpose mentioned in cl. (aa) is carried out to have any further term in the agreement besides those which have been provided in the agreement in this case. The contention that the acquisition in the present case was not for a public purpose as the agreement does not provide for the control and regulation of the product of the company must thereforeintention of the previous owner whatever it may be does not in our opinion enter into the question at all, so far as the validity of the acquisition is concerned provided the acquisition is for a public purpose. Whether the land should be acquired or not is a matter which may be urged under S. 5-A of the Act which gives the owner of the land the right to object to the acquisition, and it is for Government to decide whether the objection should be allowed or rejected. Once the Government decides that the objection should be rejected and that the acquisition is needed for a public purpose the validity of the notification under S. 6 and the subsequent action thereafter cannot be challenged on the ground that the previous owner himself intended to use the land for some public purpose. In this connection our attention is invited to the observations of this Court in Province of Bombay v. Khushaldas S. Advani, (1950) SCR 621 at p. 687 : (AIR 1950 SC 222 at p. 246) where it was observed that "under certain circumstances even securing a house for an individual may be in the interests of the community, but it cannot be to the general interest of the community to requisition the property of one refugee for the benefit of another refugee". These observations in our opinion have no relevance to the matter under consideration. We are concerned here with acquisition for a public purpose, which is undisputed. This is not a case of a house of one person being requisitioned for another; this is a case of constructing some work which will be useful to the public and will subserve the public purpose of the production of textile machinery and its parts for the use of the general public. In these circumstances we are of opinion that there being a definite public purpose behind the acquisition in the present case, the acquisition would be justified under the Act irrespective of the intention of the previous owner of the land to use it for some other public purpose. The contention under this head must alsois said that there is discrimination between a public company and a Government company for which land can be acquired under cl. (aa) on the one hand and a private company or an individual on the other. It is true that acquisition for the purpose of cl. (aa) can only be made for a Government company or a public company and cannot be made for a private company or an individual; but there is in our opinion a clear classification between a public company and a Government company on the one hand and a private company and an individual on the other, which has reasonable nexus with the objects to be achieved under the law. The intention of the legislature clearly is that private individuals and private companies which really consist of a few private individuals banded together should not have the advantage of acquiring land even though they may be intending to engage in some industry or work which may be for a public purpose inasmuch the enrichment consequent on such work goes to private individuals or to a group of them who have formed themselves into a private company. Public companies on the other hand are broad based and Government companies are really in a sense no different from Government, though for convenience of administration a Government company may be formed, which thus becomes a separate legal entity. Thus in one case the acquisition results in private enrichment while in the other it is the public which gains in every way. Therefore a distinction in the matter of acquisition of land between public companies and Government companies on the one hand and private individuals and private companies on the other is in our opinion justified, considering the object behind cl. (aa) as introduced into the Act. The contention under this head must therefore alsofeel unable to accept this as a possible construction of the words used. For that construction to be adopted even the transposition of the words "for a public purpose" to an earlier point after the words "for a company" would not be sufficient assuming the rules of grammar permitted such a course; for, then it wold leave out the description or categorisation of the company for which the land is needed, and in such a situation the entire object of the amendment would be frustrated, as it would not be a condition that the industry in which the company is engaged is one which is required in public interest. Even if the clause were re-written so as to introduce the words "for a public purpose" earlier and also retain them where it occurs now, the construction for which Mr. Setalvad contends cannot result, for then it would not make much sense, for the words "for a public purpose" if transposed earlier would not convey the meaning which Mr. Setalvad says that convey, because the construction which learned counsel suggests is that the clause means that the land is needed for the construction of the factory and other essential buildings for a company engaged in an industry which serves the national interest. By no transposition of the words actually used in the clause can such a transformation bequite agree that if the language were flexible in the sense that in could be read so as to make it refer only to cases of acquisition for a public purpose, this could and ought to be done. But this assumes that the clause is reasonably capable of two interpretations; one which would render it unconstitutional and the other which even though it be a little strained, would make it constitutional, then the Court would lean in favour of the latter construction. | 0 | 11,596 | 3,777 | ### 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:
invoked to resolve that ambiguity. It was not suggested that the words do not, as they stand, make sense. They do, only the sense which they convey makes the clause unconstitutional. No doubt, the meaning of a word may vary with the setting or context, but that is not the position here. One asks in vain "which is the word which is said to bear a different meaning from the natural normal, dictionary sense, because of the context or setting"?28. It was, however, urged that it could not have been the intention of Parliament to have intended the clause to mean what appears to be meaning which I have said the words bore. But this argument ignores the basic principle underlying all rules of statutory construction that the intention of the legislature has to be gathered only from the meaning of the words used, for they are the only means by which the intention of the law-maker could be gathered. It is only where there is an ambiguity and the words are capable of more than one construction that any extrinsic aid in the shape of the purpose of the legislature, or the object of the legislation come in for consideration. "Where the language of an Act is clear and explicit," said Tindal, C. J. in Warburton v. Loveland, (1832) 2 Dow and Cl (HL) 480 at p. 489."we must give effect to it whatever be the consequences, for in that case the words of the statute speak the intention of the legislature".29. Authority is not needed for the proposition that the intention of the legislature is not a matter to be speculated upon. Interpretation or construction cannot mean that a Court first reaches a conclusion as to what in its opinion the legislature intended, even though this involves attributing a meaning divorced from the words used, and then adjust the meaning to the conclusion it has reached. As was observed by Lord Watson in an oft quoted passage in Salomon v. A. Salomon and Co., (1897) AC 22 at p. 38 :-"Intention of the legislature is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication."30. It was the same principle that was explained by Lord Herschell in Cox v. Hakes, (1890) 15 AC 506 at p. 528 when he said :". . . . . . It must be admitted that if the language of the legislature interpreted according to the recognised canons of construction involves this result, your Lordships must frankly yield to it, even if you should be satisfied that it was not in the contemplation of the legislature."31. The only way in which I am able to read the clause is to relate the words "public purpose" to the nature of the industry carried on by the company and by no rule of construction with or without extrinsic aids or with reference to the context, not to speak of rules of grammar, can the reference to public purpose be related to the building or work for which the acquisition is permitted to be made.32. The learned Attorney-General submitted that the provision could and ought to be read down and confined in its operation to acquisition for public purposes as properly understood; in other words, to sever the constitutional from the unconstitutional portions and uphold the former. I do not find it possible to adopt this approach in a clause worded like the one before us. On the construction of the clause which I hold is the only possible one to adopt, it means the State is empowered to compulsorily acquire land for companies which satisfy the description of being engaged in an industry which is essential for the life of the community whether or not the purpose for which the company proposes to use the land acquired is a public purpose. Where the purpose for which the acquisition could be made is indicated by the enactment and that purpose, is one which is primarily constitutionally permissible but the words employed for indicating the purposes might possibly include some outside the power of the legislature, an argument about reading down would require consideration. But in the clause now impugned there is no purpose indicated at all except that it is needed for a company which falls within a particular category. For such a situation I consider that there is no scope at all for invoking the principle of reading down.33. Again, where the provision gives a carte blanche to Government to acquire land for any purpose it is not possible to sustain the validity of such a law and strike down merely the particular acquisition where land is acquired for a purpose which is not a public purpose, for here the vice is in the law itself and not merely in the application.34. I am therefore, clearly of the opinion that cl. (aa) introduced by the Amending Act XXXI of 1962 is unconstitutional as violative of Art. 31(2).35. In this view it is unnecessary for me to consider the proper construction of S. 7 of the Amending Act. Under the terms of S. 7 of the Act, all acquisition of land made prior to June 20, 1962, even accepting construction which Mr. Setalvad pressed upon us, are deemed to have been made for a purpose falling within cl. (aa). If, as I have held, cl. (aa) is unconstitutional and void, it was not contended that S. 7 would be of any assistance to the respondents to sustain the acquisition of the petitioners land. I would, therefore, allow the petition and grant the reliefs prayed for therein.ORDER36.
### Response:
0
### Explanation:
in the present case was not for a public purpose as the agreement does not provide for the control and regulation of the product of the company must thereforeintention of the previous owner whatever it may be does not in our opinion enter into the question at all, so far as the validity of the acquisition is concerned provided the acquisition is for a public purpose. Whether the land should be acquired or not is a matter which may be urged under S. 5-A of the Act which gives the owner of the land the right to object to the acquisition, and it is for Government to decide whether the objection should be allowed or rejected. Once the Government decides that the objection should be rejected and that the acquisition is needed for a public purpose the validity of the notification under S. 6 and the subsequent action thereafter cannot be challenged on the ground that the previous owner himself intended to use the land for some public purpose. In this connection our attention is invited to the observations of this Court in Province of Bombay v. Khushaldas S. Advani, (1950) SCR 621 at p. 687 : (AIR 1950 SC 222 at p. 246) where it was observed that "under certain circumstances even securing a house for an individual may be in the interests of the community, but it cannot be to the general interest of the community to requisition the property of one refugee for the benefit of another refugee". These observations in our opinion have no relevance to the matter under consideration. We are concerned here with acquisition for a public purpose, which is undisputed. This is not a case of a house of one person being requisitioned for another; this is a case of constructing some work which will be useful to the public and will subserve the public purpose of the production of textile machinery and its parts for the use of the general public. In these circumstances we are of opinion that there being a definite public purpose behind the acquisition in the present case, the acquisition would be justified under the Act irrespective of the intention of the previous owner of the land to use it for some other public purpose. The contention under this head must alsois said that there is discrimination between a public company and a Government company for which land can be acquired under cl. (aa) on the one hand and a private company or an individual on the other. It is true that acquisition for the purpose of cl. (aa) can only be made for a Government company or a public company and cannot be made for a private company or an individual; but there is in our opinion a clear classification between a public company and a Government company on the one hand and a private company and an individual on the other, which has reasonable nexus with the objects to be achieved under the law. The intention of the legislature clearly is that private individuals and private companies which really consist of a few private individuals banded together should not have the advantage of acquiring land even though they may be intending to engage in some industry or work which may be for a public purpose inasmuch the enrichment consequent on such work goes to private individuals or to a group of them who have formed themselves into a private company. Public companies on the other hand are broad based and Government companies are really in a sense no different from Government, though for convenience of administration a Government company may be formed, which thus becomes a separate legal entity. Thus in one case the acquisition results in private enrichment while in the other it is the public which gains in every way. Therefore a distinction in the matter of acquisition of land between public companies and Government companies on the one hand and private individuals and private companies on the other is in our opinion justified, considering the object behind cl. (aa) as introduced into the Act. The contention under this head must therefore alsofeel unable to accept this as a possible construction of the words used. For that construction to be adopted even the transposition of the words "for a public purpose" to an earlier point after the words "for a company" would not be sufficient assuming the rules of grammar permitted such a course; for, then it wold leave out the description or categorisation of the company for which the land is needed, and in such a situation the entire object of the amendment would be frustrated, as it would not be a condition that the industry in which the company is engaged is one which is required in public interest. Even if the clause were re-written so as to introduce the words "for a public purpose" earlier and also retain them where it occurs now, the construction for which Mr. Setalvad contends cannot result, for then it would not make much sense, for the words "for a public purpose" if transposed earlier would not convey the meaning which Mr. Setalvad says that convey, because the construction which learned counsel suggests is that the clause means that the land is needed for the construction of the factory and other essential buildings for a company engaged in an industry which serves the national interest. By no transposition of the words actually used in the clause can such a transformation bequite agree that if the language were flexible in the sense that in could be read so as to make it refer only to cases of acquisition for a public purpose, this could and ought to be done. But this assumes that the clause is reasonably capable of two interpretations; one which would render it unconstitutional and the other which even though it be a little strained, would make it constitutional, then the Court would lean in favour of the latter construction.
|
Sameer Singh Vs. Abdul Rab | the proceedings under Rule 97, have to be adjudicated by the executing court itself and not left to be decided by way of a fresh suit.” 19. In the case of S. Rajeswari (supra), the appellant was one of the persons who had obstructed the execution of a decree obtained by the 1st respondent therein and had filed an application under Section 151 of CPC which was rejected by the executing court on the ground that it was not maintainable. Being grieved by the said order he preferred a revision petition which was allowed by the High Court. The Court treated the application preferred under Section 151 of C.P.C. to be one under Order XXI, Rule 97 because the executing court proceeded to record evidence and thereupon adjudicated the matter. The evidence of the decree-holder was considered and a conclusion was arrived at that the identity of plot in question had not been established and thereby the plaintiff was disabled from executing the decree for possession of the land. A contention was raised before this Court that the High Court had erred in entertaining a revision petition under Section 115, C.P.C., for the order was a decree under Order XXI, Rule 103 of C.P.C. and hence, an appeal lay. The said contention was accepted by this Court. 20. At this juncture, we may refer with profit to the pronouncement in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another (AIR 1997 SC 856 )wherein a two-Judge Bench scanning the anatomy of the rules came to hold that:- “... a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI, Rule 99. Order XXI, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decreeholder.While Order XXI, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him.” 21. The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order XXI, Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai and others ((2003) 6 SCC 675). 22. Whether the executing court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v. Kamalaksha Chaudhury and others (AIR 1949 PC 239 ). The same principle has been reiterated in Keshardeo Chamria v. Radha Kissan Chamria and others (AIR 1953 SC 23 )and Chaube Jagdish Prasad and another v. Ganga Prasad Chaturvedi (AIR 1959 SC 492 ). Needless to emphasise, the said principle is well-settled. After the amendment of Section 115, C.P.C. w.e.f. 1.7.2002, the said power is exercised under Article 227 of the Constitution as per the principle laid down in Surya Dev Rai (supra). Had the executing court apart from expressing the view that it had become functus officio had adjudicated the issues on merits, the question would have been different, for in that event there would have been an adjudication.23. | 1[ds]The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order XXI, Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai and others ((2003) 6 SCCthe executing court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v. Kamalaksha Chaudhury and others (AIR 1949 PC 239 ). The same principle has been reiterated in Keshardeo Chamria v. Radha Kissan Chamria and others (AIR 1953 SC 23 )and Chaube Jagdish Prasad and another v. Ganga Prasad Chaturvedi (AIR 1959 SC 492 ). Needless to emphasise, the said principle is well-settled. After the amendment of Section 115, C.P.C. w.e.f. 1.7.2002, the said power is exercised under Article 227 of the Constitution as per the principle laid down in Surya Dev Rai (supra). Had the executing court apart from expressing the view that it had become functus officio had adjudicated the issues on merits, the question would have been different, for in that event there would have been an adjudication. | 1 | 4,665 | 560 | ### 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 proceedings under Rule 97, have to be adjudicated by the executing court itself and not left to be decided by way of a fresh suit.” 19. In the case of S. Rajeswari (supra), the appellant was one of the persons who had obstructed the execution of a decree obtained by the 1st respondent therein and had filed an application under Section 151 of CPC which was rejected by the executing court on the ground that it was not maintainable. Being grieved by the said order he preferred a revision petition which was allowed by the High Court. The Court treated the application preferred under Section 151 of C.P.C. to be one under Order XXI, Rule 97 because the executing court proceeded to record evidence and thereupon adjudicated the matter. The evidence of the decree-holder was considered and a conclusion was arrived at that the identity of plot in question had not been established and thereby the plaintiff was disabled from executing the decree for possession of the land. A contention was raised before this Court that the High Court had erred in entertaining a revision petition under Section 115, C.P.C., for the order was a decree under Order XXI, Rule 103 of C.P.C. and hence, an appeal lay. The said contention was accepted by this Court. 20. At this juncture, we may refer with profit to the pronouncement in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another (AIR 1997 SC 856 )wherein a two-Judge Bench scanning the anatomy of the rules came to hold that:- “... a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI, Rule 99. Order XXI, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decreeholder.While Order XXI, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him.” 21. The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order XXI, Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai and others ((2003) 6 SCC 675). 22. Whether the executing court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v. Kamalaksha Chaudhury and others (AIR 1949 PC 239 ). The same principle has been reiterated in Keshardeo Chamria v. Radha Kissan Chamria and others (AIR 1953 SC 23 )and Chaube Jagdish Prasad and another v. Ganga Prasad Chaturvedi (AIR 1959 SC 492 ). Needless to emphasise, the said principle is well-settled. After the amendment of Section 115, C.P.C. w.e.f. 1.7.2002, the said power is exercised under Article 227 of the Constitution as per the principle laid down in Surya Dev Rai (supra). Had the executing court apart from expressing the view that it had become functus officio had adjudicated the issues on merits, the question would have been different, for in that event there would have been an adjudication.23.
### Response:
1
### Explanation:
The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order XXI, Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai and others ((2003) 6 SCCthe executing court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v. Kamalaksha Chaudhury and others (AIR 1949 PC 239 ). The same principle has been reiterated in Keshardeo Chamria v. Radha Kissan Chamria and others (AIR 1953 SC 23 )and Chaube Jagdish Prasad and another v. Ganga Prasad Chaturvedi (AIR 1959 SC 492 ). Needless to emphasise, the said principle is well-settled. After the amendment of Section 115, C.P.C. w.e.f. 1.7.2002, the said power is exercised under Article 227 of the Constitution as per the principle laid down in Surya Dev Rai (supra). Had the executing court apart from expressing the view that it had become functus officio had adjudicated the issues on merits, the question would have been different, for in that event there would have been an adjudication.
|
Agricultural & Industrial Syndicate Ltd Vs. State Of U.P. And Others | to which proceedings can or ought to be taken under the Consolidation Act. So the limited question to be considered is whether the proceeding in the present case is one "in respect of declaration of rights or interest in any land lying in the area."8. When a tenure-holder voluntarily files a statement of his holdings under S. 9, the proceeding before the Prescribed Authority is not of this kind because the tenure-holder admits that the holdings are his. There is ordinarily no dispute about any right or interest in the holdings before the Prescribed Authority. Again, when the tenure-holder accepts the statement sent to him by the Prescribed Authority under S. 10, there is ordinarily no dispute with respect to any right or interest in land. In these two instances Section 5 (2) will not apply. But where the tenure-holder does not voluntarily file a statement under S. 9 and disputes that he is not the tenure-holder of all or some of the plots included in the statement prepared under S. 10, there ensues a dispute about a right or interest in land. According to Section 32 of the Ceiling Act, the State Government is a party to every proceeding. So in such a case there is an adverse proceeding before the Prescribed Authority between him and the Government. The Prescribed Authority will decide under S. 12 whether the tenure-holder has any right or interest in all or some of the plots. If the Prescribed Authority finds that he has no right or interest in all or some of the plots he will exclude those plots from the statement served on him under Sec. 10 and determine the ceiling area and surplus land without taking into account the excluded plots. This is the very question which is in issue before the Consolidation authority under the Consolidation Act. Under S. 10 of the Consolidation Act the Consolidation Officer is called upon to adjudicate upon various claims to the plots falling within the consolidation area. Take this particular case. Admittedly a large number of persons have filed claims to the plots of the appellant before the Consolidation Authorities. Their claims are pending consideration in revisions under Section 48 of the Consolidation Act. If there revisions are allowed, a large area of land included in the statement under S. 10 of the Ceiling Act will have to be excluded from consideration by the Prescribed Authority. It is therefore obvious that the non-stay of proceedings under the Ceiling Act would cause great hardship to the appellant. Counsel for the respondent has submitted that all those claimants before the revising authority under the Consolidation Act can be impleaded as parties in the proceedings under the Ceiling Act. Assuming in arguendo that they can be so impleaded, the question still remains whether the proceedings under the Ceiling Act can go on while proceedings with respect to any right or interest in the plots of the appellant are simultaneously going on behalf the consolidation authorities. As soon as those claimants are impleaded in the proceeding under S. 12 of the Ceiling Act, the proceeding will more pointedly become a proceeding "in respect of declaration of right or interest in any land" under S. 5(2) of Consolidation Act.9. It is true that the purpose of the two Acts are different. Under the Ceiling Act the ceiling area and surplus land of a tenure-holder are determined; under the Consolidation Act the holdings of a tenure-holder are consolidated. But neither purpose may in a large number of cases be accomplished without first determining the right or interest of various claimants in the plots. So the crucial question for decision is as to whether the Prescribed Authority under the Ceiling Act or the Consolidation authority under the Consolidation Act has got a preamptive jurisdiction to determine rival rights and interest in the land of the appellant. We have already shown that the proceeding under S. 12 of the Ceiling Act is a proceeding within the purview of S. 5(2) of the Consolidation Act, Section 49 of the Consolidation Act materially provides;"Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a notification has been issued under sub-section (2) of S. 4... shall be done in accordance with the provisions of this Act...."10. Obviously the purpose of the non-obstante clause in S. 49 is to exclude the operation of any other overlapping Act. So the non-obstante clause would exclude the operation of the Ceiling Act while the Consolidation Act is in operation in a particular area. Section 5 (2) and S. 49 indicate clearly that the proceedings in the instant case are to be abated under Section 5(2). Section 48A of the Consolidation Act expressly saves the jurisdiction of the Custodian of the Evacuee properties to decide claims to the plots of the evacuees during consolidation operations. The absence of a like provision in relation to the jurisdiction of the Prescribed Authority under the Ceiling Act lends support to our inference.11. We do not think that the construction of S. 5(2) should be influenced by the argument that if the proceedings under S. 12 of the Ceiling Act are abated, the appellant would retain lands in its hands permanently or for a long time. As soon as the consolidation operations are closed on the valid issue of a notification under S. 6 or S. 52, the proceeding under the Ceiling Act may be resumed. In any event, it is plain from the language of Ss. 5 (2) 48A and 49 of the Consolidation Act that the proceedings under the Ceiling Act cannot continue in the circumstances of this case as long as the consolidation operations are going on.12. As in a fresh petition the High Court has stayed the operation of the notification under S. 6 of the Consolidation Act, it is of no avail to the respondent in this appeal. | 1[ds]8. When a tenure-holder voluntarily files a statement of his holdings under S. 9, the proceeding before the Prescribed Authority is not of this kind because the tenure-holder admits that the holdings are his. There is ordinarily no dispute about any right or interest in the holdings before the Prescribed Authority. Again, when the tenure-holder accepts the statement sent to him by the Prescribed Authority under S. 10, there is ordinarily no dispute with respect to any right or interest in land. In these two instances Section 5 (2) will not apply. But where the tenure-holder does not voluntarily file a statement under S. 9 and disputes that he is not the tenure-holder of all or some of the plots included in the statement prepared under S. 10, there ensues a dispute about a right or interest in land. According to Section 32 of the Ceiling Act, the State Government is a party to every proceeding. So in such a case there is an adverse proceeding before the Prescribed Authority between him and the Government. The Prescribed Authority will decide under S. 12 whether the tenure-holder has any right or interest in all or some of the plots. If the Prescribed Authority finds that he has no right or interest in all or some of the plots he will exclude those plots from the statement served on him under Sec. 10 and determine the ceiling area and surplus land without taking into account the excluded plots. This is the very question which is in issue before the Consolidation authority under the Consolidation Act. Under S. 10 of the Consolidation Act the Consolidation Officer is called upon to adjudicate upon various claims to the plots falling within the consolidation area. Take this particular case. Admittedly a large number of persons have filed claims to the plots of the appellant before the Consolidation Authorities. Their claims are pending consideration in revisions under Section 48 of the Consolidation Act. If there revisions are allowed, a large area of land included in the statement under S. 10 of the Ceiling Act will have to be excluded from consideration by the Prescribed Authority. It is therefore obvious that the non-stay of proceedings under the Ceiling Act would cause great hardship to the appellant. Counsel for the respondent has submitted that all those claimants before the revising authority under the Consolidation Act can be impleaded as parties in the proceedings under the Ceiling Act. Assuming in arguendo that they can be so impleaded, the question still remains whether the proceedings under the Ceiling Act can go on while proceedings with respect to any right or interest in the plots of the appellant are simultaneously going on behalf the consolidation authorities. As soon as those claimants are impleaded in the proceeding under S. 12 of the Ceiling Act, the proceeding will more pointedly become a proceeding "in respect of declaration of right or interest in any land" under S. 5(2) of Consolidation Act.Obviously the purpose of the non-obstante clause in S. 49 is to exclude the operation of any other overlapping Act. So the non-obstante clause would exclude the operation of the Ceiling Act while the Consolidation Act is in operation in a particular area. Section 5 (2) and S. 49 indicate clearly that the proceedings in the instant case are to be abated under Section 5(2). Section 48A of the Consolidation Act expressly saves the jurisdiction of the Custodian of the Evacuee properties to decide claims to the plots of the evacuees during consolidation operations. The absence of a like provision in relation to the jurisdiction of the Prescribed Authority under the Ceiling Act lends support to our inference.11. We do not think that the construction of S. 5(2) should be influenced by the argument that if the proceedings under S. 12 of the Ceiling Act are abated, the appellant would retain lands in its hands permanently or for a long time. As soon as the consolidation operations are closed on the valid issue of a notification under S. 6 or S. 52, the proceeding under the Ceiling Act may be resumed. In any event, it is plain from the language of Ss. 5 (2) 48A and 49 of the Consolidation Act that the proceedings under the Ceiling Act cannot continue in the circumstances of this case as long as the consolidation operations are going on.12. As in a fresh petition the High Court has stayed the operation of the notification under S. 6 of the Consolidation Act, it is of no avail to the respondent in this appeal. | 1 | 2,518 | 827 | ### 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:
to which proceedings can or ought to be taken under the Consolidation Act. So the limited question to be considered is whether the proceeding in the present case is one "in respect of declaration of rights or interest in any land lying in the area."8. When a tenure-holder voluntarily files a statement of his holdings under S. 9, the proceeding before the Prescribed Authority is not of this kind because the tenure-holder admits that the holdings are his. There is ordinarily no dispute about any right or interest in the holdings before the Prescribed Authority. Again, when the tenure-holder accepts the statement sent to him by the Prescribed Authority under S. 10, there is ordinarily no dispute with respect to any right or interest in land. In these two instances Section 5 (2) will not apply. But where the tenure-holder does not voluntarily file a statement under S. 9 and disputes that he is not the tenure-holder of all or some of the plots included in the statement prepared under S. 10, there ensues a dispute about a right or interest in land. According to Section 32 of the Ceiling Act, the State Government is a party to every proceeding. So in such a case there is an adverse proceeding before the Prescribed Authority between him and the Government. The Prescribed Authority will decide under S. 12 whether the tenure-holder has any right or interest in all or some of the plots. If the Prescribed Authority finds that he has no right or interest in all or some of the plots he will exclude those plots from the statement served on him under Sec. 10 and determine the ceiling area and surplus land without taking into account the excluded plots. This is the very question which is in issue before the Consolidation authority under the Consolidation Act. Under S. 10 of the Consolidation Act the Consolidation Officer is called upon to adjudicate upon various claims to the plots falling within the consolidation area. Take this particular case. Admittedly a large number of persons have filed claims to the plots of the appellant before the Consolidation Authorities. Their claims are pending consideration in revisions under Section 48 of the Consolidation Act. If there revisions are allowed, a large area of land included in the statement under S. 10 of the Ceiling Act will have to be excluded from consideration by the Prescribed Authority. It is therefore obvious that the non-stay of proceedings under the Ceiling Act would cause great hardship to the appellant. Counsel for the respondent has submitted that all those claimants before the revising authority under the Consolidation Act can be impleaded as parties in the proceedings under the Ceiling Act. Assuming in arguendo that they can be so impleaded, the question still remains whether the proceedings under the Ceiling Act can go on while proceedings with respect to any right or interest in the plots of the appellant are simultaneously going on behalf the consolidation authorities. As soon as those claimants are impleaded in the proceeding under S. 12 of the Ceiling Act, the proceeding will more pointedly become a proceeding "in respect of declaration of right or interest in any land" under S. 5(2) of Consolidation Act.9. It is true that the purpose of the two Acts are different. Under the Ceiling Act the ceiling area and surplus land of a tenure-holder are determined; under the Consolidation Act the holdings of a tenure-holder are consolidated. But neither purpose may in a large number of cases be accomplished without first determining the right or interest of various claimants in the plots. So the crucial question for decision is as to whether the Prescribed Authority under the Ceiling Act or the Consolidation authority under the Consolidation Act has got a preamptive jurisdiction to determine rival rights and interest in the land of the appellant. We have already shown that the proceeding under S. 12 of the Ceiling Act is a proceeding within the purview of S. 5(2) of the Consolidation Act, Section 49 of the Consolidation Act materially provides;"Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a notification has been issued under sub-section (2) of S. 4... shall be done in accordance with the provisions of this Act...."10. Obviously the purpose of the non-obstante clause in S. 49 is to exclude the operation of any other overlapping Act. So the non-obstante clause would exclude the operation of the Ceiling Act while the Consolidation Act is in operation in a particular area. Section 5 (2) and S. 49 indicate clearly that the proceedings in the instant case are to be abated under Section 5(2). Section 48A of the Consolidation Act expressly saves the jurisdiction of the Custodian of the Evacuee properties to decide claims to the plots of the evacuees during consolidation operations. The absence of a like provision in relation to the jurisdiction of the Prescribed Authority under the Ceiling Act lends support to our inference.11. We do not think that the construction of S. 5(2) should be influenced by the argument that if the proceedings under S. 12 of the Ceiling Act are abated, the appellant would retain lands in its hands permanently or for a long time. As soon as the consolidation operations are closed on the valid issue of a notification under S. 6 or S. 52, the proceeding under the Ceiling Act may be resumed. In any event, it is plain from the language of Ss. 5 (2) 48A and 49 of the Consolidation Act that the proceedings under the Ceiling Act cannot continue in the circumstances of this case as long as the consolidation operations are going on.12. As in a fresh petition the High Court has stayed the operation of the notification under S. 6 of the Consolidation Act, it is of no avail to the respondent in this appeal.
### Response:
1
### Explanation:
8. When a tenure-holder voluntarily files a statement of his holdings under S. 9, the proceeding before the Prescribed Authority is not of this kind because the tenure-holder admits that the holdings are his. There is ordinarily no dispute about any right or interest in the holdings before the Prescribed Authority. Again, when the tenure-holder accepts the statement sent to him by the Prescribed Authority under S. 10, there is ordinarily no dispute with respect to any right or interest in land. In these two instances Section 5 (2) will not apply. But where the tenure-holder does not voluntarily file a statement under S. 9 and disputes that he is not the tenure-holder of all or some of the plots included in the statement prepared under S. 10, there ensues a dispute about a right or interest in land. According to Section 32 of the Ceiling Act, the State Government is a party to every proceeding. So in such a case there is an adverse proceeding before the Prescribed Authority between him and the Government. The Prescribed Authority will decide under S. 12 whether the tenure-holder has any right or interest in all or some of the plots. If the Prescribed Authority finds that he has no right or interest in all or some of the plots he will exclude those plots from the statement served on him under Sec. 10 and determine the ceiling area and surplus land without taking into account the excluded plots. This is the very question which is in issue before the Consolidation authority under the Consolidation Act. Under S. 10 of the Consolidation Act the Consolidation Officer is called upon to adjudicate upon various claims to the plots falling within the consolidation area. Take this particular case. Admittedly a large number of persons have filed claims to the plots of the appellant before the Consolidation Authorities. Their claims are pending consideration in revisions under Section 48 of the Consolidation Act. If there revisions are allowed, a large area of land included in the statement under S. 10 of the Ceiling Act will have to be excluded from consideration by the Prescribed Authority. It is therefore obvious that the non-stay of proceedings under the Ceiling Act would cause great hardship to the appellant. Counsel for the respondent has submitted that all those claimants before the revising authority under the Consolidation Act can be impleaded as parties in the proceedings under the Ceiling Act. Assuming in arguendo that they can be so impleaded, the question still remains whether the proceedings under the Ceiling Act can go on while proceedings with respect to any right or interest in the plots of the appellant are simultaneously going on behalf the consolidation authorities. As soon as those claimants are impleaded in the proceeding under S. 12 of the Ceiling Act, the proceeding will more pointedly become a proceeding "in respect of declaration of right or interest in any land" under S. 5(2) of Consolidation Act.Obviously the purpose of the non-obstante clause in S. 49 is to exclude the operation of any other overlapping Act. So the non-obstante clause would exclude the operation of the Ceiling Act while the Consolidation Act is in operation in a particular area. Section 5 (2) and S. 49 indicate clearly that the proceedings in the instant case are to be abated under Section 5(2). Section 48A of the Consolidation Act expressly saves the jurisdiction of the Custodian of the Evacuee properties to decide claims to the plots of the evacuees during consolidation operations. The absence of a like provision in relation to the jurisdiction of the Prescribed Authority under the Ceiling Act lends support to our inference.11. We do not think that the construction of S. 5(2) should be influenced by the argument that if the proceedings under S. 12 of the Ceiling Act are abated, the appellant would retain lands in its hands permanently or for a long time. As soon as the consolidation operations are closed on the valid issue of a notification under S. 6 or S. 52, the proceeding under the Ceiling Act may be resumed. In any event, it is plain from the language of Ss. 5 (2) 48A and 49 of the Consolidation Act that the proceedings under the Ceiling Act cannot continue in the circumstances of this case as long as the consolidation operations are going on.12. As in a fresh petition the High Court has stayed the operation of the notification under S. 6 of the Consolidation Act, it is of no avail to the respondent in this appeal.
|
Indiabulls Housing Finance and ors Vs. State of Maharashtra and ors | the present appellant No.1. We are only stating about the devilish design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156 (3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154 (3), indicating it has been sent to the Superintendent of police concerned. 29. At this stage it is seemly to state that power under Section 156 (3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same. 30. In our considered opinion, a stage has come in this country where Section 156 (3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154 (1) and 154 (3) while filing a petition under Section 156 (3) . Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156 (3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156 (3) . That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524 are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR. (Emphasis supplied) 32. There is also merit in the submissions of learned Counsel appearing for Petitioners that though it was alleged in the complaint that one Mr. Harish Fabiani had obtained loan and misutilized the loan amount, the document placed on record and relied on by Mr. Rohatgi, learned Senior Counsel demonstrates that the said loan was repaid. 33. We also find merit in the submissions of Dr. Chandrachud appearing for Petitioner in WP/6812/2021 that the Respondent No. 2 failed to provide necessary details in the complaint and only vague statements were made. Mr. Chandrachud justified in submitting that if the Petitioner could have failed in repayment of the loan the financial institution certainly would have initiated action against the Petitioner treating him either as defaulter or would have initiated proceedings by taking recourse to SARFEASI Act. 34. The replies filed before the Delhi High Court at the instance of RBI and Ministry of Corporate Affairs is also not making any positive statement so as to hold that the Petitioner Company had played some mischief causing financial loss to this shareholder. 35. The submission of learned Counsel appearing for Respondent No. 2 that the Directors of the Petitioner Company were instrumental to file the Petition against the Petitioner Company itself at Delhi High Court and thereby permitting to reduce the share value of the Company at the cost of loss of reputation to the Petitioner Company, cannot be accepted as no specific material supporting this statement is placed on record and further it would not stand to reason or logic that the Directors of Petitioner Company would permit themselves for reduction of share value of the Petitioner Company at the cost of loss to the reputation. 36. The Division bench of this Court also find some merit in the contentions raised at the preliminary stage itself and granted interim relief by passing a detailed and reasoned order. 37. In our opinion, Mr. Rohatgi, learned Senior Counsel justified in making submission that the case of Petitioner is squarely covered by categories laid down by the Apex Court in the matter of State of Haryana & Others Vs. Bhajan Lal & Others (supra) and particularly category 7. | 1[ds]6. While considering the prayers for grant of interim stay on the backdrop of recent judgment of the Apex Court in the case of Neeharika Infrastructure Pvt. Ltd V. State of Maharashtra and others 2021 SCC OnLine SC 315 , the Division bench made following observations:7. Therefore, we need to examine in the present case as to whether prayer made on behalf of Petitioners for grant of interim stay of further investigation can be granted and if so, reasons for the same.8. We are conscious of the fact that since FIR has been recently registered on 13/04/2021, investigation is at nascent stage and that there ought to be compelling reasons to favourably consider the prayer for grant of ad-interim stay of investigation.9. We are proceeding on the basis of facts discernible from the complaint itself filed by respondent no. 2 and documents on record with which respondent no. 2 cannot have any quarrel. It is evident from the complaint itself that respondent no. 2 for the first time purchased shares of petitioner no. 1 company on 17/03/2021. In the De-mat account from which respondent no. 2 purchased the said 500 shares, he is shown to be resident of Dadar, Mumbai. On 26/03/2021, respondent no. 2 executed a leave and licence agreement pertaining to a room at Palghar. It is on that very day that respondent no. 2 approached the police Station Wada to raise his alleged grievance against the Petitioners. Immediately thereafter, on 30/03/2021, respondent no. 2 went to Superintendent of Poilce, Palghar claiming that he disclosed facts showing cognizable offences committed by the petitioners and other accused persons. Thereafter, immediately on 03/04/2021, respondent no. 2 filed the complaint before JMFC Wada under Section 156 (3) of Cr.P.C. In the detailed complaint consisting of 92 paragraphs, respondent no. 2 made allegations against the petitioners and others regarding alleged fraud, siphoning of money through dummy entities etc. As noted above, on 07/04/2021, Magistrate passed the order directing registration of F.I.R. against the petitioners and others, on the basis of the aforesaid complaint.10. Perusal of the complaint shows that detailed statements have been made about alleged fraud committed by petitioners on innocent investors and the alleged modus operandi has been stated. Respondent no. 2 has also stated that he came to know about rigging of shares by promoters/ directors of the petitioner no. 1, as far as back as on 10/06/2019. Respondent no. 2 has also referred to number of litigations filed before the Honble Supreme Court of India wherein allegations were made against the petitioners, which were subsequently withdrawn. A reference is made to alleged manner in which funds were diverted by the petitioners through companies in Mauritius and pumped back illegally. All this information, even according to respondent no. 2, was in the public domain since 2018-2019 and he was aware about the same. Yet, admittedly he chose to purchase 500 shares of petitioner no. 1 company on 17/03/2021. He had no concern with the said company till he purchased shares on 17/03/2021 and that too allegedly knowing fully well from 2019 onwards about the manner in which petitioners were allegedly committing fraud and duping innocent investors.11. Even as per the complaint, the respondent no. 2 within less than 10 days of purchasing the shares, found that he was cheated and approached the police station, Wada with his grievance. Respondent no. 2 did not wait for the police to examine the grievance raised by him and immediately rushed to Superintendent of Police on 30/03/2021 and without waiting for the senior officer to take any steps in the matter, within 4 days lodged complaint dated 03/04/2021 before the Magistrate. Therefore, from 17/03/2021 when respondent no. 2 for the first time bought 500 shares of petitioner no. 1 company to 03/04/2021, when he rushed to the Magistrate with a detailed complaint consisting of 92 paragraphs, entire set of grievances of respondent no. 2 were supposed to have arisen requiring an order of registration of FIR under Section 156(3) of Cr.P.C.12. These admitted facts prima facie raise a suspicion about bonafide of respondent no. 2 and prima facie it appears that respondent no. 2 has been set up to initiate criminal proceedings in the matter. This is accentuated by the admitted position that respondent no. 2 for the first time executed a leave and licence agreement about a room at Palghar on 26/03/2021 and on that very day approached the police station with his grievances, prima facie indicating that this modus operandi was undertaken to foist jurisdiction on the Magistrate at Wada. No part of the transaction is shown to have been undertaken within the jurisdiction of the Magistrate at Wada or District Palghar. (Emphasis supplied)14. It is also significant that perusal of complaint itself would show that details stated therein running into as many as 92 paragraphs, which appear to be akin to allegations sought to be made against the petitioners in the PIL. At this stage, prima facie it appears suspicious that respondent no. 2 became aware of all such alleged facts regarding functioning of the petitioners in the short period between 17/03/2021 when he purchased shares and 26/03/2021, when he sought to raise the grievance before Police Station, Wada. It is also significant that in the complaint, respondent no. 2 has claimed that he holds a De-mat account having number 613440 and that he was involved in regular trading of shares in the stock market. But, a document is placed on record by the petitioner to show that the share register of the transfer agent of the petitioner-company has stated as per record that the said De-mat account bearing no. 613440 is not connected with respondent no. 2 at all and that in fact, respondent no. 2 purchased 500 shares of the company for the first time on 17/03/2021 through De-mat account 1202990006916691 showing the address of respondent no. 2 at Dadar, Mumbai. Although, we are aware that such documents may need further confirmation and they would be subject to reply of respondent no. 2, nonetheless they prima facie indicate false statement made by respondent no. 2 in the complaint itself.24. On hearing the learned Counsel appearing for respective parties and on going through the material placed on record, we find considerable merit in the submissions of learned Counsel appearing for Petitioners.25. Perusal of the complaint submitted by Respondent No. 2 shows that the Respondent No. 2 submitted that he is working with one Illuminati services as Office Clerk since last couple of years and it is admitted in the complaint that the complainant is residing at Biloshi, Tq. Wada, District Palghar on leave and license basis since 26.03.2021.Thus, there is merit in the submission of learned Senior Counsel appearing for the Petitioner that the Respondent No. 2 with a designed motive shifted his residence in Tq. Wada only to select the jurisdiction of the Wada Court.26. Perusal of the complaint further shows that it is stated in the complaint that Respondent No. 2 is regularly trading in shares but the complaint clearly discloses that the Respondent No. 2 purchased the shares of the Petitioner Company only in one solitary instance. Then the complaint run in nearly 40 pages. The complaint refers to the Public Interest Litigation bearing Writ Petition (Criminal) Diary No. 20710/2019 before the Supreme Court of India by one Mr. Abhay Yadav. Then there are allegations against one Jasol Investment and Trading Company. Then reference is made to AmeriCorp Capital Private Limited advancing loans to the Petitioner company. Then there are allegations against one Mr. Harish Fabiani stating that Mr. Harish Fabiani by playing mischief and fraud diverted certain funds to other country. The Judicial Magistrate by referring to mere allegations in the complaint observed that as per offences as alleged in the complaint a huge amount is siphoned of.27. It seems that Magistrate was influenced by the lengthy complaint placed before him and arrived at a conclusion that there was a diversion of huge monetary funds to the tune of Rs. 300 crores and the money was transferred to other country i.e., Mauritius. Admittedly, it was only allegations in the complaint and except bare words of the complainant there was no other material before the Magistrate to form such an opinion as such, there is merit in the submissions of learned Senior Counsel Mr. Rohatgi that the Magistrate without applying his mind passed mechanical order under Section 156(3) of Code of Criminal Procedure.28. Learned Counsel appearing for Petitioners were justified in making submissions that the Respondent No. 2 who is a resident of Dadar with some designed motive shifted to Biloshi, Tq. Wada, Dist. Palghar, obtained a room on leave and license basis and lodged a complaint before the JMFC, Wada. The complaint also reveals that the Respondent No. 2 had purchased 800 shares in two lots by opening Demat account from Dadar and this was solitary transaction of the Petitioner. As such, the claim of the Respondent no. 2 that he was regularly trading in shares is falsified. It is also difficult to believe that the Respondent No. 2 complainant was in a position to study the balance sheet of the Petitioner for a past several years in a very limited span of purchasing the shares and lodging the report to the Magistrate so as to arrive at a conclusion that the Petitioner Company has siphoned the amount and played mischief.29. There is also merit in the submissions of Mr. Rohatgi, learned Senior Counsel that the majority material in the complaint is the replica of the material which was filed in the complaint which was the subject matter of Petition before Delhi High Court and though the Respondent No. 2 denied any connection with Mr. Yadav who had filed the Petition before Delhi High Court, there is a reason to believe that there was some nexus of the Respondent No. 2 and Mr. Yadav.30. Though, learned Counsel appearing for Respondent No. 2 relies on the judgments and there cannot be any dispute on the proposition of law expressed in the judgment, considering the peculiar facts referred to above by us, in our opinion, the judgments relied on by learned Counsel appearing for Respondent No. 2 are not of any help to Respondent No. 2.31. Learned Counsel appearing for Petitioners were also justified in submitting that the complaint submitted by Respondent No. 2 was lacking of the basic requirement i.e., an affidavit supporting the contents in the complaint. Though, learned Counsel appearing for Respondent No. 2 made an attempt to submit that the defect in the complaint was curable, but in view of the judgments of the Apex Court in the matter of Priyanaka Srivastava (supra) & Babu Venkatesh and Others (supra), we are unable to accept the submission and it will have to hold that the complaint lodged at the instance of Respondent No. 2 was defective. It may be useful for our purposes to refer to observations made in the matter of Priyanka Srivastava (supra) as under:27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156 (3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.28. Issuing a direction stating as per the application to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no.3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, he had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No.1, who is presently occupying the position of Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the act ion under the SARFAESI Act was taken on the second time at the instance of the present appellant No.1. We are only stating about the devilish design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156 (3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154 (3), indicating it has been sent to the Superintendent of police concerned.29. At this stage it is seemly to state that power under Section 156 (3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.30. In our considered opinion, a stage has come in this country where Section 156 (3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154 (1) and 154 (3) while filing a petition under Section 156 (3) . Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156 (3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156 (3) . That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.32. There is also merit in the submissions of learned Counsel appearing for Petitioners that though it was alleged in the complaint that one Mr. Harish Fabiani had obtained loan and misutilized the loan amount, the document placed on record and relied on by Mr. Rohatgi, learned Senior Counsel demonstrates that the said loan was repaid.33. We also find merit in the submissions of Dr. Chandrachud appearing for Petitioner in WP/6812/2021 that the Respondent No. 2 failed to provide necessary details in the complaint and only vague statements were made. Mr. Chandrachud justified in submitting that if the Petitioner could have failed in repayment of the loan the financial institution certainly would have initiated action against the Petitioner treating him either as defaulter or would have initiated proceedings by taking recourse to SARFEASI Act.34. The replies filed before the Delhi High Court at the instance of RBI and Ministry of Corporate Affairs is also not making any positive statement so as to hold that the Petitioner Company had played some mischief causing financial loss to this shareholder.35. The submission of learned Counsel appearing for Respondent No. 2 that the Directors of the Petitioner Company were instrumental to file the Petition against the Petitioner Company itself at Delhi High Court and thereby permitting to reduce the share value of the Company at the cost of loss of reputation to the Petitioner Company, cannot be accepted as no specific material supporting this statement is placed on record and further it would not stand to reason or logic that the Directors of Petitioner Company would permit themselves for reduction of share value of the Petitioner Company at the cost of loss to the reputation.36. The Division bench of this Court also find some merit in the contentions raised at the preliminary stage itself and granted interim relief by passing a detailed and reasoned order.37. In our opinion, Mr. Rohatgi, learned Senior Counsel justified in making submission that the case of Petitioner is squarely covered by categories laid down by the Apex Court in the matter of State of Haryana & Others Vs. Bhajan Lal & Others (supra) and particularly category 7. | 1 | 8,607 | 3,494 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
the present appellant No.1. We are only stating about the devilish design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156 (3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154 (3), indicating it has been sent to the Superintendent of police concerned. 29. At this stage it is seemly to state that power under Section 156 (3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same. 30. In our considered opinion, a stage has come in this country where Section 156 (3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154 (1) and 154 (3) while filing a petition under Section 156 (3) . Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156 (3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156 (3) . That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524 are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR. (Emphasis supplied) 32. There is also merit in the submissions of learned Counsel appearing for Petitioners that though it was alleged in the complaint that one Mr. Harish Fabiani had obtained loan and misutilized the loan amount, the document placed on record and relied on by Mr. Rohatgi, learned Senior Counsel demonstrates that the said loan was repaid. 33. We also find merit in the submissions of Dr. Chandrachud appearing for Petitioner in WP/6812/2021 that the Respondent No. 2 failed to provide necessary details in the complaint and only vague statements were made. Mr. Chandrachud justified in submitting that if the Petitioner could have failed in repayment of the loan the financial institution certainly would have initiated action against the Petitioner treating him either as defaulter or would have initiated proceedings by taking recourse to SARFEASI Act. 34. The replies filed before the Delhi High Court at the instance of RBI and Ministry of Corporate Affairs is also not making any positive statement so as to hold that the Petitioner Company had played some mischief causing financial loss to this shareholder. 35. The submission of learned Counsel appearing for Respondent No. 2 that the Directors of the Petitioner Company were instrumental to file the Petition against the Petitioner Company itself at Delhi High Court and thereby permitting to reduce the share value of the Company at the cost of loss of reputation to the Petitioner Company, cannot be accepted as no specific material supporting this statement is placed on record and further it would not stand to reason or logic that the Directors of Petitioner Company would permit themselves for reduction of share value of the Petitioner Company at the cost of loss to the reputation. 36. The Division bench of this Court also find some merit in the contentions raised at the preliminary stage itself and granted interim relief by passing a detailed and reasoned order. 37. In our opinion, Mr. Rohatgi, learned Senior Counsel justified in making submission that the case of Petitioner is squarely covered by categories laid down by the Apex Court in the matter of State of Haryana & Others Vs. Bhajan Lal & Others (supra) and particularly category 7.
### Response:
1
### Explanation:
Act was taken on the second time at the instance of the present appellant No.1. We are only stating about the devilish design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156 (3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154 (3), indicating it has been sent to the Superintendent of police concerned.29. At this stage it is seemly to state that power under Section 156 (3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.30. In our considered opinion, a stage has come in this country where Section 156 (3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154 (1) and 154 (3) while filing a petition under Section 156 (3) . Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156 (3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156 (3) . That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.32. There is also merit in the submissions of learned Counsel appearing for Petitioners that though it was alleged in the complaint that one Mr. Harish Fabiani had obtained loan and misutilized the loan amount, the document placed on record and relied on by Mr. Rohatgi, learned Senior Counsel demonstrates that the said loan was repaid.33. We also find merit in the submissions of Dr. Chandrachud appearing for Petitioner in WP/6812/2021 that the Respondent No. 2 failed to provide necessary details in the complaint and only vague statements were made. Mr. Chandrachud justified in submitting that if the Petitioner could have failed in repayment of the loan the financial institution certainly would have initiated action against the Petitioner treating him either as defaulter or would have initiated proceedings by taking recourse to SARFEASI Act.34. The replies filed before the Delhi High Court at the instance of RBI and Ministry of Corporate Affairs is also not making any positive statement so as to hold that the Petitioner Company had played some mischief causing financial loss to this shareholder.35. The submission of learned Counsel appearing for Respondent No. 2 that the Directors of the Petitioner Company were instrumental to file the Petition against the Petitioner Company itself at Delhi High Court and thereby permitting to reduce the share value of the Company at the cost of loss of reputation to the Petitioner Company, cannot be accepted as no specific material supporting this statement is placed on record and further it would not stand to reason or logic that the Directors of Petitioner Company would permit themselves for reduction of share value of the Petitioner Company at the cost of loss to the reputation.36. The Division bench of this Court also find some merit in the contentions raised at the preliminary stage itself and granted interim relief by passing a detailed and reasoned order.37. In our opinion, Mr. Rohatgi, learned Senior Counsel justified in making submission that the case of Petitioner is squarely covered by categories laid down by the Apex Court in the matter of State of Haryana & Others Vs. Bhajan Lal & Others (supra) and particularly category 7.
|
Sovintorg (India) Pvt.Ltd Vs. State Bank Of India, New Delhi | of the State Commission. Hence this appeal.4. Learned counsel appearing for the appellant has vehemently argued that the State Commission as well as the National Commission were not justified in rejecting the claim of the appellant in so far as it pertained to payment of the compensation and the interest at the rate of 24% per annum. Reliance is also placed on the provisions of Section 34 of the Civil Procedure Code. It is contended that in view of the finding of one of the members of the National Commission, the negligence of the respondent stood proved which entitled the appellant to the payment of the amount claimed before the State Commission. 5. After hearing the learned counsel for the parties and perusing the record, we have noticed that the State Commission as well as the National Commission have concurrently found that the amount realised by the collection of cheque in question could not be deposited apparently on the basis of an understanding between the parties which authorised the bank to keep the same as margin money for the guarantee furnished by the Bank on behalf of the complainant company to the Chief Controller of Exports and Imports. It has been found that the bank was not wrong in having retrained the said amount in its custody. The appellant was further found to have not proved as to from which date the contract for guarantee stood terminated. However, the said contract was found to be in force as late as in 1987. In the absence of any negligence, we do not find any substance in the submission made by the learned counsel for the appellant to modify the orders of the State Commission and National Commission for directing the payment of compensation on allegedly wrong retention of the amount as was submitted in the complaint. 6. Relying upon the province of Section 34 of the Civil Procedure Code, the learned counsel for the appellant submitted that appellant was entitled to the payment of interest at the rate at which moneys are lent or advanced by Nationalised Banks in relation to commercial transactions. Referring to I.A. 2 filed in this Court and Banking Law and Practice in India issued in 1991, she had contended that the appellant was entitled to the payment of interest minimum at the rate of 19.4 per cent per annum. The general submission made in this behalf cannot be accepted in view of the provision of Section 14 of the Act. There was no contract between the parties regarding payment of interest on delayed deposit or on account of delay on the part of the opposite party to render the services. Interest cannot be claimed under Section 34 of the Civil Procedure Code as its provisions have not been specifically made applicable to the proceedings under the Act. We, however, find that the general provision of the Section 34 being based upon justice, equity and good conscious would authorise the Redressal Forums and Commissions to also grant interest appropriately under the circumstances of each case. Interest may also be awarded in lieu of compensation or damages in appropriate cases. The interest can also be awarded on equitable grounds as was held by this Court in Satinder Singh & others v. Amrao Singh & others, 1961(3) SCR 676. Referring to the province of the Interest Act of 1939, in relation to the compulsory acquisition of land where no specific provision is made for grant for awarding the interest, the Court held : "In this connection we may incidentally refer to Interest Act, 1989 (XXXII of 1839). Section 2 of this Act confers power on the Court to allow interest in cases specified therein, but the proviso to the said section makes it clear that interest shall be payable in all cases in which it is now payable by law. In other words, the operative provisions of s. 1 of the said Act do not mean that where interest was otherwise payable by law Courts power to award such interest is taken away. The power to award interest on equitable grounds or under any other provisions of the law is expressly saved by the proviso to s. 1. This question was considered by the Privy Council in Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji, 1938 L.R. 65 I.A. 66. Referring to the proviso to s. 1 of the Act the Privy Council observed "this proviso applies to cases in which the Court of equity exercises its jurisdiction to allow interest." We have already seen that the right to receive interest in lieu of possession of immovable property taken away either by private treaty or by compulsory acquisition is generally regarded by judicial decisions as an equitable right; and so, the proviso to s. 1 of the Interest Act saves the said right. We must accordingly hold that the High Court was in error in rejecting the claimants case for the payment of interest on compensation amount and so we direct that the said amount should carry interest at 4% per annum from the date when respondent 2 took possession of the claimants lands to the date on which it deposited or paid the amount of compensation to them." To the same effect is the judgment in Laxmichand v. Indore Improvement Trust, Indore and others, AIR 1975 SC 1303 . The State Commission as well as the National Commission were, therefore, justified in awarding the interest to the appellant but in the circumstances of the case we feel that grant of interest at the rate of 12% was inadequate as admittedly the appellant was deprived of the user of sum of Rs. One lakh for over a period of seven years. During the aforesaid period, the appellant had to suffer the winding up proceedings under the Companies Act, allegedly on the ground of financial crunch. We are of the opinion that awarding interest at the rate of 15 per cent per annum would have served the ends of justice. | 1[ds]In the absence of any negligence, we do not find any substance in the submission made by the learned counsel for the appellant to modify the orders of the State Commission and National Commission for directing the payment of compensation on allegedly wrong retention of the amount as was submitted in thehowever, find that the general provision of the Section 34 being based upon justice, equity and good conscious would authorise the Redressal Forums and Commissions to also grant interest appropriately under the circumstances of each case. Interest may also be awarded in lieu of compensation or damages in appropriatethe same effect is the judgment in Laxmichand v. Indore Improvement Trust, Indore and others, AIR 1975 SC 1303 . The State Commission as well as the National Commission were, therefore, justified in awarding the interest to the appellant but in the circumstances of the case we feel that grant of interest at the rate of 12% was inadequate as admittedly the appellant was deprived of the user of sum of Rs. One lakh for over a period of seven years. During the aforesaid period, the appellant had to suffer the winding up proceedings under the Companies Act, allegedly on the ground of financial crunch. We are of the opinion that awarding interest at the rate of 15 per cent per annum would have served the ends of justice. | 1 | 1,352 | 247 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
of the State Commission. Hence this appeal.4. Learned counsel appearing for the appellant has vehemently argued that the State Commission as well as the National Commission were not justified in rejecting the claim of the appellant in so far as it pertained to payment of the compensation and the interest at the rate of 24% per annum. Reliance is also placed on the provisions of Section 34 of the Civil Procedure Code. It is contended that in view of the finding of one of the members of the National Commission, the negligence of the respondent stood proved which entitled the appellant to the payment of the amount claimed before the State Commission. 5. After hearing the learned counsel for the parties and perusing the record, we have noticed that the State Commission as well as the National Commission have concurrently found that the amount realised by the collection of cheque in question could not be deposited apparently on the basis of an understanding between the parties which authorised the bank to keep the same as margin money for the guarantee furnished by the Bank on behalf of the complainant company to the Chief Controller of Exports and Imports. It has been found that the bank was not wrong in having retrained the said amount in its custody. The appellant was further found to have not proved as to from which date the contract for guarantee stood terminated. However, the said contract was found to be in force as late as in 1987. In the absence of any negligence, we do not find any substance in the submission made by the learned counsel for the appellant to modify the orders of the State Commission and National Commission for directing the payment of compensation on allegedly wrong retention of the amount as was submitted in the complaint. 6. Relying upon the province of Section 34 of the Civil Procedure Code, the learned counsel for the appellant submitted that appellant was entitled to the payment of interest at the rate at which moneys are lent or advanced by Nationalised Banks in relation to commercial transactions. Referring to I.A. 2 filed in this Court and Banking Law and Practice in India issued in 1991, she had contended that the appellant was entitled to the payment of interest minimum at the rate of 19.4 per cent per annum. The general submission made in this behalf cannot be accepted in view of the provision of Section 14 of the Act. There was no contract between the parties regarding payment of interest on delayed deposit or on account of delay on the part of the opposite party to render the services. Interest cannot be claimed under Section 34 of the Civil Procedure Code as its provisions have not been specifically made applicable to the proceedings under the Act. We, however, find that the general provision of the Section 34 being based upon justice, equity and good conscious would authorise the Redressal Forums and Commissions to also grant interest appropriately under the circumstances of each case. Interest may also be awarded in lieu of compensation or damages in appropriate cases. The interest can also be awarded on equitable grounds as was held by this Court in Satinder Singh & others v. Amrao Singh & others, 1961(3) SCR 676. Referring to the province of the Interest Act of 1939, in relation to the compulsory acquisition of land where no specific provision is made for grant for awarding the interest, the Court held : "In this connection we may incidentally refer to Interest Act, 1989 (XXXII of 1839). Section 2 of this Act confers power on the Court to allow interest in cases specified therein, but the proviso to the said section makes it clear that interest shall be payable in all cases in which it is now payable by law. In other words, the operative provisions of s. 1 of the said Act do not mean that where interest was otherwise payable by law Courts power to award such interest is taken away. The power to award interest on equitable grounds or under any other provisions of the law is expressly saved by the proviso to s. 1. This question was considered by the Privy Council in Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji, 1938 L.R. 65 I.A. 66. Referring to the proviso to s. 1 of the Act the Privy Council observed "this proviso applies to cases in which the Court of equity exercises its jurisdiction to allow interest." We have already seen that the right to receive interest in lieu of possession of immovable property taken away either by private treaty or by compulsory acquisition is generally regarded by judicial decisions as an equitable right; and so, the proviso to s. 1 of the Interest Act saves the said right. We must accordingly hold that the High Court was in error in rejecting the claimants case for the payment of interest on compensation amount and so we direct that the said amount should carry interest at 4% per annum from the date when respondent 2 took possession of the claimants lands to the date on which it deposited or paid the amount of compensation to them." To the same effect is the judgment in Laxmichand v. Indore Improvement Trust, Indore and others, AIR 1975 SC 1303 . The State Commission as well as the National Commission were, therefore, justified in awarding the interest to the appellant but in the circumstances of the case we feel that grant of interest at the rate of 12% was inadequate as admittedly the appellant was deprived of the user of sum of Rs. One lakh for over a period of seven years. During the aforesaid period, the appellant had to suffer the winding up proceedings under the Companies Act, allegedly on the ground of financial crunch. We are of the opinion that awarding interest at the rate of 15 per cent per annum would have served the ends of justice.
### Response:
1
### Explanation:
In the absence of any negligence, we do not find any substance in the submission made by the learned counsel for the appellant to modify the orders of the State Commission and National Commission for directing the payment of compensation on allegedly wrong retention of the amount as was submitted in thehowever, find that the general provision of the Section 34 being based upon justice, equity and good conscious would authorise the Redressal Forums and Commissions to also grant interest appropriately under the circumstances of each case. Interest may also be awarded in lieu of compensation or damages in appropriatethe same effect is the judgment in Laxmichand v. Indore Improvement Trust, Indore and others, AIR 1975 SC 1303 . The State Commission as well as the National Commission were, therefore, justified in awarding the interest to the appellant but in the circumstances of the case we feel that grant of interest at the rate of 12% was inadequate as admittedly the appellant was deprived of the user of sum of Rs. One lakh for over a period of seven years. During the aforesaid period, the appellant had to suffer the winding up proceedings under the Companies Act, allegedly on the ground of financial crunch. We are of the opinion that awarding interest at the rate of 15 per cent per annum would have served the ends of justice.
|
Abdul Jawad M.F. and Ors Vs. R. Raj Pradeep and Ors | Kurian Joseph, J.1. The issue raised in all these appeals pertains to the irregular promotions granted to 97 Upper Division Clerks in the Kerala Panchayat Department to the post of Executive Officer, Grade-I. No doubt all those promotions were ad hoc but the problem arose when the Government sought to regularize them with effect from the date of ad hoc promotion. In respect of 61 persons, the Government order dated 19.07.2012 followed by the order dated 23.08.2012 were the subject matter of challenge before the Kerala Administrative Tribunal (for short, the Tribunal). There were other issues pertaining to the seniority as well. The Tribunal vide order dated 06.03.2015 held that the regularization of 61 promotions were impermissible under the law, being in excess of the eligible quota. As far as regularization granted to 36 UDCs are concerned, they had already been eliminated by Government Order dated 17.06.2010. The order passed by the Tribunal has been affirmed by the Division Bench of the High Court as per the impugned order dated 11.03.2016. The said judgment is under challenge in these appeals.2. When these matters came up before this Court, after extensively hearing the parties, the following order was passed on 29.03.2017:On 13.05.2016, this Court inter alia passed the following order:Leave granted.Status quo, obtaining as on today, shall be maintained by the parties.The order, as above, shall stand modified as follows:The Government is free to take steps to implement the orders passed by the Kerala Administrative Tribunal dated 6.3.2015, as affirmed by the High Court in the impugned order dated 11.3.2016. But, in case reversion of any officer is to be effected in the process, the same shall be done only after obtaining orders from this Court.A Report on the steps thus taken shall be submitted before this Court, within three months.Post on 12.07.2017.3. The said order was passed taking into consideration one of the submissions that in view of efflux of time the implementation of the judgment may not cause any serious impact on the existing incumbents, as far as reversion is concerned.4. We have heard Mr. Gopal Shankarnarayan, learned Counsel appearing for the Appellants, in C.A. Nos. 5203/2016 & 8460/2016, Mr. Jaideep Gupta, learned senior Counsel appearing for the State and learned Counsel for the other contesting Respondents extensively today also.5. There cannot be any dispute on the factual scenario that all the 97 promotions were in excess of the eligible quota. There cannot also be any dispute on the fact that all the promotions given to the incumbents were ad hoc. Therefore, when a final seniority list is to be drawn up, a call has to be taken as to the fate of the ad hoc promotions. In our view, the view taken by the Tribunal, as affirmed by the High Court, cannot be faulted since 97 incumbents could not have occupied the positions on regular basis, since it was in excess of the eligible quota.6. We have ascertained that there cannot be more than two incumbents out of 61 in office as of now. | 0[ds]5. There cannot be any dispute on the factual scenario that all the 97 promotions were in excess of the eligible quota. There cannot also be any dispute on the fact that all the promotions given to the incumbents were ad hoc. Therefore, when a final seniority list is to be drawn up, a call has to be taken as to the fate of the ad hoc promotions. In our view, the view taken by the Tribunal, as affirmed by the High Court, cannot be faulted since 97 incumbents could not have occupied the positions on regular basis, since it was in excess of the eligible quota6. We have ascertained that there cannot be more than two incumbents out of 61 in office as of now. | 0 | 566 | 146 | ### 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:
Kurian Joseph, J.1. The issue raised in all these appeals pertains to the irregular promotions granted to 97 Upper Division Clerks in the Kerala Panchayat Department to the post of Executive Officer, Grade-I. No doubt all those promotions were ad hoc but the problem arose when the Government sought to regularize them with effect from the date of ad hoc promotion. In respect of 61 persons, the Government order dated 19.07.2012 followed by the order dated 23.08.2012 were the subject matter of challenge before the Kerala Administrative Tribunal (for short, the Tribunal). There were other issues pertaining to the seniority as well. The Tribunal vide order dated 06.03.2015 held that the regularization of 61 promotions were impermissible under the law, being in excess of the eligible quota. As far as regularization granted to 36 UDCs are concerned, they had already been eliminated by Government Order dated 17.06.2010. The order passed by the Tribunal has been affirmed by the Division Bench of the High Court as per the impugned order dated 11.03.2016. The said judgment is under challenge in these appeals.2. When these matters came up before this Court, after extensively hearing the parties, the following order was passed on 29.03.2017:On 13.05.2016, this Court inter alia passed the following order:Leave granted.Status quo, obtaining as on today, shall be maintained by the parties.The order, as above, shall stand modified as follows:The Government is free to take steps to implement the orders passed by the Kerala Administrative Tribunal dated 6.3.2015, as affirmed by the High Court in the impugned order dated 11.3.2016. But, in case reversion of any officer is to be effected in the process, the same shall be done only after obtaining orders from this Court.A Report on the steps thus taken shall be submitted before this Court, within three months.Post on 12.07.2017.3. The said order was passed taking into consideration one of the submissions that in view of efflux of time the implementation of the judgment may not cause any serious impact on the existing incumbents, as far as reversion is concerned.4. We have heard Mr. Gopal Shankarnarayan, learned Counsel appearing for the Appellants, in C.A. Nos. 5203/2016 & 8460/2016, Mr. Jaideep Gupta, learned senior Counsel appearing for the State and learned Counsel for the other contesting Respondents extensively today also.5. There cannot be any dispute on the factual scenario that all the 97 promotions were in excess of the eligible quota. There cannot also be any dispute on the fact that all the promotions given to the incumbents were ad hoc. Therefore, when a final seniority list is to be drawn up, a call has to be taken as to the fate of the ad hoc promotions. In our view, the view taken by the Tribunal, as affirmed by the High Court, cannot be faulted since 97 incumbents could not have occupied the positions on regular basis, since it was in excess of the eligible quota.6. We have ascertained that there cannot be more than two incumbents out of 61 in office as of now.
### Response:
0
### Explanation:
5. There cannot be any dispute on the factual scenario that all the 97 promotions were in excess of the eligible quota. There cannot also be any dispute on the fact that all the promotions given to the incumbents were ad hoc. Therefore, when a final seniority list is to be drawn up, a call has to be taken as to the fate of the ad hoc promotions. In our view, the view taken by the Tribunal, as affirmed by the High Court, cannot be faulted since 97 incumbents could not have occupied the positions on regular basis, since it was in excess of the eligible quota6. We have ascertained that there cannot be more than two incumbents out of 61 in office as of now.
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.